United States Office of Water

Environmental Protection Washington, DC 20460 September 2015

Agency

Effluent Limitations Guidelines 

and Standards for the Steam 

Electric Power Generating 

Point Source Category:

EPA’s Response to Public 

Comments

Part 8 of 10
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-1

26. Regulatory Implementation 

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPGA strongly urges EPA to consider the comments provided to ensure that fair, effective and 

economic standards can be adopted based on sound science, that the issues with the anticircumvention aspects of the rule are addressed, that the timing of the rule be more clearly 

delineated and defined, that the treatment of CCRs under the Proposal be modified, that nonmetal chemical cleaning waste be designated as a low-volume waste, and that EPA not ignore the 

cumulative impacts of its various rulemakings and the impact that they collectively have on the 

electric generation industry’s ability to reasonably comply with any requirements promulgated 

under the Proposal.

Comment Response: 

Due to the general nature of these comments and the breadth of topics covered in this excerpt, 

EPA refers the commenter to places in the record where more information can be found, 

including responses to more specific comments.

Regarding anti-circumvention issues, please see the final preamble Sections VIII.G and Section 

XVI.A.4 and responses to comments in codes 26.a through 26.f.

For implementation timing, please see final preamble Sections VIII.C.7 and Section XVI.A.1 

and responses to comments in code 26.b.

In addition, for coordination between the ELG and the CCR rules, see final preamble Section 

V.B and responses to comments in comment code 27.e, in particular, the response to DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119 in Comment Code 27.e.

For non-chemical metal cleaning waste, please see final preamble Section VIII.I and responses to 

comments in comment codes 22 and 22.a through 22.d.

EPA considered the cumulative impacts of various regulations on the steam electric 

industry. See Sections V and IX of the final preamble and the RIA. Also, see responses to 

comments in comment codes 28 and 28.a through 28.h.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-2

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 25

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

States Should Make Any Exemption Determinations Through The Normal Permitting Process.

If EPA decides to finalize its proposed ELGs for NCMCWs, Midwest Gen believes that a listing 

of exempt plants within the body of the regulation36 is not the appropriate approach for 

implementing the exemption. Midwest Gen requests that EPA allow such an exemption to be 

determined at the state level, through the normal permitting process, rather than through the 

course of a federal rulemaking. The permit writers are in the best position to evaluate the 

exemption justification and to meaningfully review current permits, fact sheets, and permit 

applications for all information related to whether the exemption is applicable. The permit 

writers are generally familiar with the processes and wastestreams of individual facilities within 

their jurisdiction and have the benefit of understanding the context of other permitted facilities in 

the state.

36 See 78 Fed. Reg. at 34471.

Comment Response: 

The final rule continues to reserve BAT and NSPS for non-chemical metal cleaning wastes, as 

the previously established regulations did. For further details see preamble sections VII and XVI 

and the response to DCN EPA-HQ-OW-2009-0819-4655, Excerpt Number 154 in Comment 

Code 22.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-3

26.a. Regulatory Implementation – Voluntary Program 

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VI. EPA Should Extend The Voluntary Incentive Program To Plants That Have Already 

Implemented The Changes EPA Seeks To Incentivize

EPA has proposed a voluntary incentive program for plants that close and cap coal combustion 

residual surface impoundments and eliminate discharges of all process wastewater (except 

cooling water) to surface waters. See 78 Fed. Reg. at 34,467. Specifically, under Tier 1 of this 

program, plants would be given an additional two years to comply with the new limits if they 

dewater, close, and cap all surface impoundments (except for those that contain only combustion 

residual leachate) at the facility, including those impoundments located on non adjoining 

property that receive coal combustion residuals from the facility. See id. Plants, such as Homer 

City, that have invested in dry handling or closed-loop tank-based systems should also be 

eligible for the proposed voluntary incentive program. These plants are already meeting EPA's 

goals of preventing, reducing, and eliminating pollution. Thus, EPA should finalize its voluntary 

incentive program proposal, and it should expand it to include plants that have already 

implemented the changes EPA seeks to incentive under that program.

Comment Response: 

See preamble Section VIII.C.13 and response to DCN EPA-HQ-OW-2009-0819-4476-A1, 

Excerpt Number 28 regarding the voluntary incentives program establishes by the final rule.

In response to the commenter’s statement that EPA “should expand [the voluntary incentives 

program] to plants that have already implemented the changes EPA seeks to incentivize,” EPA 

notes that it has not excluded any plants from the ability to opt into the voluntary incentives 

program, and that plants that already use evaporation technology to treat their FGD wastewater 

may opt into the voluntary incentives program and be subject to the BAT limitations applicable 

to FGD wastewater discharges based on evaporation.

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 28
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Voluntary Incentive Programs

EPA is considering establishing, as part of the BAT for existing sources, a voluntary incentive 

program that would provide more time for plants to implement the proposed BAT requirements 

if they adopt additional process changes and controls that would provide significant 

environmental protections beyond those achieved by the preferred options in the proposed rule. 

Power plants would be granted two additional years if they also dewater, close and cap all CCR 

surface impoundments at the facility (except combustion residual leachate impoundments), 

including those surface impoundments located on non-adjoining property that receive CCRs 

from the facility. A power plant participating in the voluntary incentive program could continue 

to operate surface impoundments for which combustion residual leachate was the only type 

of CCR solids or wastewater contained in the impoundment . Another incentive program would 

allow power plants to be granted five additional years if they eliminate discharges of all process 

wastewater to surface waters, with the exception of cooling water discharges.

Santee Cooper supports the establishment of such incentive programs. However, defining 

"significant environmenta l protections beyond those achieved by the preferred options in the 

proposed rule" is problematic,and the dates need to be clarified . The program should simply 

allow the additional years if they commit to the surface impoundment closures or discharge 

eliminations as described above, by the compliance date that the permitting authority determines 

is "as soon as possible" in the first permit renewal cycle after July 1, 2017 (or the adjusted date 

based on the actual publication date of the new ELGs). Where there is more than one regulatory 

compliance date, the latest of the dates should begin the two and five additional years for the 

voluntary measures.

Lastly, we would suggest that a similar incentive program also be made available for facilities 

that agree to a future retirement or closure, on both a unit and total station basis.

Comment Response: 

The commenter supports a voluntary incentives program, although it has some specific 

suggestions on how it might be tailored. This is consistent with other commenters who generally 

supported implementation of an incentives program as described in the proposed rule, with 

modification. EPA received feedback seeking certain changes to the program as proposed, such 

as:

 Include longer implementation times;

 Allow incentives for individual waste streams (or a percentage of waste streams) to meet 

zero discharge;

 Allow incentives for other types of operations (e.g., lined impoundments, DSS systems, 

dry handling systems, closed-loop recycling systems);
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-5

 Allow incentives for FGD flow reduction; and

 Allow incentives for facilities agreeing to future retirement or closure.

In addition, some commenters indicated that they thought few facilities would be likely to 

participate in the program as proposed. Other commenters supported the voluntary incentives as 

proposed.

The final rules establishes a voluntary incentives program that provides the certainty of more 

time (until December 31, 2023) for plants to meet BAT limitations on mercury, arsenic, selenium 

and TDS applicable to FGD wastewater discharges based on evaporation technology. Thus, the 

final rule addresses this commenter’s concern about the need to clarify dates in the program. See 

preamble sections VIII.C.13 and XVI.A for more information regarding implementation of the 

voluntary incentives program.

Regarding the commenter’s statements about plants who “commit” to the voluntary incentives 

program and the timing of permit renewal, see response to DCN EPA-HQ-OW-2009-0819-4317-

A1, Excerpt Number 23.

EPA agrees with commenters who suggested that the voluntary incentives program offer 

incentives based on individual wastestreams. Given that the final rules establishes zero 

discharge BAT limitations applicable to discharges of fly ash transport water, bottom ash 

transport water, and FGMC wastewater for generating units that are not oil-fired nor are 50 MW 

or less in generating capacity, EPA decided to focus the voluntary incentives program 

specifically on the discharge of FGD wastewater. Moreover, EPA decided not to base a 

voluntary incentives program on surface impoundment closure given that the CCR rule 

specifically addresses surface impoundments.

EPA disagrees with the commenter that incentives should be “made available for facilities that 

agree to a future retirement or closure, on both a unit and total station basis.” The purpose of the 

voluntary program is to achieve significant environmental protections beyond those achieved by 

the final BAT limitations for FGD wastewater discharges based on chemical precipitation plus 

biological treatment. EPA’s economic achievability analyses demonstrates that the final rule is 

affordable for the industry as a whole, as it is projected to have minimal impact on steam electric 

generating capacity (including generating unit or plant retirements). See preamble Section 

VIII.C.9 and Chapter 5 of the RIA. Allowing plants or generating units that have plans to retire, 

independently of the ELGs, to avoid having to meet any final BAT limitations would not achieve 

any further environmental protection. For this reason, the final rules does not establish any 

voluntary incentives specifically related to plant or unit retirements or closures.

EPA considered commenter’s suggestions to encourage and incentivize the partial reduction of 

FGD wastewater streams but had concerns about the development of appropriate criteria for 

successful implementation and enforcement of an incentives program. In particular, commenters 

did not provide suggestions related to how to measure the partial reduction in flow (e.g., how is 

baseline determined, how is reduction determined), and EPA has concerns about plants that 

might intentionally increase their FGD wastewater flow rate to try to establish a higher baseline 

such that a reduction could be calculated without any “real” reduction in flow (i.e., reduction 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-6

achieved by going back to “normal” operation). Therefore, EPA determined that an incentives 

program related to the partial reduction of FGD wastewater was not appropriate.

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Voluntary Incentive Program -The timing of the Voluntary incentive Program needs to be 

clarified and should coincide with the permit renewal, not rule implementation date.

Vectren agrees with the premise of the Voluntary Incentive program described in the preamble 

on page 34467 of the federal Register (Vol. 78, No. 110) but feels the timing of the start of the 

voluntary process needs to be clarified. The requirement to commit to the program and submit a 

formal plan by July 1, 2017 is not realistic or practical when no facility will even begin 

permitting under the proposed rule until after the rule is implemented on Jul y 1, 2017. For 

facilities that don’t come up for permit renewal until 4-5 years after the rule implementation 

(2021 -2022) it is difficult to commit to an activity that far in advance. In addition, for a utility, 

these types of decisions often require Utility Regulatory Commission approval for any voluntary 

compliance that may impact customer rates. The requirement to commit to a plan by 2017 also 

fa ils to consider impacts of other environmental regulations (ie. carbon) that may affect the 

decision to continue operating, retire or refuel a plant or unit. The timing of the additional two to 

five years to comply should coincide with the liming of the permit renewal, and not the date of 

rnle implementation.

Comment Response: 

EPA disagrees that there is a “requirement to commit” to the voluntary incentives in the final 

rule by any particular deadline. The final rule does not require plants opting into the voluntary 

incentives program to commit to the program by any deadline. Rather, for plants that opt into 

the voluntary incentives program, they must achieve the final BAT limitations applicable to FGD 

wastewater discharges based on evaporation by December 31, 2023. See preamble section 

VIII.C.13 for more information.

EPA disagrees with the commenter’s statement that the incentives in terms of additional time to 

meet the final BAT limitations established under the voluntary incentives program “should 

coincide with the timing of the permit renewal.” The final rule sets a firm deadline of December 

31, 2023, for plants in the voluntary incentives program to meet the final BAT limitations for 

FGD wastewater based on evaporation, as this firm date provides plants with certainty and 

ensures a level playing field.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-7

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Voluntary Compliance extension should coincide with permit renewal.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 23.

Commenter Name: Nancy A. Evans

Commenter Affiliation: PPL Services Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4348-A2

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

7.The voluntary incentive program should be revised to make it available to a broader 

range of facilities.

EPA is considering the establishment of a voluntary incentive program “to encourage individual 

power plants to install advanced pollution prevention technologies to make process changes that 

would further reduce releases of toxic pollutants to the environment beyond the limits that would 

be set by the proposed rule.” In the proposed rule, EPA suggested allowing additional time for 

closure of impoundments and elimination of all process wastewaters with the exception of 

cooling water discharges.

PPL appreciates the consideration of a voluntary incentive program. However, the approach as 

detailed in the proposed regulation will likely be an option for only a very few facilities. It would 

be more effective to offer incentives to eliminate individual wastestreams. We suggest that a 

third tier be added that would allow additional time for the elimination of one or more 

wastewaters that the facility may have the ability to remove. In this way, there is an incentive for 

a facility to move toward the EPA’s goal, even if they are not able to eliminate all wastewaters at 

this time.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-8

Comment Response: 

EPA agrees with the commenter the voluntary incentives program should offer incentives” based 

on “individual wastestreams.” For the reasons explained in preamble section VIII.C.13 and the 

response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28, the final rule 

establishes an incentives program related specifically to FGD wastewater discharges. The BAT 

limitations in the voluntary incentives program are not “zero discharge” limitations, but rather 

they are numeric limitations based on evaporation technology. If a plant does not discharge FGD 

wastewater, the plant would not have to meet the BAT limitations for FGD wastewater in the 

final rule.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 65

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

G. While AEP supports the voluntary incentives, it is not clear when the additional two 

and five year compliance periods would start.

EPA is considering the establishment of a voluntary incentive program that would provide more 

time for proposed BAT requirements to be implemented (78 FR at 34458). Two additional years 

would be granted to implement required treatment technologies if all CCR surface 

impoundments at a facility (excluding leachate impoundments), would be dewatered, closed and 

capped. Five additional years would be granted to implement required treatment technologies if 

all process wastewater discharges to surface waters, with the exception of cooling water 

discharges, were eliminated. While AEP supports the proposed incentives, it is not clear when 

the additional two and five year compliance periods would begin. AEP is in agreement with 

UWAG and suggests that, “the two and five additional years should, in keeping with the 

compliance dates proposed for the specific limitations, begin to run on the compliance date that 

the permitting authority determines is “as soon as possible” in the first permit renewal cycle 

after July1, 2017. Where there is more than one compliance date, the lastest of the dates should 

begin the two and five additional years for the voluntary measures.”43

43 UWAG ELG Comments, September 20, 2013.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-9

See response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28, and EPA-HQOW-2009-0819-4317-A1, Excerpt Number 23.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Incentives for voluntary closure. EPA discusses incentives for voluntary closure of CCR 

impoundments or for eliminating all process wastewater discharges (except for cooling 

water). The incentive would be additional ELG compliance time of 2 to 5 years, respectively 

(FR page 34467). MP finds the additional 5 year compliance allowance for zero liquid discharge 

(ZLD) commitment to be non-commensurate with the time such plant conversions may take and 

with the costs that may be associated with doing so. MP suggests that the incentive toward zero 

liquid discharge would be more effective if the incentive program was tiered or scaled and 

extended out to allow for additional compliance time reflective of that incentivizing transition 

away from existing impoundment or discharge operation. An example may be a 5 year extension 

for a 50% commitment toward ZLD and a 10 year effective date extension for a facility 

committing to 100% ZLD. MP also suggests that impoundment closures would represent the 

most environmentally significant contribution toward ZLD and as such that the incentive for a 

commitment to close impoundments may be a 5 year extension for a 50% commitment and 10 

years for a 100% impoundment closure commitment.

Comment Response: 

The final rule does not include voluntary incentives for closure of CCR impoundments or 

elimination of all process wastewater discharges, and therefore the commenter’s statements on 

incentives related to these actions are not relevant to the final rule. EPA decided to focus the 

final voluntary incentives program on the discharge of FGD wastewater, for the reasons 

explained in preamble section VIII.C.13 and response to DCN EPA-HQ-OW-2009-0819-4476-

A1, Excerpt Number 28.

Finally, EPA does not agree that the voluntary incentives program should be “tiered or scaled 

and extended out.” For the reasons explained in preamble section VIII.C.13 and EPA-HQ-OW2009-0819-4317-A1, Excerpt Number 23, plants that opt into the voluntary incentives program 

have until December 31, 2023, to meet the final BAT limitations for FGD wastewater based on 

evaporation. This date is not so far into the future that a tiered program would be appropriate, 

and it could in fact be unnecessarily complicated from an implementation perspective.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-10

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 90

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Clarification of Voluntary Incentives Timing is Needed.

EPA is considering “voluntary incentives” that would give two additional years for closing 

surface impoundments and five additional years to eliminate discharge of all process water 

(except cooling water). 78 Fed. Reg. 34,467. Clarification is needed as to when the two and five 

additional years begin to run. For example, are the additional years triggered by the compliance 

dates after July 1, 2017 set by the permitting authority for specific limitations, and if so, what 

limit is the trigger if there are multiple compliance dates associated with different, pertinent 

wastestreams (e.g., bottom and fly ash transport waters)?

EEI believes the two and five additional years should begin to run, in keeping with the 

compliance dates proposed for the specific limitations, on the compliance date that the permitting 

authority determines is “as soon as possible” (e.g., in conjunction with the first permitting cycle) 

after July 1, 2017. Where there is more than one pertinent compliance date, the later of the dates 

should trigger the two and five additional year compliance timing.

Comment Response: 

Regarding timing of the requirements under the voluntary incentives program, see preamble 

sections VIII.C.13 and XVI.A.1, and responses to DCN EPA-HQ-OW-2009-0819-4476-A1, 

Excerpt Number 28 and EPA-HQ-OW-2009-0819-4317-A1, Excerpt Number 23.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 28

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed voluntary incentive program should be removed from the final effluent limitations 

guidelines rule.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-11

The final rule establishes a voluntary incentives program that it more tailored than the one 

proposed, and applies only to discharges of FGD wastewater, for the reasons explained in 

preamble Section VIII.C.13 and see response to DCN EPA-HQ-OW-2009-0819-4476-A1, 

Excerpt Number 28.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA has requested comments on establishment of a voluntary incentive program that would 

provide additional compliance time for facilities choosing to close CCR impoundments or 

eliminate all process wastewater discharges except for cooling water. EPA contends that 

facilities choosing to participate in the program would have more time to implement the 

proposed BAT requirements if they adopt additional process changes and controls beyond those 

achieved by the preferred options. The proposal establishes two “tiers” of advanced technology 

performance. Under Tier 1, an additional two years to comply would be granted to facilities “if 

they dewater, close, and cap all CCR surface impoundments (except those containing only 

combustion residual leachate).”21 Tier 2 of the program would grant an additional five years to 

comply if the facility “eliminates[s] the discharge of all process wastewater to surface waters, 

with the exception of cooling water.”22 This incentive program is clearly targeted at the use of 

CCR surface impoundments, and is not appropriate for regulation under the Clean Water Act. 

The goal of this program is more appropriately managed under the pending CCR rule. 

MidAmerican recommends that this “incentive” program be removed from the proposed ELG 

rule entirely.

21 Id. at 34467

22 Id.

Comment Response: 

EPA disagrees that the voluntary incentive program included in the final rule is not appropriate,

as plants who opt into the program will achieve greater reduction in discharges of pollutants 

specifically in FGD wastewater, which is consistent with the goals of the Clean Water Act. See 

preamble Section VIII.C.13 for more details. The final rule does not include any voluntary 

incentives for closure of CCR impoundments or elimination of all process wastewater 

discharges, which the commenter does not support. See response to DCN EPA-HQ-OW-2009-

0819-4476-A1, Excerpt Number 28.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-12

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 30

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Should EPA proceed with the incentive program, EPA must clarify the date from which the 

proposed two- and five-year extensions would commence in order for affected facilities to 

adequately judge the true nature of the “incentive” program. It is unclear from the proposed rule 

whether the extra time would begin July 1, 2017 – the date by which permitting authorities must 

begin incorporating the final ELGs into NDPES permits – or whether the extension would begin 

July 1, 2022 – the date by which final compliance is due. Without a clear date of compliance to 

which the extension applies, facilities cannot determine the value, if any, that an “extended 

compliance date” may offer. EPA should clarify that the incentive program would establish a 

compliance extension beginning July 1, 2022, following incorporation of the final rule's 

requirements in all NPDES permits.

Comment Response: 

Regarding timing of the requirements under the voluntary incentives program, see preamble 

sections VIII.C.13 and XVI.A.1 and responses to DCN EPA-HQ-OW-2009-0819-4476-A1, 

Excerpt Number 28 and EPA-HQ-OW-2009-0819-4317-A1, Excerpt Number 23.

Commenter Name: Appalachian Voices

Commenter Affiliation: Appalachian Voices

Document Control Number: EPA-HQ-OW-2009-0819-4501-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Recent events in North Carolina underscore the importance of EPA recognizing that enforcement 

of numeric effluent limitations on discharge of effluents from coal ash basins is a practical 

impossibility in light of mounting evidence of widespread and unpredictable seepage from 

unpermitted discharge points and leaching into groundwater.

In addition, the inability and/or unwillingness of states like North Carolina to grant the resources 

and authority to state agencies to effectively monitor and enforce permitted effluent limits means 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-13

that many citizens and waterways will be exposed to far greater risk than EPA has recognized if 

it does not finalize a rule that requires dry handling of both fly ash and bottom ash and sets zero 

discharge limits for all FGD, fly ash and bottom ash waste streams. Simply setting numeric 

effluent limits for a few additional constituents while continuing to consider impoundment of fly 

ash and bottom ash as Best Available Technology (BAT) would be tantamount to maintaining 

the status quo in states that are unwilling or unable to effectively monitor and enforce effluent 

limits.

For this reason, the incentives that EPA proposes to offer operators who agree to dewater, close 

and cap all CCR surface impoundments would be no incentive at all if the alternative is, 

effectively, the status quo.

Comment Response: 

The final rule does not establish a voluntary incentives program related to the closure of CCR 

impoundments, for the reasons explained in preamble section VIII.C.13 and response to DCN 

EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28. See preamble section VIII for a 

description of the final rule and the bases for EPA’s decisions, including discussion of the final 

BAT limitations for discharges of FGD wastewater, fly ash transport water, and bottom ash 

transport water.

See response to DCN EPA-HQ-OW-2009-0819-4657-A6, Excerpt Number 1 in comment code 

25.b.ii regarding leaching of pollutants from combustion residuals surface impoundments to 

ground water.

EPA acknowledges the commenter’s concerns about “the resources and authority” of “state 

agencies to effectively monitor and enforce permitted effluent limits.” However, EPA notes that 

these issues are outside of the scope of this national effluent guidelines rulemaking, which 

establishes limitations and standards applicable to discharges of pollutants from the steam 

electric power generating industry.

Commenter Name: Appalachian Voices

Commenter Affiliation: Appalachian Voices

Document Control Number: EPA-HQ-OW-2009-0819-4501-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In general, we support EPA's proposal to provide voluntary incentives for operators that agree to 

dewater, close and cap all CCW surface impoundments and eliminate discharges of all process 

wastewater to surface waters (with the exception of cooling water discharges). However, we are 

concerned that these incentives will only be meaningful if the alternative imposes some measure 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-14

of burden or cost. For the reasons listed previously, we believe that if EPA does not adopt option 

4 or 5 then most operators of CCW MWUs in states with little ability to monitor and enforce 

effluent limits will be able to continue in a business‐as‐usual manner and EPA’s incentives will 

be no incentive at all.

Comment Response: 

See preamble section VIII regarding the regulatory options selected as the basis for the final 

rule.

The final rule does not establish a voluntary incentives program related to the closure of CCR 

impoundments, for the reasons explained in preamble Section VIII.C.13 and response to DCN 

EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28. See preamble Section VIII.C.13 and 

the previously referenced comment response for details about the voluntary incentives program 

in the final rule.

Commenter Name: Stephen M. Frank

Commenter Affiliation: NRG Energy, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4510-A2

Comment Excerpt Number: 39

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Voluntary Incentive Program

EPA is considering establishing, as part of the BAT for existing sources, a voluntary incentive 

program that would provide more time for plants to implement the proposed BAT requirements 

if they adopt additional process changes and controls that would provide significant 

environmental protections beyond those achieved by the preferred options in the proposed rule.

Under Tier 1, power plants would be granted two additional years if they dewater, close and cap 

all CCR surface impoundments at the facility (except combustion residual leachate 

impoundments), including those surface impoundments located on non-adjoining property that 

receive CCRs from the facility. EPA should clarify that participants can continue to use other 

low- volume waste impoundments and coal pile runoff ponds.

NRG supports the Tier 1 voluntary incentive program, but believes that 2 years is insufficient 

incentive for encouraging power plants to enroll. We recommend providing 5 years.

EPA should also include synthetically lined impoundments (e.g., single and/or double lined 

systems) with leak detection systems or groundwater monitoring networks designed to detect 

leaks in addition to closed-loop tank- based systems that are zero discharge. This would 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-15

encourage plants to install liner systems reducing dramatically potential discharges to 

groundwater.

Plants, such as Homer City and Morgantown, which have invested in dry handling or closed-loop 

tank-based systems, should also be eligible for the proposed voluntary incentive program. These 

plants are already meeting EPA’s goals of preventing, reducing, and eliminating pollution. Thus, 

EPA should finalize its voluntary incentive program proposal, and it should expand it to include 

plants that have already implemented the changes EPA seeks to incentive under that program.

NRG supports the Tier 2 voluntary incentive program, but believes that 5 years is insufficient 

incentive for encouraging power plants to enroll. We recommend providing 10 years. EPA 

should also include synthetically lined impoundments (e.g., single and/or double lined systems) 

with leak detection systems or groundwater monitoring networks designed to detect leaks in 

addition to closed-loop tank-based systems that are zero discharge.

Comment Response: 

The commenter supports the voluntary incentives program proposed, but requests additional time 

for implementation. The final rule establishes a voluntary incentives program that only applies 

to discharges of FGD wastewater. The final rule does not include any voluntary incentives for 

closure of CCR impoundments or elimination of all process wastewater discharges, as proposed, 

for the reasons explained in preamble sections VIII.C.13 and the response to DCN EPA-HQOW-2009-0819-4476-A1, Excerpt Number 28. Regarding timing of the requirements under the 

voluntary incentives program, see preamble sections VIII.C.13 and XVI.A.1, and the response to 

DCN EPA-HQ-OW-2009-0819-4317-A1, Excerpt Number 23.

The commenter mentions “dry handling or closed-loop tank-based systems” at the Homer City 

and Morgantown plants. EPA assumes that the commenter is referring to ash handling 

systems. As mentioned, the voluntary incentives program in the final rule applies only to FGD 

wastewater and thus comments related to the proposed voluntary incentive programs for ash 

handling are not relevant to the final rule.

Commenter Name: Cecile M. Conroy

Commenter Affiliation: International Brotherhood of Boilermakers (IBB)

Document Control Number: EPA-HQ-OW-2009-0819-4557-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Furthermore, IBB supports EPA's proposal to extend the compliance deadline for those affected 

facilities that are willing to close surface impoundments for coal combustion residuals (CCRs) at 

participating facilities and move to dry handling for coal ash or a closed-loop, tank-based 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-16

process.4 Each of these proposed CCR conversion processes are time and resource intensive and 

would likely have significant environmental benefits if they are undertaken. Thus, facilities that 

choose to undertake such capital- and construction-intensive projects should have additional time 

to comply with the new ELG standards. In particular, IBB agrees with EPA's proposal to provide 

a 2-year extension for facilities that convert to dry handling of coal ash and commit to close CCR 

surface impoundments, and a 5-year extension for facilities that eliminate all discharges of 

process water. These additional time periods are reasonable and would encourage companies to 

undertake major upgrades to their wastewater and CCR treatment systems.

4 78 Fed. Reg. 34,467, 34A68 (June 7, 2013).

Comment Response: 

The final rule does not contain any voluntary incentives related to CCR impoundment closures, 

for the reasons explained in preamble section VIII.C.13 and response to DCN EPA-HQ-OW2009-0819-4476-A1, Excerpt Number 28. See also that preamble section and comment response 

regarding the timing of the voluntary incentives program.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

LPPC supports the proposed extensions for sources willing to close coal combustion residual 

(CCR) surface impoundments at participating facilities and move to dry handling for coal ash or 

a closed‐loop, tank‐based process.23 Each of these proposed conversion processes are time and 

resource intensive and would have environmental benefits if they are undertaken. Thus, facilities 

that choose to participate either in the Tier 1 or Tier 2 voluntary incentive programs should have 

sufficient time to undertake the required changes. In particular, EPA should allow a 2‐year 

extension for sources that convert to dry handling of ash and commit to close surface 

impoundments, and a 5‐year extension for sources that eliminate all discharges of process water, 

as stated in the proposed rule. These additional time periods are reasonable and would encourage 

the use of these voluntary programs.

Both the 2‐year and 5‐year extensions are reasonable in light of the capital‐ and construction‐

intensive nature of the projects needed to comply with any dry‐handling provisions or a 

conversion to zero process water discharge. In implementing these flexibilities, it is important to 

clarify the date when the extension begins. The proposed rule does not make it clear whether the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-17

date of the extension begins from issuance of permit renewal or 3 years after permit issuance, or 

at another unspecified date. EPA must clarify this schedule to provide security to facilities 

regarding their compliance obligations and also provide sources with enough time to undertake 

this conversion process in a reasonable manner.

23 78 Fed. Reg. 34,467‐34,468 (June 7, 2013).

Comment Response: 

The final rule does not contain any voluntary incentives related to impoundment closures, for the 

reasons explained in preamble section VIII.C.13 and response to DCN EPA-HQ-OW-2009-

0819-4476-A1, Excerpt Number 28. See also that preamble section and comment response for 

details on the voluntary incentives program in the final rule, including the deadline for plants that 

opt into the program to achieve the final limitations.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We support EPA's inclusion of voluntary incentives in so far as these measures provide needed 

regulatory flexibility. We urge EPA to clarify the timing of the voluntary incentives proposed in 

the preamble. Specifically, we recommend that EPA align the voluntary incentives with the 

compliance dates proposed for specific limitations. These recommendations are further detailed 

in Section II below.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 57

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-18

Comment Excerpt: 

In the preamble of the proposal, EPA requests comment on potential voluntary incentives. As 

proposed, these incentives would provide an additional two years for the closure of surface 

impoundments and an additional five years to eliminate all process water discharges other than 

cooling water.

We recommend that EPA clarify the timing around these voluntary measures.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 221

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXXIV. The “Voluntary Incentives” Need to Be Clarified as to Timing and Extended to 

All Wastestreams

EPA is considering “voluntary incentives” that would give two additional years for closing 

surface impoundments and five additional years to eliminate discharge of all process water 

(except cooling water). 78 Fed. Reg. at 34,467. EPA should clarify when the two and the five 

years begin to run. The starting dates should be consistent with the “as soon as possible” dates 

after July 1, 2017, for the different wastestreams.

UWAG recommends that the two and five additional years should, in keeping with the 

compliance dates proposed for the specific limitations, begin to run on the compliance date that 

the permitting authority determines is “as soon as possible” in the first permit renewal cycle after 

July 1, 2017. Where there is more than one compliance date, the latest of the dates should begin 

the two and five additional years for the voluntary measures.

In a phone conversation with UWAG on August 28, 2013, EPA staff confirmed that the two and 

five additional years for voluntary incentives begin to run on the compliance date that the 

permitting authority decides is “as soon as possible” after July 1, 2017. It would be helpful to 

make this clear in the final ELG rule.

More important, UWAG believes that the voluntary incentives are unlikely to do much good 

because they are too limited. They encourage dischargers to undertake only two specific actions, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-19

namely eliminating all discharges for the entire plant or closing surface impoundments. It would 

be more effective to offer incentives to eliminate individual wastestreams. The rule could allow 

additional time to eliminate discharges of pollutants wastestream-by-wastestream for those 

wastestreams that are not otherwise subject to a “no discharge” limit. This would encourage 

progress toward eliminating discharges even by permittees who cannot close an impoundment or 

eliminate discharges for the entire plant.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28, and EPA-HQOW-2009-0819-4317-A1, Excerpt Number 23.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Clean Water Act Does Not Support EPA’S Proposed Voluntary Incentives 

Program. EPA has proposed establishing, as part of the BAT for existing sources, voluntary 

incentive programs that provide more time for plants to implement the proposed BAT 

requirements if they adopt additional process changes and controls that provide environmental 

protections beyond those achieved by the preferred options for this proposed rule. These 

programs, however, are ill-conceived, will fail to achieve their stated objectives, contain no 

deadline for compliance with their requirements, and would allow power plants to substantially 

delay compliance with BAT requirements in violation of statutory deadlines. Instead of 

encouraging utilities to execute technologies that would not otherwise be required, EPA’s 

proposed Tier 1 program makes an end run around conventional solid waste closure 

requirements that the Agency should mandate in this rulemaking or pursuant to RCRA). EPA’s 

proposed Tier 2 program does not address leaking impoundments, groundwater discharges with a 

hydrogeological connection with surface waters, and legacy wastewaters, and it places the 

burden on permitting agencies to develop individual interim discharge limits where they have 

repeatedly failed to do so in the past.

Comment Response: 

EPA disagrees that the voluntary incentives program in the final rule is “ill-conceived, will fail to 

achieve [its] stated objectives, [and] contain(s) no deadline for compliance with [its] 

requirements." See preamble Section VIII.C.13 for details on the final voluntary incentives 

program, which differs from the one proposed in important ways based on this and other 

comments. In particular, the final rule specifies December 31, 2023, as a definitive date by 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-20

which plants opting into the voluntary incentives program must meet the final BAT limitations 

for FGD wastewater discharges based on evaporation. EPA notes that the commenter offers no 

basis to support the claim that the program “will fail to achieve [its] stated objectives” of 

significant environmental protection.

EPA also disagrees with the commenter that the final voluntary incentives program “would allow 

power plants to substantially delay compliance with BAT requirements in violation of statutory 

deadlines.” The reasons why EPA established the final limitations and standards are described in 

the preamble. Technological availability encompasses the reality that new technologies and 

processes cannot be installed or implemented overnight. EPA explained in the preamble that, 

with respect to certain final limitations, there is some time needed by plants to plan for, finance, 

construct, install, and optimize appropriate treatment technologies, particularly in light of 

changes being made in response to other Agency rules affecting the steam electric 

industry. Therefore, for certain effluent limitations, the final rule requires dischargers to meet 

the limitations as soon as possible beginning November 1, 2018, but no later than December 31, 

2023. While permitting authorities are to specify a date that is “as soon as possible,” they have 

some discretion inherent in making a decision as to what is “as soon as possible,” as they 

consider all the practical realities of what it will take for certain plants to upgrade their 

wastewater treatment and in light of other constraints facing the plants. Given that limitations 

for FGD wastewater based on evaporation technology move even closer to the Clean Water 

Act’s ultimate goal of eliminating the discharge of pollutants than the final limitations based on 

chemical precipitation plus biological treatment, EPA considered whether the Act provides 

discretion to incentivize plants to use evaporation technology, even though it does not constitute 

the basis for BAT limitations for all existing units. This would result in existing units meeting 

the same exacting standards that are established for new sources in this final rule (i.e., standards 

on arsenic, mercury, selenium, and TDS in discharges of FGD wastewater). Recognizing that 

the factors specified in Clean Water Act section 304(b) include “such other factors as the 

Administrator deems appropriate,” EPA considers the Act as affording it the authority to specify, 

as an incentive toward meeting the Act’s discharge elimination goal, the end of the time period 

specified for other discharges, December 31, 2023, to meet the final limitations. This modest 

incentive is designed to steer some plants toward this higher goal, which would result in fewer 

pollutants being discharged overall in the long run. EPA notes, moreover, that the final rule does 

not run afoul of any statutory deadlines under the Clean Water Act because, for every 

wastestream regulated under the final rule, the rule establishes BAT limitations that are 

applicable immediately. For FGD wastewater discharges from plants that opt into the voluntary 

incentives program, there is a BAT limitation on TSS (the so-called "legacy wastewater" 

limitation) that applies immediately (once incorporated into an NPDES permit). Then, as of 

December 31, 2023, the plant must also comply with the final voluntary incentives program BAT 

limitations on arsenic, mercury, selenium, and TDS in discharges of FGD wastewater.

The final rule does not contain any voluntary incentives related to “address[ing] leaking 

impoundments,” as the final rule focuses on discharges of pollutants to surface waters, not 

closure or other requirements related specifically to impoundments (see response to DCN EPAHQ-OW-2009-0819-4476-A1, Excerpt Number 28). EPA’s CCR rule, promulgated under 

RCRA, addresses contamination of groundwater. EPA did not propose, and the final voluntary 

incentives program does not contain, incentives specifically addressing “groundwater discharges 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-21

with a hydrogeological connection with surface waters, and legacy wastewaters.” Discharges to 

surface waters must meet the requirements in the final rule, including the legacy wastewater 

requirements in the final rule.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 172

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

The Tier 1 and Tier 2 voluntary incentive programs proposed by EPA are not supported by the 

Clean Water Act. EPA has proposed establishing, as part of the BAT for existing sources, a 

voluntary incentive program that provides more time for plants to implement the proposed BAT 

requirements if they adopt additional process changes and controls that provide environmental 

protections beyond those achieved by the preferred options for this proposed rule.767 According 

to EPA, the primary objective of this program is “to encourage individual power plants to install 

advanced pollution prevention technologies or make process changes that would further reduce 

releases of toxic pollutants to the environment beyond the limits that would be set by 

the proposed rule.”768 EPA claims the development of these advanced process changes and 

controls is “a critical step toward the Clean Water Act’s ultimate goal of eliminating the 

discharge of pollutants into the Nation’s waters.”769

EPA’s voluntary incentives program, however, conflicts with the mandatory three-year deadline 

for compliance with revisions to ELGs set forth in section 301(b)(2)(B).770 To make matters 

worse, EPA’s proposal contains no deadline for compliance with Tier 1 and Tier 2 

requirements.771

767 78 Fed Reg. at 34,467.

768 Id. at 34,467.

769 Id. at 34,467.

770 33 U.S.C. § 1311(b)(2). See infra Section XV.

77178 Fed. Reg. at 34,467-34,468.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-22

See DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 19.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 173

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Tier 1 and Tier 2 programs are also ill conceived and will fail to achieve their stated 

objectives. The Agency’s Tier 1 proposal is contrary to statutory intent, because instead of 

encouraging utilities to execute technologies that the industry otherwise would not be required to 

do, it makes an end run around conventional solid waste closure requirements that the Agency 

should mandate in this rulemaking or pursuant to RCRA in the CCR rule. CWA 

Section 104(a)(1) only authorizes programs that promote “the acceleration” of “research, 

investigations, experiments, training, demonstrations, surveys and studies” that prevent, reduce, 

or eliminate pollution. Establishing a voluntary incentives program that substantially delays 

industry compliance with BAT in exchange for completion of an activity that should be 

mandated under the ELG or CCR rules does not fall within the scope of a national program 

intended to encourage research, investigations, training and information pursuant to Section 104 

of the Act.772 In addition, the Tier 2 program will not achieve elimination of power plant 

discharges because it does not address leaking impoundments, groundwater discharges with a 

hydrogeological connection with surface waters, and legacy wastewaters, and because it places 

the burden on the permitting agency to develop individual discharge limits.

772 See 33 U.S.C. § 1254(a)(1).

Comment Response: 

See preamble section VIII.C.13. See response to DCN EPA-HQ-OW-2009-0819-4684-A1, 

Excerpt Number 19.

The final rule does not include the proposed Tier I and Tier II voluntary incentives related to 

surface impoundment closures and unit retirements or closures. EPA’s CCR rule under RCRA 

addresses issues related to management of surface impoundments.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-23

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 174

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

A. EPA MAY NOT WAIVE COMPLIANCE WITH THE REVISED ELGS BEYOND THE 

THREE-YEAR STATUTORY DEADLINE IN EXCHANGE FOR PARTICIPATION IN A 

VOLUNTARY PROGRAM.

The Clean Water Act mandates compliance with revisions to ELGs no later than three years from 

the effective date of the final rule.773 Under the voluntary incentives program, 

participating plants would receive an additional two or five years (depending on the program) 

from the already lengthy compliance deadline774 to comply with the ELGs.775 EPA cites to 

section 104(a)(1) of the Act for its authority to establish its voluntary incentives program, which 

gives EPA “authority to establish national programs for prevention, reduction, and elimination of 

pollution, and . . . provides that such programs shall promote the acceleration of research, 

experiments, and demonstrations relating to the prevention, reduction, and elimination 

of pollution.”776 Yet this provision does not allow EPA to waive the three-year compliance 

deadline.777

773 33 U.S.C. § 1311(b)(2). See infra Section XV.

774 See infra Section XV.

775 78 Fed. Reg. at 34,467-34,468.

776 Id. at 34,467 (citing 33 U.S.C. § 1254(a)(1)).

777 See 33 U.S.C. § 1254(a)(1).

Comment Response: 

See DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 19. The reasons for the 

deadlines specified as BAT for certain limitations are explained in the preamble to the final 

rule. See also responses to comments in comment code 26.b. 

EPA decided to include a voluntary incentives program in the final rule that only applies to FGD 

wastewater, see preamble Section VIII.C.13. The final rule does not include any voluntary 

incentives for closure of CCR impoundments or elimination of all process wastewater discharges 

such as the proposed Tier I and Tier II programs. Management of CCR impoundments is 

addressed by EPA’s CCR rule, promulgated under RCRA. Also see response to DCN EPA-HQ-
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-24

OW-2009-0819-4684-A1, Excerpt Number 172 and EPA-HQ-OW-2009-0819-4476-A1, Excerpt 

Number 28.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 175

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s proposal does not set a timetable for achievement of Tier 1 and Tier 2 goals.778 Under

both programs, permitting agencies would be responsible for including Tier 1 and 2 requirements 

in NPDES permits and determining when those requirements would be met.779 Specifically, EPA 

states that “[o]nce a power plant enrolls in the [Tier 1 or Tier 2] program, the NPDES permitting 

authority would develop specific discharge limits and key milestones consistent with that tier.”780

There is no deadline specified for compliance with program requirements. And as discussed 

previously, permitting agencies have consistently failed to comply with the statutory mandate to 

set case-by-case BAT limits for power plants.781 There is no reason to believe that states will now 

act promptly to set individual limits and deadlines for a voluntary program. Thus, EPA’s 

voluntary program effectively waives compliance with statutory deadlines in exchange for vague 

promises to achieve Tier 1 and Tier 2 requirements at some later date in the future.

778 78 Fed. Reg. at 34,468.

779 Id.

780 Id.

781 See supra Section III.D; infra Section XV.

Comment Response: 

See DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 19. The reasons for the 

deadlines specified as BAT for certain limitations are explained in the preamble to the final 

rule. See also responses to comments in comment code 26.b.

EPA decided to include a voluntary incentives program in the final rule that only applies to FGD 

wastewater, see preamble Section VIII.C.13. The final rule does not include any voluntary 

incentives for closure of CCR impoundments or elimination of all process wastewater discharges 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-25

such as the proposed Tier I and Tier II programs. Management of CCR impoundments is 

addressed by EPA’s CCR rule, promulgated under RCRA. Also see response to DCN EPA-HQOW-2009-0819-4684-A1, Excerpt Number 172 and EPA-HQ-OW-2009-0819-4476-A1, Excerpt 

Number 28.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 176

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. THE TIER 1 VOLUNTARY INCENTIVES PROGRAM IMPROPERLY OFFERS 

INDUSTRY SUBSTANTIAL ADDITIONAL TIME FOR IMPLEMENTATION OF BAT IN 

EXCHANGE FOR ACTIVITIES THAT SHOULD BE MANDATED BY THE RULE.

According to EPA, the Tier 1 program “would effectively accelerate the research into and use of 

controls and processes intended to prevent, reduce, and eliminate pollution because it would 

increase the number of plants choosing to close and cap CCR surface impoundments and 

eliminate discharges of all process wastewater (except cooling water) to surface waters.” Under 

Tier 1, power plants would be granted two additional years to comply with BAT if they dewater, 

close and cap all CCR surface impoundments (except for those impoundments containing only 

combustion residual leachate) at the facility, including those surface impoundments located on 

nonadjoining property that receive CCRs from the facility.

It is inappropriate, however, to use a voluntary incentives program to encourage industry to do 

what should be mandated under RCRA or CWA. EPA has the authority to impose such closure 

requirements in BMPs for the ELG rule, as described in Section X of our comments, or in a CCR 

rule under RCRA. In its 2010 proposed CCR rule, EPA does in fact mandate the closure of 

surface impoundments under both the subtitle C and subtitle D proposal.

In the subtitle C proposal, all CCR surface impoundments would be subject to closure 

performance standards set forth in 40 C.F.R. § 265.111 and § 265.228 pursuant to proposed 

40 C.F.R. § 265.1300(b).782 Pursuant to that rule, all surface impoundments that cease 

receiving CCRs would be subject to closure requirements that include: (1) removal or 

decontamination of all waste residues, contaminated containment system components (liners, 

etc.), contaminated subsoils, and structures and equipment contaminated with waste and 

leachate; or (2) elimination of free liquids by removing liquid wastes or solidifying the remaining 

wastes; stabilization of remaining wastes to a bearing capacity sufficient to support the final 

cover; and cover of the surface impoundment with a cover designed and constructed to provide 

long-term minimization of the migration of liquids.783 Furthermore, subtitle C requires that 

surface impoundments initiate closure within 90 days of receiving the final volume of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-26

waste.784 Closure must be completed within two years after placement of waste in the existing 

impoundment ceases.785 Finally, the proposed subtitle C rule also imposes post-closure 

monitoring and maintenance requirements.

EPA’s proposed subtitle D rule similarly requires closure of a CCR surface impoundment by 

either removing and decontaminating all areas affected by releases from the impoundment or by 

closing with CCRs in place and requiring elimination of free liquids by removing liquid wastes, 

solidifying and stabilizing the remaining wastes, and installing a cover.786 The timeframe for 

closure under subtitle D is no later than 30 days after the date on which the impoundment 

receives the final delivery of coal ash or, if the surface impoundment has remaining capacity and 

there is a reasonable likelihood that the impoundment will receive additional coal ash, no later 

than one year after the most recent receipt of waste.787 The subtitle D rule also mandates 

requirements for post-closure monitoring and maintenance.788 There is no reason to offer 

industries incentives—which allow continued discharges that are detrimental to health and the 

environment—in exchange for performing reasonable closure activities that they should be 

mandated by rule to perform, and which, in fact, have already been proposed three years ago in 

the CCR rule. Regardless of whether EPA finalizes the CCR rule with subtitle C or subtitle D 

requirements, facilities participating in the Tier 1 incentive program would be granted extensions 

for compliance with their BAT obligations in exchange for performing a mandated action.

Furthermore, the outcome of the Tier 1 voluntary incentive program would be directly 

contrary to the directive of CWA Section 104(a)(1). The intent of the Act is to establish such 

programs to accelerate technologies and provide incentives for industry to find new ways to 

reduce or eliminate pollution. In this case, however, the technologies for closure are clear and 

well established. There is no evidence in the record that dewatering and stabilizing a surface 

impoundment involves engineering that has not already been tested, proven and employed at 

solid waste surface impoundments for decades. Closure of hazardous waste impoundments was 

mandated by RCRA subtitle C, and closure of such impoundments have resulted in wide-scale 

testing of RCRA standards since the 1990s.

Lastly, the technological approach in the Tier 1 voluntary incentives program is contrary to the 

goals of CWA Section 104(a)(1) because it promotes remedial action that does not represent the 

cleanest and safest option for human health and the environment. Tier 1 encourages 

dewatering and stabilizing coal ash in a permanent disposal unit, rather than removal and 

thorough decontamination of the site. The most environmentally-protective solution for coal ash 

surface impoundments is removal of all waste from the unit. This is the only method that 

guarantees the long-term health of the site and surrounding waters. In fact, even under EPA’s 

proposed subtitle D rule, an owner/operator who closes a coal ash impoundment by removal and 

decontamination must ensure that coal ash contaminants throughout the impoundment and all 

areas affected by releases from the impoundment do not exceed numeric cleanup levels for those 

constituents.789 Promotion of a lesser cleanup option has no place in EPA rules or in voluntary 

options.

782 75 Fed. Reg. at 35,258.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-27

783 See 40 C.F.R. § 265.228(a).

784 See id. § 265.113.

785 See id. § 268.14, 75 Fed. Reg. at 35,262.

786 See 40 C.F.R. § 257.100, 75 Fed. Reg. at 35,252.

787 See 40 C.F.R. § 257.100(j), 75 Fed. Reg. at 35,252.

788 See 40 C.F.R. § 257.101, 75 Fed. Reg. at 35,253.

789 See 40 C.F.R. § 257.100(b); 75 Fed. Reg. at 35,252.

Comment Response: 

See DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 19.

The final rule does not include the Tier 1 voluntary incentive program from the proposal as 

management of CCR impoundments is addressed under the CCR rule under RCRA. See 

response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 173.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 177

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. THE TIER 2 PROGRAM GIVES INDUSTRY AN ADDITIONAL FIVE YEARS TO 

COMPLY WITH BAT LIMITATIONS IN EXCHANGE FOR PARTICIPATION WITH A 

PROGRAM THAT WILL NOT ELIMINATE ALL POWER PLANT DISCHARGES.

The Tier 2 program is also fundamentally flawed. Under Tier 2, power plants would be allowed 

five additional years to comply with BAT requirements “if they eliminate the discharge of all 

process wastewater to surface waters, with the exception of cooling water discharges.”790 EPA 

states that “[t]his program would give power plants a platform to advance the research and 

developmental technologies and processes that promote water conservation and water recycling 

and provide greater environmental protection.”791 In addition, this program places the burden on 

states to develop interim discharge limits.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-28

The Tier 2 program claims to promote the “power plant of the future,” by requiring the 

elimination of discharges and recycling of wastewater to limit the use of water. However, 

Option 5, which is BAT for existing sources, goes a long way towards achieving this 

goal. In addition, the program requirements don’t address closure of leaking impoundments, 

groundwater to surface water discharges, and legacy wastewater—all of which cause damage to 

surface waters. In order to achieve the objective of the Tier 2 program (i.e., elimination of power 

plant discharges), these sources of surface water pollution must also be addressed.792

In addition, Tier 2 places a heavy burden on permitting agencies to develop “specific discharge 

limits and key milestones” for program requirements.793 Yet permitting agencies have 

consistently failed to set case-by-case BAT limits mandated by the Clean Water Act and timely 

renew power plant NPDES permits.794 In many cases, permitting agencies lack the resources and 

expertise to make these determinations.795 Thus, a voluntary program that relies on permitting 

agencies to execute the Tier 2 program and set case-by-case discharge limits to achieve program 

goals is ill-conceived.

790 75 Fed. Reg. 34,468. “The Tier 2 incentives would not be available to power plants that 

eliminate direct discharge to surface water by sending the wastewater to a POTW.” Id.

791 Id.

792 Id.

793 75 Fed. Reg. at 34,468.

794 See supra Section III.D; infra Section XV.

795 See supra Section III.D.

Comment Response: 

See DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 19.

The final rule does not include the Tier 1 voluntary incentive program from the proposal as 

management of CCR impoundments is addressed under the CCR rule under RCRA. See 

response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 173.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 178
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

D. EPA SHOULD NOT DEVELOP VOLUNTARY STANDARDS THAT LACK 

ENFORCEABILITY, TRANSPARENCY, AND THE OPPORTUNITY FOR PUBLIC 

PARTICIPATION.

EPA’s proposal is unclear concerning the extent to which voluntary standards would be 

incorporated into enforceable permit conditions and whether the public would have the 

opportunity to comment on such conditions. As stated above, state permitting agencies have 

routinely failed to set case-by-case BAT limits, so it cannot be left to chance whether the 

voluntary programs are executed in a manner that preserves enforceability, transparency and 

public participation in decision-making. It is clear that these are not guaranteed by the voluntary 

incentives program.

Comment Response: 

For plants opting into the voluntary incentives program in the final rule, the final BAT 

limitations applicable to FGD wastewater discharges based on evaporation must be incorporated 

into enforceable permit conditions, and therefore they will be just as transparent and open to 

public participation as any other enforceable permit condition. See preamble section VIII.C.13. 

See response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28, for more 

information on the voluntary incentives program in the final rule.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

9. Incentives for voluntary closure. EPA discusses incentives for voluntary closure of CCR 

impoundments or for eliminating all process wastewater discharges (except for cooling 

water). The incentive would be additional ELG compliance time of 2 to 5 years, respectively 

(FR page 34467). MP finds the additional 5 year compliance allowance for zero liquid discharge 

(ZLD) commitment to be non-commensurate with the time such plant conversions may take and 

with the costs that may be associated with doing so. MP suggests that the incentive toward zero 

liquid discharge would be more effective if the incentive program was tiered or scaled and 

extended out to allow for additional compliance time reflective of that incentivizing transition 

away from existing impoundment or discharge operation. An example may be a 5 year extension 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-30

for a 50% commitment toward ZLD and a 10 year effective date extension for a facility 

committing to 100% ZLD.MP also suggests that impoundment closures would represent the 

most environmentally significant contribution toward ZLD and as such that the incentive for a 

commitment to close impoundments may be a 5 year extension for a 50% commitment and 10 

years for a 100% impoundment closure commitment.MP also comments that the permit writer 

should be authorized to provide for flexibility for complementary/reinforcing timing of 

impoundment closure under the ELG regulations and prospective impoundment closure under 

the final CCR regulation.

Comment Response: 

The final rule does not include a voluntary incentives program related to impoundment 

closure. EPA decided to include a voluntary incentives program in the final rule that only 

applies to FGD wastewater, for the reasons explained in preamble Section VIII.C.13 and 

response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28.

EPA does not agree that the voluntary incentives program should be “tiered or scaled and 

extended out.” For the reasons explained in preamble section VIII.C.13 and EPA-HQ-OW2009-0819-4317-A1, Excerpt Number 23, plants that opt into the voluntary incentives program 

have until December 31, 2023, to meet the final BAT limitations for FGD wastewater based on 

evaporation. This date is not so far into the future that a tiered program would be appropriate, 

and it could in fact be unnecessarily complicated from an implementation perspective.

Commenter Name: Kelly Jean Heffner

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OW-2009-0819-4811-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Similarly, the offered voluntary program would establish two levels, or ''tiers,'' of advanced 

technology performance requirements which would be incorporated into the National Pollutant 

Discharge Elimination System (NPDES) permits for the facilities that participate in the 

program. How the Tier 1 and Tier 2 options may affect the implementation schedule should be 

more clearly described.

Comment Response: 

The final rule does not contain the Tier I or Tier II voluntary incentives programs as 

proposed. The final rule establishes a voluntary incentives program that only applies to 

discharges of FGD wastewater, for the reasons explained in preamble Section VIII.C.13 and 

response to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28. The final voluntary 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-31

incentives program includes a firm deadline of December 31, 2023, for plants who opt into the 

program to meet the final BAT limitations for FGD wastewater discharges based on evaporation, 

as explained in the preamble and previously referenced comment response.

Commenter Name: Lili Kranitz

Commenter Affiliation: GEA EGI Contracting/Engineering Co. Ltd.

Document Control Number: EPA-HQ-OW-2009-0819-5093-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Voluntary Incentive Program

EPA describes the Voluntary Incentive Program on pages 34467-38 of the ELG preamble. The 

primary objectives of the incentive program are to:

1. Install advanced pollution prevention technologies or make process changes that reduce 

the release of toxic pollutants to the environment.

2. Promote water conservation and water recycling.

3. Lead to superior effluent quality and greater environmental protection.

The “advanced technology performance requirements” described in the voluntary incentive 

program do not recognize the possibility of impoundments consisting entirely of solid, stabilized 

ash products from the DSS process.

Treating ash and wastewater to produce a solidified and stable ash product in a landfill or 

impoundment satisfies all of the objectives of the incentive program. Plants that choose to install 

and operate DSS systems should qualify for Tier 1 or Tier 2 program status.

It is important to point out that the DSS process results in a product that exhibits:

 Hydraulic conductivity that is substantially lower than that resulting from traditional “dry 

ash” management as described in the proposed rule

 80-90% less consumption of water compared to traditional sluicing

 Stabilization of wastewater (including FGD water) to produce the dense slurry

 Zero discharge of transport water

 Zero discharge of leachate if reused for DSS
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-32

 Enhanced sequestration of contained metals

 Reduced risk of ground water contamination

 Reduced quantities of leachate produced

 Reduced or substantially eliminated risk of dust generation

 High compressive strength

 More efficient use of disposal space because disposal facilities may be tiered and 

elevated

 Enhanced operational worker safety due to reduced noise and reduction or elimination of 

trucks and heavy equipment for transport and manipulation of ash products

 Simplified and lower risk closure results

 Elimination of risk of dike failure and associated liquefaction of ash sludge and/or 

catastrophic releases

So, from the perspective of environmental protection, DSS is a superior process compared to 

“dry ash” management as described in the proposed rule. It is also safer and less expensive.

Even though DSS uses water to facilitate movement, the end product satisfies the intent of the 

proposed ELG rule, as well as the CCR rule. The wording of the proposed ELG and CCR rules 

unintentionally casts doubt and uncertainty in the industry regarding how the DSS process will 

be viewed by regulating authorities. This uncertainty has resulted in reluctance by industry to 

utilize this highly effective and economical technology and is hindering its further deployment.

Comment Response: 

For the reasons described in preamble Section VIII.C.13 and DCN EPA-HQ-OW-2009-0819-

4476-A1, Excerpt Number 28, the final rule establishes a voluntary incentives program that 

focuses on discharges of FGD wastewater. It does not include the Tier I or Tier II voluntary 

incentives programs as proposed. EPA notes that, while the voluntary incentive program BAT 

limitations for FGD wastewater discharges are based on evaporation, plants are free to use any 

technology they desire to meet the final requirements.

Commenter Name: H. Mitchell

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5128-A1

Comment Excerpt Number: 2
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-33

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Power companies should be given financial incentives by the government to allow them to meet 

the mutually agreed to goals and still remain viable businesses.

Comment Response: 

EPA’s voluntary incentives program, as proposed, offered more time for plants to achieve 

significant pollutant reductions beyond the proposed rule’s requirements. Industry commenters 

expressed interest in the voluntary incentives program based on this incentive. Therefore, the 

final rule establishes a voluntary incentives program that gives the certainty of more 

implementation time to plants who opt into the program and choose to be subject to the final 

BAT limitations applicable to FGD wastewater discharges based on evaporation (see preamble 

Section VIII.C.13 for more details on the voluntary incentives program). Finally, EPA notes that 

the final rule is economically achievable for the industry as a whole, and any plants who opt into 

the voluntary incentives program would likely only do so if it was affordable for them. See 

preamble section VIII.C.13 and the response to DCN EPA-HQ-OW-2009-0819-4476-A1, 

Excerpt Number 28, for more information about the final voluntary incentives program and the 

comments received.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 93

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

THE “VOLUNTARY INCENTIVES” NEED TO BE CLARIFIED AS TO TIMING AND 

EXTENDED TO ALL WASTESTREAMS

EPA is considering “voluntary incentives” that would give two additional years for closing 

surface impoundments and five additional years to eliminate discharge of all process water 

(except cooling water).33 APPA appreciates the offer of additional time. EPA should clarify 

when the two and the five years begin to run. The starting dates should be consistent with the “as 

soon as possible” dates after July 1, 2017, for the different wastestreams.

APPA notes that UWAG recommends that the two and five additional years should, in keeping 

with the compliance dates proposed for the specific limitations, begin to run on the compliance 

date that the permitting authority determines. UWAG points out that “as soon as possible” in the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-34

first permit renewal cycle should be after July 1, 2017. Where there is more than one regulatory 

compliance date, the latest of the dates should begin the two and five additional years for the 

voluntary measures.

APPA is a member of UWAG. APPA was informed that on a phone conversation with UWAG 

on August 28, 2013,that EPA staff confirmed that the two and five additional years for voluntary 

incentives begin to run on the compliance date that the permitting authority decides is “as soon 

as possible” after July 1, 2017. It would be helpful for the state agencies and to the power sector 

to make this clear in the final ELG rule.

33 78 Fed. Reg. at 34,467.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4476-A1, Excerpt Number 28 and EPA-HQOW-2009-0819-4317-A1, Excerpt Number 23.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-35

26.b. Regulatory Implementation – Timing 

Commenter Name: William Matthews

Commenter Affiliation: Cleco Corporation

Document Control Number: EPA-HQ-OW-2009-0819-5550-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comment VIII – Compliance deadline is inadequate 

EPA has proposed a compliance deadline of "as soon as possible" within the next permit cycle 

beginning July 1, 2017 except for nonchemical metal cleaning waste and combustion residual 

leachate limits which are effective immediately. There would be no compliance period for 

meeting the new BAT requirements for nonchemical metal cleaning wastes. There is no 

provision for incorporating changes "as soon as possible" after July 1, 2017 for non chemical 

metal cleaning wastes. To comply with the non chemical metal cleaning waste requirements, 

plants may have to perform extensive engineering of existing sumps and piping and install new 

pipes and treatment tanks, etc., which cannot be accomplished by the time the proposed rule 

becomes final. EPA should write the final rule so that if significant modifications are needed at a 

source to comply with the requirements for nonchemical metal cleaning wastes, the permit writer 

can set a reasonable compliance schedule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VII. EPA Should Clarify Timing Requirements

EPA anticipates that, under this proposed approach, all steam electric facilities will have the 

proposed BAT limitations applied to their permits no later than July 1, 2022, approximately 8 

years from the date of promulgation of any final rule. EPA must consider that a firm date of 

compliance will also be impacted by-delays in issuance of NPDES permits. Often NPDES 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-36

permits are administratively extended for many years after expiration. Also, after NPDES 

permits are issued, many permits are appealed for various reasons by plants and third party 

groups. Therefore, establishing a firm final date of compliance may cause plants to be 

noncompliant.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA notes that regulatory and statutory provisions concerning appeal and judicial review of 

NPDES permits are themselves not within the scope of the rulemaking. 

Commenter Name: Thomas W. Easterly

Commenter Affiliation: Indiana Department of Environmental Management (IDEM)

Document Control Number: EPA-HQ-OW-2009-0819-5553-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Implementation Schedule

1. EPA should clarify whether or not current permits that are not up for renewal need to be 

reopened to accommodate rule implementation. EPA also should clarify whether new 

requirements must be added to permits at renewal. Indiana believes that the final rule should 

allow permitting authotities to have flexibility to determine when to include the requirements.

2. The final rule should clarify whether or not permitting authorities are allowed flexibility to set

compliance deadlines for pretreatment programs as soon as possible after July 1, 2017. Language 

in several sub-parts seems to be inconsistent and in conflict with 40 CFR 403.6(b) and section 

307(b) of the CWA, which state that a categmical industry user cannot have greater than three 

years to come into compliance. EPA should correct or clarify and explain. Indiana believes that 

flexibility should be allowed.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-37

Comment Excerpt Number: 126

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Timing Issues

Southern Company has more experience retrofitting environmental controls than any other 

utility in the industry. Southern has spent $8.7 billion dollars on environmental controls since 

1990. The Company has installed scrubbers and SCRs on 26 and 20 units, respectively.

During the proposed implementation period of the ELG Rule, Southern’s fossil generation fleet 

will likely be in the midst of an unprecedented period of environmental retrofits to comply with 

Mercury and Air Toxics Standards (MATS), ozone revisions, the CCR rule, the § 316(b) rule, 

and others. Therefore, we ask that EPA clarify that state permitting authorities have the ability to 

provide case-by-case compliance schedules that may extend past July 2022.

EPA’s Language Regarding Flexibility and Additional Compliance Time is Appropriate

Southern agrees with EPA that facilities subject to the Rule need significant time to reach full 

compliance. As EPA notes in the preamble, facilities will need to:

"study available technologies and operational measures, and subsequently install, incorporate 

and optimize the technology most appropriate for each site."

78 Fed. Reg. at 34,480 col. 2. EPA also says:

"Some facilities will need time to raise the capital, plan and design the system, procure 

equipment, construct and then test the system. Moreover, providing a window of time will better 

enable facilities to install the pollution control technology during an otherwise planned shutdown 

or maintenance period. In some cases, a facility must apply for permission to enter into such a 

period where they are producing no or less power."

78 Fed. Reg. at 34,479-80. Southern appreciates EPA acknowledging the difficulty of 

implementing these new controls and the need for flexible compliance timelines. Southern 

provides below facts and information explaining why some facilities will need a compliance 

horizon beyond eight years.

Compliance Timing Language Should be Clarified, Giving States the Authority to Apply 

Limits and Provide Compliance Schedules

The proposed rule appropriately provides three years for initial preparations and planning 

following the publication of the final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-38

"EPA proposes that certain BAT limitations for existing sources being proposed today (those that 

would establish requirements more stringent than existing BPT requirements) would apply on a 

date determined by the permitting authority that is as soon as possible when the next permit is 

issued beginning July 1, 2017 (approximately three years from the effective date of this rule)."

78 Fed. Reg. at 34,479 col. 3. The proposed rule also clearly gives the permitting authority the 

discretion to apply BAT limits to permits within five years of July 2017, or until July 2022.

"EPA recognizes that permitting authorities have discretion with respect to when to reissue 

permits and can take into consideration the need to provide additional time to include BAT limits 

to prevent or minimize forced outages. Thus, in some cases, the new BAT requirements may as a 

practical matter be applied to a facility sometime after July 1, 2017. However, EPA judges that, 

under this proposed approach, all steam electric facilities will have the proposed BAT 

limitations applied to their permits no later than July 1, 2022, approximately 8 years from the 

date of promulgation of any final ELGs."

78 Fed. Reg. at 34,480 col. 1. Southern acknowledges, as EPA has stated, that some facilities 

will not need the full compliance time proposed by EPA. However, Southern has several large 

plants with multiple units that will require, under the proposed rule (assuming preferred Option 

4a), dry fly ash conversions, dry bottom ash conversions, new landfills, new FGD wastewater 

treatment, and possibly new NCMCW and new landfill leachate treatment all at one 

site. Implementing all of these projects on one unit would require a minimum of eight years. 

Considering there will be several units on one site and several plants undergoing the same full set 

of requirements, at the same time as other EPA rules will be requiring other large retrofits, eight 

years will not be enough time for some plants.

Given these very large and complex retrofits, EPA should clarify that state permitting authorities 

will have the ability to provide compliance schedules in permits that have new BAT limits that 

extend past July 2022.

Timing Requirements to Comply with Proposed ELG Revisions

 Initial Planning

There will be many activities that simply cannot be performed prior to release of the final rule. 

Therefore, some planning steps cannot begin until the Rule is final. A description of some, but 

not all, initial planning activities is provided below.

Due to the significant revisions in the proposed ELG Rule, affected facilities will need an 

appropriate amount of time to determine the proper regulatory interpretation. Experts within the 

company will work to read, interpret, and summarize the changes in the revisions from proposal 

to final. The regulatory experts then will work with the operating companies to ensure proper 

interpretation. Presentations and summaries of the final rule will be communicated within the 

company to inform all those involved in implementing a final compliance strategy.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-39

Following interpretation and education on the Rule, the technology options for each waste stream 

will have to be evaluated. Some waste streams, such as dry fly ash, are well understood and the 

technology evaluation period will be relatively short. However, evaluation of FGD wastewater 

treatment technologies could take much longer. Biological treatment technology for FGD 

wastewater is not a seasoned technology in the utility industry, and additional technology studies 

and analysis will be needed to evaluate it. Closed-loop or dry bottom ash is another technology 

that is relatively new for the utility industry, and there are multiple technology options that will 

need to be evaluated on a site-by-site basis.

Following the technology recommendations, engineering screening estimates will need to be 

revised to account for changes in the rule from proposal to final. This effort can be significant 

depending on the amount of changes in the regulation. Screening estimates are performed at a 

high level with only minimal amount of the scope determined for each project; they provide the 

cost and schedule to the initial planning process. The revised screening estimates will be needed 

at every plant and unit across the system to aid in financial analysis and decision-making, and for 

requesting regulatory approval from public service commissions. To ensure the most costeffective technology is chosen for each unit, screening estimates must be done for 

several options. This will be especially true for FGD wastewater treatment and bottom ash 

conversions where multiple technologies are anticipated to be considered. To ensure the quality 

of the screening estimates and considering the number of units potentially affected for Southern, 

we will need adequate time to gather data and information from the plants, suppliers, pilot tests, 

and contractors. Given the number of plants that will be impacted and the demand on vendors 

and contractors, we believe that 12-18 months will be needed for conceptual design.

Using the updated engineering estimates, the regulatory interpretation, and the technology

options available, cost-benefit analyses must be performed for each option at each unit. This 

analysis compares the costs and benefits of each option and their interplay with other system 

operating variables such as fuel costs. The analysis also must evaluate the costs and benefits of 

the most optimum compliance technology option against the option of retirement and 

replacement of the generation. These analyses include complex simulation models to forecast 

operating profiles, energy costs, impacts to the Southern Company system production costs, 

and other factors for every affected unit using detailed unit-specific characteristics, such as: heat 

rates; minimum and maximum capacity; up and down time; start-up costs; SOx, NOx, and 

CO2 rates; fuel prices; and maintenance schedules. In addition to the operational profile outputs 

from the simulation models, financial calculations must be performed to evaluate impacts to 

customers’ total revenue requirements considering all incremental capital expenditures, plant 

maintenance, O&M costs, transmission impacts, and any other peripheral requirements or costs. 

Southern performs these economic analyses for each unit under multiple planning scenarios to 

capture a broad range of uncertainty in gas and CO2 pressures.

The next step in the initial planning process is to summarize the information to support 

management in determining the final compliance plan. Due to the high level of capital spending 

and potential retirement impacts, preparing this information requires the coordination 

and support of many people inside and outside of the company. These actions impact millions 

of customers and thousands of employees and are done with rigorous and diligent effort. Once 

final decisions have been made, Southern prepares official requests for approval of capital 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-40

spending on environmental controls from each state’s public service commission (PSC). 

Seeking approval from the PSC requires coordinating meetings and hearings, which can be a 

time-consuming process.

Considering the time required for regulatory interpretation, technology recommendations, 

engineering estimates and analysis, system planning and economic analysis, finalization of the 

compliance plan, and the seeking of regulatory approval for capital expenditures for as large and 

integrated system of generating units such as Southern Company, the three years that EPA has 

proposed prior to permitting authority reconsideration of the existing permit is appropriate and 

necessary. The possibility of litigation and court-order stays of part or all of the rule’s provisions 

create additional uncertainty when making these complex decisions and emphasizes the need for 

a reasonable compliance schedule.

Technology Specific Timing Issues

Below is a list of controls and their estimated timing for installation assuming a preferred Option 

4a in the proposed ELG Rule:

 FGD Wastewater Treatment (WWT)

A single FGD wastewater treatment system with physical, chemical, and biological treatment 

will take, on average, four years for detailed design engineering, procurement of equipment and 

materials, and construction and start-up. Southern Company could be required to install eight 

large systems for 27 units that have FGDs. Installing these treatment systems and their auxiliary 

systems on Southern’s fleet will likely take considerably longer than four years.

As detailed in previous comments, this technology is temperamental, and the detailed 

engineering will be intensive and time-consuming. The availability of engineering resources, as 

well as construction labor, will be stretched with the abundance of projects across the Southern 

Company and the industry. Procurement of equipment and materials will have long lead times, 

because there is available only one process supplier whose biological system may come closest 

to meeting all proposed FGD limits.

Also, the proposed technologies of physical and chemical precipitation, plus biological 

treatment, are space-consuming. A preliminary footprint for an 800 gpm system is 300’ x 900’. 

To minimize pumping this large flow a great distance, the wastewater treatment plant should be 

located as close as possible to the blowdown source. Few plants have several football fields’ 

worth of empty space near the units, so relocations of existing equipment and structures may be 

required, possibly lengthening the schedule even more.

The parasitic electrical load required for these new controls will strain the already stressed 

station service reserves. The parasitic load associated with these new technologies will likely 

require major station service modifications. Lead-time on large components, such as 

transformers and switchgear, can exceed a year.

 Dry Fly Ash Conversions
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-41

A dry fly ash conversion for a single unit will take, on average, four years for detailed 

engineering, procurement equipment and materials, and construction and start-up. Southern 

Company could be required to perform these retrofits for 15 units that have total wet fly ash 

sluice systems and an additional 15 units that could require a partial wet fly ash retrofit for SCR 

and/or economizer ash. Installing these retrofits and their auxiliary systems on Southern’s fleet 

will likely take considerably longer than four years.

Significant factors to the implementation timing of these retrofits are the size of the existing 

precipitators and economizers on each unit, and the complexities of retrofitting environmental 

controls in a confined space. The most logical place to install dry conversion equipment is where 

the current wet handling equipment (such as where the Air Separator Tank and Veturi Jet Pumps 

are located). At least a ten-week outage will be required for final tie-in. These retrofits will be 

site-specific, with little opportunity for modularization or off-the-shelf equipment or designs to 

speed the schedule. Also, economizer and SCR ash will require special consideration due to 

temperature differences from precipitator ash. As with the FGD wastewater treatment plant, 

engineering and construction labor resources will be strained.

 Dry Bottom Ash Conversions

A dry bottom ash conversion for a single unit also will take approximately four years for 

detailed engineering, procurement equipment and materials, and construction and start-up for a 

dry ash hopper system or a submerged flight conveyer system. Under Options 4a, Southern 

Company could be required to perform wet-to-dry retrofits for 21 units that have wet bottom ash 

sluice systems. Installing these retrofits and their auxiliary systems on Southern’s fleet will take 

considerably longer than four years.

A major challenge for bottom ash retrofits will be designing and installing a functional system in 

spite of physical interferences with existing boiler ducts, structural steel, or electrical raceways. 

There is little to no space available at many existing units near the wet ash hoppers for new 

equipment or for the construction equipment required to install it. The height restriction between 

the bottom of the boiler and the existing concrete foundation dictates the size of the new 

equipment. This problem is a serious concern for the submerged flight conveyor systems that 

require a significant amount of space below the boiler. Confined space construction for multiple 

projects on tight deadlines creates increased safety risks due to the high density of craft labor and 

equipment in these areas.

Another significant capital expenditure and challenge will be adding new electrical power 

distribution systems for pressure blowers or pumps as well as instrumentation and operational 

controls. Tie-in outages, depending on the technology implemented, will be from four to 18 

weeks. These outages will need to be staggered and coordinated with those required for other 

projects in order to maintain the reliability of the plant and the grid. As with the 

FGD wastewater treatment plant, engineering and construction labor resources will be strained.

 NonChemical Metal Cleaning Wastewater Treatment (NCMCW WWT)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-42

Depending on the outcome of the NCMCW exemptions and definitions, there is a possibility 

that almost all of Southern’s units will be affected by the proposed copper and iron limits for 

NCMCWs. It is difficult to estimate the average timing required for NCMCW retrofits, but we 

will need significant time to perform extensive modifications to existing sumps and piping, 

installation of new piping, and installation of treatment systems. These activities will be complex 

and difficult at nearly all sites that have a matrix of equipment above and below ground. 

Therefore, it will be impossible to comply with these limits by July 2014 if the proposed 

exemptions are not implemented. EPA should reevaluate the impacts of the copper and iron 

limits, taking into account the substantial retrofit costs and the time needed to reconstruct the 

plants’ sumps and piping systems.

New Ash Landfills

EPA is proposing dry fly ash handling and FGD wastewater treatment in all four of EPA’s 

preferred options as well as proposing dry or closed-loop bottom ash handling in one of the 

preferred options (Option 4a). These technologies will produce dry solids that must be disposed 

in a landfill if marketing of the byproducts is not available. This means new landfills will need to 

be sited, designed, permitted, and constructed prior to the production of these new dry 

byproducts.

Building new landfills is a multi-year process that begins with years of planning and site studies. 

As a part of the planning activity, surface and subsurface/hydrogeologic investigations, such as 

groundwater flow and direction, must be performed to study the area planned for permitting. 

Many states require a minimum of one year of groundwater level data to support the permitting 

process, and more complicated sites may require several years of site studies.

Based on Southern’s experience, in some cases, new landfills can take up to eight years to 

permit and construct if there are no extenuating circumstances that require additional attention, 

such as geologic hazards in the area, a backlog in permitting at the state level, or time required to 

acquire the landfill site. The proposed rule fails to account for the increased landfill capacity that 

will be needed and the time associated with permitting and constructing these new landfills.

Issues Managing Multiple Capital Projects and Complying with EPA’s Entire Suite of 

Environmental Regulation

EPA’s proposed compliance schedule may be feasible for a single unit or a small group of 

units, but it is not feasible for large multiple unit plants that are part of a larger generating fleet 

and are retrofitting and constructing controls for multiple waste streams per unit. For example, 

under the proposed Rule, one Southern plant with four large units would need retrofits for dry fly 

ash, dry bottom ash, new ash landfills (possibly with leachate wastewater treatment), and FGD 

wastewater treatment. Just for ELG compliance, this plant would have 10 separate major projects 

underway simultaneously, requiring in excess of 100 weeks of outage time across the plant. At 

the same time, this same plant will likely be installing large capital projects to comply with the 

MATS rule, ozone National Ambient Air Quality Standards (NAAQS) revisions, the CCR Rule, 

the § 316(b) rule, and possibly others. It is imperative that the EPA provide the state permitting 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-43

authorities maximum flexibility to set compliance schedules to comply with these new ELG 

revisions.

Southern Company supports EPA’s plans for flexibility and extended compliance time, but 

requests that EPA clarify that the state permitting authorities have the ability to provide case- bycase compliance schedules in permits that may extend past July 2022.

Comment Response: 

Timing of the Final Requirements: The timing of the applicability of the final rule’s requirements 

is described in preamble Sections VIII and XVI. EPA notes that certain implementation dates in 

the final rule have shifted slightly from proposal to account for the fact that EPA’s date for 

taking action on the final rule is later than EPA projected at the time of the proposal.

BAT limitations: The direct discharge limitations in the final rule apply only when implemented 

in an NPDES permit issued to a discharger after the effective date of this rule. Under the Clean 

Water Act, the permitting authority must incorporate these ELGs into NPDES permits as a floor 

or a minimum level of control. While the rule is effective 60 days following publication in the 

Federal Register, where BAT limitations in the rule are more stringent than previously 

established BPT limitations, those limitations do not apply until a date determined by the 

permitting authority that is as soon as possible beginning November 1, 2018 (approximately 

three years following promulgation of this rule), but that is also no later than December 31, 2023 

(approximately eight years following promulgation). Steam electric power plants opting to meet 

BAT limitations for FGD wastewater based on evaporation (i.e., in the voluntary incentives 

program) must comply with those limitations on arsenic, mercury, selenium, and TDS in FGD 

wastewater as of December 31, 2023. EPA notes the final rule includes a “no later than” date of 

December 31, 2023 because, as public commenters pointed out, without such a date, 

implementation could be substantially delayed, and a firm “no later than” date creates a more 

level playing field across the industry.

The implementation period described above for the final rule is not a compliance 

schedule. Rather, the implementation period is part of EPA’s determination as to when certain 

technologies that form the bases for the final BAT limitations are “available” and “achievable” –

that is, when the technologies represent “Best Available Technology Economically Achievable,” 

as that term is used in the Clean Water Act. EPA determined that certain technologies are not 

available and achievable until at least November 1, 2018, but that all of those technologies are 

available and achievable by December 31, 2023. EPA further determined that the permitting 

authority is in the best position to decide exactly when within that implementation period 

particular technologies are available and achievable, in light of a consideration of certain factors 

that EPA has judged are relevant to the inquiry, including time needed for planning and 

installation and changes that might be happening at a plant in response to other rules. See 40 

CFR 423.11(t). 

As the rule makes clear, EPA determined that the technologies that form the bases for the final 

limitations are available to and achievable for all plants by an outside date of December 31, 

2023, and thus the permitting authority is to use this date as the latest date by which the final 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-44

limitations must be met by any existing source of direct discharges. Thus, EPA disagrees with 

the commenter that permitting authorities should establish “compliance schedules” for plants that 

extend beyond this date. All of the considerations mentioned by the commenter, including 

changes that plants may make in response to other environmental rules and the complexity of 

multiple retrofits at multiple units in one plant, have been taken into account in EPA’s 

determination that all plants can meet the final limitations by December 31, 2023. Moreover, it is 

EPA’s position that compliance schedules are not authorized for technology-based effluent 

limitations. See NPDES Permit Writers’ Manual (Sept. 2010), page 5-17.

For combustion residual leachate, and for certain wastestreams (FGD wastewater, fly ash 

transport water, bottom ash transport water, FGMC wastewater, and gasification wastewater) at 

oil-fired generating units and small generating units (50 MW or less), the final BAT limitations 

apply on the date that a permit is issued to a discharger, following the effective date of the final 

rule. The final rule does not build in an implementation period for meeting these limitations, as 

the BAT limitation on TSS is equal to the previously promulgated BPT limitation on TSS. See 

preamble sections VIII and XVI for more information.

Some commenters noted that permits may be administratively continued. Requirements for 

NPDES permitting are specified in 40 CFR Part 122 and are outside the scope of this 

rulemaking. EPA notes, however, that if a permit is administratively continued beyond 

December 31, 2023, once the permit is reissued, the permitting authority must ensure that the 

discharger meets the requirements of the final rule.

PSES: Pretreatment standards are self-implementing, meaning that they apply directly, without 

the need for a permit. In this rule, the pretreatment standards for existing sources must be met by 

November 1, 2018. PSES are analogous to BAT limitations. Thus, similar to EPA’s 

determination of when certain technologies become available and achievable for purposes of 

BAT limitations, EPA determined that those technologies do not become available and 

achievable for existing sources of indirect discharges until November 1, 2018 (see preamble 

section VIII.E). Under CWA section 307(b)(1), pretreatment standards shall specify a time for 

compliance not to exceed three years from the date of promulgation, and there is no permitting 

authority as pretreatment standards apply directly, so EPA did not establish a longer 

implementation period for existing sources of indirect discharges. EPA determined that all such 

existing sources can meet the final PSES by November 1, 2018. See preamble section VIII.E.

NSPS/PSNS: NSPS apply when any NPDES permit is issued to a new source direct discharger, 

following the effective date of this rule; PSNS apply to any new source discharging to a POTW, 

as of the effective date of the final rule.

Managing Multiple Capital Projects and Consideration of Other Rules that Plants May Need to 

Comply With: As described, the final rule provides permitting authorities the ability to extend the 

date by which certain limitations must be met, as long as it does not extend past December 31, 

2023. EPA disagrees with the commenter that the deadline “is not feasible for large multiple unit 

plants that are part of a larger generating fleet and are retrofitting and constructing controls for 

multiple waste streams per unit.” EPA acknowledges that a steam electric power plant such as 

that described by the commenter would need more time compared to a single unit plant. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-45

However, the implementation timeframe is still reasonable considering that the “no later than” 

date is approximately eight years after promulgation of the final rule and more than ten years 

after the proposed rule was published. While the details of the final rule could not have been 

known exactly based on the proposal, there are no surprises in the final rule. In particular, for 

existing sources, the final rule’s limitations and standards for fly ash transport water, bottom ash 

transport water, and FGD wastewater are all based on technologies that formed the bases for 

options put forth as “preferred” options in the proposed rule. Therefore, companies have in 

reality had quite some time to begin planning for possible changes at their plants to comply with 

the final rule.

Also, as described in preamble sections VIII.C.7 and XVI, EPA acknowledges many of the 

considerations specified by the commenter, including the need for plants to comply with other 

rules, such as those under the Clean Air Act and RCRA, as well as the need for time to plan, 

design, procure, install, and in some cases optimize equipment. All of these factors have been 

taken into account in designing the implementation period for the final BAT limitations that are 

more stringent than previously established BPT limitations. As part of its consideration of the 

technological availability and economic achievability of the BAT limitations in the final rule, 

EPA considered the magnitude and complexity of process changes and new equipment 

installations that would be required at steam electric power plants to meet the final rule 

requirements. Consistent with the proposal, the timing of the final rule provides the time that 

many steam electric power plants need to raise capital, plan and design systems, procure 

equipment, and construct and then test systems. EPA established a longer timeframe for 

implementation that would better enable steam electric power plants to make retrofits during an 

otherwise planned shutdown or maintenance period, such as for retrofits required under the 

Mercury and Air Toxics Standards. This allows the retrofits to be coordinated in a manner that 

avoids disruptions to service. EPA’s decision is designed to allow for the coordination of 

generating unit outages in order to maintain grid reliability and prevent any potential impacts on 

electricity availability.

Moreover, the implementation period itself grants flexibility to the permitting authority to 

consider a number of relevant factors in determining exactly what date to apply the final 

limitations within the period beginning November 1, 2018, and ending December 31, 2023. 

Assuming that the permitting authority receives relevant information from the discharger, in

order to determine what date is “as soon as possible” within the implementation period, the 

permitting authority is to consider the following factors: (a) Time to expeditiously plan 

(including to raise capital), design, procure, and install equipment to comply with the 

requirements of the final rule; (b) Changes being made or planned at the plant in response to 

greenhouse gas regulations for new or existing fossil fuel-fired power plants under the Clean Air 

Act, as well as regulations for the disposal of coal combustion residuals under subtitle D of the 

Resource Conservation and Recovery Act; (c) For FGD wastewater requirements only, an initial 

commissioning period to optimize the installed equipment; and (d) Other factors as 

appropriate. See 40 CFR 423.11(t).

FGD wastewater treatment. EPA notes that the commenter and the Electric Power Research 

Institute have been studying FGD wastewater treatment systems for years and have set up a 

research facility at one of the commenter’s steam electric power plants to evaluate dozens of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-46

different technologies, including all the technologies evaluated during the rulemaking by EPA. 

Additionally, the commenter states that there is “only one process supplier” for the biological 

treatment system; however, because of the timing allowed in the rule, experience shows that 

other vendors will come to market and provide alternative solutions to meet the final FGD 

wastewater effluent limitations and standards, and are already doing so. EPA also disagrees with 

the commenter that “[t]he availability of engineering resources, as well as construction labor, 

will be stretched with the abundance of projects across the Southern Company and the industry.” 

Here, too, engineering firms are available to perform much of the detailed engineering work and 

both Southern Company and the engineering firms can hire staff to meet those needs. EPA’s 

compliance cost estimates account for the engineering resources needed to complete these 

projects. Finally, EPA has determined that the parasitic load for the chemical precipitation and 

biological treatment system are minimal compared to the FGD system itself and the lead time 

needed for large components fits into the implementation period established in the final rule.

Dry fly ash conversions. EPA disagrees with the commenter that “[a]t least a ten-week outage 

will be required for final tie-in,” and notes that the commenter provided no data to support its 

assertion. Based on information EPA obtained during site visits and from the industry survey 

from facilities that have performed such conversions, the tie in for a dry fly ash conversion can 

be, and typically is, conducted within one of the normally scheduled maintenance outages at a 

steam electric power plant. There is nothing in the record for this rule that demonstrates plants 

lack the flexibility to coordinate these conversions with normal plant outages, and the 

implementation period in the final rule accounts for this.

Dry bottom ash conversions. EPA disagrees with the commenter that “[c]losed-loop or dry 

bottom ash is ...relatively new for the utility industry.” As described in preamble section VIII, 

these technologies for control of bottom ash transport water are demonstrably available. Based 

on data collected in the industry survey, more than 80 percent of coal-fired generating units built 

in the last 20 years have installed dry bottom ash handling systems. In addition, based on 

information in its record, EPA found that half of the entities that would be subject to the final 

zero discharge requirements for bottom ash transport water are already employing zero discharge 

technologies (dry handling or closed-loop wet ash handling) or planning to do so in the near 

future. Regarding space constraints, and as described in Section 7 of the TDD, mechanical drag 

systems come in various standard widths and require headspace under the boiler; however, the 

system may not be suitable for all boiler configurations that may have space limitations. In these 

cases, a remote mechanical drag system may be used to collect bottom ash using the same 

operations and equipment as wet sluicing systems at the bottom of the boiler. However, instead 

of sluicing the bottom ash directly to a surface impoundment, the steam electric power plant 

pumps the bottom ash transport water to a remote mechanical drag system. For a discussion 

about land requirements, see the response to DCN EPA-HQ-OW-2009-0819-4655, Excerpt 

Number 53. As for outages, similar to fly ash conversions, based on information EPA has 

obtained during site visits and from the industry survey, the tie-in for a dry bottom ash 

conversion can be, and typically is, conducted within one of the normally scheduled maintenance 

outages at a steam electric power plant, and the implementation period in the final rule accounts 

for this. Again, the commenter provided no data to suggest otherwise.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-47

Nonchemical metal cleaning wastes treatment. The final rule continues to reserve BAT/PSES 

and NSPS/PSNS for non-chemical metal cleaning waste, as the previously established 

regulations do; therefore, comments related to the timing of any new requirements for 

nonchemical metal cleaning waste are not relevant to the final rule. See preamble Section VIII.I 

and response to DCN EPA-HQ-OW-2009-0819-4655, Excerpt Number 154 in Comment Code 

22.

New ash landfills. See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 11 

in Comment Code 27.e.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 157

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

First and foremost, I want to emphasize that it's so important that the agency ensure both 

reasonable limits and reasonable deadlines, recognizing the transition already underway in the 

utility industry. This rulemaking is occurring while many power plant operators are in the 

process of transitioning to meet new federal environmental standards of various kinds, including 

those under the Clean Air Act. And that transition includes extensive and expensive retrofits, 

retirement of some units, and fuel switching from coal to gas based and renewable 

generation. We urge EPA to ensure that the ELG rule sets reasonable compliance limits and 

deadlines and take that ongoing transition into account.

We look forward to working with EPA to develop a final rule that is technologically achievable, 

cost effective, environmentally protective, and that minimizes economic impact and disruption 

on the industry and on our consumers.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA notes that the final rule is economically achievable (i.e., affordable for the industry as a 

whole), and that it is projected to have minimal impacts on consumers of electricity. See 

preamble sections VIII and IX and the RIA.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-48

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 158

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For example, because permitting and constructing new technologies is often -- demonstrably 

often a multiyear process that has to be phased in over time to allow for a reliable and efficient 

plant operation, the compliance deadlines alone have an enormous impact on the industry. All of 

these factors have to be considered when developing ELG rules and an implementation schedule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Donald R. Carlson

Commenter Affiliation: Kansas Department of Health and Environment (KDHE)

Document Control Number: EPA-HQ-OW-2009-0819-3922-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Deadline Considerations for Facilities Targeted for Closure

EPA should consider including provisions that address old power generating facilities/units that 

are scheduled to be deactivated/closed. EPA should coordinate any regulatory upgrades for air 

and water pollution controls to allow a reasonable period of time be allowed to continue to 

operate in their current mode rather than forcing an early closure because of mandated regulatory 

modification/upgrades. This would enable the facility to address reserve capacity needs and 

planned grid modifications in a timely and well thought out manner.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Also, EPA disagrees that “old power generating facilities/units that are scheduled to be 

deactivated/closed” should be subject to differentiated requirements under the final rule. As 

explained in the TDD, EPA determined that the age of the unit or plant is not a factor that affects 

their ability to meet the final limitation and standards. Moreover, EPA determined that it would 

not be appropriate to categorically treat units or plants that are scheduled to retire any differently 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-49

than other units or plants under the final rule. See response to DCN EPA-HQ-OW-2009-0819-

4495-A1, Excerpt Number 3.

Furthermore, EPA notes the timing of the applicability of the final BAT limitations that are more 

stringent than previously established BPT limitations provides flexibility to the permitting 

authority to consider a number of factors in determining what date to apply the final limitations, 

including changes that might be made at the plant in response to other rules, as well as “other 

factors as appropriate.”

Commenter Name: Jamie Rhodes

Commenter Affiliation: Environment Council of Rhode Island

Document Control Number: EPA-HQ-OW-2009-0819-4034-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must also make these more protective standards effective as soon as possible, rather than 

giving the industry eight years to comply, as has been proposed.

Comment Response: 

EPA agrees with the commenter that protective standards should be effective as soon as 

possible. The final rule establishes certain BAT limitations that are immediately applicable –

i.e., where the BAT limitation on TSS is equal to the previously established BPT limitation on 

TSS. In addition, where the final rule establishes BAT limitations that are more stringent than 

previously established BPT limitations, those limitations apply on a date determined by the 

permitting authority that is as soon as possible beginning November 1, 2018 (approximately 

three years following promulgation of this rule), but that is also no later than December 31, 2023 

(approximately eight years following promulgation). This implementation period tracks when, 

in EPA’s judgment, certain technologies represent Best Available Technology Economically 

Achievable, it is not “compliance schedule” for meeting limitations based on a technology that is 

already available and achievable. See response to DCN EPA-HQ-OW-2009-0819-4684-A1, 

Excerpt Number 20.

EPA does not agree with the commenter’s characterization that it is “giving the industry eight 

years to comply” with the final rule. See the discussion in preamble section XVI regarding how 

EPA intends the implementation period will be applied. EPA notes the commenter provided no 

data to support its assertion or to refute EPA’s determination that certain technologies that form 

the bases for the final limitations are not available and achievable until at least November 1, 

2018, and that in some cases, the technologies may not be available and achievable until 

December 31, 2023.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-50

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Patrick O’Loughlin

Commenter Affiliation: Buckeye Power, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4183-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In order to accommodate the phase out of fly ash ponds, new landfills must be constructed. 48 

months is a reasonable best-case estimate of the time necessary to complete the construction 

bidding process, obtain necessary permits and approvals, complete engineering work, and 

construct the landfill. This estimate optimistically assumes a site is available, permitting is 

expeditious, and construction resources are available to conduct the work.

Buckeye Power suggests that, at a minimum, EPA should allow for extensions to the 2022 

deadline for converting to dry ash handling systems.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Also, EPA notes the commenter provided no information to support its assertion that it will take 

at least 48 months to construct as landfill. Even if that were the case, this rule provides 

flexibility to the permitting authority to take such information (backed up with documentation) 

into account in determining the date on which to apply the final fly ash and bottom ash transport 

limitations.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 105

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Implementation Timing is Not Realistic if New Treatment Systems are Required or 

Modifications are Needed to Existing Systems for Leachate
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-51

Duke Energy disagrees with the timeframe suggested for compliance with the combustion 

residual leachate effluent limits79. While the implementation timeframe proposed may be feasible 

for facilities that already have treatment systems in place, the timeframe suggested in the rule 

(immediately when the rule is effective) will be difficult to meet if a treatment system must be 

installed, modified or other plant modifications are required, such as re-routing piping to meet 

compliance. As stated earlier, these installations could require engineering design, permitting, 

modeling, additional monitoring equipment and actual construction of the system. For landfill 

leachate, additional property may need to be acquired to construct a collection pond if a 

treatment system is not currently in place. Any of these items could preclude the plant from 

achieving compliance upon the effective date of the rule (i.e. July 1, 2014). The permitting 

alone for these types of systems has its challenges because some states require multiple agency 

involvement in their review of applications. In several states, modifications to existing landfill 

permits could be required for this type of project. Additionally, the Dam Safety Authority could 

require permits and/or preconstruction review/approval, as well as post construction approval 

when the construction of a new surface impoundment is required.

In addition, if EPA includes requirements that leachate must meet limits at an internal outfall, 

additional time could be needed to engineer, design, permit and modify the plant process at 

facilities where the leachate is currently comingled with a another source, such as bottom ash 

transport water.

Furthermore, Duke Energy is concerned that immediate implementation of a new leachate 

treatment system to meet the proposed ELG limits could result in expenditures on projects that 

would become moot or not aligned with EPA’s Coal Combustion Residual Rule once it becomes 

final. For example, costs could be incurred for installation of a treatment system or plant 

modifications that would then not be needed if the pond is eventually closed due to requirements 

contained in the final CCR Rule.

Therefore, EPA should apply the same compliance schedule to combustion residual leachate as 

the other wastestreams in the Proposed Rule, allowing for a minimum of three years for 

implementation.

79 TDD at Section 14.1.1 page 14-1 [EPA-921-R-13-002]

Comment Response: 

For combustion residual leachate, the final BAT limitation applies on the date that a permit is 

issued to an existing source of direct discharges, following the effective date of this rule. The 

final rule does not build in an implementation period for meeting this limitation, as the BAT 

limitation on TSS is equal to the previously promulgated BPT limitation on TSS in low volume 

waste sources. See preamble sections VIII and XVI. Because the regulatory requirements in the 

final rule are the same as those that previously applied from the plant’s standpoint, EPA does not 

anticipate that plants would change the way they handle combustion residual leachate as a result 

of this final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-52

The final rule does not contain requirements on “internal outfalls.” See final preamble Section 

VIII.G.

See responses to comment code 27.e regarding coordination of requirements in this final rule 

with the CCR rule.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 130

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Timing

Duke Energy commends EPA in their attempt to provide flexibility within the Proposed Rule 

with regards to compliance timing. However, Duke Energy recommends that EPA clarify certain 

aspects of these provisions within the Final Rule to align with its true intent.

In the Proposed Rule EPA states, “that certain BAT limitations for existing sources being 

proposed today (those that would establish requirements more stringent than existing BPT 

requirements) would apply on a date determined by the permitting authority that is as soon as 

possible when the next permit is issued beginning July 1, 2017 (approximately three years from 

the effective date of this rule).”115 Duke Energy agrees with EPA that additional time is needed 

to design, permit, construct and test treatment systems or undertake other plant modifications to 

achieve compliance with the proposed ELG requirements. At some facilities, multiple 

technologies may need to be installed, which may or may not be coordinated to occur during the 

same unit outage. In some cases, such as tying into a shared treatment system, these installations 

may need to span over separate unit outages. Depending on the extent of the new treatment 

systems required and/or other modifications to the plant, such as rerouting or installing new 

piping, these installations could take longer than the three years EPA assumes is needed to 

achieve compliance. In addition, several of EPA’s eight options for fly ash, bottom ash, and 

FGMC disposal require dry handling of ash that would likely result in need to construct or 

expand landfills. In evaluating this issue in the CCR Proposal, USWAG determined that it would 

take the power industry at least 8 to 10 years to site, design, permit, construct, and render 

operational alternative dry management systems, including constructing new wastewater 

treatment capacity to replace the ancillary wastewater treatment function that was provided by 

the CCR impoundment.116

As mentioned earlier, the coordination and alignment of requirements between this Proposed 

Rule and the CCR rulemaking is crucial. One of the fundamental aspects for coordination is 

ensuring appropriate and complementary compliance timelines. Since a number of the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-53

compliance alternatives and subsequent projects are expected to overlap between the two rules, 

alignment of the requirements is essential to assure compliance in the most operationally 

efficient and cost-effective manner. EPA’s “goal is that, consistent with its statutory 

requirements, the implementation dates for each rule would not require facilities to make 

decisions without understanding the implications that such decisions would have for meeting any 

requirement of each rule.” 117 Duke Energy agrees that a facility will need to determine whether 

any changes to its operations are needed to comply with the Final ELG Rule first, and then 

evaluate what strategic options are available to address any CCR requirements, for example, with 

the continued operation of a surface impoundment. Given this objective, any implementation and 

corresponding compliance obligations for surface impoundments modifications and/or closure 

under the CCR rule should not be triggered until a reasonable time after the applicable ELG 

requirements are clearly established for a specific facility in its revised NPDES permit that 

incorporates the new ELG rule requirements.

In addition, these rules, as with other recent environmental air and water regulations, rely heavily 

on resources with highly technical engineering expertise. In some cases, there are a limited 

number of consultants, vendors and construction companies capable of providing the services 

and equipment needed to meet the proposed requirements. As the entire utility industry moves 

forward with compliance implementation, securing these resources can become a critical path to 

meeting the compliance timelines. For example, if EPA chooses to establish effluent limits for 

FGD wastewater based biological treatment technology, then there will most likely be significant 

vendor resource limitations, as there is currently only one vendor, GE AbMet, available. Due to 

this constraint, it could take longer than 10 years for full implementation of this technology 

across the industry.

EPA also states that “the proposed requirements for existing sources where BAT is set equal to 

BPT would be applicable as of the effective date of the final rule”118 for combustion residual 

leachate and nonchemical metal cleaning wastewater. Duke Energy contends that this 

requirement should only be valid if there are no new treatment systems required or modifications 

needed to the station, unit, or existing treatment systems or changes to plant processes in order to 

comply with the new requirements. For example, even if the specific numerical effluent limits 

for a wastestream (such as TSS and Oil & Grease), are not changed from the previous BPT limits 

set for low volume waste, additional modifications to the station/unit could be required to 

segregate, capture and monitor the specific wastestream. Stations may have to make extensive 

modifications to piping, sumps and treatment systems, which could take many years to complete. 

Therefore, the compliance schedule for these wastestreams should allow sufficient time for 

implementation including design, engineering, permitting, construction and testing/startup and 

not be arbitrarily set as the effective date of the rule. Duke Energy recommends that the 

compliance schedule for combustion residual leachate and nonchemical metal cleaning waste be 

consistent with the schedule for the other wastestreams addressed in the proposed ELG Rule.

Overall, Duke Energy recommends a staggered compliance schedule stretching over a period of 

no less than 8 - 10 years and that the state permitting agency should have the flexibility to take 

into account site-specific constraints and vendor resource limitations when developing the 

compliance schedule that will be incorporated into the facility’s NPDES permit.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-54

115 78 Fed. Reg .at 34479

116 USWAG CCR Comments [EPA-HQ-RCRA-2009-0640-10483, App 19]

117 78 Fed. Reg at 34442

118 Id. at 34522

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

EPA notes that many of the considerations discussed in this comment such as the need to span 

installation of equipment over separate unit outages are considerations that can be incorporated 

into the permit writer’s determination of the “as soon as possible” date, assuming the plant 

provides documentation demonstrating such a need.

EPA notes that the implementation period in this final rule for BAT limitations that are more 

stringent than previously established BPT limitations “would not require facilities to make 

decisions without understanding the implications that such decisions would have for meeting any 

requirement” under the CCR rule. See responses in Comment Code 27.e regarding coordination 

of the CCR rule with the ELG. Comments specifically pertaining to EPA’s CCR rule are outside 

the scope of this rulemaking. EPA addressed comments on the CCR rule in the context of that 

rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

The EPA disagrees with the commenter that they will not be able to implement the requirements 

during the implementation timeframe due to a lack of engineering resources, vendors, 

consultants, etc. With the exception of the vendor for the AbMet system, the commenter did not 

provide any data to support their assertion. Regarding engineering resources, EPA does not 

expect that all plants have those resources available on site. Rather, EPA expects that plants will 

hire from outside sources as this is consistent with what many plants currently do. Regarding the 

AbMet system, EPA notes that plants are not required to install a particular technology, but 

rather, are required to comply with the limitations. In addition, experience shows that other 

vendors will come to market and provide alternative solutions to meet the final FGD wastewater 

effluent limitations and standards, and are already doing so as explained in Section V of the final 

preamble. EPA disagrees with the commenter that where the final BAT limitations are equal to 

previously established BPT limitations on TSS, the timing for applicability of the requirements 

should be extended. From the plant’s standpoint, the limitations in this final rule are no different 

than limitations that have been in force for over 30 years. There are no requirements in the final 

rule for “new treatment systems” and there are no requirements “to segregate, capture and 

monitor” these wastestreams. EPA would therefore not expect plants to alter their handling of 

such wastestreams, including combustion residual leachate, as a result of this final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-55

Commenter Name: Nancy A. Evans

Commenter Affiliation: PPL Services Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4348-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3.EPA should clarify the proposed compliance date for Best Available Technology.

A clear and reasonable compliance schedule is a central requirement for any environmental 

regulation. As currently drafted in the proposed ELGs, the compliance date for Best Available 

Technology (BAT) is ambiguous. The proposed rule provides that BAT limits must be met as 

soon as possible “within the next permitting cycle beginning July 1, 2017,” while the preamble 

refers to the next permit cycle after July 1, 2017. Based on EPA’s August 20, 2013 Webcast, we 

understand that EPA intends that the first time a permit is reissued after July 1, 2017, it must 

contain a compliance date for BAT that has been determined to be “as soon as possible.” 

However, EPA has also stated in the preamble that it anticipates that all facilities will be in 

compliance with BAT by July 1, 2022, which is not entirely consistent with the compliance date 

interpretation announced in the Webcast (i.e., facilities issued renewal permits immediately 

before July 1, 2017 would not have a BAT compliance date included in their permits until the 

next renewal in 2022 and that compliance date could potentially be up to an additional five 

years). In addition, it is not clear if EPA intends “compliance” to mean that the requisite 

provisions have been included in a permit or the facility has actually complied with those terms. 

We request that EPA provide appropriate clarification in the final rule that a compliance date for 

BAT must be included the first time a permit is reissued after July 1, 2017, with all facilities 

expected to be in compliance no later than 2027.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

The language in the final regulations differs from the language in the proposed regulations with 

respect the implementation period from November 1, 2018 to December 31, 2023. The final rule 

no longer includes the phrase “within the next permitting cycle.” Rather, it simply states that the 

relevant BAT limitations must be met “by a date determined by the permitting authority that is as 

soon as possible beginning” November 1, 2018, but no later than December 31, 2023. 

Commenters, like this one, were confused by the phrase “within the next permitting cycle.” 

When EPA used this phrase in the proposed rule, it intended for the phrase to be read as “within 

the permitting cycle after the effective date of this rule,” not “within the permitting cycle for 

permits that are issued on or after [November 1, 2018].” The final regulations have been revised 

to exclude the term “within the next permitting cycle,” which was causing confusion, and the 

final preamble, in section XVI, explains how EPA envisions the final BAT limitations will be 

implemented, including in permits that are issued after the effective date of this rule but before 

November 1, 2018. As explained in preamble section XVI, for the final BAT limitations that are 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-56

more stringent than previously established BPT limitations, the permitting authority need not 

wait until November 1, 2018, to begin incorporating the final limitations into an NPDES 

permit. Of course, those limitations cannot apply to the plant until November 1, 2018, at the 

earliest.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposes a compliance deadline for BAT as “by a date determined by the permitting 

authority that is as soon as possible within the next permit cycle beginning July 1, 2017.” As 

long as permit authorities require compliance “as soon aspossible,” the ELG rule sets no fixed 

date by which any plant must achieve compliance. The rule should clarify that permit writers 

have the flexibility to establish compliance horizons beyond eight years where justified for plant 

modifications required by the new rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 100

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If EPA nonetheless imposes chemical metal cleaning waste (CMCW) limits on NCMCW 

discharges at existing units, the final rule should allow a compliance schedule consistent with 

other proposed ELG limitations (i.e., by a date determined by the permitting authority that is as 

soon as possible within the next permitting cycle after July 1, 2017) .

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-57

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 112

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If EPA Imposes Iron and Copper Limits on NCMCW, It Should Allow Compliance 

Schedules Consistent with Other Proposed ELG Limitations

Unlike other wastestreams in the proposed rule, there would be no compliance period for 

meeting the new BAT requirements for nonchemical metal cleaning wastes. There is no 

provision for incorporating changes “as soon as possible” within the next permitting cycle after 

July 1, 2017. This is based on EPA’s assumption, possibly erroneous, that the rule will not 

require existing facilities to change their treatment of nonchemical metal cleaning wastes.

Depending on how EPA interprets the criteria it proposes for determining whether individual 

units are currently authorized to discharge NCMCW as low volume waste, there may be many 

plants that have to modify their pipes, sumps, and treatment systems so as to collect water 

washes and treat them by chemical precipitation for iron and copper. Plants may have to perform 

extensive excavation of existing sumps and piping and install new pipes and treatment tanks, and 

these retrofits are likely to take more than three years at many plants.

At the same time, these plants may find themselves retrofitting treatment for other wastestreams. 

In addition, they may be undertaking large capital projects to comply with air regulation, the 

CCR Rule, the § 316(b) rule, and possibly others. The many overlapping regulatory compliance 

requirements will add to the complexity of timing and completing the NCMCW retrofits.

EPA should acknowledge that, if significant modifications are needed to comply with the 

requirements for NCMCWs, the permit authority should set a reasonable compliance schedule, 

which should be longer than three years. The compliance schedule for any retrofits needed for 

NCMCW should be consistent with the schedule for other wastestreams that are subject to new 

limits or conditions because of the revised ELG regulations or other EPA rulemakings.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-58

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. 2017 Compliance Date

The Department finds the draft wording regarding timing of implementation confusing. In some 

places the draft states that "certain limitations and standards being proposed today for existing 

sources would not apply until July 1, 2017." However, the section on Timing of New 

Requirements states that "in some cases, the new BAT requirements may as a practical matter be 

applied to a facility sometime after July 1, 2017. However, EPA judges that, under this proposed 

approach all steam electric facilities will have the proposed BAT limitations applied to their 

permits no later than July 1, 2022." It is unclear to us whether the "no discharge" requirement 

would apply three years from the effective date of the guideline or eight years. This distinction 

would also affect the timing of the incentives. During communication with the industry, the 

Department has noted that some of their representatives have interpreted July 1, 2017 as a 

deadline to cease any new placement of coal ash in existing impoundments.

The Department supports an interpretation of the ELG that would require permits be renewed or 

modified by 2017 to include a schedule of compliance requiring the facilities to implement dry 

handling of ash no later than 2022. Under this interpretation the incentives would allow extra 

time beyond the 2022 date. This longer schedule will allow the permittees the flexibility to 

prevent or minimize forced outages while implementing new long-term strategies for disposal of 

dry ash. The Department suggests that EPA provide some clarification on the timing of new 

requirements in the final rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

The final rule establishes limitations and standards applicable to the discharge of pollutants from 

the steam electric power generating industry. It does not establish requirements related to the 

operation and/or closure of surface impoundments, including “a deadline to cease any placement 

of coal ash in existing impoundments.” Comments on this subject are outside the scope of the 

rulemaking.

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 12
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-59

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Due to other regulations proposed for steam electric generating facilities, allowing only three 

years for compliance with the new ELG could be a significant hardship for some facilities. For 

the State, modifying twenty complex industrial permits multiple times to reflect multiple new 

requirements is a large resource commitment on already strapped programs. Each permit 

modification also opens the permit to comment and appeal by the industry and third parties.

Comment Response: 

EPA disagrees that the final rule “allow[s] only three years for compliance with the new ELG.” 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

State NPDES programs should be given the authority to apply limits and compliance schedules 

based on individual permittee circumstances.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 36

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-60

5.In The Event EPA Does Not Extend The Jordan Memo Exemption, Facilities should Be 

Allowed A Compliance Period To Fully Assess The Status Of Their Nonchemical Metal 

Cleaning Waste Discharge and Comply With Any New Limits

In the event EPA chooses not to extend the Jordan Memo exemption in the final rule, EPA 

should allow all facilities a reasonable period of time, to fully assess how their nonchemical 

metal cleaning wastes are being managed and how best to integrate those wastestreams into the 

chemical metal cleaning wastewater stream for similar treatment. The permit writer should 

determine the appropriate period of time necessary to comply with the new limits after the rule 

becomes effective.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 40

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Timing Language Should be Clarified, Giving States the Authority to Apply Limits 

and Provide Compliance Schedules.

The Proposed Rule appropriately provides three years for initial preparations and planning 

following the publication of the final rule:

EPA proposes that certain BAT limitations for existing sources being proposed today (those that 

would establish requirements more stringent than existing BPT requirements) would apply on a 

date determined by the permitting authority that is as soon as possible when the next permit is 

issued beginning July 1, 2017 (approximately three years from the effective date of this rule).

78 Fed. Reg. at 34,479 col. 3. The Proposed Rule also clearly gives the permitting authority the 

discretion to apply BAT limits to permits within five years of July 2017, or until July 2022:

EPA recognizes that permitting authorities have discretion with respect to when to reissue 

permits and can take into consideration the need to provide additional time to include BAT limits 

to prevent or minimize forced outages. Thus, in some cases, the new BAT requirements may, as 

a practical matter, be applied to a facility sometime after July 1, 2017. However, EPA judges

that, under today's proposed approach, all steam electric facilities will have the proposed BAT 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-61

limitations applied to their permits no later than July 1, 2022, approximately 8 years from the 

date of promulgation of any final ELGs.

78 Fed. Reg. at 34,480 col. 1. Georgia Power acknowledges, as EPA has stated, that some 

facilities will not need the full compliance time proposed by EPA. However, Georgia Power has 

several large plants with multiple units that will require, under the Proposed Rule (assuming 

Option 4a), dry fly ash conversions, dry bottom ash conversions, new landfills, new FGD 

wastewater treatment, and possibly new nonchemical metal cleaning wastes treatment and new 

landfill leachate treatment all at one site. Implementing all of these projects on one unit would 

require a minimum of eight years. Considering there will be several units on one site and several 

plants undergoing the same full set of requirements, at the same time as other EPA rules will be 

requiring other large retrofits, eight years will not be enough time for some plants.

Georgia Power agrees with the "Technology Specific Timing Issues" as detailed within the 

UWAG comments. Given these potentially very large and complex retrofits, EPA should clarify 

that state permitting authorities will have the ability to provide compliance schedules in permits 

that have new BAT limits that extend past July 2022.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 60

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

g. Should iron and copper limits be imposed on nonchemical metal cleaning wastes, 

EPA should allow a compliance schedule.

EPA is proposing a compliance schedule of “as soon as possible” in the first NPDES permit 

renewal after July 1, 2017, for all of the affected waste streams; however, no such compliance 

period is proposed for nonchemical metal cleaning wastes. This appears to be based on EPA’s 

erroneous assumption that the proposed rule will not require existing facilities to change 

management of nonchemical metal cleaning wastes. As has been described above, it may be 

necessary to perform extensive alterations of plant facilities, including tank and pipe installations 

and the construction of sumps and treatment facilities, to meet the new requirements. At the 

same time, other retrofits will be underway to meet the other new ELG requirements, possibly 

including retrofits for dry bottom ash disposal, new landfills, new FGD treatment systems and 

new plant water balance configurations.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-62

EPA should revise the rule proposal to include a reasonable compliance schedule, possibly 

longer than three years, to allow for the installation of nonchemical metal cleaning waste 

treatment facilities.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 66

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

H. Clarification is needed regarding the proposed compliance schedules.

EPA is proposing that certain BAT limitations “would apply on a date determined by the 

permitting authority that is as soon as possible when the next permit is issued beginning July 1, 

2017, ” (78 FR at 34479) which is approximately three years from the anticipated effective date 

of this rule. EPA correctly points out that utilities “will need time to raise the capital, plan and 

design the system, procure equipment, construct and then test the system.” As a result, it is 

allowing up to eight years from the date of promulgation of any final ELGs for a power plant to 

attain compliance with the proposed ELG limitations. However, not all facilities will be able to 

take advantage of this 8-year compliance period. For example, if a facility’s NPDES permit 

renewal date falls on July 30, 2017, will that facility be required to be in compliance with all new 

effluent guidelines on that date or must that particular permit contain the new effluent guideline 

requirements with a prospective compliance date? If the latter, would a compliance period, in 

fact, be allowed? EPA states that it,

“recognizes that permitting authorities have discretion with respect to when to reissue permits 

and can take into consideration the need to provide additional time to include BAT limits to 

prevent or minimize forced outages. Thus, in some cases, the new BAT requirements may as a 

practical matter be applied to a facility sometime after July 1, 2017.” (78 FR at 34480).

EPA also states that, “the permitting authority could establish any additional interim milestones, 

as appropriate, within these timelines.” (Id.). But it remains unclear whether the proposed 

timelines apply to permit implementation or to actual compliance. The agency does state that it 

expects that the proposed BAT limitations will be applied to all permits no later than July 1, 

2022, but again, it does not specify the actual compliance date for the limits.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-63

In Chapter 3 of the agency’s Regulatory Impact Analysis, it states that, “EPA assumes that plants 

would implement control technologies three years after their NPDES permit comes up for 

renewal after the rule promulgation.” 44 It is understood that compliance is likely to be staggered 

over the five year time period from July 1, 2017 to July 1, 2022, but it is not clear if compliance 

periods would be allowed beyond July 1, 2022. Granted, that a facility could start compliance 

activities before the ELGs are implemented in its NPDES permit, but what company would make 

such a commitment without the regulatory requirement to do so actually in force in its facility’s 

permit? In fact, in the regulated electric utility industry, it is not possible to obtain cost recovery 

for such work unless it is specifically required by law or regulation.

Even setting aside all of the above concerns, it is not possible for a utility to comply with the 

proposed technology requirements within the three to eight year compliance period. For 

example, in the event that a final ELG rule requires mandatory conversions of wet fly ash 

systems to dry ash disposal systems, more than five years will be necessary for the design, 

construction and permitting of the alternative landfill disposal space that will be necessary to 

manage the CCR material that would be diverted from the impoundments to the new 

landfills. According to the EOP report45 prepared for USWAG in the CCR rulemaking docket, a 

five-year implementation time period for a wet to dry conversion is not practical given the 

uncertainties over the availability of adequate engineering capacity to conduct all of the 

conversions for the entire industry within this time period. The amount of equipment and labor 

needed to support so many projects within the same time period would be overwhelming. EOP 

estimates that the industry will need up to ten years to site, design, permit, construct and make 

operational alternative disposal capacity for displaced CCR in addition to the needed 

construction of new wastewater treatment capacity.

44 EPA Regulatory Impact Analysis, April 2013.

45 EOP Group, “Cost Estimates for the Mandatory Closure of Surface Impoundments Used for 

the Management of Coal Combustion Byproducts at Coal-fired Electric Utilities,” Nov. 11, 2010.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA updated its analyses and assumptions about compliance for the final rule. See the RIA.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-64

Comment Excerpt: 

THE TIMING FOR IMPLEMENTATION IS UNCLEAR AND SHOULD BE 

CLARIFIED

EPA addresses the “timing for implementation” in various points throughout the Preamble to the 

Proposal. See, e.g., 78 Fed. Reg. at 34442, 34458, 34467, and 34522. These statements are 

confusing and, in some cases, appear to conflict with one another (at least with respect to 

existing dischargers). In addition, various EPA Headquarters and Regional Office staffs have 

made statements regarding implementation timing, further complicating the matter. And, of 

course, the timing issues are further confused by the possible impact of EPA’s proposed 

“Voluntary Incentive Program” for stations that close coal combustion residuals impoundments 

or eliminate all process wastewater discharges. See, 78 Fed. Reg. at 34467 and 34468.

Probably the clearest expressions regarding the implementation timing for most existing 

dischargers are set forth in the Proposed § 423.13. That section consistently states that certain 

“BAT” requirements must be met, “by a date determined by the permitting authority that is as 

soon as possible within the next permit cycle beginning July 1, 2017.” However, even this 

statement is vague and confusing, and will lead to a hodgepodge of implementation schedules as 

individual permit writers in the 50 states attempt to determine what is “as soon as possible.”

As EPA clearly states, it will take most generating stations years to ensure compliance with the 

new requirements.

During site visits, EPA found that most facilities need several years to plan, design, contract, 

and install major modifications, especially if they are to be accomplished during planned 

maintenance periods to avoid causing forced outages. EPA recognizes that the proposed rule 

would require a significant amount of system design by engineering firms, equipment 

procurement form vendors, and installation by trained labor forces. EPA anticipates that 

changes to FGD wastewater treatment systems, fly ash system, bottom ash systems, and/or 

leachate treatment systems would constitute major system modifications requiring several years 

to accomplish for many plants. EPA identified certain technical and logistical issues at some 

facilities that may warrant additional time, such as coordinating ash system conversions for 

multiple generating units. In order to avoid any impacts on the consistency and reliability of 

power generation, outages at multiple facilities in one geographic area would need to be 

coordinated, which could also result in the need for more time.

78 Fed. Reg. at 34480.

In addition to the significant time issues identified by EPA, most generating stations also will 

face significant permitting delays to upgrade treatment facilities. In Pennsylvania, individual 

“Part II Water Quality Management Permits” will be required for the treatment facilities, Title V 

air permitting may be required, and many facilities (particularly those that will need pipelines as 

part of the treatment facilities) may face time consuming permitting under Section 404 of the 

Clean Water Act (and the Pennsylvania equivalent – “Chapter 105” permitting). Other stations 

may have to contend with time consuming (and possibly expensive) real estate acquisitions (e.g., 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-65

for additional treatment facilities or a pipeline right-of-way). Conservatively, the permitting 

process in most cases will take 18 – 30 months to complete, after the engineering design has 

been completed but before construction can commence.

Again, the Hatfield’s Ferry Station scrubber project is a useful example. The timing from “preapplication meeting” to “permit issuance” for the wastewater treatment facility’s construction 

permit was approximately 2 1⁄2 years, and all of the engineering design needed to be done before 

the first applications were submitted. That period then was followed by a lengthy construction 

schedule.

The appropriate way to handle implementation timing is to be clear, and to provide an adequate 

length of time (subject to an extension by the permitting authority when additional time is 

appropriate due to site-specific facts). EPA clearly recognizes that additional time will be 

necessary for many facilities, as it states that “EPA judges that, under this proposed approach, all 

steam electric facilities will have the proposed BAT limitations applied to their permits no later 

than July 1, 2022.” As such, EPGA proposes that the new provisions be implemented as follows 

for existing sources:

1. The new provisions will not be included or referenced in any permits renewed or 

modified prior to July 1, 2017.

2. The new provisions will be included in permits renewed after July 1, 2017, and 

dischargers will be provided a minimum of 3 years to ensure compliance with those 

provisions.

3. The 3 year compliance schedule may be extended to a maximum of 5 years from permit 

renewal date, based on site-specific facts.

This approach will ensure that all generators have adequate time to design, permit, and construct 

the necessary facilities.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA disagrees that the final BAT limitations that are more stringent than previously established 

BPT limitations “will not be included or referenced in any permits renewed or modified prior to 

[November 1, 2018].” EPA also disagrees that once incorporated into permits, dischargers will 

automatically receive a “minimum of 3 years” to meet the final limitations. EPA also disagrees 

that the permitting authority may extend the date by which these final limitations must be met 

beyond 2023. See preamble Section XVI.A.

Also see preamble section VIII.C.13 and responses to comment code 26.a regarding the 

voluntary incentives program, including the date of applicability.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-66

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We also concur with UWAG’s comments regarding the schedule of compliance for 

implementing BAT. The schedule of compliance time line should be left to the discretion of the 

permit writer.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Nysa Hogue

Commenter Affiliation: Indianapolis Power & Light Company (IPL)

Document Control Number: EPA-HQ-OW-2009-0819-4454-A2

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

New BAT limits compliance timeframe: There is some ambiguity with when facilities will be 

expected to comply with the proposed new BAT limits. EPA states in the proposal that 

compliance must be achieved "as soon as possible within the next permit cycle beginning July 1, 

2017". Section 14.1.1 of the TDD, EPA states that the proposed options which include new 

BAT limits, do not apply until July 1, 2017 (approximately 3 years from the effective date of this 

rule). Furthermore, page 237 of the preamble reads "EPA proposes that ce1iain BAT limitations 

for existing sources being proposed today (those that would establish requirements more 

stringent than BPT requirements would apply on a date determined by the permitting authority 

that is as soon as possible when the next permit is issued beginning July 1, 2017." The IPL 

renewal permits are expected to be issued in the fall of 2017. Based on IPL's interpretation of the 

above EPA statements, IPL believes that the new more stringent BAT limits will be included in 

our next renewal permits and compliance will be expected upon the final effective date of the 

issued renewal permits. Please verify the anticipated compliance date for the new more stringent 

BAT limitations in the case of IPL. Will compliance be expected upon issuance of the permit 

renewals or will the permitting authority be allowed, based on the proposed rule, to incorporate a 

compliance schedule of 3 years with the assumption that final compliance date will be achieved 

prior to July 1, 2022 essentially allowing our facilities 6 years from the final effective date of the 

rule to comply with the new more stringent BAT limitations?
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-67

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

The commenter poses certain questions about how the final rule would apply to the renewal of its 

permits that are expected to be issued in the fall of 2017. Section XVI.A.1 of the preamble 

describes what would happen in the event that a plant’s final NPDES permit will be issued after 

the effective date of the final ELGs, but before November 1, 2018.

Commenter Name: Jerry Purvis

Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC)

Document Control Number: EPA-HQ-OW-2009-0819-4455-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Finally, as set forth above, there are substantial differences in the manner in which states applied 

the 1975 Jordan Memo with respect to non-chemical metal cleaning waste. Accordingly, to the 

extent the final rule regulates facilities that were not previously managing non-chemical metal 

cleaning waste in the same manner as chemical metal cleaning waste pursuant to the Jordan 

Memorandum, those facilities will need time to revise practices, construct new capture and 

conveyance systems, and provide storage for evaluation and, if necessary, treatment of non

chemical metal cleaning waste. EKPC requests that any such facilities be afforded the same time 

schedule as for other newly imposed BAT requirements.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Chad Miller

Commenter Affiliation: Montana-Dakota Utilities Co.

Document Control Number: EPA-HQ-OW-2009-0819-4457-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-68

The currently proposed rule will require disruptive compliance 

monitoring and costly wastewater handling modifications that are expected to far outweig

h the environmental benefits.

Comment Response: 

See the response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d for further discussion on the proposed anti-circumvention provisions, and the 

requirements included in the final rule.

EPA disagrees that the final rule requires “costly wastewater handling modifications that are 

expected to far outweigh the environmental benefits,” as demonstrated throughout the final rule 

record. First, the final rule does not “require” any particular “modifications,” but rather 

establishes limitations and standards on discharges of pollutants. Plants are free to choose the 

method they deem most fit to achieve the limitations. Second, this comment is too generalized to 

offer a specific response to. Other specific comments raised in the commenter’s letter are 

addressed elsewhere in this comment response document.

Regarding the role of cost-benefit analysis in EPA’s decisions on the final steam electric ELGs, 

see response to DCN EPA-HQ-2009-0819-4464-A1, Excerpt Number 3 in comment code 6.e.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The implementation timeline for the final rule is inadequate for the potential changes that would 

be necessary if any of the options is implemented. The time allowed for facilities to come into 

compliance must be more flexible to accommodate the complexities of the changes needed to 

achieve compliance.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-69

Comment Excerpt Number: 37

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Schedule.

As mentioned above the proposed five (5) year compliance timeline (2017 to 2022) is inadequate 

for the changes required to comply with the proposed requirements.

Xcel Energy recommends that EPA allow at least ten (10) years for facilities to achieve 

compliance and that the specific timing for each facility be a decision made by the permitting 

authority with a federal compliance deadline of no more than ten (10) years after rule 

promulgation. As mentioned earlier in these comments, the time required to disentangle these 

water systems is significant and Xcel Energy and all utilities are required to maintain system 

reliability throughout the process. Five (5) years is not sufficient time to complete the changes 

needed to comply with the proposed requirements. This does not take into account the time that 

may be required to site and construct new landfills.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

It is important for EPA to allow sufficient time as will be necessary if, for purposes of either rule, 

a facility owner/operator determines that closure of a CCR impoundment is warranted and that 

an alternative dry management system will be employed for the CCR. If CCR impoundments 

were compelled to close under that rule, we believe that it could take as long as 10 years to site, 

design, permit, construct, and initiate operation of alternative dry management systems, 

including constructing new wastewater treatment capacity to replace the wastewater treatment 

function that was provided by the CCR impoundment. We raise this issue because the proposed 

ELG contemplates only a 5-year conversion time frame for a facility to cease the use of 

impoundments for certain CCR transport waters and to site, design, permit and construct an 

alternative landfill (as we believe most facilities will elect to develop) for the management of the 

displaced CCR. (Federal Register, June 7, 2013, Page 34496). A five-year implementation time 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-70

period for wet to dry conversion simply will not be achievable in the vast majority of cases due 

to all the variables associated with designing, siting, and permitting a landfill. Therefore,up to ten 

years may be necessary to implement any compliance obligation under the finalELG rule that 

requires a facility to undertake a wet to dry conversion of CCR management.

Comment Response: 

The final rule does not compel any steam electric power plant to close CCR surface 

impoundments or “cease” using impoundments, even if implementing a wet to dry conversion 

for ash handling. It establishes requirements on discharges of pollutants in certain wastestreams 

from the steam electric power generating industry. Therefore, comments regarding the closure or 

ceasing use of surface impoundments are outside the scope of the final rulemaking.

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, including with 

respect to the commenter’s statements about landfills and the suggestion that “up to ten years 

may be necessary to implement any compliance obligation under the final ELG rule.”

Also, see responses to comments in comment code 27.e regarding coordination of the ELG and 

CCR rulemakings. Comments specifically pertaining to EPA’s CCR rule are outside the scope 

of this rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regulations implementing the proposed elimination of discharges of wastewater pollutants from 

fly ash transport water must allow adequate time for conversion, including for many facilities 

time to design, permit and construct new or expanded CCR landfills.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-71

Comment Excerpt Number: 39

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed Effluent Guidelines present a single preferred alternative for "best available 

technology" (BAT) for fly ash management of "dry handling" (Option 4a in § 423.13). AER 

believes that EPA should include provisions to allow adequate time for facilities to fully convert 

existing fly ash handling systems . For instance, some energy centers have dry fly ash handling 

installed but rely on wet sluicing for a backup system and/or "off specification" fly ash 

generation during unit startups or shutdowns. Integration of a dry fly ash handling system at an 

existing unit represents a major retrofit within the confines of existing plant infrastructure. If 

EPA mandates dry fly ash handling, then they must allow adequate time to design, construct, and 

implement these new systems.

EPA's generally applicable implementation timeline is reasonable for most provisions. However, 

it is imperative that an appropriate amount of time be allowed for the permitting and construction 

of a coal combustion byproduct landfill in light of EPA's intent to eliminate ponding of fly ash. 

In this regard, AER requests that the final ELGs allow up to ten years to convert units to dry fly 

ash handling. This would provide for an orderly engineered design and would include time to 

purchase land, obtain permits, and construct the receiving landfill. Although commercial 

!landfills are a potential interim solution, we note that the disposal costs are significantly higher 

than those for an on-site landfill.

Comment Response: 

As explained in response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, for 

the final BAT limitations that are more stringent than previously established BPT limitations 

(including those applicable to fly ash transport water), permitting authorities would determine 

the date on which the BAT limitations must be met, and this may be as soon as November 1, 

2018, but in no case may it be later than December 31, 2023. Based on the information in its 

record, it is EPA’s understanding that plants that operate dry fly ash handling systems, but have a 

wet sluicing system for backup, would likely be able to meet the final zero discharge fly ash 

transport water requirement by November 1, 2018, but that determination ultimately rests with 

the permitting authority. See response to DCN EPA-HQ-OW-2009-0819-4655, Excerpt Number 

138 in Comment Code 14.a regarding wet sluicing backup systems.

The final ELGs do not require elimination of fly ash impoundments. The final rule establishes 

requirements on discharges of pollutants in certain wastestreams from steam electric power 

generating units. Therefore, related comments are outside the scope of the final rulemaking. Also 

see responses to comments in code 27.e.

See also response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, regarding 

landfills.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-72

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Three Year Implementation Period for all Other Provisions of the Draft Rule Should be 

Provided to Those Facilities Forced to Implement Any New Standards Promulgated for 

NCMCWs.

Currently, the Draft Rule does not provide a three year implementation period for those facilities 

required to comply with any new standards for NCMCWs imposed in the final rulemaking. This 

is the only portion of the Draft Rule that does not provide such an implementation period. This 

may be a simple oversight. But, if not, one must be incorporated into any final rule.

As explained above, most facilities, including PowerSouth’s Lowman Plant, do not currently 

have infrastructure in place to comply with the NCMCW standards proposed in the Draft Rule. 

This infrastructure will not appear overnight after the final rule is promulgated and/or after EPA 

issues its final decisions on the application of the Jordan Memorandum exemption to individual 

facilities, whichever occurs later. It will take significant time and money to construct the 

necessary infrastructure to handle and treat NCMCWs in the manner EPA has proposed in the 

Draft Rule. This time could be further elongated, as well, if a large number of facilities are 

required to comply with any new NCMCW standards given that there is a limited pool of 

contractors or third party vendors capable of performing the necessary retrofit work at these 

facilities.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-73

Midwest Gen strongly supports EPA’s proposal to provide sufficient time for facilities to 

undergo any required modifications to meet the proposed ELGs. Facilities are facing a number of 

new regulatory requirements, many of which require modifications to existing facilities, and 

sufficient time is needed for planning, budgeting, and construction. However, Midwest Gen also 

notes that EPA’s proposed compliance timeline would be wholly inadequate if EPA were to 

adopt bottom ash transport water limits based on dry handling or closed loop systems, which 

Midwest Gen strongly opposes.

Comment Response: 

EPA disagrees the approach in the final rule is “inadequate” where EPA has adopted bottom ash 

transport water requirements based on dry handling or closed loop systems. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 27

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Additionally, Midwest Gen requests that EPA clarify in its final rule that if any modifications are 

needed for a facility to fully comply with the NCMCW limitations, the state permitting authority 

shall permit a reasonable time for compliance, consistent with EPA’s treatment of ELG revisions 

for other waste streams that may trigger facility modifications, as described below.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 28

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-74

MIDWEST GEN STRONGLY SUPPORTS PROVIDING SOURCES SUFFICIENT TIME 

FOR COMPLIANCE.

Given the breadth of new requirements in EPA’s Proposed Rule and the multiple regulations the 

power sector faces, Midwest Gen supports EPA’s proposal to allow at least three years’ 

(potentially more, depending on the facility’s permitting cycle) compliance time for operators to 

plan for and make any necessary modifications to their facilities or processes. Given the limited 

number of skilled engineers capable of making the modifications, operators likely will face 

significant delays, making an earlier compliance deadline difficult or impossible to meet. Thus, 

it is appropriate for the compliance schedule to allow planning time for required system 

reconfigurations, budgeting, construction, etc. However, Midwest Gen also notes that EPA’s 

proposed three-year compliance period would be wholly inadequate if EPA were to set limits on 

bottom ash transport water that would require facilities to convert from wet to dry handling, 

which Midwest Gen strongly opposes. Given the significant modifications this would require for 

facilities as well as the sheer number of facilities that would require such changes (since 

approximately 80 percent of coal- and petroleum coke- fired power plants operate wet bottom 

ash transport systems) EPA’s proposed timeline would not provide nearly enough time for 

compliance.

As noted in section III.C above, Midwest Gen also requests that EPA clarify in its final rule that 

the minimum, three-year compliance schedule would apply for any facility that requires 

modifications to comply with any other limitations imposed in the final rule. Such a clarification 

is needed to ensure that all facilities that might face required modifications to ensure compliance 

with the ELGs are provided such an opportunity.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. Also, as 

explained in the preamble, for the final rule, EPA notes that, due to changes in the industry 

outside of this final rule, EPA finds that half of the entities that would be subject to the final zero 

discharge BAT requirements for bottom ash transport water are already employing zero 

discharge technologies or planning to do so in the near future. Furthermore, the commenter 

provided no data to support its assertion that there are a “limited number of skilled engineers 

capable of making [bottom ash] modifications.”

EPA disagrees that a three year compliance timeframe is appropriate for all wastestreams for any 

facility that requires modifications to comply with any limitations imposed by this final rule. See 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 130.

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 32
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-75

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Midwest Gen respectfully requests that EPA:

• provide adequate compliance time for facilities facing modifications in order to comply with 

the final rule and recognize that the current proposed timeline would be wholly inadequate if 

facilities were required to meet bottom ash transport water ELGs that were based on dry ash 

handling or closed loop systems;

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4464-A1, Excerpt Number 5.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The effective date of this rule is inappropriate if additional treatment technologies or process 

modifications are required for compliance.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: JoAnne Rau

Commenter Affiliation: Dayton Power & Light Company (DP&L)

Document Control Number: EPA-HQ-OW-2009-0819-4470-A1

Comment Excerpt Number: 30

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-76

Any final regulations that are even close to any of the options presented by USEPA in the 

proposed rulemaking (including but not limited to the conversion to dry fly ash and bottom ash 

handling) would entail massive compliance efforts on the part of the regulated community. As a 

result reasonable compliance schedules are crucial to the facilities subject to the proposed 

rule. A three- or four-year compliance schedule is simply inadequate.

For example, siting, permitting, and constructing new landfills often take eight or more years to 

complete. Since USEPA has stated that the ELG rule must be coordinated with the CCR rule 

because both involve of the same wastestreams (fly ash, bottom ash, and FGD wastes), 

coordinated requirements are essential to assure compliance in the most operationally efficient 

and cost-effective manner while allowing sufficient time to implement the requirements.

Because of the financial pressures facing the electric utility industry and the need to finance 

multiple new requirements under the Clean Air Act, RCRA, and the Clean Water Act, 

modifications to power plants cannot be made quickly. Once the new rule's requirements are 

known, DP&L will have to determine what plant changes are needed to comply with the ELG 

rule and CCR rule together. Then several months of engineering work must be done to design 

the specific plant modifications. The process is long and demanding, and financial requirements 

are so significant that no company can proceed precipitously. These constraints, and others, will 

determine what is "as soon as possible." Permitting agencies need the flexibility to take them into 

account and allow appropriate implementation timeframes.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126 in Comment 

Code 26.b.

See responses to comments in Comment Code 27.e regarding coordination of the final ELG and 

the CCR rules.

Regarding time needed to finance capital investments associated with the final rule requirements, 

see response to DCN EPA-HQ-OW-2009-0819-4448-A1, Excerpt Number 70 in Comment Code 

28.b. As noted in that response, the ELG financing burden is comparatively modest for virtually 

all organizations expected to incur costs under the final rule. EPA’s analyses show that the final 

rule ELGs are economically achievable even in the context of the industry’s near-term capital 

needs.

Commenter Name: Michalene Reilly

Commenter Affiliation: Hoosier Energy Rural Electric Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4471-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-77

Comment Excerpt: 

UWAG agrees with what we understand to be EPA's intent as to the compliance deadline for 

BAT: The date "as soon as possible" needs to be set by the permitting authority and 

included in the first permit renewal after July 1, 2017. As long as permit authorities require 

compliance "as soon as possible," the ELG rule sets no fixed date by which any plant must 

achieve compliance. This leaves permit writers the flexibility to allow enough time for plant 

modifications that may be required by the new rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4. EPA disagrees that there is a 

“fixed date by which any plant must achieve compliance,” as explained in that comment 

response.

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 25

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Effective Dates

EPA proposes that certain BAT limitations for existing sources (those that would establish 

requirements more stringent than existing BPT requirements) would apply on a date determined 

by the permitting authority that is as soon as possible when the next permit is issued beginning 

July 1, 2017 (approximately three years from the effective date of this rule) . The July 2017 date 

appears to be based on the assumption that the guidelines will be made final on or before July 1, 

2014.

Santee Cooper appreciates that EPA recognizes that significant time will be required to raise the 

capital, plan and design the systems, procure equipment, construct and then then test the new 

systems, and that EPA proposes a window of time before application of new standards. 

However, although EPA is acting under a consent decree, Santee Cooper is concerned that the 

ELGs may not be finalized in the presently envisioned time frame . Therefore, we suggest that 

the amount of time be specified as opposed to certain dates (i.e., July 1, 2017 and July 1, 

2022). A minimum of the presently proposed 3 to 8 year time frame appears appropriate . 

However, the permitting authority should have additional flexibility for site specific situations.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-78

Also, it should be made clear that the revised ELGs are not to be applied to permit renewals that 

occur prior to the July 1, 2017 (or the adjusted date based on the actual publication date of the 

new ELGs).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA disagrees that the final rule is “not to be applied to permit renewals that occur prior to” 

November 1, 2018. See preamble Section XVI.A and response to DCN EPA-HQ-OW-2009-

0819-4348-A2, Excerpt Number 4.

Commenter Name: Joseph G. Eutizi

Commenter Affiliation: San Miguel Electric Cooperative, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4485-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Giving permit writers the flexibility to allow sufficient time for plant modifications that 

may be required by the new rule.

What constitutes “as soon as possible” needs to be set by the permitting authority and included in 

the first permit renewal after July 1, 2017. As long as permit authorities require compliance “as 

soon as possible,” the ELG rule sets no fixed date by which any plant must achieve 

compliance. This leaves permit writers the flexibility to allow time for plant modifications that 

may be required by the new rule.

Such flexibility is particularly important if a facility owner/operator decides to close a CCR 

impoundment and implement an alternative dry ash management system. It could take 8 to 10 

years to site, design, permit, construct, and render operational alternative dry management 

systems, including constructing new wastewater treatment and landfill capacity to replace that 

provided by the impoundments.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-79

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The 40 CFR Part 423 rule must be promulgated July 2014 with the new requirements 

incorporated into permits beginning July 2017. CIBO members have great concern about the 

achievability of this permit and compliance cycle in this situation. There is currently a significant 

delay in obtaining water pollution control equipment and appurtenances. This delay is 

exacerbated by any need to evaluate, design, and install new treatment systems like fixed-bed 

anaerobic treatment units. EPA should adjust compliance timing to account for this bottleneck in 

the compliance schedule and ensure that facilities can obtain variances in the permit compliance 

schedule for purchasing and installing equipment.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Finally, EPA should provide adequate time for utilities to implement any new requirements that 

EPA does impose in a final ELG rule, coordinating implementation of those requirements with 

compliance with EPA’s separate air, solid waste, and water rulemakings that are affecting or 

soon will affect the electric utility industry.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-80

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, EPA should recognize that the utility industry needs sufficient lead time to avoid or 

minimize adverse consequences to electricity customers stemming from energy supply and 

reliability effects of the rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA has also failed to propose compliance deadlines that would allow the industry to coordinate 

this rule with other changing environmental regulations and the changing composition of the 

electric utility fleet. If not corrected, this will increase the rule’s overall adverse impacts and 

inhibit an efficient transition to a more modern, lower emissions fleet.

Comment Response: 

The implementation period in the final rule accounts for the factors raised by the commenter, 

including changes that are planned in response to other environmental regulations. See response 

to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 32
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-81

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

And the final rule’s requirements should be phased in and other areas for clarification addressed.

Comment Response: 

EPA disagrees with the commenter’s characterization that the requirements of the final rule are 

“phased in,” something that EPA did not propose. See response to DCN EPA-HQ-OW-2009-

0819-4379-A1, Excerpt Number 126. 

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 68

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, EPA should write the ELG rule to say that, if any modifications are needed to 

comply with the requirements for nonchemical metal cleaning wastes, the permit agency should 

set a reasonable compliance schedule consistent with the schedule for other

wastestreams that are subject to new limits or conditions because of the revised ELG regulations.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 94

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Schedules – New Requirements Need to be Phased in Over Time.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-82

Reasonable compliance schedules are crucial to the facilities subject to this rule. If EPA requires 

dry fly ash and bottom ash handling, that means many more landfills will be needed to receive 

the ash. A 3- or 4-year compliance schedule is not sufficient.

Siting, permitting, and construction of new solid waste landfills often takes eight or more years 

to complete. The ELG rule must be coordinated with the proposed CCR Rule because both 

involve many of the same wastestreams (fly ash, bottom ash, and FGD wastes). Coordinated 

requirements are essential to assure compliance in the most operationally efficient and costeffective manner.

According to a report by consultant The EOP Group, Inc., (EOP) for the Utility Solid Waste 

Activities Group (USWAG) in the CCR rulemaking docket, a five-year period for wet-to-dry 

conversion is not practical, especially considering the number of qualified engineers available 

nationwide and the fact that the rule would apply to every coal-fired unit in the country. EOP 

estimated it would require at least 8-10 years to site, design, permit, construct, and start up 

alternative disposal capacity, in addition to building new wastewater treatment systems.

Many factors go into determining a reasonable compliance schedule – what type of technologies 

are required, how many facilities a company must install, how many other facilities are 

competing for the same resources, how long it takes to get permits, etc. If more than one 

technology is needed, the time needed to site, design, and construct is on the order of eight to 10 

years. EEI recommends a staggered compliance schedule due to the limited availability of 

experienced engineering and construction companies.

Comment Response: 

EPA is not “stagger[ing]” or “phas[ing] in” the final rule’s requirements. See response to DCN 

EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. EPA notes, however, that permitting 

authorities may decide that a given plant can meet the final limitations applicable to discharges 

of particular wastestreams by different dates. See preamble Section XVI.

EPA has coordinated the final ELG with the final CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 in Comment Code 27.e for a discussion of 

coordination between the ELG and the final CCR rule.

Also, see response to DCN EPA-HQ-OW-2009-0819-4448-A1, Excerpt Number 66.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 125

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-83

Comment Excerpt: 

The final rule’s requirements should be phased in over a reasonable period of time and other 

areas EEI has identified as needing clarification should be addressed.

Comment Response: 

EPA disagrees with the commenter’s characterization that the requirements of the final rule are 

“phased in,” something that EPA did not propose. See response to DCN EPA-HQ-OW-2009-

0819-4379-A1, Excerpt Number 126.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 46

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. The Three Year Implementation Period for All Other Provisions of the Proposed Rule 

Should Be Provided to Those Facilities Forced to Implement Any New Standards 

Promulgated for NCMCWs

In contrast with the other waste streams at issue in the Proposed Rule, EPA fails to provide a 

three year implementation period for compliance with any new standards for NCMCWs which 

may be included in the final rule. As explained above, most facilities, including Alabama 

Power’s, do not currently have infrastructure in place to comply with the NCMCW standards 

proposed by EPA. This infrastructure will not appear overnight after the final rule is promulgated 

and/or after EPA issues its final decisions on the application of the Jordan Memorandum 

exemption to individual facilities (whichever occurs later). It will take significant time and 

money to construct the necessary infrastructure to handle and treat NCMCWs in the manner EPA 

has proposed in the Proposed Rule. This time could be further elongated, as well, if a large 

number of facilities are required to comply with any new NCMCW standards given that there is 

a limited pool of contractors or third party vendors capable of performing the necessary retrofit 

work at these facilities. For this reason, additional compliance time is warranted.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-84

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. Facilities, if any, that may be Required to Meet New Iron and Copper Limits for 

Nonchemical Metal Cleaning Wastes Should be given until at least July 1, 2017 to 

Comply

EPA should revise the compliance deadline for newly applicable limits, if any, on nonchemical 

metal cleaning wash waters. As proposed, compliance with the nonchemical metal cleaning 

wastes effluent limits would be required immediately upon the effective date of the final rule. 

Such an immediate compliance deadline is unrealistic. For any facility required to meet iron 

and copper limits for the first time, sufficient time will be required to design and construct 

facilities to segregate and independently treat nonchemical metal cleaning wash waters in 

dedicated treatment systems. Consistent with EPA’s proposed compliance deadline for other 

wastestreams under the revised ELG rule, compliance with any new limits on nonchemical metal 

cleaning wash waters should not be required until as soon as possible (as determined by the 

permitting authority) after July 1, 2017, in the first permitting cycle following that date.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 34

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

TIMELINE FOR COMPLIANCE

As proposed by EPA, the deadline for meeting the revised ELG rule (with certain exceptions2) 

would be a date determined by the permitting authority to be “as soon as possible” when the next 

permit is issued beginning July 1, 2017. Thus, as a practical matter, compliance would not be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-85

required until after July 1, 2017 and would not be set until the next permit is first issued after 

July 1, 2017.

Dynegy supports the flexibility in this compliance timeline approach. The flexibility is very 

important to plan, budget and construct necessary wastewater treatment system modifications in 

an orderly manner over a period of years, particularly for companies with numerous generating 

facilities subject to the ELG. Depending on the final rule, modification of certain systems may be 

significant projects requiring extensive engineering and design and construction activities. 

Moreover, owners/operators of steam electric facilities also must coordinate ELG compliance 

activities with compliance plans and potentially significant plant modifications that may be 

required under other forthcoming EPA rules applicable to steam generators, including the CCR 

rule and the cooling water intake structure Clean Water Act Section 316(b) standards.

Dynegy also supports EPA’s proposal that wastewater generated prior to the applicable effective 

date of the revised ELG limits would remain subject to the existing BPT effluent limits.

2 EPA proposes that the effluent limits for nonchemical metal cleaning waste and combustion 

residual leachate would be effective immediately upon the effective date of the final rule. As 

discussed in Dynegy’s comments on the proposed nonchemical metal cleaning waste effluent 

limits (supra page 7), Dynegy does not believe that compliance with any new iron and copper 

limits for nonchemical metal cleaning wastes should be required immediately upon the effective 

date of the final ELG rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4. Also, as described in preamble 

section VIII, legacy wastewater must comply with specific BAT limitations, which EPA is 

setting equal to the previously promulgated BPT limitations on TSS in the discharge of fly ash 

and bottom ash transport water and low volume waste sources.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Permitting, design, and construction of the required landfill capacity alone may take five years, 

not including the time for permitting, design, construction, and implementation of the retrofitted 

dry fly ash handling system. Therefore, the ELGs‟ proposed five-year compliance timeframe is 

not practical or feasible.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-86

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The permitting, design, and construction of additional landfill capacity to accept the CCR 

material may exceed the five-year compliance timeframe established in the ELG proposal, not 

including time for permitting, design, and construction of the retrofitted dry bottom ash 

management system.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 41

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Documentation previously submitted to the CCR docket indicated that if CCR impoundments 

were required to close under the CCR rule, it would take the power industry at least eight to ten 

years to site, design, permit, construct, and render operational alternative dry management 

systems.34 The ELG proposal contemplates only a 5-year conversion timeframe for a facility to 

cease the use of impoundments for certain CCR transport waters and to site, design, and 

construct an alternative landfill for the management of displaced CCR.35 A five-year 

implementation timeframe for wet to dry conversion will not be achievable due to a myriad of 

variables associated with designing, siting, and permitting a replacement unit. Based on 

previously submitted data,36 any compliance obligation under the final ELG rule that requires a 

facility to undertake wet to dry conversion of CCR management should not be triggered before at 

least eight to ten years after the revised NPDES permit incorporating the new requirements.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-87

34 USWAG comments submitted to the CCR docket, EPA-HQ-RCRA-2009-0640-10483, App 

19, Report of EOP Group Inc., entitled “Cost Estimates for the Mandatory Closure of Surface 

Impoundments Used for the Management of Coal Combustion Byproducts at Coal-Fired Electric 

Utilities, Nov. 11, 2010.

35 78 Fed. Reg. at 34496.

36 USWAG comments submitted to the CCR docket, EPA-HQ-RCRA-2009-0640-10483.

Comment Response: 

The final rule establishes requirements applicable to the discharge of pollutants from steam 

electric power generating units. It does not establish requirements related to the operation or 

closure of CCR surface impoundments, and comments on these subjects are outside the scope of 

this rulemaking. Comments specifically pertaining to EPA’s CCR rule are also outside the scope 

of this rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-0640-11970).

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Daniel K. Plath

Commenter Affiliation: Northern Indiana Public Service Company (NIPSCO)

Document Control Number: EPA-HQ-OW-2009-0819-4508-A2

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Timing of New Requirements

NIPSCO is concerned about the proposed applicability date. Specifically, if Option 4a is 

selected, NIPSCO would be conducting activities with an effort level similar to research and 

development (R&D) to determine options for dry handling of cyclone combustion furnace slag 

(not the same as flame combustion furnace bottom ash) as well as basis of design and operations 

for an anoxic/anaerobic bioreactor located in northern Indiana (not the same weather as the 

Carolinas). USEPA unrealistically estimates that power plants can raise capital, plan and design 

systems, procure equipment, construct, and start-up within in a three year window (factoring in 

planned shutdowns and maintenance periods). Given the time needed to sponsor or conduct 

R&D to begin generating preliminary design and operating costs, NIPSCO recommends that the

applicability date be conservatively set to an absolute minimum of five (5) years after the final 

rule promulgation date.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-88

EPA disagrees that the “applicability date be conservatively set to an absolute minimum of five 

(5) years after the final rule promulgation date.” See response to DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 126 for a discussion of the timing of the final rule’s requirements.

In addition, EPA notes that cyclone boilers, and other boiler designs, can produce a larger 

percentage of bottom ash, upwards of 70 to 80 percent. However, the same BAT technologies 

selected for bottom ash management will effectively manage bottom ash from cyclone boilers. 

Mechanical drag systems can be installed on a cyclone boiler; based on Steam Electric Survey 

data, EPA found that there is a steam electric power plant with a cyclone boiler that collects and 

manages bottom ash with a MDS. Additionally, based on information provided by vendors, EPA 

found that remote MDS conversions are suitable for these boiler types because the traditional wet 

sluicing system is still operated to collect and transport bottom ash to the remote MDS. Specific 

to NIPSCO, EPA identified two NIPSCO plants incurring bottom ash costs and both are costed 

for remote MDS in the final rule compliance cost estimates.

EPA also notes that, for the final rule, it estimated costs for buildings for FGD wastewater 

treatment systems to meet the final FGD BAT limitations for plants in northern climates.

Commenter Name: Stephen M. Frank

Commenter Affiliation: NRG Energy, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4510-A2

Comment Excerpt Number: 31

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Lastly, if an exemption is not included in the final ELG, EPA should allow for a compliance 

period of at least 3 years so that plants have time to design and install new treatment equipment. 

As described now, plants must achieve compliance on the effective date of a renewed NPDES 

permit.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Stephen M. Frank

Commenter Affiliation: NRG Energy, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4510-A2

Comment Excerpt Number: 42

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-89

Comment Excerpt: 

Timing of New Requirements

EPA anticipates that, under this proposed approach, all steam electric facilities will have the 

proposed BAT limitations applied to their permits no later than July 1, 2022, approximately 8 

years from the date of promulgation of any final ELGs. EPA must consider that a firm date of 

compliance will also be impacted by delays in issuance of NPDES permits. Often NPDES 

permits are administratively extended for many years after expiration. Also, after NPDES 

permits are issued, many permits are appealed for various reasons by plants and third party 

groups. Therefore, establishing a firm final date of compliance may cause plants to be 

noncompliance. In addition to uncertainties associated with NPDES permit reissuances, third 

party appeals, EPA must consider that a firm date of compliance could also be impacted by 

delays in issuance of other program permits/ approvals (local, state and Federal). 401/404 and 

WQM permits are examples.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

EPA notes that regulatory and statutory provisions concerning appeal and judicial review of 

NPDES permits are themselves not within the scope of the rulemaking.

Commenter Name: Josie Gaskey

Commenter Affiliation: Pennsylvania Coal Association (PCA)

Document Control Number: EPA-HQ-OW-2009-0819-4515-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We encourage EPA to be clear and concise, and provide adequate timing with respect to 

implementation. Changes to treatment and ash systems are complex engineering challenges that 

require not only lead time for materials, design, permitting and testing, but also sufficient time to 

examine impacts on consistency and reliability of power generation and to ensure a costeffective approach to compliance.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-90

Commenter Name: Dennis Leonard

Commenter Affiliation: DTE Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4517-A2

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Timeframe for Fly Ash Landfill Development

The proposed ELG would generally allow a 3 year compliance period, but allow state agencies to 

grant up to 5 additional years, for landfill development and installation of dry fly ash handling 

equipment. DTE agrees that more than 3 years are needed to convert most fly ash systems. DTE 

also believes that 8 years may be insufficient if a new, off site, green field landfill must be sited.

In 2010, DTE commented to the RCRA office of EPA that a cost effective RCRA subtitle D 

prime on-site option should exist at Monroe should the agency choose to ban fly ash 

impoundments. DTE has hoped that, should it be necessary to convert to a dry ash handling 

system, it would be able to avail itself of a practical, on-site alternative. EPA, however, recently 

proposed in August of 2013 a companion RCRA regulation that casts doubt on the economic 

feasibility of DTE's 2010 on-site alternative. DTE, through its RCRA comments*, has requested 

more reasonable regulation of onsite alternatives. Not knowing the outcome of EPA's RCRA 

rule, DTE must consider the possibility that it may have to develop an off-site landfill.

Michigan has a very lengthy procedure for approving new greenfield sites involving both local 

and state approval, with no guarantee that an initially identified site, will ultimately be permitted. 

An eight year compliance period ·will be insufficient if an off site landfill must be developed to 

comply with the combined result of EPA's RCRA and ELG rulemakings.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

The final rule establishes requirements applicable to the discharge of pollutants from steam 

electric power generating units. It does not establish requirements related to the operation or 

closure of CCR surface impoundments, and comments on these subjects are outside the scope of 

this rulemaking. Comments specifically pertaining to EPA’s CCR rule are also outside the scope 

of this rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-0640-11970). 

Also see responses to comment code 27.e regarding coordination of the final ELGs and CCR 

rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-91

Commenter Name: Mike Roddy

Commenter Affiliation: Seminole Electric Cooperative, Inc. (SECI)

Document Control Number: EPA-HQ-OW-2009-0819-4518-A2

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Schedule

The proposed rule language by EPA states that "certain limitations and standards ...would apply 

to discharges of FGD wastewater generated on or after the date established by the permitting 

authority that is as soon as possible within the next permit cycle after July 1, 2017." SECI 

believes this language does not provide an adequate compliance schedule, especially for those 

whose permits require renewal first. SECI's Seminole Generating Station NPDES permit expires 

in the fall of 2017, making SECI one of the first to have to meet these requirements. Without a 

proper compliance schedule provided in this permit, SECI would have to meet new effluent 

standards by 2017. Since the final rule is not expected until mid-2014, this would provide SECI 

Iess than three years in which to design, permit and build the necessary water treatment systems . 

In our experience, completing the work in that short amount of time is not feasible, especially if 

biological treatment systems are required. In addition, it is common for engineering and 

equipment resources to become depleted after major EPA rulemaking, which increases project 

times. Therefore, SECI is asking EPA to include a minimum compliance time of at least 3 years 

for all facilities after receiving their permit. This would allow for a proper evaluation and 

implementation of the necessary wastewater treatment upgrades that the final rule will require.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

The commenter states that its next permit will likely be issued in fall 2017. See Section XVI.A.1 

of the preamble for details about what would happen in the event that a plant’s final NPDES 

permit will be issued after the effective date of the final ELGs, but before November 1, 2018.

Commenter Name: Chuck D. Barlow

Commenter Affiliation: Entergy Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4519-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-92

Unlike other waste streams in the ELG Proposed Rule, there is no compliance period for meeting 

the new BAT requirements for nonchemical metal cleaning wastes. There is no provision for 

incorporating changes "as soon as possible" after July 1, 2017. Depending on how difficult EPA 

makes it for facilities to establish that they meet the requirements for exemption from new iron 

and copper limits, there may be many plants that have to modify their pipes, sumps, and 

treatment systems so as to collect water washes and treat them for iron and copper. Plants may 

have to perform extensive engineering of existing sumps and/or piping and install new pipes and 

treatment tanks, which cannot be done by the time the proposed rule becomes final. EPA should 

write the ELG rule to say that, if significant modifications are needed to comply with the 

requirements for nonchemical metal cleaning wastes, the permit agency should set a reasonable 

compliance schedule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. General Compliance and Extensions

The proposed rule is not sufficiently clear about the time frame for required compliance. The 

proposed rule states that permits or control mechanisms issued after the proposed rule's effective 

date would be required to incorporate the effluent limitations. The new standards would apply 

after July 1, 2017 for new requirements for both direct and indirect dischargers. The proposed 

guidelines will be phased in thereafter, between 2017 and 2022 through National Pollutant 

Discharge Elimination System (NPDES) wastewater discharge permits and local pretreatment 

programs for Public Owned Treatment Works (POTW) wastes, and that such phase-in shall 

begin in permits "as soon as possible" in permits issued after July 1, 2017.10

However, the proposed rule does not make clear when affected EGUs will be required to comply 

after a permit renewal.11 In addition, the proposed rule does not specify how much discretion the 

permitting authority will have in setting reasonable deadlines in light of potential capital 

expenditures, construction, and other issues, which may require a compliance period longer than 

three years. In particular, if a state permitting authority required a compliance deadline in the 

same year as the first permit renewal-2017-there would not be enough time to undertake some of 

the proposed rule's requirements.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-93

In order to provide for a smooth transition to the new standards EPA will need to increase the 

clarity of the final rule. In particular, clarification is needed regarding compliance deadlines for 

affected plants with respect to the following issues:

1. The compliance deadlines for facilities to which permit authorities issue NPDES permit 

renewals prior to July 2017;

2. The amount of discretion permitting authorities will have in providing the maximum 

amount of time for meeting the ELG requirements; and

3. Establishment of a general rule that provides facilities with a minimum of 3 years to 

comply with major ELG requirements.

With respect to first issue, EPA should make clear that facilities which undergo NPDES permit 

renewals prior to July 2017 will not need to alter their practices to comply. EPA generally 

implies that this may be the case in the proposed rule, but does not make it explicit, and thus 

clarification is necessary.

With regard to the amount of discretion permitting authorities will have to provide the maximum 

amount of time for meeting the ELG requirements, EPA must offer deference to state decisions 

regarding permitting, including allowing reasonable extensions for facilities where they are 

required. For example, state permit authorities should have discretion to set a 2022 compliance 

deadline for a permit renewal issued in 2017 if the maximum amount of time is needed for 

compliance. EPA must also remedy the uncertainty surrounding extensions as stated in the 

proposed rule by establishing a general rule that provides facilities with a minimum of 3 years to 

comply with the major ELG requirements. By clarifying these issues, EPA will help to reduce 

facilities' compliance burdens and allow for an orderly transition to the new standards.

10 78 Fed. Reg. 34,460, 34,461 (June 7, 2013). Sources subject only to the current standards will 

be required to comply immediately upon promulgation of a final rule.

11 EPA notes that for the purposes of economic analyses, it assumed that plants would implement 

control technologies 3 years after the renewal of the individual NPDES permit, with NPDES 

permits approved on a 5-year cycle. 78 Fed. Reg. 34,493 (June 7, 2013). However, while this 

was EPA's assumption in the particular instance it is not clear whether this would occur in 

practice.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-94

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ACWA supports the use of a flexible implementation date, based partly on permit renewal 

timelines, for direct discharges under the proposed rule. EPA should include language in the final 

rule that the Agency does not expect permits to be opened to accommodate rule implementation 

and, rather, that new requirements should be added to permits at renewal. The final rule should 

be clear that permitting authorities have flexibility to determine when to include the 

requirements, and include specific examples such as a potential total of 8 years for final 

implementation given the date of the rule effectiveness (approximately 3 years out from final 

rule) and permit cycles (5 years). However, the final rule must state that a flexible date is not 

possible for pretreatment standards

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. In addition, 

EPA notes that what a particular permit requires and how the permit shield provision of the 

Clean Water Act (section 402(k)) operates is outside the scope of this rulemaking.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

According to the Boornazian New Source Date Memo,6the new source date is not 11/19/1982 

(as indicated in 40 C.F.R. § 423.17(a)) for indirect users, but rather should be 10/14/1980. Also, 

the definition of a new source under 40 CFR 403.3(m) states, “a building, structure, 

facility...from which there is or may be a discharge of pollutants...after the publication of 

proposed Pretreatment Standards....” The compliance dates in the final rule should be clearly 

defined for new and existing sources.

6 Memorandum from Linda Boornazian, Water Permits Div., Office of Wastewater Mgmt., 

EPA, & Mary Smith, Eng’g & Analysis Div., Office of Sci. & Tech., EPA, to Reg’l Water Div. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-95

Dirs., EPA, at B-5 (Sept. 28, 2006), available at 

http://www.epa.gov/npdes/pubs/newsource_dates.pdf.

Comment Response: 

EPA agrees that the new source date for indirect dischargers under previously established 

regulations is 10/14/1980 rather than 11/19/1982, and has revised the final rule text at 40 CFR § 

423.17 accordingly.

Comments on the definition of new source under 40 CFR § 403.3(m) are outside the scope of 

this rulemaking.

See preamble section XVI regarding the timing of implementation of the final rule’s 

requirements.

Commenter Name: Becky Smith

Commenter Affiliation: Clean Water Action et al.

Document Control Number: EPA-HQ-OW-2009-0819-4548-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For decades, power plants have used our water resources as dumping grounds for their toxic 

wastewater while EPA and the states have turned a blind eye. Fortunately, treatment 

technologies are available today that can achieve near zero discharge of pollution at a cost that is 

affordable to the industry as a whole. EPA must also make these more protective standards 

effective as soon as possible, rather than giving the industry eight years to comply, as has been 

proposed. Our organizations urge EPA to move swiftly to finalize Option 5, which would 

eliminate billions of tons of pollution a year, resulting in thousands of river miles that are safer to 

swim and fish in, and thousands of miles of cleaner drinking water sources.

Comment Response: 

EPA agrees that the final rule should be effective “as soon as possible.” See response to DCN 

EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Regarding proposed Option 5, see responses to comment code 6.i.iii and preamble Section VIII.

Commenter Name: Cecile M. Conroy

Commenter Affiliation: International Brotherhood of Boilermakers (IBB)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-96

Document Control Number: EPA-HQ-OW-2009-0819-4557-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should provide additional clarification on how permitting authorities set the compliance 

deadlines for existing affected electric generating facilities. The proposed rule generally provides 

that new ELGs for existing facilities will be phased in between 2017 and 2022 through Clean 

Water Act discharge permits, and that such phase-in shall begin "as soon as possible" in permits 

issued after July 1, 2017.2

However, the proposed rule does not make clear when affected facilities will be required to 

comply after a permit renewal.3In addition, the proposed rule does not specify how much 

discretion the permitting authority will have in setting reasonable deadlines in light of potential 

capital expenditures, construction, and other issues, which may require a compliance period 

longer than three years. Inparticular, if a state permitting authority required a compliance 

deadline in the same year as the first permit renewal- 2017- there would not be enough time to 

install and begin operating some of the proposed rule's most onerous requirements. One such 

example is switching to dry handling of coal ash, which would require significant infrastructure 

changes and potentially implicate other permitting issues.

IBB recommends that EPA provide clarification on this important matter and do so in a manner 

that will ensure affected facilities have adequate time to implement major technology upgrades 

that may be necessary to comply with the new ELG standards.

2 78 Fed. Reg. 34A60, 34A61 (June 7, 2013). Sources subject only to the current standards will 

be required to comply immediately upon promulgation of a final rule.

3 EPA notes that for the purposes of economic analyses, it assumed that plants would 

implement control technologies 3 years after the renewal of the individual discharge permit, with 

discharge permits approved on a 5-year cycle. 78 Fed. Reg. 34,493 (June 7, 2013). However, 

while this was EPA's assumption in the particular instance it is not clear whether this would 

occur in practice.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

See Section XVI.A.1 of the preamble for details about what would happen in the event that a 

plant’s final NPDES permit will be issued after the effective date of the final ELGs, but before 

November 1, 2018.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-97

Commenter Name: Cecile M. Conroy

Commenter Affiliation: International Brotherhood of Boilermakers (IBB)

Document Control Number: EPA-HQ-OW-2009-0819-4557-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should provide important clarifications on the compliance deadlines to ensure sufficient 

time is provided for companies to install major capital- and construction-intensive power plant 

projects.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NRECA also recommends:

Giving permit writers the flexibility to allow sufficient time for plant modifications that may be 

required by the new rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565-A1

Comment Excerpt Number: 17
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-98

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Giving permit writers the flexibility to allow sufficient time for plant modifications that 

may be required by the new rule. What constitutes “as soon as possible” needs to be set by the 

permitting authority and included in the first permit renewal after July 1, 2017. As long as permit 

authorities require compliance “as soon as possible,” the ELG rule sets no fixed date by which 

any plant must achieve compliance. This leaves permit writers the flexibility to allow time for 

plant modifications that may be required by the new rule. (See UWAG comments section XXX. 

New Requirements Need to be Phased in Over Time to Give Permittees Time to Design, 

Construct, and Test New Equipment)

Such flexibility is particularly important if a facility owner/operator decides to close a CCR 

impoundment and implement an alternative dry ash management system. As USWAG has 

demonstrated in both that organization’s comments on this proposal and on the earlier CCR 

proposal, it could take 8 to 10 years to site, design, permit, construct, and render operational 

alternative dry management systems, including constructing new wastewater treatment and 

landfill capacity to replace that provided by the impoundments. (See USWAG comments section 

II.B. Coordination on Timing of Implementation.)

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Also see responses to comment code 27.e regarding coordination of the final ELGs and CCR 

rule.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed rule is not sufficiently clear about the time frame for required compliance. The 

proposed rule states that permits or control mechanisms issued after the proposed rule’s effective 

date would be required to incorporate the effluent limitations. The new standards would apply 

after July 1, 2017 for new requirements for both direct and indirect dischargers.19 The proposed 

guidelines will be phased in thereafter, between 2017 and 2022 through NPDES wastewater 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-99

discharge permits and local pretreatment programs for Publically Owned Treatment Work 

(POTW) wastes,20 and that such phase‐in shall begin in permits “as soon as possible” in permits 

issued after July 1, 2017.21

However, the proposed rule does not make clear when affected EGUs will be required to comply 

after a permit renewal.22 In addition, the proposed rule does not specify how much discretion the 

permitting authority will have in setting reasonable deadlines in light of potential capital 

expenditures, construction, and other issues, which may require a compliance period longer than 

three years. In particular, if a state permitting authority required a compliance deadline in the 

same year as the first permit renewal—2017—there would not be enough time to undertake some 

of the proposed rule’s requirements, such as switching to dry handling of coal ash, which would 

require significant infrastructure changes and potentially implicate other permitting issues.

In order to provide for a smooth transition to the new standards EPA will need to increase the 

clarity of the final rule. In particular, clarification is needed regarding compliance deadlines for 

affected plants with respect to the following issues:

1. The compliance deadlines for facilities to which permit authorities issue NPDES permit 

renewals prior to July 2017;

2. The amount of discretion permitting authorities will have in providing the maximum 

amount of time for meeting the ELG requirements; and

3. Establishment of a general rule that provides facilities with a minimum of 3 years to 

comply with major ELG requirements.

With respect to first issue, EPA should make clear that facilities which undergo NPDES permit 

renewals prior to July 2017 will not need to alter their practices to comply. EPA generally 

implies that this may be the case in the proposed rule, but does not make it explicit, and thus 

clarification is necessary.

With regard to the amount of discretion permitting authorities will have to provide the maximum 

amount of time for meeting the ELG requirements, EPA must offer deference to state decisions 

regarding permitting, including allowing reasonable extensions for facilities where they are 

required. For example, state permit authorities should have discretion to set a 2022 compliance 

deadline for a permit renewal issued in 2017 if the maximum amount of time is needed for 

compliance. EPA must also remedy the uncertainty surrounding extensions as stated in the 

proposed rule by establishing a general rule that provides facilities with a minimum of 3 years to 

comply with the major ELG requirements. By clarifying these issues, EPA will help to reduce 

facilities’ compliance burdens and allow for an orderly transition to the new standards. Lastly, 

the proposed rule assumes a final regulation date of May 22, 2014. If the rule is not finalized by 

that date, the compliance date(s) should be based on the date the rules actually become final.

19 Id. Sources subject only to the current standards will be required to comply immediately 

upon promulgation of a final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-100

20 Id.

21 78 Fed. Reg. 34,460, 34,461 (June 7, 2013).

22 EPA notes that for the purposes of economic analyses, it assumed that plants would 

implement control technologies 3 years after the renewal of the individual NPDES permit, with 

NPDES permits approved on a 5‐year cycle. 78 Fed. Reg. 34,493 (June 7, 2013). However, while 

this was EPA’s assumption in the particular instance, it is not clear whether this would occur in 

practice.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Floyd Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission (MJMEUC)

Document Control Number: EPA-HQ-OW-2009-0819-4576-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

2. We are concerned that the 2017 schedule for compliance does not take into account the 

limitations imposed by state and local laws. Assuming that this rule could be made effective by 

January 1, 2014, it will take the Missouri Department of Natural Resources until sometime 

between March and June of 2015 to amend their Clean Water Regulations in order to create the 

detailed compliance requirements for these proposed changes to the federal ELG rule. That 

provides cities less than two years to design the appropriate mitigation, control or treatment 

structures, hold mandatory public hearings, schedule public votes for bond issues on the limited 

dates allowed by law, and comply with mandatory budget and bidding restrictions AND get the 

structures and systems built, operating and validated.

It appears that EPA continues to willfully ignore the limitations placed on states and political 

subdivisions when developing implementation schedules.

Comment Response: 

EPA disagrees that it “willfully ignore[d] the limitations placed on states and political 

subdivisions when developing” the final rule. The issue raised by this commenter is not specific 

to this ELG, but rather would apply to any new federal requirements.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-101

EPA notes, however, that the flexibility inherent in the implementation period for the final BAT 

limitations that are more stringent than previously established BPT limitations accommodates the 

commenter’s concern. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 126.

Commenter Name: Gregory D. Elmore

Commenter Affiliation: Southern Nuclear Operating Company (SNC)

Document Control Number: EPA-HQ-OW-2009-0819-4582-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In the event EPA chooses not to extend the Jordan Memorandum exemption in the final rule, 

EPA should allow all facilities a reasonable period of time to fully assess how their NCMCWs 

are being managed and how best to integrate those wastestreams into the chemical metal 

cleaning wastewater stream for similar treatment. The permit writer should determine the 

appropriate period of time necessary to comply with the new limits after the rule becomes 

effective.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: H. Morriss Barney IV

Commenter Affiliation: Texas Municipal Power Agency (TMPA)

Document Control Number: EPA-HQ-OW-2009-0819-4584-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

TMPA agrees with what we understand to be EPA’s intent as to the compliance deadline for 

BAT: The “as soon as possible” date needs to be set by the permitting authority and included in 

the first permit renewal after July 1, 2017. As long as permit authorities require compliance “as 

soon as possible,” the ELG rule sets no fixed date by which any plant must achieve compliance. 

This approach leaves permit writers the flexibility to allow enough time for plant modifications 

that may be required by the new rule. This flexibility is especially needed for the many public 

power utilities that will be making other retrofits or modifications to comply with the new rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-102

The Electric Generation sector is currently undergoing considerable change resulting from other 

EPA regulations as well as changes in the availability of natural gas. For these reasons, state 

permit writers need to have maximum flexibility to allow for reasonable compliance dates if the 

utility is planning to retire an older coal plant before 2022 even if the permit renewal date is, for 

example, in 2017.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 8, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Tom Hoffman

Commenter Affiliation: Clean Water Action et al.

Document Control Number: EPA-HQ-OW-2009-0819-4592-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For decades, power plants have used our water resources as dumping grounds for their toxic 

wastewater while EPA and the states have turned a blind eye. In Pennsylvania, for example, 

Bruce Mansfield in Beaver, the largest plant in the state, dumped 250 pounds of selenium in 

Hayden Run Creek, a tributary to the Ohio River, in 2011. The plant is operating with a NPDES 

permit that expired in 2011 and is not required to limit heavy metal discharges nor monitor for 

any metals.18 Fortunately, treatment technologies are available today that can achieve near zero 

discharge of pollution at a cost that is affordable to the industry as a whole. EPA must also make 

these more protective standards effective as soon as possible, rather than giving the industry 

eight years to comply, as has been proposed. Our organizations urge EPA to move swiftly to 

finalize Option 5, which would eliminate billions of tons of pollution a year, resulting in 

thousands of river miles that are safer to swim and fish in, and thousands of miles of 

cleaner drinking water sources.

18 Environmental Integrity Project, Sierra Club, Clean Water Action, Earthjustice and 

Waterkeeper Alliance, Closing the Floodgates: How the Coal Industry is Poisoning Our Water 

and How We Can Stop It (2013), available at http://cleanwater.org/files/publications/closing‐

floodgates.pdf.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4548-A1, Excerpt Number 10.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-103

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We also suggest that EPA conform the compliance deadline for non-chemical metal cleaning 

wastes to the deadlines proposed for all other BAT limitations in this rulemaking (i.e. 

compliance efforts begin in 2017 with a compliance schedule by 2022 at the latest).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 44

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Given the extremely long lead times required to gain approval for a new landfill permit, we 

believe it may be difficult to design, permit, construct, and open a new landfill in time to achieve 

compliance with a zero discharge standard between 2017 and 2022.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 56

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-104

Comment Excerpt: 

The proposal seeks compliance with the copper and iron limits for non chemical metal cleaning 

waste upon the effective date of the rule, presumably as early as July 2014. EPA bases this 

compliance date on its belief that existing facilities will not be required to make changes in the 

treatment of non-chemical metal cleaning waste. However, facilities may need to undertake 

significant planning, design, construction, installation, and testing should the final ELG rule 

include some of the non-chemical metal cleaning waste provisions of the EPA proposal.

As mentioned above in Section II.5.i, the EPA proposal casts significant doubt as to whether 

facilities presently permitted to discharge non-chemical metal cleaning wastes without copper 

and iron limits will be able to document to the satisfaction of EPA that an exemption is 

warranted. If a facility is denied an exemption from the copper and iron limitations, significant 

modifications or new installation of sumps, pipes, collection systems, and treatment are 

likely. Some facilities may even be required to reconfigure the entire water balance of the 

facility. Under the EPA proposal, all modification and/or new treatment installations would have 

to be completed by July 2014. In effect, facilities are being given less than a year to complete 

major retrofits in order to comply with this rulemaking.

The broad definition of non-chemical metal cleaning contained in the proposed rulemaking also 

casts significant doubt on the reasonableness of a 2014 compliance date for this waste stream. As 

mentioned in Section 11.5.ii., the new definition contemplated by EPA will extend EPA 

jurisdiction over many new types of water washes which will require significant changes in 

facility water management such as new or expanded water wash capture and collection systems, 

extensive new or modified piping, and new or expanded treatment capacity. It is unlikely that 

these significant alterations could be made in time to meet a 2014 compliance deadline.

In light of these constraints, to the extent EPA does not preserve the status quo which preserves 

permits without copper and iron limits for non-chemical metal cleaning wastes, we request EPA 

to modify the final rule to incorporate an "as soon as possible" after July 1, 2017 compliance 

deadline for non-chemical metal cleaning wastes. Such a change would conform the compliance 

deadline for non-chemical metal cleaning wastes to the compliance deadlines for other proposed 

limitations in the rulemaking where EPA finds significant construction and/or facility changes 

will be required.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 58
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-105

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

There is confusion as to how the compliance date extension would be calculated with the 

proposed compliance date of "as soon as possible" after July 1, 2017. Would the extensions 

simply apply two and five years to 2017 to yield compliance dates of 2019

and 2022? Or would the extensions apply to the "as soon as possible" determination. We request 

EPA to clarify that the two and five year extensions would begin to run from the date that the 

permitting authority determines is as soon as possible.

Comment Response: 

EPA did not finalize the two and five year extensions associated with the proposed voluntary 

incentives program. Instead, EPA decided that the voluntary incentives program should focus on 

FGD wastewater discharges. See preamble section VIII.C.13 and responses to comments in 

comment code 26.a. Steam electric power plants agreeing to meet BAT limitations for FGD 

wastewater discharges based on evaporation must meet those limitations on arsenic, mercury, 

selenium, and TDS in FGD wastewater as of December 31, 2023. Those limitations apply to 

FGD wastewater generated on and after December 31, 2023. See preamble sections VIII and 

XVI for more information.

See also response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126 for more 

discussion of the timing of the requirements in the final rule.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Currently, the Proposed Rule does not provide a three year implementation period for those 

facilities required to comply with any new standards for NCMCWs imposed in the final 

rulemaking. This is the only portion of the Proposed Rule that does not provide such an 

implementation period. This may be a simple oversight. But, if not, one must be incorporated 

into any final rule.

As explained above, most facilities, including PSNH’s, do not currently have infrastructure in 

place to comply with the NCMCW standards proposed in the Proposed Rule. It will take 

significant time and money to design and construct the necessary infrastructure to handle and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-106

treat NCMCWs in the manner EPA has proposed in the Proposed Rule. Additional time could be 

needed if a large number of facilities are required to comply with any new NCMCW standards 

given that there is a limited pool of contractors or third party vendors capable of performing the 

necessary retrofit work at these facilities.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

UWAG agrees with what we understand to be EPA’s intent as to the compliance deadline for 

BAT: The date “as soon as possible” should be set by the permitting authority and included in 

the first permit renewal after July 1, 2017. As long as permit authorities require compliance “as 

soon as possible,” the ELG rule sets no fixed date by which any plant must achieve 

compliance. This leaves permit writers the flexibility to allow time for plant modifications that 

may be required by the new rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 152

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XV. Constructing New Landfills Would Be Costly and Time-Consuming
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-107

Several of EPA’s eight options for fly ash, bottom ash, and FGMC wastewater disposal require 

ash (or the solids from evaporation for FGD in Option 5) to be disposed of in landfills. To 

comply with these proposals will be time-consuming and expensive.

In particular, as noted above, the ELG proposals may cause power plants to stop using 

impoundments and use landfills instead. This in turn will require creating more capacity in 

landfills.

The time to develop a landfill is site-specific but likely to be long. UWAG members report that 

constructing a landfill can take five to 10 years. Even expanding an existing landfill can take a 

long time. One UWAG member estimates about 6.5 years from start to finish, as follows:

 site investigations and decision to expand existing landfill (9 months);

 field work and assembling application for expansion (18 months);

 draft permit application submittal, responses to permitting agency, final application (16 

months); and

 final permit issued (12 months); and

 construction (2 years).

Total: 6 1⁄2 to 6 3⁄4 years.

There are three phases in developing a landfill: (1) initial design and engineering, (2) permitting 

and approval, and (3) construction. These steps have to be completed one after the other, not in 

parallel. A company has to finish the design before applying for a permit, and the permit has to 

be granted before construction can begin.

Developing a landfill faces hurdles that can delay construction. Landfills need to be on available 

land not far from the power plant. However, urban development and other factors have made it 

difficult to acquire large parcels of property near power plants. Also, local zoning ordinances 

often limit the areas where landfills can be sited.

The permitting process can be slow, requiring multiple permits, approvals from multiple 

agencies, and sometimes several public meetings. The pace of the permitting process depends on 

what agency is issuing the permits. Many agencies are understaffed and require a long time to 

complete permitting actions.

Also, a power plant owner may go through the entire permitting process only to have the landfill 

permit application turned down. Recently Louisville Gas and Electric Co.’s Trimble County 

Power Station had its application for a landfill permit denied by the Kentucky Division of Waste 

Management because a potentially historic site was identified close to the proposed site. See 

Power Engineering, “Kentucky agency denies permit for coal ash landfill at Trimble County 

Power Plant” (Mar. 21, 2013), at http://www.power-eng.com/articles/2013/03/kentucky-agencydenies-permit-for-coal-ash-landfill-at-trimble-c.html. In such cases the company has to start 

over and identify and acquire new land to construct the landfill.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-108

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 220

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXXIII. New Requirements Need to be Phased in Over Time to Give Permittees Time to 

Design, Construct, and Test New Equipment

Reasonable compliance schedules are crucial to the facilities subject to the proposed rule. EPA 

may require dry fly ash and dry bottom ash handling. If so, many more landfills will be needed 

to receive the ash. A three- or four-year compliance schedule would be grossly inadequate.

Siting, permitting, and constructing new landfills often takes eight or more years to 

complete. The ELG rule must be coordinated with the CCR rule because both involve of the 

same wastestreams (fly ash, bottom ash, and FGD wastes). Coordinated requirements are 

essential to assure compliance in the most operationally efficient and cost-effective manner.

According to a report by consultant EOP Group, Inc. for USWAG in the CCR rulemaking 

docket, a five-year period for wet-to-dry conversion is not practical, especially considering the 

number of qualified engineers available nationwide and the fact that the rule would apply to 

every coal-fired unit in the country. EOP estimated it would require at least 8-10 years to site, 

design, permit, construct, and start up alternative disposal capacity, in addition to building new 

wastewater treatment systems.

Many factors go into determining a reasonable compliance schedule – what type of technologies 

are required, how many facilities a company must install, how many other facilities are 

competing for the same resources, how long it takes to get permits, etc. If more than one 

technology is needed, the time needed to site, design, and construct is on the order of eight to 10 

years. A staggered schedule will be necessary due to the limited availability of experienced 

engineering and construction companies.

Because of the financial pressures facing the electric utility industry and the need to finance 

multiple new requirements under the Clean Air Act, RCRA, and the Clean Water Act, 

modifications to power plants cannot be made quickly. Companies cannot commit themselves to 

capital expenditures until the legal requirements are settled, meaning at the earliest when the 

ELG rule becomes final (presumably on May 22, 2014).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-109

Once the new rule’s requirements are known, each company will have to determine what plant 

changes are needed to comply with the ELG rule and CCR rule together. Then several months of 

engineering work must be done to design the plant changes. Then, for many companies, Public 

Service Commission approval has to be secured. The process is long and demanding, and 

financial demands are so great that no company can proceed precipitously. These constraints, 

and others, will determine what is “as soon as possible.” Permitting agencies need the flexibility 

to take them into account.

Comment Response: 

EPA disagrees with the commenter’s characterization that the requirements of the final rule need 

to be “phased in,” something that EPA did not propose. See response to DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 126. 

Commenter Name: Andrew Fellows

Commenter Affiliation: Clean Water Action et al.

Document Control Number: EPA-HQ-OW-2009-0819-4659-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For decades, power plants have used our water resources as dumping grounds for their toxic 

wastewater while EPA and the states have turned a blind eye. In Virginia, at least two plants are 

operating with expired NPDES permits and two plants discharge into streams or rivers that are 

known to be impaired with heavy metals.18 Fortunately, treatment technologies are available 

today that can achieve near zero discharge of pollution at a cost that is affordable to the industry 

as a whole. EPA must also make these more protective standards effective as soon as possible, 

rather than giving the industry eight years to comply, as has been proposed. Our organizations 

urge EPA to move swiftly to finalize Option 5, which would eliminate billions of tons of 

pollution a year, resulting in thousands of river miles that are safer to swim and fish in, and 

thousands of miles of cleaner drinking water sources. 

18 Environmental Integrity Project, Sierra Club, Clean Water Action, Earthjustice and 

Waterkeeper Alliance, Closing the Floodgates: How the Coal Industry is Poisoning Our Water 

and How We Can Stop It (2013), available at http://cleanwater.org/files/publications/closingfloodgates.pdf

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4548-A1, Excerpt Number 10.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-110

Commenter Name: Brian Brazil

Commenter Affiliation: TransAlta Centralia Generation, LLC (TCG)

Document Control Number: EPA-HQ-OW-2009-0819-4665-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comments on Regulatory Discretion for Plants with Predetermined Shutdown Schedules

The proposed ELG discussions on BAT related to closing surface impoundments (78 FR 

34458) recognize that significant improvements will be achieved by closing CCR surface 

impoundments and giving permittees extended time frames to achieve those reductions. EPA 

needs to allow similar extended time frames for other systems and SEPGUs or plants as well. 

This must include giving permitting agencies discretion to recognize that technology considered 

BAT/BPT for existing SEPGUs without regulatory dates for shutdown are not “economically 

feasible” for units with regulatory shutdown dates establishing emission reductions under other 

regulatory programs. EPA must allow permitting agencies to extend compliance time frames to 

the shutdown date for SEPGUs that have definite shutdown dates which will eliminate all 

discharge from the particular SEPGU. Both SEPGUs at TCG have definite dates to stop burning 

coal defined in current EPA approved regulation, so these units (and potentially others with 

enforceable shutdown dates) must be eligible for extended compliance dates if installing 

BAT/BPT is not “economically feasible” based upon economic tests specific to the plant or 

SEPGU’s required shutdown dates.

Comment Response: 

See response to DCN EPA- HQ-OW-2009-0819-4517-A2, Excerpt Number 10 in Comment 

Code 26.b.

Permitting authorities do not have the discretion to determine BPT or BAT on a Best 

Professional Judgment basis where EPA establishes ELGs in a national rulemaking, as it has 

done here. Also, see responses to comments in Comment Codes 6.j.i and 6.j.ii.

Commenter Name: Julia M. Blankenship

Commenter Affiliation: American Municipal Power, Inc. (AMP)

Document Control Number: EPA-HQ-OW-2009-0819-4670-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-111

AMP is generally supportive of the proposed compliance date for the Proposed ELG Rule of July 

1, 2017. We do believe, however, that EPA should add flexibility to the compliance date to 

accommodate for any extenuating circumstances. We therefore request that EPA allow local 

permitting authorities to grant a one-year extension for compliance to units that need additional 

time to implement complicated process or physical plant changes needed to meet the final rule’s 

requirements. This approach is consistent with EPA’s extension provisions for other rules, 

including the Mercury and Air Toxics Standards (MATS) Rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. EPA’s 

implementation timeframe for this rule is different from the MATS rule, as each rule is 

promulgated pursuant to different statutes with different purposes and requirements.

Commenter Name: Juliet Cohen

Commenter Affiliation: Chattahoochee Riverkeeper

Document Control Number: EPA-HQ-OW-2009-0819-4671-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The delay in issuing these proposed regulations has caused state agencies across the country 

including in Georgia to postpone reissuing National Pollutant Discharge Elimination System 

(NPDES) permits for power plants discharging wastewater into state waters.NPDES permits for 

power plants in the Chattahoochee River Basin are expired by at least two years.

Comment Response: 

Comments related to the administration of state-administered NPDES programs are outside the 

scope of this rulemaking.

Commenter Name: Deanna White

Commenter Affiliation: Clean Water Action - Minnesota et al.

Document Control Number: EPA-HQ-OW-2009-0819-4681-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-112

For decades, power plants have used our water resources as dumping grounds for their toxic 

wastewater. For example, the Boswell Energy Center in Cohasset does not have a discharge limit 

on several heavy metals in their waste stream, such as arsenic, chromium and lead. This plant sits 

in the Upper Mississippi River Basin and the headwaters to one of Minnesota’s most iconic 

water bodies. Fortunately, technology exists today that can achieve near zero discharge of this 

waste at a cost that is affordable to the industry as a whole. Our organizations urge EPA to 

move swiftly to finalize Option 5, which would eliminate billions of tons of pollution a year, 

resulting in thousands of more river miles that are safe to swim and fish in, and thousands 

of more miles of cleaner drinking water sources. 

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4548-A1, Excerpt Number 10.

Commenter Name: Kelly Jean Heffner

Commenter Affiliation: Pennsylvania Department of Environmental Protection

Document Control Number: EPA-HQ-OW-2009-0819-4811-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Based on responses provided via the EPA webinar, DEP believes that the ELG proposed rule 

would benefit from a more detailed, clear, and specific description of the implementation 

schedule and transitional issues. Based on our best understanding, the ELG intends that, in the 

normal course of events, any applicable requirements would become effective at the first permit 

issuance or reissuance following July 1, 2017. If the situation warrants, however, the permitting 

authority has the discretion to allow for an implementation schedule provided that all applicable 

requirements are achieved by July 1, 2022. The draft ELG is not entirely clear on whether any 

extension beyond July 1, 2022, is an option under any circumstances.

It appears in the proposed rule, if applicable, the proposed time extensions (2 years for Tier 1, 5 

years for Tier 2) are also designed to fit within the 2017 to 2022 timeframe. Therefore, would 

permit extensions not be allowed beyond 2022?

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, and response to 

DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 4. Also, see response to DCN EPAHQ-OW-2009-0819-4631-A1, Excerpt Number 58 regarding timing for the voluntary incentives 

program.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-113

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Schedules

TCEQ full y supports the concept of the compliance schedules proposed in the revised effluent 

guidelines and appreciates the flexibility for permitting authorities to determine dates that 

existing sources must be in compliance with standards for existing sources.

EPA is proposing compliance with the newly established technology based effluent limitations as 

soon as possible within the next permit cycle after July 1, 2017 based on the judgment of the 

permitting authority. Although not included in the proposed rulemaking, the preamble to the 

rulemaking would allow additional compliance schedules should individual plants or units 

choose to close impoundments and operate systems under a zero discharge scenario. TCEQ 

supports this proposal to allow greater flexibility at individual plants and units and suggests 

inclusion of this proposal in the revised effluent guidelines. EPA should clearly state that the 

determination of the compliance period is established by the permitting authority to avoid having 

professional judgment disagreements with EPA on the "as soon as possible" standard.

TCEQ has received numerous interim objection letters on draft Texas Pollutant Discharge 

Elimination System (TPDES) permits from EPA Region 6 related to compliance with newly 

established effluent limitations (water quality based) citing the "as soon as possible standard". 

TCEQ opposes receiving interim objections in the future on this issue based on disagreements on 

professional judgment without specific regulatory authority.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Comments related to water quality-based permit limitations are outside the scope of this final 

rule, which establishes technology-based requirements for discharges of pollutants from the 

steam electric power generating point source category. See responses to comments in Comment 

Code 6.c.

Where the final rule establishes BAT limitations, must incorporate such requirements into 

NPDES permits rather than determine them based on “best professional judgment.”
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-114

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The final EPA rule should give a categorical determination of up to 8 years for the remaining life 

of any coal or nuclear power plant, providing the state permit writer with maximum discretion to 

not require additional control technologies under the ELG if that plant is expected to retire, be 

mothballed, or replaced with a combined cycle natural gas plant or renewables. This does not 

allow the plant to be uncontrolled. All existing ELG regulations prior to 2013 would remain in 

place.

Comment Response: 

The final rule does not provide “a categorical determination of up to 8 years for the remaining 

life of any coal or nuclear power plant,” which would essentially exempt them from the 

requirements of the final rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 126, and response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 8. 

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should grant permit writers maximum flexibility for those utilities that are sitting on a small 

physical footprint or for those that will retire within eight years of the effective date of the rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-5140-A2, Excerpt Number 5.

EPA disagrees that plants that are “sitting on a small physical footprint” cannot meet the final 

limitations and standards just as well as other plants and notes that the commenter provided no 

data or information to explain or support its assertion. EPA reviewed the amount of land 

available to plants based on the responses to the Steam Electric Survey, as well as visual 

observations during the many site visits EPA conducted over the course of the detailed study and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-115

rulemaking. Based on that evaluation and the lack of comments regarding space constraints, EPA 

concludes space is not an impediment to complying with the final limitations and standards.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 97

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The final EPA rule should give a categorical determination of up to 8 years for the remaining life 

of any coal or nuclear power plant, providing the state permit writer with maximum discretion to 

not require additional control technologies under the ELG if that plant is expected to retire, be 

mothballed, or replaced with a combined cycle natural gas plant or renewables. This does not 

allow the plant to be uncontrolled. All existing ELG regulations prior to 2013 would remain in 

place.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-5140-A2, Excerpt Number 5.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA and state permit writers should stagger compliance dates if the final rule requires new 

landfill construction, cranes, or scheduled outages.

Comment Response: 

EPA is not “stagger[ing]” the final rule’s requirements. See response to DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 126. EPA notes, however, that permitting authorities may 

decide that a given plant can meet the final limitations applicable to discharges of particular 

wastestreams by different dates. See preamble Section XVI.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-116

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 40

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

APPA agrees with what we understand to be EPA’s intent as to the compliance deadline for 

BAT. The date “as soon as possible” needs to be set by the permitting authority and included in 

the first permit renewal after July 1, 2017. As long as permit authorities require compliance “as 

soon as possible,” the ELG rule sets no fixed date by which any plant must achieve compliance. 

This leaves permit writers with the flexibility needed to allow enough time for plant 

modifications that may be required by the new rule.

APPA observes that there is considerable change in the utility sector resulting from many other 

EPA regulations, as well as changes in the availability of shale and tight natural gas. For these 

reasons, state permit writers should have maximum flexibility to allow for reasonable 

compliance dates if a utility is planning to retire an older coal plant before 2022, even if the 

permit renewal date is, for example, perhaps in 2017.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126; DCN EPAHQ-OW-2009-0819-5140-A2, Excerpt Number 5; and DCN EPA-HQ-OW-2009-0819-4348-A2, 

Excerpt Number 4. As described in the first referenced comment response, the final rule does set 

an outside date of December 31, 2023, by which steam electric generating units must meet the 

final BAT limitations.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 84

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Constructing New Landfills Would Be Costly and Time-Consuming
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-117

Several of EPA’s eight options for fly ash, bottom ash, and wastewater disposal require ash (or 

the solids from evaporation for FGD in Option 5) to be disposed of in landfills. To comply with 

these proposals will be time-consuming and expensive.

In particular, the ELG proposals may cause power plants to stop using impoundments and use 

landfills instead. This in turn will require creating more capacity in landfills.

The time to develop a landfill is site-specific but likely to be long. Many electric utility managers 

observe that constructing a landfill can take five to 10 years. UWAG’s comments contain an 

attachment illustrating the times required for building landfills and creating expansions of 

existing landfills. APPA defers to UWAG on this topic.

Existing landfill expansions can take a long time. An example (documented by UWAG) of a 6.5 

year process could break down this way:

 Site investigations and decision to expand existing landfill (9 months);

 Field work and assembling application for expansion (18 months);

 Draft permit application submittal, responses to permitting agency, final application (16 

months);

 Final permit issued (12 months); and

 Construction (2 years).

Total: 6 1⁄2 to 6 3⁄4 years.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 92

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NEW REQUIREMENTS NEED TO BE PHASED IN OVER TIME TO GIVE PERMITTEES 

TIME TO DESIGN,CONSTRUCT, AND TEST NEW EQUIPMENT

EPA should ensure sufficient time is available for public power utilities to lawfully comply with 

the ELG rule. The standards that are proposed to be set by this rule will require most, if not all, 

public power utilities to plan, finance, budget, design, and install new retrofits in certain wastestreams. APPA supports EPA’s initial approach to timing requirements, but requests the EPA 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-118

consider the many compounding factors, as well as legal timing and spending requirements for 

municipalities implementing large capital projects.

There are also procedures and permission requirements that utilities must undergo before 

installing new controls or making new large capital expenditures. EPA rightly took these 

procedures into consideration and decided that the compliance date for these standards should be 

July 1, 2017. Based off of input from our membership, APPA believes that the compliance 

timing is reasonable for most utilities. APPA also supports EPA’s decision to allow additional 

time, up to July 1, 2022, to those facilities coordinating ash system conversions on multiple 

generating units and those that require time to include BAT limits to prevent or minimize 

forced outages. However, we believe that there are additional exceptions that EPA should take 

into consideration.

Facilities that have a NPDES renewal date near 2017 could have difficulty complying with 

standards within the allotted time, judging by the information given by our members. Some 

utilities have budgets prepared annually so expenditures must be anticipated in previous budget 

cycles, which can easily require 12 to 18 months to start financing the project. In addition, 

competitive bidding, bid evaluations, board scheduling, and board approval can add up to 6 

months. Budgeting and bonding (without the ability to request a customer rate increase) can take 

up to three years in itself. For these facilities, under certain circumstances, we believe that they 

should be given some additional time to implement the proper waste treatment technologies.

As mentioned before in these comments, to retrofit a landfill, it can take between three and six 

years to install controls, a year for public hearings, and 12 to 18 months for permitting. In terms 

of capital costs, one large utility approximated the cost to be $50 to $75 per ton of ash waste 

handled depending on linear requirements. Another utility estimated the capital cost to be $18.5 

million dollars. The operating costs associated with this retrofit, assuming 400,000 tons a year 

with a handling cost of $12/ton, results in an annual cost of $4.8 million dollars. The required 

approval and planning process add significant time to municipal compliance. EPA should take 

these additional steps and time into consideration.32 Most APPA members won’t have this large 

of a volume of ash to manage. But perhaps one dozen of the largest public power utilizes are in 

this general range.

A potential compounding factor for landfills is land acquisition, which could take two to three 

years to acquire if condemnation is required. Another difficulty is the need to build additional 

solid waste landfills due to the closing of wet ash ponds. Landfills generate leachate that will 

need to be treated, which requires additional waste water treatment facilities. This also requires 

major modifications to the boilers to convert from wet ash transport and disposal to dry methods. 

EPA may not be aware of the difficulty that public power utilities can have trying to find 

additional land within or adjacent to urban areas. Some utilities simply may not be able to 

acquire suitable land for treatment projects.

For flue-gas desulfurization wastewater treatment systems, utilities typically estimate that the 

approximate time to install controls is six to eight months. A potential difficulty with this retrofit 

is that some utilities do not know if a sulfide system for mercury (Hg) removal can be added to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-119

an existing treatment facility. EPA should take the factors that community-owned utilities must 

face into consideration when finalizing the rule.

Reasonable compliance schedules are crucial to the facilities subject to the proposed rule. EPA 

may require dry fly ash and dry bottom ash handling. If so, many more landfills will be needed to 

receive the ash. A three- or four-year compliance schedule would be grossly inadequate.

Siting, permitting, and constructing new landfills often takes eight or more years to complete. 

The ELG rule must be coordinated with the CCR rule because both involve of the same 

wastestreams (fly ash, bottom ash, and FGD wastes). Coordinated requirements are essential to 

assure compliance in the most operationally efficient and cost-effective manner.

EOP prepared a report that has been submitted by UWAG (and USWAG). EOP is a consultant 

for the Utility Solid Waste Activities Group (USWAG). APPA is also a member of USWAG. 

EOP’s report shows a five-year period for wet-to-dry conversion is not practical, especially 

considering the number of qualified engineers available nationwide and the fact that the rule 

would apply to every coal-fired unit in the country. EOP looked at these issues and estimated it 

would require at least 8-10 years to site, design, permit, construct, and start up alternative 

disposal capacity, in addition to building new wastewater treatment systems. APPA endorses the 

use of this EOP report by the EPA.

Many factors go into determining a reasonable compliance schedule – what type of technologies 

are required, how many facilities a company must install, how many other facilities are 

competing for the same resources, how long it takes to get permits, etc. If more than one 

technology is needed, the time needed to site, design, and construct is on the order of eight to 10 

years. A staggered schedule will be necessary due to the limited availability of experienced 

engineering and construction companies. APPA observes that given the regulatory and 

budgetary burdens on states, a staggered schedule would benefit state regulatory agency 

staffs. Permit writers should be given some flexibility to stagger schedules, especially if 

cranes or other major construction equipment is needed at multiple power plants 

concurrently. Additionally permit writer should have leeway on staggering schedules if the 

power plants need to schedule outages.

Because of the financial pressures facing the electric utility industry and the need to finance 

multiple new requirements under the CAA, RCRA, and CWA, modifications to power plants 

cannot be made quickly. No company would commit itself to capital expenditures until the legal 

requirements are settled, meaning at the earliest when the ELG rule becomes final (presumably 

perhaps as early as May 22, 2014).

Once the new rule’s requirements are known, each company will have to determine what plant 

changes are needed to comply with the ELG and CCR rules together. Then several months of 

engineering work must be done to design the plant changes. For public power utilities, local 

governmental approval has to be secured. The process can sometimes be long and demanding, 

and financial demands are so great that no city utility can proceed precipitously. These 

constraints, and others, will determine what is “as soon as possible.” Permitting agencies need 

the flexibility to take them into account.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-120

32 These utilities are UWAG members--not APPA utilities.

Comment Response: 

EPA disagrees with the commenter’s characterization that the requirements of the final rule are 

“phased in” or “staggered,” something that EPA did not propose. See response to DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 126. EPA notes, however, that permitting 

authorities may decide that a given plant can meet the final limitations applicable to discharges 

of particular wastestreams by different dates. See preamble Section XVI. 

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 99

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. EPA should grant permit writers maximum flexibility for those utilities that are sitting on 

a small physical footprint or for those that will retire within eight years of the effective 

date of the rule;

2. EPA and state permit writers should stagger compliance dates if the final rule requires 

new landfill construction, cranes, or scheduled outages.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 8, and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Paul Ling

Commenter Affiliation: Kansas City Power & Light Company

Document Control Number: EPA-HQ-OW-2009-0819-5406-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA has also failed to provide for flexible implementation and reasonable compliance deadlines.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-121

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: S. L. Phillips

Commenter Affiliation: Louisiana Department of Environmental Quality

Document Control Number: EPA-HQ-OW-2009-0819-5509-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Timeframe for Compliance

NPDES permits are renewed every five years and the ELG proposal requires that states enforce 

the new ELG requirements as soon as possible with the next permit issued after July 1, 2017. 

The agency also intends for all affected facilities to be in compliance with the new limits by July 

1, 2022.

EPA is not clear on whether more time, based on NPDES permit renewal dates, will be allowed 

to comply with the new requirements. A compliance period is referred to, but assuming they are 

allowed, clarification is needed on how they would be applied. In any case, the five year 

compliance period is not long enough in all situations, particularly when ELG and CCR issues 

overlap. For example, the closure of fly ash ponds will require conversions to dry fly ash 

systems and the construction of new landfills. The time to design, permit and construct the 

proposed treatment systems may be less than 5 years, but it generally takes 4 to 6 years to 

construct a new landfill. It could be longer if there are insufficient resources and capable 

companies available to do these conversions for multiple companies at the same time.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126 and DCN EPAHQ-OW-2009-0819-4348-A2, Excerpt Number 4.

The final rule establishes limitations and standards applicable to the discharge of pollutants from 

the steam electric power generating industry. It does not establish requirements related to the 

operation and/or closure of surface impoundments. Comments on these subjects are outside the 

scope of the rulemaking.

Regarding coordination of the final ELGs and CCR rule, see responses to Comment Code 27.e.

Commenter Name: F. Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-122

Document Control Number: EPA-HQ-OW-2009-0819-5517-A2

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We are concerned that the 2017 schedule for compliance does not take into account the 

limitations imposed by state and local laws. Assuming that this rule could be made effective by 

January 1, 2014, it will take the Missouri Department of Natural Resources until sometime 

between March and June of 2015 to amend their Clean Water Regulations in order to create the 

detailed compliance requirements for these proposed changes to the federal ELG rule. That 

provides cities less than two years to design the appropriate mitigation, control or treatment 

structures, hold mandatory public hearings, schedule public votes for bond issues on the limited 

dates allowed by law, and comply with mandatory budget and bidding restrictions AND get the 

structures and systems built, operating and validated.

It appears that EPA continues to willfully ignore the limitations placed on states and political 

subdivisions when developing implementation schedules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4576-A1, Excerpt Number 8. 

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Oklahoma Department of Environmental Quality (DEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4181-A2

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For direct dischargers, DEQ supports the use of a flexible implementation date, based on permit 

renewal timelines and Compliance Schedules contained in renewed permits. Language should be 

included in the final rule that EPA does not expect states to reopen permits to include the 

provisions contained in the rule. The final rule should be clear that permitting authorities have 

flexibility to determine when to include the requirements, and include specific examples such as 

a potential total of 8 years for final implementation based on the effective date of the rule's 

provisions (approximately 3 years out from final rule) and permit cycles (5 years). However, the 

final rule must address the differences between direct and indirect dischargers. The pretreatment 

section must be amended to specifically allow for a later implementation date or state that it is 

not possible . The pretreatment language allows for control authorities to set compliance 

deadlines for pretreatment programs as soon as possible after July 1, 2017. This language is used 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-123

in several sub-parts but is not consistent with 40 C.P.R. Part 403.6(b), which clearly states that a 

categorical industry user cannot have greater than three years to come into compliance. The 

proposed ELG, as written for the pretreatment standards, would conflict with 40 C.P.R. Part 

403.6(b).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. In addition, 

EPA notes that what a particular permit requires and how the permit shield provision of the 

Clean Water Act (section 402(k)) operates is outside the scope of this rulemaking.

EPA agrees with the commenter’s statements about pretreatment standards. As described in 

preamble section XVI.A, pretreatment standards are self-implementing, meaning they apply 

directly, without the need for a permit. Therefore, for the final rule, the pretreatment standards 

for existing sources must be met by November 1, 2018. 

PSNS apply to any new source discharging to a POTW, as of the effective date of the final rule.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 148

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

Schedules for Compliance Should be Determined by the Control Authority (State or Local 

Government)

As with the proposed direct discharge limitations, the schedules for meeting final PSES and 

PSNS should be left to the permit issuing authority. This would allow plant-specific issues to be 

considered by the permit writer when incorporating compliance schedules into the permit or 

other regulatory mechanism.

Comment Response: 

EPA disagrees with the commenter that “schedules for compliance should be determined by the 

control authority” for the final PSES and PSNS. As described in preamble section XVI.A, 

pretreatment standards are self-implementing, meaning they apply directly, without the need for 

a permit. In this rule, the pretreatment standards for existing sources must be met by November 

1, 2018. PSNS apply to any new source discharging to a POTW, as of the effective date of the 

final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-124

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 85

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

Schedules for Compliance Should Be Determined by the Control Authority (State or Local 

Government).

As with the proposed direct discharge limitations, the schedules for meeting final PSES and 

PSNS should be left to the permit issuing authority. This would allow plant-specific issues to be 

considered by the permit writer when incorporating compliance schedules into the permit or 

other regulatory mechanism.

Comment Response: 

See response to DCN EPA-HQ-OW-0819-4379-A1, Excerpt Number 148.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 185

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

7. Schedules for Compliance Should be Determined by the Control Authority (State or 

Local Government)

As with the proposed direct discharge limitations, the schedules for meeting final PSES and 

PSNS should be left to the permit issuing authority. This would allow plant-specific issues to be 

considered by the permit writer when incorporating compliance schedules into the permit or 

other regulatory mechanism.

Comment Response: 

See response to DCN EPA-HQ-OW-0819-4379-A1, Excerpt Number 148. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-125

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Certain wastewaters may have to comply with limits sooner than the proposed compliance dates.

Unlike the requirements for other wastewaters which would be required to comply with the 

proposed ELG after July 1, 2017, EPA appears to require combustion residual leachate and nonchemical metal cleaning wastewater to comply well before the proposed July 1, 2017 compliance 

date. EPA assumes that the limits proposed for these wastewaters are the same as the present 

limits required for low volume wastewater and therefore are already being met. This is not 

entirely accurate. Alliant Energy has facilities where combustion residual leachate and nonchemical metal cleaning wastewaters are mixed with other wastewaters for treatment prior to 

discharge. The current permitting authority imposes requirements on the final discharge, but does 

not always require each wastestream to meet the low volume wastewater limits before co

mingling. Alliant Energy would need to make physical and operational changes in order to 

comply with the proposed rule as written. It is simply not practical to require an early 

compliance timeframe for some wastewaters when each affected facility will need to evaluate a 

holistic approach for complying with the proposed ELG requirements. Alliant Energy does not 

support the singling out of certain wastewaters for early compliance, and requests that EPA 

revise the conditions in the proposed rule so early compliance with the proposed ELG limits 

would not be required for these low volume wastewaters.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

The commenter notes that “The current permitting authority imposes requirements on the final 

discharge, but does not always require each wastestream to meet the low volume wastewater 

limits before co mingling.” The final rule does not require that any wastestream must meet 

applicable limitations before comingling with other wastewaters. See preamble section VIII.G.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 11
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-126

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

New combustion residual leachate effluent limitations should be phased in over a five-year 

period.

It is unclear in the proposed rule whether discharge limits applicable to combustion residual 

leachate would be immediately applicable or would be phased in over time with limits applicable 

to wastestreams regulated by the final rule. EPA should clarify that leachate limits will be 

implemented during a five-year compliance period, with all facilities meeting required discharge 

limits on or before July 1, 2022.14 A compliance approach allows facilities to make required 

modifications during planned outages, ensuring the reliability of service to customers. It also 

provides facilities with time to raise the necessary capital to make the modifications, and allows 

sufficient time for adequate permitting, engineering, and implementation.

14 78 Fed. Reg. at 34480.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CCR Leachate: The effective date of this rule is inappropriate if additional treatment 

technologies or process modifications are required for compliance.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-127

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Certain wastewaters may have to comply with limits sooner than the proposed compliance dates

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

There is a flaw in the proposed rule regarding the allowance for control authorities to set 

compliance deadlines for pretreatment programs as soon as possible after July 1, 2017. This 

language is used in several sub-parts but is not consistent with 40 C.F.R. § 403.6(b) and section 

307(b) of the CWA, which clearly state that a categorical industry user cannot have greater than 

three years to come into compliance. The proposed ELG, as written for the pretreatment 

standards, would conflict with both 40 C.F.R. § 403.6(b) and section 307(b) of the CWA. Even if 

EPA were to clearly explain in the final rule that there is an exception to the requirements of 40 

C.F.R. § 403.6(b), it could not trump the requirements of section 307(b) of the CWA. EPA 

should correct this error in the final rule or clearly explain why there is no conflict with 40 

C.F.R. § 403.6(b) and section 307(b) of the CWA.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 10.

Commenter Name: Donald R. Carlson

Commenter Affiliation: Kansas Department of Health and Environment (KDHE)

Document Control Number: EPA-HQ-OW-2009-0819-3922-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-128

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

How is EPA proposing to address compliance schedules in industrial pretreatment permits for 

existing sources in light of the provisions of 40 CFR 403.6(b) which requires compliance of 

existing sources with categorical pretreatment standards be within 3 years of the date the 

standard is effective? This appears counter to EPA's plan referencing the July 1, 2017 and July 

1, 2022 dates in the preamble. In addition, EPA's proposed 

voluntary incentive program for power plants that close CCR Impoundments 

or eliminate all process wastewater discharges except for cooling water create an additional 

problem with the proposed increase in time for compliance. EPA needs to clarify what is 

expected in the way of compliance schedule deadlines for existing indirect dischargers in light of 

the requirements of 40 CFR 403.6(b).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 10.

As explained in preamble section VIII, the final voluntary incentives program establishes BAT 

limitations on FGD wastewater discharges based on evaporation for plants opting into the 

program. The voluntary incentives program does not establish PSES, and is not applicable to 

discharges to POTWs. 

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Industry Must Comply with the Final ELGs No Later than Three Years Before the Date 

the Rule Is Finalized. The plain language of the Clean Water Act requires that compliance with 

revised ELGs must occur within three years of promulgation of the final rule. EPA’s proposed 

compliance deadline turns that standard on its head, allowing for three years of delay before any 

compliance is required, and setting no hard deadline for compliance for standards implemented 

through state-issued permits. State permitting agencies routinely fail to renew permits for power 

plants in a timely manner even though the Clean Water Act requires discharge permits to be 

renewed every five years. Moreover, the record does not demonstrate that facilities cannot 

comply with new BAT requirements within three years of the effective date of the rule. EPA 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-129

must state in the final rule that compliance is required with the new BAT requirements “as soon 

as possible, but no later than three years from the effective date of the final rule.” The Clean 

Water Act mandates cleanup and there is no excuse for further delay.

Comment Response: 

The final rule represents a significant step forward toward the Clean Water Act goal of 

eliminating the discharge of pollutants. For two major wastestreams, it requires zero discharge. 

For a third wastestream, the BAT limitations are based on chemical precipitation plus biological 

treatment or, for plants that choose to participate in the voluntary incentives program, the BAT 

limitations are based on evaporation (the same technology basis as the NSPS). While the 

commenter understandably wants these limitations to be achieved right away, the changes at 

facilities that have not yet employed the technologies that serve as the bases for the final 

limitations (or other technologies that achieves the limitations) will take time. The time provided 

for in the rule allows the permitting authority to account for time the facility needs to coordinate 

all the requirements of this rule, along with other regulatory requirements, to make the correct 

planning and financing decisions, and to implement the new requirements in an orderly and 

feasible way. While the time period of no later than 2023 seems protracted in 2015, given the 

extent of the capital expenditure and the complexity of these facilities, it is reasonable.

EPA disagrees that the implementation period in the final rule is inconsistent in any way with the 

Clean Water Act. As explained in the preamble, the final rule establishes effluent limitations 

applicable to the discharge of pollutants from the steam electric power generating industry based 

on Best Available Technology Economically Achievable. In some cases, the rule establishes 

limitations that are based on technologies that are available as of the date of this final rule and 

thus must be met by a given plant immediately once incorporated into its NPDES permit. In 

other cases, the rule establishes limitations based on technologies that EPA determined are not 

available until at least November 1, 2018 (for reasons explained in preamble section VIII.C.7). 

For these limitations, EPA also determined that the technologies are available for every plant by 

December 31, 2023. In other words, the implementation period in the final rule (“as soon as 

possible beginning November 1, 2018, but no later than December 31, 2023”) tracks when, in 

EPA’s judgment, certain technologies represent Best Available Technology Economically 

Achievable, it is not “compliance schedule” for meeting limitations based on a technology that is 

already available and achievable. EPA further determined that the permitting authority is in the 

best position to decide exactly when within that implementation period particular technologies 

are available for plants, in light of a consideration of certain factors that EPA has judged are 

relevant to the inquiry. See 40 CFR 423.11(t).

EPA notes that for every wastestream regulated under this final rule, the final rule establishes 

limitations based on technologies that are available as of the date of this final rule and thus must 

be met as soon as they are incorporated into an NPDES permit after the effective date of this rule 

(i.e., the so-called “legacy wastewater” limitations), and in some cases, the final rule also 

establishes another set of limitations for these same wastestreams based on technologies that are 

available beginning November 1, 2018. Thus, the commenter is wrong to conclude the final rule 

“allow[s] for three years of delay before any compliance is required.”
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-130

EPA notes that the direct discharge limits in the ELGs are not self-implementing. They must be 

incorporated into NPDES permits. See, e.g., Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 928-

29 (5th Cir. 1998) (“ELGs are not self-executing. They cannot be enforced against individual 

dischargers, and individual dischargers are under no legal obligation to obey limits set by ELGs. 

Rather ELGs achieve their bite only after they have been incorporated into NPDES permits.”) 

(citations omitted).

EPA also disagrees that the record does not support its decisions about availability in this regard. 

See preamble Section VIII and the response to DCN EPA-HQ-OW-2009-0819-4684-A1, 

Excerpt Number 10. Also, comments related to the administration of state-administered NPDES 

permitting programs are outside the scope of this rulemaking. 

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 52

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. EFFLUENT LIMITATIONS MUST REQUIRE COMPLIANCE WITHIN THREE YEARS 

OF PROMULGATION OF THE FINAL RULE.

Compliance with BAT shall be “as expeditiously as practicable, but in no case later than three 

years after the date such limitations are promulgated . . . , and in no case later than March 

31, 1989.”177 EPA must “provid[e] guidelines for effluent limitations, and, at least annually 

thereafter, revise, if appropriate, such regulations.”178 The plain language of the Clean Water Act 

states that compliance with initial regulations must occur within three years of promulgation and 

in no case later than March 31, 1989 and compliance with revised ELGs must occur within three 

years. The three-year compliance deadline applies not only to the initial BAT limits but to each 

subsequent revision.179 Therefore, when EPA finalizes this rule, all facilities must achieve 

compliance within three years of promulgation of the rule.

177 33 U.S.C. § 1311(b)(2)(C), -(D).

178 Id. § 1314(b) (emphasis added).

179 The plain language of the Act, and its objective of eliminating all discharges of pollutants, 

indicate that the three- year compliance deadline applies to all subsequent revisions of the 

effluent limits, rather than to only the initial limits. See infra Section XIII.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-131

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 10. 

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 164

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

E. EPA MUST ENSURE THAT BMPS FOR CCR SURFACE IMPOUNDMENTS ARE 

IMPLEMENTED AS SOON AS POSSIBLE TO PREVENT RELEASES OF TOXIC OR 

HAZARDOUS POLLUTANTS TO SURFACE WATER.

If EPA establishes BMPs for design and operation of CCR surface impoundments, EPA must 

ensure a means of timely implementation. In light of the substantial risk of failure and the deadly 

consequences that may ensue, the requirements to inspect, maintain and safely operate the 

nation’s 309 high and significant-hazard impoundments cannot be postponed.

EPA can and must require compliance with the BMPs as soon as possible, but no later than three 

years from the effective date of the final rule.732 EPA clearly acknowledges the imminent need 

for such requirements. In the preamble, EPA stated

the BMP requirements being considered by the Agency in this rulemaking and in the CCR 

rulemaking are critical to ensure that the owners and operators of surface impoundments become 

aware of any problems that may arise with the structural stability of the surface impoundment 

before they occur and, thus, prevent catastrophic releases, such as those that occurred at Martins 

Creek, Pennsylvania and TVA’s Kingston, Tennessee facility.733

In fact, EPA points out that the MSHA requirements were created as a result of the 1972 

catastrophic slurry pond failure at Buffalo Creek, West Virginia that killed 125 people and 

destroyed or damaged nearly 1,000 homes.734 Yet the capacity for unregulated CCR 

impoundments to cause as much or greater harm than the Buffalo Creek disaster is a genuine 

threat that EPA must minimize as soon as possible. In fact, the amount of toxic material released 

from the Kingston dam in 2008 was 10 times the volume released at Buffalo Creek.

Furthermore, new information concerning the risk of releases due to impoundment conditions is 

now available for more than 500 CCR impoundments.735 Such information, particularly for 

the 309 high and significant hazard dams, provides new and critical information concerning the 

potential for significant releases to surface water and supports compliance with the BMPs as 

expeditiously as possible. This information is discussed in more detail below.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-132

732 33 U.S.C. § 1311(b)(2)(C), -(D). See also discussion infra section XI.

733 78 Fed. Reg. at 34,466.

734 See id. at 34,467.

735 See EPA impoundment assessment reports, available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.

Comment Response: 

The final rule does not establish BMPs related to the design and/or operation of CCR surface 

impoundments, for the reasons discussed in preamble Section VIII and responses to comments in 

Comment Code 27.e. 

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 179

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Americans have already waited over thirty years for EPA to control dangerous discharges from 

power plants. Although EPA is finally taking action to curb power plant water pollution, the 

compliance schedule EPA proposes would allow facilities to delay clean-up for at least another 

eight years and fails to include a firm deadline for compliance. The Clean Water Act, however, 

mandates compliance with revised ELGs no later than three years from the date the revisions are

finalized.796 As a practical matter, facilities can comply with revised ELGs within this statutory 

time frame, and there is no excuse for further delay. EPA must require compliance with the 

ELGs as soon as possible, but in no case later than three years from the effective date of the rule.

796 33 U.S.C. § 1311(b)(2)(C), -(D).

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-133

See responses to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 10 and 20 and 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126 regarding “a firm 

deadline for compliance.” 

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 180

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

A. THE CLEAN WATER ACT REQUIRES COMPLIANCE WITH REVISED ELGS NO 

LATER THAN THREE YEARS FROM THE DATE THE REVISIONS ARE FINALIZED.

The Clean Water Act states that compliance with BAT limitations promulgated under 

section 304(b) shall be “as expeditiously as practicable, but in no case later than three years after 

the date such limitations are promulgated . . . , and in no case later than March 31, 

1989.”797 Section 304(b) of the Clean Water Act directs EPA to “provid[e] guidelines for 

effluent limitations, and, at least annually thereafter, revise, if appropriate, such 

regulations.”798 Thus, the plain language of the statutory provision states that compliance with 

initial regulations must occur within three years of promulgation and in no case later than March 

31, 1989 and compliance with revised ELGs must occur within three years.

To read section 304(b) as only imposing a deadline for compliance with initial promulgation of 

ELGs is contrary to the goals of the Clean Water Act and would allow industry to evade timely 

compliance with regulations that EPA must review and revise at regular intervals to 

ensure maximum reductions in effluent discharges on a mandatory schedule.799 It is a wellestablished principle of statutory interpretation that “‘[i]n ascertaining the plain meaning of [a] 

statute, the court must look to the particular statutory language at issue, as well as the language 

and design of the statute as a whole.’”800 Courts also look to the title of a statute or section to aid 

in resolving an ambiguity in the legislation’s text.801

Congress passed the Clean Water Act in 1972 “to restore and maintain the chemical, physical, 

and biological integrity of the Nation’s waters.”802 The Act protects all waters of the United 

States, including surface waters that supply drinking water, support fish and wildlife, and provide 

aesthetic and recreational opportunities for current and future generations of Americans. The 

Clean Water Act’s goal is to eliminate all discharges of pollution into navigable waters.803 To 

achieve this goal, the Act requires that EPA set effluent limits based on BAT for pollutants 

including toxic metals.804 To facilitate the adoption and revision of effluent limitations, the Act 

also requires that EPA develop and publish ELGs that characterize the effluent discharges from a 

given industry, identify the level of pollution control that is possible in light of available 

technologies, and specify the relevant factors for determining what constitutes BAT.805
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-134

To ensure that governing regulations reflect advances in control technology, the Clean Water Act 

requires EPA to review and, if appropriate, revise these effluent limitations and underlying ELGs 

at regular intervals.806 Section 301(d) of the Clean Water Act requires that all effluent limitations 

“shall be reviewed at least every five years, and, if appropriate, revised.”807 Similarly, with 

respect to ELGs, section 304(b) of Clean Water Act requires that “the Administrator shall . . . 

publish . . . regulations, providing guidelines for effluent limitations, and, at least annually 

thereafter, revise, if appropriate, such regulations.”808 These sections impose mandatory 

obligations on EPA to take action within the statutory deadlines.

Furthermore, the title of section 1311(b) is “Timetable for achievement of objectives,” and the 

first sentence of section 1311(b) begins “In order to carry out the objective of this chapter...” 

(i.e. Federal Water Pollution Control Act).809 The title of section 301(b) is further support 

that Congress intended the compliance timetables to further all CWA objectives, including 

reductions in pollution discharges from the mandatory revision of, and compliance with, ELGs 

and effluent limitations at regular intervals.810

In short, Congress’ goal in enacting the Clean Water Act was to produce progressively cleaner 

waters—and ultimately eliminate all pollution—through the ratcheting down of effluent limits 

over time as technology advances .811 Mandatory revisions to standards with no deadline for 

compliance with those standards would be meaningless. An interpretation of section 301(b)(2) 

that does not impose a three-year outer bound on compliance with revisions of these limits is 

clearly contrary to the language and design of the Clean Water Act.

797 33 U.S.C. § 1311(b)(2)(C), -(D).

798 Id. § 1314(b) (emphasis added).

799 See, e.g., McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (“‘In ascertaining the plain 

meaning of [a] statute, the court must look to the particular statutory language at issue, as well as 

the language and design of the statute as a whole.’”) (quoting K Mart Corp. v. Cartier, Inc., 486 

U.S. 281, 291 (1988)).

800 McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (quoting K Mart Corp. v. Cartier, Inc., 486 

U.S. 281, 291 (1988). See also Crandon v. United States, 494 U.S. 152, 158 (1990) (“In 

determining the meaning of the statute, we look not only to the particular statutory language, but 

to the design of the statute as a whole and to its object and policy”).

801 INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (citing Mead 

Corp. v. Tilley, 490 U.S. 714, 723 (1989)).

802 33 U.S.C. § 1251(a).

803 See 33 U.S.C. § 1251(a)(1).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-135

804 See 33 U.S.C. §§ 1311(b)(2)(A)-(F), 1314(a)(4).

805 Id. § 1314(b).

806 See 33 U.S.C. §§ 1311(d), 1314(b).

807 33 U.S.C. § 1311(d) (emphasis added).

808 33 U.S.C. § 1314(b) (emphasis added).

809 33 USC § 1311(b).

810 33 U.S.C. § 1311(d) (emphasis added).

811 33 USC § 1251(a)(1), (2), (6).

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 10 and 20. 

EPA notes that, if it had not taken temporal availability and achievability into consideration 

when establishing the final limitations, EPA would not have selected the technologies that it did 

as the basis for certain limitations, and in that event the final rule would not achieve as much 

pollutant discharge reduction as it is now projected to achieve. Thus, EPA’s approach is entirely 

consistent with, and in fact advances, the pollutant discharge elimination goal of the Act.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 181

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. EPA MUST SET A THREE-YEAR DEADLINE FOR COMPLIANCE WITH THE BAT 

REQUIREMENTS IN THE FINAL RULE.

Under the plain meaning of Section 301(b)(2), the final rule must state that compliance with new 

requirements must occur no later than three years from its effective date.812 Currently, the 

proposed rule contains no hard deadline for compliance. EPA states that BAT limitations for 

existing sources “would apply on a date determined by the permitting authority that is as soon as 

possible when the next permit is issued beginning July 1, 2017.”813 EPA estimates that 

“all steam electric facilities will have the proposed BAT limitations applied to their permits no 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-136

later than July 1, 2022.”814 However, EPA ignores the fact that state permitting agencies 

routinely fail to renew NPDES permits for power plants in a timely manner even though the 

Clean Water Act requires discharge permits to be renewed every 5 years.815

Contrary to EPA’s judgment, it is unlikely that all power plants would have the rule’s new BAT 

requirements incorporated into their permit no later than July 1, 2022 because the reality is that 

many discharge permits for power plants are administratively extended well beyond five years. A 

recent report released by the Environmental Integrity Project, Sierra Club, 

Earthjustice, Waterkeeper Alliance, and Clean Water Action found that almost half (187) of 382 

power plants were operating with expired permits as of March 13, 2013.816 Nearly 30% of the 

expired permits had expired five or more years ago.817 For example, the permit for the 

FirstEnergy Mitchell plant in Washington County, Pennsylvania expired in 1996—almost 20 

years ago.818 Given past practices, EPA simply cannot rely on state permitting agencies to 

ensure BAT requirements are in place by a date certain without imposing a hard deadline in the 

final rule. As discussed above, the Clean Water Act requires compliance within three years of 

the effective date of the final rule EPA should state in the final rule that compliance is required 

with the new BAT requirements “as soon as possible, but no later than three years from the 

effective date of the final rule.”

812 Previous ELGs have set a firm date for compliance. See e.g., Copper Forming Point Source 

Category; Effluent Limitations Guidelines, Pretreatment Standards, and New Source 

Performance Standards, 48 Fed. Reg. 36,942 (Aug. 15, 1983) (noting that “[t]he compliance date 

for the BAT regulations is as soon as possible, but in any event, no later than July 1, 1984.”).

813 78 Fed. Reg. at 34,479.

814 Id. at 34,480.

815 33 U.S.C. § 1342(b)(1)(B).

816 Environmental Integrity Project et al., Closing the Floodgates: How the Coal Industry is 

Poisoning Our Water and How We Can Stop It 9 (July 23, 2013), available 

at http://www.environmentalintegrity.org/news_reports/07_23_2013.php.

817 Id. at 10.

818 Id. at 41.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 10 and 20, and 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126, regarding “a hard 

deadline for compliance.”
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-137

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 182

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. THE RECORD DOES NOT SUPPORT EPA’S CONTENTION THAT SOME 

SOURCES ARE NOT ABLE TO COMPLY WITH NEW BAT REQUIREMENTS WITHIN 

THREE YEARS.

The record does not demonstrate that facilities cannot comply with new BAT requirements 

within three years of the effective date of the rule. While acknowledging that some facilities 

could meet the new BAT requirements “relatively quickly,” EPA notes that it is proposing such a 

lengthy compliance schedule because “[s]ome facilities will need time to raise the capital, plan 

and design the system, procure equipment, construct and then test the system” and “providing a 

window of time will better enable facilities to install the pollution control technology during an 

otherwise planned shutdown or maintenance period.”819

Yet the record and available information do not support EPA’s rationale for the lengthy 

compliance deadline. For example, with respect to bottom ash dry handling systems, “the lead 

time to design, build, and install these units is typically 1 to 2 years,”820 which is well within the 

statutory timeframe for compliance with revised BAT requirements. The construction schedule 

for conversion to a dry bottom ash handling system at the Mayo plant in North Carolina, for 

example, is one year.821 Furthermore, the installation of these technologies requires minimal 

outage time.822 Additionally, the installation of FGD wastewater and leachate treatment systems 

will not require lengthy downtimes because these systems do not involve the boilers 

directly.823 Their installation therefore need not be timed with otherwise planned shutdown and 

maintenance periods. In fact, the construction schedule for the FGD mechanical evaporation 

system for the Mayo plant shows that it will take only 18 months from the start of the 

construction to complete testing of the system.824

819 78 Fed. Reg. at 34,479-34,480.

820 Fox Report, Appendix E, at 15. See also Dennis Del Vecchio et al., Wet to Dry Bottom Ash 

Disposal Conversion Project - BL England Station, Power-Gen (Dec. 2011), available at 

http://www.naes.com/sites/default/files/documents/delvecchio_speaker10835_session1236_2.pdf

; Dry Bottom Ash System Installation Unit NR IV of Ptolemaida Power Station, (Project 

duration 8/1/94 to 8/31/96), available at http://cordis.europa.eu/opet/fiches/ff-20.htm; See also 

Email from Bret Renfroe to Ronald Powell Re KIF Dry Fly Ash Collection (Dec. 15, 2003) 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-138

(noting 24 month installation time for similar dry fly ash system), available at 

http://www.tva.com/kingston/tdec/pdf/TVA-00013864.pdf.

821 Construction Schedule for EMC SOC WQ S10-012, Mayo Steam Electric Plant, NPDES 

Permit No. NC0038377.

822 See Fox Report, Appendix E.

823 See supra Section III.

824 Construction Schedule for EMC SOC WQ S10-012, Mayo Steam Electric Plant, NPDES 

Permit No. NC0038377.

Comment Response: 

EPA disagrees that the record does not support its decisions regarding the temporal availability 

of the final BAT limitations. EPA’s decision with respect to availability of the final limitations is 

not just a function of time to “design, build and install” treatment technologies, but is also a 

function of time needed to raise capital and optimize certain new equipment, as well as an 

accommodation of changes happening in the industry, including as a result of other regulatory 

requirements (i.e., plants must plan their approach for addressing a suite of requirements, not just 

those in this rule). In addition, even if installation of certain equipment requires “minimal outage 

time,” as the commenter contends, EPA’s decision is designed to allow, more broadly, for the 

coordination of generating unit outages in order to maintain grid reliability and prevent any 

potential impacts on electricity availability. See preamble section VIII.C.7. EPA determined that 

each of these considerations influences when the technology becomes available. Because ELGs 

are nationally applicable rules, based on its record, EPA reasonably determined that, for the 

industry as a whole, the technologies on which certain final limitations are based are not 

“technologically available” for the industry as a whole until beginning November 1, 2018, but 

that they are also available to every plant by December 31, 2023. EPA further determined that 

the permitting authority is in the best position to decide exactly what date is as “soon as 

possible” within that implementation period on which the technologies are available for a 

particular plant, in light of a consideration of: (a) Time to expeditiously plan (including time to 

raise capital), design, procure, and install equipment to comply with the requirements of the final 

rule; (b) Changes being made or planned at the plant in response to regulations governing 

greenhouse gases for new or existing fossil fuel-fired power plants under the Clean Air Act, as 

well as regulations for the disposal of coal combustion residuals under subtitle D of the Resource 

Conservation and Recovery Act; (c) For FGD wastewater requirements only, an initial 

commissioning period to optimize the installed equipment; and (d) Other factors as appropriate. 

See 40 CFR 423.11(t) and preamble section XVI.

The examples cited by the commenter in this excerpt do not demonstrate that, at this time, the 

technologies on which certain final BAT requirements are based are available within three years 

of the effective date of the rule. As described in preamble sections V and VIII, there are many 

considerations that have gone into the implementation period for the final limitations, including 

recent new requirements under the Clean Air Act and the Resource Conservation and Recovery 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-139

Act, which may not have been applicable at the time the examples cited by the commenter 

occurred.

Several commenters provided arguments supporting their claims that they would need more than 

three years to meet the new BAT limitations, particularly in light of other requirements relevant 

to their operations as a result of other rulemakings, and all such comments are part of the public 

record for this rulemaking. See, for example, DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 126 (from Southern Company) located in Comment Code 26.b; DCN EPA-HQ-OW2009-0819-4183-A2, Excerpt Numbers 9 and 10 (from Buckeye Power) located in Comment 

Code 26.b; and DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Numbers 10 and 130 (from 

Duke Energy) located in Comment Code 26.b.

EPA notes that, as explained in preamble Section XVI, it fully expects that some plants can meet 

the final limitations on November 1, 2018, and that permitting authorities may determine 

different “as soon as possible” dates for discharges of different wastestreams at any given plant. 

For example, in cases where the plant is already operating the BAT basis for a specific 

wastestream (e.g., dry fly ash handling system), operates the majority of the BAT basis (e.g., 

FGD chemical precipitation and biological treatment, without sulfide addition), or expects that 

relevant treatment and process changes will be in place prior to November 1, 2018, it would not 

generally be appropriate to allow additional time beyond that date. If the permitting authority 

determines a date later than November 1, 2018, EPA recommends that the permitting authority 

provide a well-documented justification in the permitting record explaining why allowing 

additional time to meet the limitations is appropriate, and why the discharger cannot meet the 

final effluent limitations as of November 1, 2018.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 183

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

D. AMERICANS SHOULD NOT BE FORCED TO WAIT ANOTHER DECADE FOR 

CLEAN WATER.

The utility industry—the nation’s largest discharger of toxic pollution—has effectively been 

given a free pass to pollute for over thirty years, which has resulted in widespread damage 

to watersheds around the country and put downstream communities in harm’s way.825 Coal 

water pollution raises cancer risks, makes fish unsafe to eat, can inflict lasting brain damage on 

our children, and poisons our rivers, lakes, and streams.826 EPA is finally taking long overdue 

action to curb these dangerous discharges, but is allowing industry at least 8 years827 to comply 

with new requirements and is proposing to exempt cleanup of legacy wastewaters.828
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-140

EPA’s proposal to delay full compliance until 2022 instead of requiring compliance with the new 

requirements within the three-year statutory timeframe could result in the dumping of an 

additional 27.5 billion pounds of pollution into U.S. waters.829 The additional delay will also 

allow plants to continue dumping waste into unsafe and leaking surface impoundments 

for several more years, which will only worsen the problems associated with EPA’s proposed 

exemption of legacy wastewaters. The Clean Water Act mandates cleanup and there is no 

excuse for further delay. For all of these reasons, EPA must require compliance with the 

requirements in the final rule as soon as possible, but no later than three years from the effective 

date of the final rule.

825 See generally EA, see supra Section I.

826 See 3-30, 5-1 to 6-48.

827 As discussed in this section, EPA’s estimate that all plants will come into compliance with the 

new requirements by 2022 is overly optimistic as states routinely fail to timely renew power 

plant discharge permits.

828 78 Fed. Reg. at 34,522-34,523.

829 See EA at 3-3 tbl. 3-2 (estimating that the Steam Electric industry discharges 5.5 billion 

pounds of pollution each year).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Numbers 10 and 20. 

As explained in the referenced response, EPA is not “delay[ing] fully compliance” with the final 

rule until 2023. EPA determined that the technologies on which certain final limitations are 

based are not available until “as soon as possible beginning November 1, 2018, but no later than 

December 31, 2023.” EPA notes that while CWA section 304(a)(1) specifies that EPA is to 

identify the effluent reductions from its rules, section 304(b)(2)(B) does not direct EPA to 

consider pollutant reductions in determining Best Available Technology Economically 

Achievable.

Commenter Name: Dennis Wene

Commenter Affiliation: Alcoa Inc.'s Warrick Operations

Document Control Number: EPA-HQ-OW-2009-0819-4765-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-141

Comment Excerpt: 

EPA should allow an implementation phase not only during the rule process but whenever a seep 

is discovered with an allowable time of at least one-year to properly engineer and design a pumpback system into the current wastewater stream. The discovery of these seeps demonstrates that 

a full blown assessment of the area needs to be performed for structural integrity, a review of the 

drainage system and accompanying area, location to place a collection point, and engineered 

reinforcement of the area is likely required. This type of work and capital expense is not 

typically performed in short order and to address such issues, proper evaluation and pIanning is 

required.

Comment Response: 

EPA disagrees that an “implementation phase” is needed specifically to address “whenever a 

seep is discovered” by a plant. EPA notes that comments related to ground water contamination 

are outside the scope of this rulemaking. The final ELGs control discharges of pollutants from 

steam electric generating units to surface waters. See responses to comments in comment code 

27.e.

As required by 40 CFR Part 122, wastewater discharges to surface waters from industrial 

dischargers such as steam electric power plants are permitted when authorized in an NPDES 

permit. Such discharges would be required to meet BAT/BPT limitations for combustion 

residual leachate. The final BAT limitation on TSS for combustion residual leachate in this rule 

is equal to the previously promulgated BPT limitation on TSS in low volume waste sources, and 

thus EPA does not project that existing sources would be changing the way they handle leachate 

as a result of this final rule.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

6. No retroactive leachate collection requirement. The ELG rule language should also clarify 

that the final ELG will not retroactively require the installation of leachate collection systems in 

facilities in operation prior to the effective date of the final ELG.

Comment Response: 

The final rule does not require the installation of leachate collection systems, or the use or 

installation of any technology or practice, for that matter. The final BAT limitation on TSS for 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-142

combustion residual leachate in this rule is equal to the previously promulgated BPT limitation 

on TSS in low volume waste sources, and thus EPA does not project that existing sources would 

be changing the way they handle leachate as a result of this final rule.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

MP’s northern location and high percentage of industrial customers who operate around-theclock make MP a winter-peaking utility. Thirteen large power customers (requiring at least 10 

megawatts of generating capacity) purchase about half the electricity MP sells. Considering MPs 

high percentage of industrial customers who are high energy users and struggling to compete in a 

competitive global market economy, we are concerned that any further restrictions applicable to 

our facilities be implemented with reasonable timeframes and cost to minimize adverse impacts 

on our customers.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. Also, EPA 

analyzed the impact of this final rule on electricity prices. See a summary in Section VIII of the 

final preamble and the RIA.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-143

26.c. Regulatory Implementation – Legacy Waste 

Commenter Name: Chas Spell

Commenter Affiliation: Arizona Public Service Company

Document Control Number: EPA-HQ-OW-2009-0819-4303-A2

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Treatment Of Legacy Wastewaters Is Appropriate And Should Be Retained In The Final 

Rule.

APS supports EPA’s approach to treatment of legacy wastewaters in the proposed rule. 

Specifically, EPA’s proposal to subject legacy wastewaters from fly ash transport, bottom ash 

transport and flue gas desulfurization to BPT effluent limits is an appropriate approach to 

treating these wastes. Subjecting legacy wastewaters to BAT effluent limits would be a difficult 

and costly undertaking that would essentially constitute short-term use of expensive technology. 

APS requests that wastewaters from fly ash transport, bottom ash transport and flue gas 

desulfurization remain subject to existing BPT effluent limits as proposed by EPA.

Comment Response: 

For purposes of the final BAT limitations in this rule, “legacy wastewater” is FGD wastewater, 

fly ash transport water, bottom ash transport water, FGMC wastewater, or gasification 

wastewater generated prior to the date determined by the permitting authority that is as soon as 

possible beginning November 1, 2018, but no later than December 31, 2023. For steam electric 

power plants in the voluntary incentives program, legacy FGD wastewater is FGD wastewater 

generated prior to December 31, 2023. Under this final rule, legacy wastewater must comply 

with specific BAT limitations, which EPA is establishing equal to the previously promulgated 

BPT limitations on TSS in fly ash and bottom ash transport water and low volume waste sources. 

For further information and discussion of EPA’s rationale for establishing BAT limitations for 

legacy wastewater equal to previously established BPT limitations on TSS, see preamble Section 

VIII.C.8.

For purposes of the final PSES, legacy wastewater refers to FGD wastewater, fly ash transport 

water, bottom ash transport water, FGMC wastewater, or gasification wastewater generated prior 

to November 1, 2018. The final rule does not establish PSES for legacy wastewater. See Section 

VIII of the final preamble.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-144

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Duke Energy Supports: The continued use of surface impoundments to treat “legacy” wastes 

under the existing ELG requirements.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 119

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Duke Energy Supports EPA’s Analysis for “Legacy Wastes”

EPA recognized in the Proposed Rule that subjecting “legacy” fly ash transport water to the 

same “zero discharge” requirement would not be practical and that there were insufficient data 

available to establish limits for this effluent.101 Duke Energy supports EPA’s assessment for all 

legacy wastes (fly ash sluice water, bottom ash sluice water and flue gas mercury control legacy 

water) and agrees that it is not appropriate to establish BAT effluent limits for this “legacy” 

water, but that they would remain subject to the existing BPT effluent limits. Continued 

operation of impoundments may be necessary to treat other wastestreams, such as combustion 

residual leachate or low volume waste, which would not be subject to dry handling requirements.

101 TDD, Section 14.1.3, pages 14-2 & 14-3 [EPA-921-R-13-002]

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

The final ELGs regulate the discharge of pollutants from the steam electric power generating 

industry. Comments related to any requirements regarding the operation and/or closure of 

surface impoundments are outside the scope of this final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-145

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NPPD supports the grandfathering of legacy wastes as proposed by EPA. This approach, which 

would set up a system whereby waste from the regulated waste steams generated prior to the 

proposed rule's effective date, July 1, 2017, would be considered "legacy wastes" and would be 

subject only to the existing standard based on BPT. The creation of a legacy waste program is 

reasonable and necessary with respect to wastewater already treated and disposed over the years 

at EGUs. In addition, it is appropriate to set a future date (July 21, 2017) to transition to the new 

ELG regulatory regime because it will take several years after the promulgation of a final rule 

before states are able to integrate the new ELGs into their permitting systems. Failure to 

grandfather legacy waste would place undu e burdens on the regulated industry and would 

reduce the resources available for the potentially capital intensive project s that may be required 

to bring facilities into compliance with the new rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

EPA notes that, for the final rule, where BAT limitations are more stringent than previously 

established BPT limitations, those limitations do not apply until a date determined by the 

permitting authority that is as soon as possible beginning November 1, 2008, but that is also no 

later than December 31, 2023. See preamble Section VIII for a detailed discussion. 

Commenter Name: Nancy A. Evans

Commenter Affiliation: PPL Services Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4348-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

2.EPA should clarify options for continued operation of surface impoundments containing 

legacy wastewater.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-146

The proposed ELGs include provisions prohibiting the discharge of ash transport waters, but do 

not clearly delineate requirements applicable to surface impoundments containing legacy ash 

transport waters. Facility owner/operators may find it beneficial to convert existing surface 

impoundments that formerly handled ash transport waters to other purposes (e.g., stormwater 

run-off retention). EPA should clarify that this option is available with appropriate safeguards. It 

would be cost-prohibitive – and operationally infeasible for many facilities – to “dry out” the 

surface impoundment and dispose of legacy wastewater prior to conversion of the impoundment 

to a different use. PPL urges EPA to consider mechanisms to allow conversion of existing 

surface impoundments including an exemption for legacy wastewaters contained within a 

converted surface impoundment or authorization for discharge from such surface impoundment 

through the time when legacy wastewaters are expected to have been flushed from the 

impoundment based on projected retention times.

Comment Response: 

The final ELGs regulate the discharge of pollutants in steam electric power plant discharges. 

Comments related to any requirements regarding the operation and/or closure of surface 

impoundments are outside the scope of this final rule.

EPA disagrees with the commenter that the final rule does not clearly delineate requirements 

applicable to surface impoundments containing legacy ash transport waters with respect to 

discharges to surface waters. See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt 

Number 14.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Southern agrees with EPA that so-called “legacy wastewaters” – i.e., those wastewaters 

generated before the deadlines developed by permitting authorities for compliance with new 

“best available technology” limits proposed by the rule – should be subject only to current limits.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-147

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

9. Coal Combustion Residuals

The Department fully supports the move toward no discharge of wastewater pollutants from ash 

transport water generated on or after the compliance date determined by the ELG, as well as the 

incentives to close ash ponds and eliminate legacy discharges. However, the ELG leaves a 

regulatory gap regarding the long-term management of legacy discharges and provides no 

guidance to standardize procedures for closing existing impoundments. The Department is 

currently developing a state-wide strategy to manage the environmental threats posed by ash 

impoundments and is seeking guidance on appropriate and protective standards on closure of 

ash impoundments.

Comment Response: 

See response to DCN-EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 119.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 61

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

D. AEP supports the agency’s proposed legacy wastewater provisions.

Under its proposed regulatory implementation scheme, EPA is proposing that certain BAT 

requirements for existing sources apply to discharges of FGD wastewater, fly ash and bottom ash 

transport water, FGMC wastewater, combustion residual leachate, and gasification wastewater 

generated on or after the date established by the permitting authority that is as soon as possible 

within the first permit cycle after July 1, 2017 (78 FR at 34523). The agency is also proposing 

for direct dischargers that, “such wastewater generated prior to that date (i.e. “legacy” 

wastewater) would remain subject to the existing BPT effluent limits.” This is based on the fact 

that some wastewater treatment technologies do not represent BAT for legacy wastewater. For 

example, this was the case for legacy FGD wastewater (78 FR at 34461), fly ash transport water 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-148

(Id.), bottom ash transport water (78 FR at 34462) and combustion residual leachate (78 FR at 

34463). As a result, EPA has proposed that discharges of legacy FGD wastewater, fly ash 

transport water, bottom ash transport water and combustion residual leachate would remain 

subject to the existing BPT effluent limitations for those specific wastewaters. AEP agrees with 

this proposal and encourages EPA to implement it in the final revised ELGs. The proposed 

revisions will allow utilities to discharge legacy wastewaters in compliance with existing water 

quality standards and effluent guidelines, while at the same time, allowing them to close out

impoundments as necessary. Without the legacy wastewater provisions, utilities would be forced 

to develop technologies that could separately treat the current and legacy wastewaters. For 

example, if ongoing and legacy fly ash transport waters had to meet BAT limitations, there 

would be no practicable way to get rid of the legacy transport waters, since there would be “no 

discharge” requirement under the BAT limitations. Some of the water could be recycled, 

particularly in bottom ash systems, but for the most part, there would be no effective way to 

dispose of the legacy wastewaters other than by the energy intensive process of forced 

evaporation.

Comment Response: 

See response to DCN- EPA-HQ-OW-2009-0819-4310-A1, Excerpt Number 6.

Commenter Name: Nysa Hogue

Commenter Affiliation: Indianapolis Power & Light Company (IPL)

Document Control Number: EPA-HQ-OW-2009-0819-4454-A2

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Legacy Wastewater (WW):

o Per pages 141-142 of the preamble, EPA states they are considering "setting the BAT 

effluent limitations for legacy FGD WW that has not been mixed with non-legacy waste 

equal to the existing BPT limits." This "alternative consideration" appears to be the same 

BAT determination as what is presented in the proposed rule. IPL requests that EPA 

clarify the "alternative" legacy FGD WW BAT options being considered.

o If a facility continues to utilize an unlined SI for purposes of treating non-CCR WW, will 

de minimus CCR from the SI itself co-mingled in the non-CCR WW be exempt from 

new various wastestream Iimits post July 1, 2017? If so, it would appear that the 

proposed rule is requiring SI to be retrofitted with liners in order to continue to use this 

type of treatment for non-CCR wastestreams to which EPA has not accounted for these 

retrofit costs.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-149

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

The final ELGs regulate the discharge of pollutants in steam electric power plant discharges. 

They are not specific to any type of surface impoundment, but rather the discharge of the 

wastestream itself. Comments related to any requirements regarding the operation (e.g., use of 

liners) and/or closure of surface impoundments are outside the scope of this final rule.

Commenter Name: Paul Bailey

Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE)

Document Control Number: EPA-HQ-OW-2009-0819-4466-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ACCCE supports EPA’s approach to “legacy wastewater.” In the proposal, EPA uses the 

term “legacy wastewater” to refer to various wastewater streams that are generated prior to the 

deadlines established by the permitting authority for compliance with new “best available 

technology” limits proposed by the rule.22 EPA proposes that direct discharges of legacy 

wastewaters from existing sources would remain subject to the current BPT effluent 

limits.23 ACCCE supports EPA’s legacy wastewater approach and agrees that legacy 

wastewaters should remain subject to the current BPT effluent limits.

22 See id. at 34,522-23

23 Ibid.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-150

Raven Power supports maintaining the existing ELG requirements allowing for the continued use 

of surface impoundments to treat “legacy” wastes.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Raven Power agrees with EPA’s evaluation of legacy wastewaters and supports that it is not 

appropriate to establish BAT effluent limits, but rather maintain existing BPT limits.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 24

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Legacy Wastes

"Legacy" wastewater should not be subject to any new BAT (or PSES) requirements. As EPA is 

aware, these legacy wastewaters are typically transferred to surface impoundments that often 

commingle these legacy wastewaters and may also contain other plant wastewaters, such as 

cooling water, coal pile runoff, and/or other low volume wastes. EPA acknowledges that it does 

not have data to demonstrate that the technologi es identified as representing BAT for newly 

generated wastewater from the various sources considered (e.g., FGD wastewater, ash transport 

wastewater, etc.) would also represent BAT for the legacy wastewaters.29 The technologies are 

either impracticable or insufficient data are available for establishing effluent limitations.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-151

This is particularly important for waste streams that have been commingled, but also important 

to legacy waste streams that have not been mixed with other waste streams, such as combustion 

residual leachate, which is often collected in separate impoundments prior to being mixed or 

discharged. Facilities designing and constructing systems for treatment of waste generated after 

the date established by the permitting authority should not be required to design and construct 

transfer facilities and/or treatment capacity for wastewater generated prior to the established date 

in addition to that required for wastewater generated after the effective date. This would add 

significant cost and result in the construction of facilities that may not be needed for the 

treatment of waste quantities regularly generated after the effective date.

This is also important for waste that may be generated during start-up of treatment systems 

constructed for treatment of waste generated after the effective date. Such facilities will likely 

begin operation prior to the effective date in order to have time to address any problems 

that may be encountered during start-up and "shake-down" periods while the systems are being 

optimized, such that compliance is achieved on or before the effective date.

Lastly, it may take considerable time to remove the waste from impoundments at facilities that 

are or will be slated for that type closure, depending on their size and the rate at which the waste 

can be removed. Wastewater resulting from dewatering the waste and stormwater that comes in 

contact with the legacy waste should be allowed to discharge under the present limitations 

applicable to the particular impoundment. Impoundments containing legacy waste should also be 

allowed to continue to treat wastewater for which impoundments continue to be the BAT.

29 78 FR 34461.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

The commenter raised an issue about what limitations would apply to wastewater that “may be 

generated during start-up of treatment systems constructed for treatment of waste [water].” One 

of the factors that permitting authorities is directed to consider in establishing a date on which 

the final BAT limitations for FGD wastewater based on chemical precipitation plus biological 

treatment apply is an initial commissioning period to optimize the installed equipment. See final 

preamble Section XVI and 40 CFR 423.11(t)(3). Any discharges of FGD wastewater that occur 

prior to the “as soon as possible” date would be subject to a TSS limitation. 

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-152

Comment Excerpt: 

Legacy leachate. EPA is proposing treatment methods for coal combustion residuals (CCR) 

leachate (FR page 34454). MP comments that the language of the proposed regulation should 

clarify that leachate treatment requirements would only apply to leachate generated after the 

effective date of the final ELG regulation. Leachate generated prior to the regulatory effective 

date would be “legacy” leachate and not be subject to ELG rule requirements. The term legacy 

should be so applied, with consistency, through-out the final ELG.

Comment Response: 

The final rule establishes a BAT limitation for combustion residual leachate that is equal to the 

existing BPT limitation on TSS for low volume waste sources. Since this limitation is the same 

as the BAT limitation established for “legacy wastewater” in the rule, there would be no need to 

establish a separate BAT limitation for “legacy” combustion residual leachate. See preamble 

section VIII.C for further information about combustion residual leachate.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CCR Leachate. EPA is proposing treatment methods for coal combustion residuals leachate 

(FR page 34454). MP comments that the language of the proposed regulation should clarify that 

leachate treatment requirements would only apply to leachate generated after the effective date 

of the final ELG regulation. Leachate generated prior to the regulatory effective date would be 

“legacy” leachate. The term legacy should be so applied, with consistency, through-out the final 

ELG.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4484-A1, Excerpt Number 7.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 6
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-153

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. Legacy leachate. EPA is proposing treatment methods for coal combustion residuals (CCR) 

leachate (FR page 34454). MP comments that the language of the proposed regulation should 

clarify that leachate treatment requirements would only apply to leachate generated after the 

effective date of the final ELG regulation. Leachate generated prior to the regulatory effective 

date would be “legacy” leachate and not be subject to ELG rule requirements. The term legacy 

should be so applied, with consistency, through-out the final ELG.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4484-A1, Excerpt Number 7.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

15. CCR Leachate. EPA is proposing treatment methods for coal combustion residuals leachate 

(FR page 34454). MP comments that the language of the proposed regulation should clarify that 

leachate treatment requirements would only apply to leachate generated after the effective date 

of the final ELG regulation. Leachate generated prior to the regulatory effective date would be 

“legacy” leachate. The term legacy should be so applied, with consistency, through-out the final 

ELG.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4484-A1, Excerpt Number 7.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 78

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-154

Comment Excerpt: 

The Rule Needs to Allow for the Continued Treatment of “Legacy Wastes.”

EPA’s ELG proposal recognizes that certain “legacy” CCR transport waters, such as fly ash, 

bottom ash, and flue gas mercury control legacy waters, will continue to be managed in 

impoundments, subject to present BPT limits. See 78 Fed. Reg. at 34,461-63. As EPA 

recognizes, impoundments may be necessary both to treat “legacy” wastes already in the 

impoundments and to treat other wastestreams (like combustion residual leachate or low volume 

waste) that do not require dry handling.

EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires 

crafting the CCR rule so as not to require operators to commence closing ponds within 30 days 

of last receiving CCRs (75 Fed. Reg. 35,127, 35,252 col. 3 (June 21, 2010)) and not to require 

dredging and lining them within five years. Promulgating the “Subtitle D Prime” option in the 

CCR rulemaking is necessary to accomplish this.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 119. Comments 

specifically related to the CCR rulemaking are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see docket EPA-HQRCRA-2009-0640-11970).

Commenter Name: Paul Chu

Commenter Affiliation: Electric Power Research Institute (EPRI)

Document Control Number: EPA-HQ-OW-2009-0819-4499-A1

Comment Excerpt Number: 99

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

12.1 Treating FGD legacy wastewater generated prior to July 1, 2017 to the 

existing BPT effluent limits would approximately double annualized costs of 

FGD wastewater treatment because facilities will need to build larger wastewater 

treatment systems to accommodate the increased flow rate.

In the current proposed rule, FGD wastewater generated prior to July 1, 2017 (i.e., “legacy” 

wastewater) from existing direct dischargers would remain subject to the existing BPT effluent 

limits. EPA states on page 141 of the ELG:

“As proposed today, discharges of legacy FGD wastewater by existing direct dischargers would 

remain subject to the existing BPT effluent limits; however, under some of the proposed options, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-155

EPA is also considering setting the BAT effluent limitations for legacy FGD wastewater that has 

not been mixed with non- legacy wastes equal to the existing BPT effluent limits.” [EPA, 2013, 

page 34461]

EPRI conducted an evaluation of the costs of treating FGD legacy wastewater for proposed BAT 

limits for non-legacy FGD wastewater to determine the increase in costs associated with treating 

legacy and non-legacy FGD wastewater with the same approach.

To assess the costs of treating legacy FGD wastewater, EPRI reviewed the current pond volume 

information provided in Question D4-3 of the ICR, and evaluated the costs of including chemical 

precipitation and biological treatment for legacy wastewater. EPRI assumed a 3-year period to 

treat a plant’s legacy wastewater currently residing in a settling pond. Results are shown in Table 

12-1. Table 12-1 also shows the capital, O&M, and annualized cost for treatment of the FGD 

wastewater alone (without legacy FGD wastewater) for two example sites selected from those in 

the ICR. EPRI calculated the mean current pond volume as 56 million cubic feet and the mean 

FGD design flow as 465 gpm from the ICR data set. Table 12-1 shows two example facilities. 

Example 1 is a facility from the ICR that has a once-through FGD system. Example 2 is a facility 

from the ICR that has a design flow value (480 gpm) near the mean design flow of the ICR data 

set.

The results of this cost evaluation show that treatment of FGD legacy wastewater using chemical 

precipitation and biological treatment would greatly increase the overall cost of implementing 

legacy wastewater treatment at a facility. Examples 1 and 2 show a large range of cost impacts, 

based on the relatonshp of pond volume to new water flow.

A total of 82 facilities replied yes to Question B7-1 of the ICR that asks whether facilities 

currently discharge FGD wastewater to a settling pond. To estimate the cost to the industry, the 

costs of treating legacy wastewater would be extrapolated to these 82 facilities. This evaluation 

shows that the cost to the industry would be significantly higher than EPA estimates to size 

facilities large enough to treat FGD legacy wastewater.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-156

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4310-A1, Excerpt Number 6.

Comments related to costs of regulatory approaches that EPA did not finalize are not relevant to 

the final rule.

In addition, this comment response is based on EPA’s understanding that the commenter 

mistakenly stated “BPT” rather than “BAT” in the following sentence: “[t]reating FGD legacy 

wastewater generated prior to July 1, 2017 to the BPT effluent limits would approximately 

double annualized costs of FGD wastewater treatment because facilities will need to build larger 

wastewater treatment systems to accommodate the increased flow rate” (emphasis added). If not, 

EPA disagrees with the statement because, under the final rule’s legacy wastewater 

requirements, plants are expected to continue to their current practices, since from the plant’s 

standpoint the relevant regulatory limitations are unchanged. Therefore, EPA does not project 

any additional costs associated with the final legacy FGD wastewater requirements.

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

A. Grandfathering "Legacy Waste"

OPPD supports the grandfathering of legacy wastes as proposed by EPA. This approach, which 

would set up a system whereby waste from the regulated waste streams generated prior to the 

proposed rule's effective date, July 1, 2017, would be considered "legacy wastes" and would be 

subject only to the existing standard based on best practicable technology (BPT).

The creation of a legacy waste program is reasonable and necessary with respect to wastewater 

already treated and disposed over the years at the particular plant. In addition, it is appropriate to 

set a future date (July 21, 2017) to transition to the new ELG regulatory regime because it will 

take several years after the promulgation of a final rule before states are able to integrate the new 

ELGs into their permitting systems. Waste created in the interim should be subject to the current 

requirements, as it would not be practical for facilities to change their practices without a clear 

understanding of how it will affect their permits. Failure to grandfather legacy waste would 

place undue burdens on the regulated industry and would reduce the resources available for the 

potentially capital intensive projects that may be required to bring facilities into compliance with 

the new rule once the requirements are made a part of the state permitting process.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-157

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4310-A12, Excerpt Number 6.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

LPPC supports the grandfathering of legacy wastes as proposed by EPA. This approach, which 

would set up a system whereby waste from the regulated waste streams generated prior to the 

date established by the permitting authority in permits issued after the proposed rule’s effective 

date, July 1, 2017, would be considered “legacy wastes” and would be subject only to the 

existing standard based on BPT.18

The creation of a legacy waste program is reasonable and necessary with respect to wastewater 

already generated at the particular plant. In addition, it is appropriate to set a future date (after 

July 21, 2017) to transition to the new ELG regulatory regime because it will take several years 

after the promulgation of a final rule before states are able to integrate the new ELGs into their 

permitting systems. Waste created in the interim should be subject to the current requirements, as 

it would not be practical for facilities to change their practices without a clear understanding of 

how it will affect their permits. Failure to grandfather legacy waste would place undue burdens 

on the regulated industry and would reduce the resources available for the potentially capital 

intensive projects that may be required to bring facilities into compliance with the new rule once 

the requirements are made a part of the state permitting process.

18 78 Fed. Reg. 34,522‐34,523 (June 7, 2013).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4310-A12, Excerpt Number 6.

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 32
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-158

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VI. EPA Should Establish BAT Equal to BPT for Legacy Wastewaters; Legacy 

Wastewaters at Facilities Being Retired by a Certain Date Should be Exempt from New

BAT Limits

TVA believes that new ELGs should not be applied to existing legacy wastewaters but only to 

wastewaters generated after the ELG effective date within the compliance schedule established 

by the NPDES permit. For example, if FGD wastewaters had been sent to an impoundment prior 

to the new ELG implementation date, those wastewaters should only be subject to the BPT limits 

that existed prior to the ELG implementation date. Legacy wastes should not be subject to new 

BAT limits. The costs and benefits of requiring legacy wastes to meet new BAT limits were not 

evaluated by EPA in the rulemaking and as they would already be commingled with other wastes 

including precipitation and runoff, they need to continue to be subject to the status quo limits.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

Commenter Name: Bradley Coyle

Commenter Affiliation: Big Rivers Electric Corporation (BREC)

Document Control Number: EPA-HQ-OW-2009-0819-4664-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Clarification should be made to options for continued operation of surface impoundments 

containing wastewater

The proposed ELGs include provisions prohibiting the discharge of ash transport waters but do 

not clearly spell out requirements applicable to existing surface impoundments containing 

wastewaters generated from existing operating facilities. EPA should understand that operational 

infeasibility exists to dry out existing impoundments. BREC wishes for EPA to consider 

alternative mechanisms to allow for the conversion of existing impoundments or for the 

authorization for discharge from said existing surface impoundments until legacy wastewaters 

have been fully eliminated.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-159

See responses to DCN EPA-HQ-OW-2009-0819-4348-A2, Excerpt Number 3.

Commenter Name: Julia M. Blankenship

Commenter Affiliation: American Municipal Power, Inc. (AMP)

Document Control Number: EPA-HQ-OW-2009-0819-4670-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

First, AMP sees no reason why a landfill that was closed prior to the publication of the Proposed 

ELG Rule (prior to June 7, 2013) and has an approved discharge permit would need to be subject 

to this rule. AMP requests that EPA grandfather such facilities at the current effluent limits 

applied at the outfall (as opposed to the internal discharge point) if legacy leachate water is 

indirectly discharged to either a publically owned treatment works (POTW) or an industrial 

wastewater treatment system.

Comment Response: 

The final rule establishes a BAT limitation for combustion residual leachate that is equivalent to 

the previously promulgated BPT limitation on TSS for low volume waste sources. Additionally, 

the final rule does not require internal monitoring of combustion residual leachate prior to 

mixing with other wastestreams. See preamble section VIII for more information about 

combustion residual leachate and preamble section XVI for more information about combined 

wastestreams.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 51

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

B. EFFLUENT LIMITATIONS GUIDELINES CANNOT EXEMPT DISCHARGES OF 

EXISTING WASTE.

EPA’ proposal would have any new BAT limits apply to only waste water generated after a date 

in 2017 or beyond.165 Under all proposed options, BAT limits would not apply to wastes 

generated before that date, so-called “legacy wastes.”166 EPA is considering going one step 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-160

further and establishing separate BAT limits for legacy wastes that would be equal to the existing 

BPT limits.167

In promulgating effluent limitations guidelines, EPA must apply the guidelines to discharges of 

all pollutants and has no authority to exempt discharges based on when the waste was created. 

EPA has an obligation to establish BAT guidelines that eliminate, or reduce, the discharge of 

pollutants for categories of sources – without regard to when the waste was generated. Effluent 

limitations shall be achieved for “categories and classes of point sources.”168 The effluent 

limitations “shall require the elimination of discharges of all pollutants” if EPA finds that “such 

elimination is technologically and economically achievable for a category or class of point 

sources.”169 If a zero discharge standard is not achievable, the effluent limitations must 

require the best available technology economically achievable “for such category or 

class.”170 Similarly, EPA must identify “the degree of effluent reduction attainable” through the 

best control measures “for classes and categories of point sources.”171 The statute contains no 

distinction between pollutants based on when they were produced; the statute does not 

distinguish between legacy and newly generated wastes.

Moreover, the basic structure of Clean Water Act regulation of point sources focuses on 

regulating discharges of pollutants regardless of when the pollutants were generated. The 

regulatory structure begins with the prohibition on discharging any pollutant except 

in compliance with various provisions of the Act.172 One of those exceptions is compliance with 

an NPDES permit.173 NPDES permits are required for any “discharge of a pollutant,” which is 

defined as “any addition of any pollutant to navigable waters from any point source.”174 NPDES 

permits, in turn, have to comply with the effluent limitations in section 1311.175 And 

section 1311 requires, where feasible, effluent limitations that require the elimination of 

discharges, and, where not feasible, effluent limitations resulting in further progress toward 

eliminating discharges.176 The term “discharge” is used throughout the statutory sections 

regulating point sources and indicates that the focus is on controlling, and ultimately eliminating, 

the discharge of pollutants to navigable waters. The statutory scheme does not give EPA 

authority to exempt a discharge from achieving BAT limits simply because the facility 

discharges pollutants that were produced in the past.

165 E.g., 78 Fed. Reg. at 34,522-23.

166 Id.

167 Id.

168 33 U.S.C. § 1311(b)(2)(A).

169 Id.

170 Id.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-161

171 Id. § 1314(b)(2)(A).

172 33 U.S.C. § 1311(a).

173 Id. § 1342(a).

174 Id. § 1362(12).

175 Id. § 1342(b)(1)(A).

176 Id. § 1311(b)(2)(A).

Comment Response: 

EPA disagrees that, under the final rule, BAT limitations would not apply to “legacy” 

wastewaters. The final rule establishes BAT limitations for legacy wastewaters based on surface 

impoundments. See preamble Section VIII.C.8 for an explanation of how the term legacy 

wastewater is used for purposes of describing the final BAT limitations, as well as EPA’s 

rationale for establishing BAT limitations for legacy wastewater based on surface 

impoundments.

EPA also disagrees with the commenter that the final rule “exempt[s] discharges based on when 

the waste was created” and that EPA lacks “authority to exempt a discharge from achieving BAT 

limits simply because the facility discharges pollutants that were produced in the past.” There is 

no “exemption” for legacy wastewater in the final rule. Rather, the rule establishes differentiated 

BAT limitations applicable to legacy wastewater. EPA’s decision to establish differentiated 

limitations for legacy wastewater is authorized by the statute and is entirely appropriate given 

EPA’s record. Section 304(b)(2)(B) of the Act directs EPA to take into account several factors 

in establishing Best Available Technology Economically Achievable. Such factors include “the 

process employed,” as well as “other factors that the Administrator deems appropriate.” As 

described in preamble Section VIII.C.8, the process that most plants employ to handle their 

legacy wastewater makes the characteristics of legacy wastewater distinct from other 

wastestreams. Most plants combine some of their legacy wastewater with each other and with 

other wastestreams in surface impoundments. Once combined in surface impoundments, the 

legacy wastewater no longer has the same characteristics that it did when it was first generated. 

For example, the wastewater can become highly diluted such that it is no longer present at 

treatable levels. The flow rate of legacy wastewater can also be subject to variation based on the 

source of certain wastewaters mixed in the impoundment. As a result, the characteristics of 

legacy wastewater can vary significantly at any given plant and across the nation. Moreover, 

except in very limited cases, no plant uses any technology other than the surface impoundments 

themselves to treat the legacy wastewaters. Thus, EPA does not have data to derive limitations 

and standards for legacy wastewaters based on a technology other than surface impoundments. 

Finally, EPA notes that, as a result of the zero discharge limitations established in this final rule, 

this rule provides strong incentives for steam electric power plants to greatly reduce, if not 

completely eliminate, the disposal and treatment of their major sources of ash-containing 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-162

wastewater in surface impoundments. As a result, EPA anticipates that overall volumes of legacy 

wastewater will continue to decrease dramatically over time, as this rule becomes fully 

implemented.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 184

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XIV. THE CLEAN WATER ACT OBLIGATES EPA TO SET BAT LIMITS FOR 

DISCHARGES OF EXISTING WASTES.

The Clean Water Act requires EPA to identify the reduction of toxic pollutants achievable 

through the use of the best technology – without regard to when the pollutants were generated. 

EPA has no authority to promulgate BAT guidelines that exempt existing wastes, as EPA is 

proposing to do. Under all proposed options, for all waste streams, the new BAT and PSES 

requirements would apply only to wastewater generated after a date that is later than July 1, 2017 

and is determined by the state permitting authority.830 Moreover, the proposal contemplates 

going one step further and establishing separate BAT limits for legacy wastewater that are equal 

to the current BPT limits.831 Both of these proposals would violate EPA's statutory duty to 

promulgate BAT guidelines for discharges of pollutants without regard to when the pollutants 

were generated.

830 78 Fed. Reg. 34,522-23.

831 E.g., id. at 34,523, 34,461.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 51.

See also preamble Section VIII.E for a discussion of how the term legacy wastewater is used for 

purposes of describing the final PSES in the rule.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-163

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 185

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Several treatment systems are technologically and economically achievable for dramatically 

reducing the toxicity of existing FGD wastewater and leachate that has been stored in 

separate impoundments.832 However, EPA did not evaluate any of these treatment systems 

because it assumed, with no evidence, that most facilities send FGD and leachate wastewater to 

impoundments containing multiple waste streams. According to the Agency, the data supporting 

the BAT limits for the separate waste streams do not necessarily apply to the co-mingled waste 

streams, so EPA cannot evaluate whether the BAT limits would also represent BAT for the comingled waste in the impoundments.833

However, EPA acknowledges that 22% of facilities generating FGD wastewater send the 

wastewater to an impoundment containing only FGD wastewater.834 Similarly, EPA notes that 

some facilities (EPA does not say how many) send leachate to small impoundments containing 

only leachate.835 Moreover, in describing the various ways facilities could configure their 

treatment systems to comply with the new BAT requirements, EPA has included diagrams of 

systems that run both newly generated and legacy FGD wastewater through the treatment system 

that would be used to meet the new BAT requirements.836 In fact, running legacy FGD 

wastewater through the biological treatment system would reduce the variability in FGD 

wastewater flow rates, allowing constant flow through the treatment system even during plant 

outages and maintenance periods.

As explained previously, treatment systems are technologically and economically achievable for 

eliminating the discharge of (or at least reducing the toxicity of) FGD wastewater and 

leachate.837 Whatever system EPA ultimately selects as BAT for newly generated FGD 

wastewater and leachate must apply equally to existing wastes stored in separate impoundments, 

or where an impoundment contains only those two wastewaters.838

EPA has not advanced a credible technical or legal rationale for doing otherwise. To the extent 

that the FGD wastewater or leachate is stored in a separate impoundment, the treatment 

technology will work exactly the same on existing wastes as it will work on newly generated 

waste. Nothing will happen in 2017 to change the way the treatment systems work on these 

waste streams – if they will work in 2017 on newly generated wastes, they will perform equally 

well on existing wastes stored in separate impoundments. Put differently, there is no support in 

the record for claiming that the technological or economic achievability of treatment systems is 

affected by when the pollutants were generated – so long as the pollutants in a waste stream are 

stored in a separate impoundment and not co-mingled.

Legally, EPA has both the authority and the obligation to establish BAT guidelines that eliminate 

the discharge of pollutants for categories of sources – even if that category is smaller than the 

entire industry. Effluent limitations shall be achieved for “categories and classes of point 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-164

sources.”839 The effluent limitations “shall require the elimination of discharges of all 

pollutants” if EPA finds that “such elimination is technologically and economically achievable 

for a category or class of point sources.”840 The statute mandates a zero discharge standard if 

achievable for a “category or class.”841 Even if a zero discharge standard is not achievable, 

the effluent limitations must require the best available technology economically achievable “for 

such category or class.”842 Similarly, EPA must identify “the degree of effluent reduction 

attainable” through the best control measures “for classes and categories of point sources.”843

EPA has identified a class of facilities that can eliminate the discharge of FGD wastewater and 

leachate, or, at a minimum, can treat such wastes with various technologies. That class is 

the 22% of plants that store FGD wastewater in separate impoundments and the class of plants 

that store leachate in separate impoundments. Whatever technology is selected as BAT for 

newly generated FGD wastes and leachate must apply equally to existing FGD wastes and 

leachate at these plants that store their wastes in separate impoundments. Moreover, since comingled FGD wastes and leachate are amenable to chemical and biological treatment, BAT for 

legacy FGD wastes and leachate co-mingled in an impoundment should be chemical and 

biological treatment.

832 See supra Sections III, VI (discussion of treatment systems for FGD and leachate waste 

streams).

833 78 Fed. Reg. at 34,461, 34,463.

834 Id. at 34,461.

835 Id. at 34,463.

836 TDD at 14-4, Figure 14-1.

837 See supra Sections III, VI.

838 As explained in the leachate report of Dr. David Jenkins, Appendix D, and as verified by the 

performance of the biological treatment system at the Mountaineer plant, leachate and FGD 

wastewater can be treated together in the chemical precipitation and biological treatment 

systems. Thus, where legacy FGD wastewater and leachate have been co-mingled, there is no 

technological barrier to treating these wastes in the biological system.

839 33 U.S.C. § 1311(b)(2)(A).

840 Id.

841 Id.

842 Id.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-165

843 Id. § 1314(b)(2)(A). Congress modified the BAT requirements for the coal remining industry 

so that BAT for pre-existing discharges would be determined by the relevant permitting authority 

on a case-by-case basis using BPJ, rather than by EPA on a nation-wide basis. 42 U.S.C. § 

1311(p)(1). The pre-existing discharge provision does not exempt the coal remining industry 

from BAT – instead, it only changes who determines BAT, and how—and applies only to a 

single industry, coal remining. Congress did not extend similar relief to other industries, such 

as power plants. Furthermore, the provision applies to pre-existing discharges, not pre-existing 

waste, further supporting the view that Congress did not intend to exempt the discharge of preexisting wastes from the BAT requirements.

Comment Response: 

EPA agrees in part and disagrees in part with the commenter’s statement that “whatever 

technology is selected as BAT for newly generated FGD wastes and leachate must apply equally 

to existing FGD wastes and leachate at these plants that store their wastes in separate 

impoundments.” The final rule establishes one set of BAT limitations applicable to discharges of 

combustion residual leachate, and the applicable BAT limitation is based on the use of surface 

impoundments. See response to DCN EPA-HQ-OW-2009-0819-4484-A1, Excerpt Number 7.

EPA disagrees with the commenter that the same set of BAT limitations should apply to all 

forms of FGD wastewater, including legacy FGD wastewater that is not commingled with other 

wastestreams and stored in a surface impoundment. For EPA’s rationale as to why it established 

a different set of BAT limitations for legacy FGD wastewater based on surface impoundments, 

including why it rejected establishing BAT limitations for legacy FGD wastewater based on a 

technology other than surface impoundments for the few plants that do not commingle it with 

other wastestreams, see Section VIII.C.8 of the preamble.

EPA disagrees that it has no evidence that most facilities send their FGD wastewater to 

impoundments containing multiple waste streams, or that 22% of facilities generating FGD 

wastewater send their wastewater to an impoundment containing only FGD wastewater. In the 

preamble for the proposed rule, EPA stated that “78 percent of surface impoundments that 

receive FGD wastewater also receive fly ash and/or bottom ash transport water.” The commenter 

apparently construed this statement to mean that the remaining 22 percent of surface 

impoundments that receive FGD wastewater only receive FGD wastewater. The commenter 

neglected to account for other wastes streams, other than fly ash transport water and bottom ash 

transport water, which are received by these impoundments. For the final rule, EPA updated its 

analysis based on survey responses for the final rule population (See preamble Section V) and 

determined that there are 65 steam electric power plants for which EPA estimated FGD 

wastewater compliance costs and that use a surface impoundment as part of their treatment 

system. For 54 of the 65 plants (83 percent), the FGD wastewater is commingled with, at least, 

fly and/or bottom ash transport water and for eight of the 65 plants (12 percent), the FGD 

wastewater is commingled with non-ash wastewater, such as cooling tower blowdown or low 

volume waste sources. Therefore, there are only three plants that transfer their FGD wastewater 

to a surface impoundment and do not commingle it with other wastewaters.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-166

Also, see preamble section VIII and response to DCN EPA-HQ-OW-2009-0819-4303-A2, 

Excerpt Number 14, regarding how EPA is using the term legacy wastewater, as well as an 

overview of the legacy wastewater requirements in the final rule.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 186

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. EPA MUST CONSIDER TECHNOLOGIES FOR ELIMINATING THE DISCHARGE 

OF, OR TREATING, CO-MINGLED WASTES.

EPA offers a different rationale for fly ash and bottom ash transport water. For those waste 

streams, EPA is proposing to choose between the current BPT requirements and zero discharge 

systems. The Agency notes that if dry ash handling is BAT, dry ash handling obviously does not 

treat existing wastewater.844 That of course is true, but begs the question of whether other 

technologies exist that could treat the existing fly ash and bottom ash wastewater, whether stored 

separately or co-mingled in impoundments. EPA never addresses that question.

As mentioned above, effluent limitations “shall be achieved” for toxic pollutants “for categories 

and classes of point sources.”845 EPA must issue guidelines that identify “the degree of effluent 

reduction attainable” through the best control measures “for classes and categories of point 

sources.”846 EPA has an obligation to identify the reductions attainable for toxic pollutants 

discharged by point sources regardless of whether those pollutants are stored separately or comingled. The statute does not give EPA a free pass for legacy or co-mingled waste streams.

EPA has failed to meet its obligation, and has instead simply decided not to investigate whether 

there are controls and practices that can reduce pollutants stored in impoundments containing comingled waste streams. Chemical precipitation followed by biological treatment can be used for 

co-mingled FGD wastes and leachate.847 Additionally, EPA evaluated chemical precipitation for 

ash handling, but rejected the technology because of its purportedly high cost relative to dry 

handling, not its technical feasibility.848 This suggests that systems are available for treating ash 

transport water in existing impoundments. Moreover, chemical precipitation is effective at 

treating leachate,849 which comes from co-mingled wastes in impoundments; and chemical 

precipitation, followed by biological treatment, is effective at treating at least certain kinds of comingled wastes, such as FGD wastes and leachate.850 Taken together, the record suggests that 

systems may be technologically and economically achievable for treating legacy ash 

wastes, even when co-mingled with other waste streams. We urge EPA to identify the best 

technology for reducing discharges of existing wastes that are stored separately or co-mingled in 

impoundments.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-167

844 78 Fed. Reg. at 34,461-62.

845 33 U.S.C. § 1311(b)(2)(A).

846 Id. § 1314(b)(2)(A).

847 See Jenkins Leachate Report, Appendix D.

848 78 Fed. Reg. at 34,461.

849 See discussion of BAT for leachate, supra Section VI.

850 See Jenkins Leachate Report, Appendix D.

Comment Response: 

EPA disagrees with the commenter that EPA failed to consider “whether other technologies exist 

that could treat the existing fly ash and bottom ash wastewater, whether stored separately or comingled in impoundments.” EPA did evaluate technologies beyond surface impoundments and 

dry ash handling technologies as applied to legacy wastewaters. Results from this evaluation 

revealed that the vast majority of steam electric power plants commingle some combination of 

their legacy wastewaters with each other and with other wastestreams, including cooling water, 

coal pile runoff, metal cleaning wastes, and low volume waste sources, in surface 

impoundments. Once commingled in surface impoundments, the legacy wastewaters no longer 

have the same characteristics that they did when they were first generated.

For example, the addition of cooling water can dilute the legacy wastewaters to a point where the 

pollutants are no longer present at treatable levels. Additionally, some wastestreams have 

significant variations in flow, such as metal cleaning wastes, which are generally infrequently 

generated, or coal pile runoff, which is generated during precipitation events. Because surface 

impoundments are typically open, with no cover, they also receive direct precipitation. Because 

of all of this, the characteristics of legacy wastewater contained in surface impoundments (flow 

rate and pollutant concentrations) vary at both, individual steam electric power plants and across 

plants nationwide.

Furthermore, in deriving limits, EPA generally would like to have enough performance data at a 

well-designed, well-operated plant or plants to derive limitations and standards using its wellestablished and judicially upheld statistical methodology. In this case, except in very limited 

circumstances, steam electric power plants do not treat their legacy wastewaters that they send to 

a surface impoundment using anything beyond the surface impoundment itself. In fact, no plant 

uses chemical precipitation, biological treatment, or evaporation to treat its legacy fly ash 

transport water or legacy bottom ash transport water contained in an impoundment, including 

any impoundment that may contain only legacy flay ash transport water or only legacy bottom 

ash transport water. Thus, no steam electric industry data exist to establish BAT limitations for 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-168

these legacy wastewaters based on these technologies. Thus, EPA disagrees with the commenter 

that there are systems other than surface impoundments, like chemical precipitation, that are 

“technologically and economically achievable for treating legacy ash wastes systems.”

Regarding the commenter’s statement that “chemical precipitation followed by biological 

treatment can be used for co-mingled FGD wastes and leachate, see response to DCN EPA-HQOW-2009-0819-4684-A1, Excerpt Number 185.

Regarding the commenter’s statement that “the statute does not give EPA a free pass for legacy 

or co-mingled waste streams,” see response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt 

Number 51.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Clean Water Act Obligates EPA to Set BAT for Discharges of Existing Wastes. Under 

all proposed options, for all waste streams, the new BAT requirements, along with Pretreatment 

Standards for Existing Sources (“PSES”), would apply only to wastewater generated after the 

rule’s compliance deadline. The proposed rule thus would exempt existing, “legacy” wastewater 

that is stored in impoundments but discharged after the rule goes into effect. Moreover, the 

proposal goes one step further, purporting to determine that impoundments are BAT for this 

wastewater. EPA’s determination is contradicted by the record, which establishes that several 

treatment systems are technologically available and economically achievable for dramatically 

reducing the toxicity of existing wastes, whether stored separately or co-mingled in 

impoundments. EPA must evaluate and determine BAT for each legacy wastewater stream, 

since the Clean Water Act requires EPA to establish effluent limitations that reduce or eliminate 

discharges of pollutants without regard to when those pollutants were first generated.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4303-A2, Excerpt Number 14.

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 51.

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 186.

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 185.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-169

26.d. Regulatory Implementation – Compliance Monitoring 

Commenter Name: William Matthews

Commenter Affiliation: Cleco Corporation

Document Control Number: EPA-HQ-OW-2009-0819-5550-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comment IV – The provisions in the proposed rule to prevent circumventing of ELGs 

should be removed 

Rules in the proposal require plants to demonstrate compliance before using a waste stream in 

another part of the process or before combining it with another waste stream. This requirement 

could result in a reduction in water recycling and an increase in water intake from wells or from 

surface water sources. This would come about at a time when plants are trying to reduce intake 

from surface water to help meet 316b compliance. In addition, this effluent limits guidelines 

proposal requires that sufficiently sensitive analytical methods be used for any internal 

monitoring to demonstrate compliance at internal monitoring points. This is likely to require 

additional expense for instruments and analytical talent. All of this is not practical and takes 

away needed flexibility for efficient plant operation.

As mentioned in the comments of the Edison Electric Institute, in the past, courts have found that 

EPA is only authorized by statute to administer water quality related effluent limitation 

"discharges of pollutants from a point source," and the term "discharge of pollutant" refers to the 

"addition of any pollutant to navigable waters." 33 U.S.C. §§ 1312(a); 1362(12). Because an 

internal discharge is not a discharge "into navigable waters," the Court held that EPA could not 

apply effluent limitations to the discharge of flows from one internal treatment unit to another.

Taking all of this into consideration, Cleco proposes that EPA take the anti-circumvention 

requirements out of the proposed rule.

Comment Response: 

For discussion of the final rule’s provisions, see the preamble to the final rule. The final rule 

does not require internal monitoring to demonstrate compliance with certain numeric limitations 

and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in 

Comment Code 26.d.

The final rule does not establish a requirement to use sufficiently sensitive analytical methods as 

that would be duplicative of another rule. See response to DCN EPA-HQ-OW-2009-0819-4305-

A3, Excerpt Number 118.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-170

This rule does not relate to water-quality based effluent limitations and that aspect of the 

comment is outside the scope of this rule. While EPA is not requiring internal monitoring, EPA 

notes that in implementing the technology-based portion of the Act, requirements on internal 

wastestreams have been upheld where necessary to ensure the proper application of the 

technology. See e.g., Texas Municipal Power Agency (TMPA) v. EPA, 836 F. 2d 1482 (5th Cir. 

1988)(upholding 40 C.F.R. § 122.45. Here, we find the EPA's reading of the internal waste 

stream rule and the treatment pond exception regulations not erroneous and consistent with the 

regulations. The holding TMPA urges upon us would unreasonably restrict the EPA's power to 

regulate pollution in important circumstances and, in so doing, frustrate Congress's purpose in 

the CWA. As the EPA points out, it is sometimes necessary to regulate discharges within the 

treatment process to control discharges at the end. Regardless of whether internal waste streams 

are "waters of the United States", the internal waste stream rule falls within EPA power to 

promulgate regulations necessary to control discharges into "waters of the United States". This 

position has support in the language of the CWA, its legislative history, and common sense. 

{Two purposes – (1) to prevent dilution from being used instead of treatment, and (2) make sure 

the technology is meeting limits.}; American Paper Inst v. Train, 543 F.2d 328, 341 (D.C. Cir. 

1976)(Internal controls may be included as BPT of these measures are considered normal

practice within the industry).

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

II. EPA’s Should Not Finalize The Proposed “Anti-Circumvention” Provisions

A. The Proposed Provisions Are Unnecessary In Light Of Existing Regulations

Existing regulations (40 C.F.R. § 423.13(h)) setting forth BAT for the steam electric industry 

already ensure that power station operators do not circumvent effluent limits and standards by 

moving effluent produced by one process operation to another for discharge under less stringent 

requirements. EPA is retaining that provision in the proposed rule (proposed § 423.13(n)), but it 

is also proposing additional language that is duplicative and could result in less wastewater reuse 

and recycling to the detriment of the environment. Specifically, with respect to each of the 

proposed zero discharge effluent limitations/standards (fly ash, bottom ash, flue gas mercury 

control), EPA proposes to include language stating that whenever wastewater in any of those 

categories “is used in any other plant process or is sent to a treatment system at the plant, the 

resulting effluent must comply with the discharge prohibition.” See Proposed 40 C.F.R. §§ 

423.13(h)(1), (i)(1), and (k)(1). Such language could effectively discourage water reuse and 

recycling and thus should be removed from the rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-171

Moreover, EPA should not finalize the proposed internal monitoring provisions for BAT that 

generally require dischargers to demonstrate compliance with effluent limitations for FGD 

wastewater and gasification wastewater prior to use of such wastewater in any other plant 

process or commingling such wastewater. See Proposed 40 C.F.R. §§ 423.13(g)(3), (j)(3). EPA 

lacks authority under the Clean Water Act to establish effluent limitations to internal plant 

processes, as opposed to at the end of the pipe (i.e., the addition of a pollutant to navigable 

waters). See, e.g., Iowa League of Cities, 711 F.3d at 877 (“The EPA would like to apply effluent 

limitations to the discharge of flows from one internal treatment unit to another. We cannot 

reasonably conclude that it has the statutory authority to do so.”); Am. Iron & Steel Inst. v. EPA, 

115 F.3d 979, 996 (D.C. Cir. 1997) (“The statute is clear: The EPA may regulate the pollutant 

levels in a waste stream that is discharged directly into the navigable waters of the United States 

through a ‘point source’; it is not authorized to regulate the pollutant levels in a facility’s internal 

waste stream.”). In light of these recent precedents, EPA should remove the proposed internal 

monitoring provisions from the rule.

In any event, even assuming EPA has statutory authority to apply internal effluent limits and 

standards within a facility, and it does not, the proposed rule is needlessly duplicative of the 

existing rule governing “internal waste streams” found in EPA’s NPDES regulations. See 40 

C.F.R. § 122.45(h). That rule provides that:

(1) When permit effluent limitations or standards imposed at the point of discharge are 

impractical or infeasible, effluent limitations or standards for discharges of pollutants may be 

imposed on internal waste streams before mixing with other waste streams or cooling water 

streams. In those instances, the monitoring required by § 122.48 shall also be applied to the 

internal waste streams.

(2) Limits on internal waste streams will be imposed only when the fact sheet under § 124.56 

sets forth the exceptional circumstances which make such limitations necessary, such as when 

the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the 

point of discharge are so diluted as to make monitoring impracticable, or the interferences among 

pollutants at the point of discharge would make detection or analysis impracticable.

Id.

Rather than impose a uniform internal monitoring requirement for certain waste streams, EPA 

should rely on its existing regulation, which allows for limits and monitoring for internal waste 

streams only when there is a showing of “exceptional circumstances.” EPA should not, in the 

context of an industry-wide rulemaking, sidestep that predicate finding by proclaiming that such 

exceptional circumstances exist here.

Comment Response: 

The final rule does not establish an anti-circumvention provision that requires internal 

monitoring to demonstrate compliance with certain numeric limitations and standards. See 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment Code 

26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-172

For a discussion of the anti-circumvention provisions and exception for ash transport water used 

in the FGD scrubber, see preamble section VIII.G. Also, with respect to other issues raised, see 

responses to DCN EPA-HQ-OW-2009-0819-5550-A1, Excerpt Number 4 and DCN EPA-HQOW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. EPA Should Not Finalize Internal Monitoring Requirements For Residual Combustion 

Leachate

Homer City agrees with EPA’s determination not to propose an internal monitoring requirement 

in the BAT provision for residual combustion leachate. See Proposed § 423.13(l). Homer City 

urges EPA not to finalize Options 4 or 5 for leachate, which would require monitoring for 

compliance prior to use of leachate in any other plant process or commingling of the leachate 

with water. See TDD at 14-16. Such a requirement would add significant and unnecessary costs

to Homer City’s operations.

Homer City uses a wastewater recycle (“WWR”) system that converts iron in leachate 

wastewater from the station’s coal refuse disposal facility so that the iron can be used as a 

coagulant. The converted WWR water is commingled with raw makeup water in the cooling 

tower clarifier mixing chamber. After agglomeration, flocculation, and sedimentation, clarified 

water continues on to provide the necessary makeup to the station’s water systems. Without the 

use of iron in this manner, the station’s cooling systems would clog with sediment and impair the 

cooling processes needed for power generation.

Homer City would be significantly burdened by a new requirement to meet effluent limitations 

for leachate prior to using the leachate in its WWR system. Currently, Homer City recycles all 

leachate as described above. If, as a result of EPA’s rule, Homer City must first demonstrate 

compliance with TSS and oil and grease limits prior to any reuse or recycling, it would incur 

substantial costs to install and operate leachate treatment technology. Moreover, because such 

treatment (specifically, for TSS) would remove iron from the eachate that is needed for 

coagulation, Homer City would incur additional costs from having to introduce a substitute 

material to the clarifier to replace the lost iron source.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-173

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d. The final rule establishes a BAT limitation on TSS 

in combustion residual leachate equal to the previously promulgated BPT limitation on TSS in 

low volume waste sources. See preamble section VIII.

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. If EPA Finalizes Internal Monitoring Requirements, It Should Establish Exceptions

If EPA finalizes internal monitoring requirements, it should clarify that wastewaters (e.g., metal 

cleaning water, leachate, FGD wastewater, contaminated storm water, coal pile runoff, etc.) that 

are commingled prior to higher levels of treatment such as chemical precipitation are not subject 

to those requirements. In addition, a de minimis quantity of wastewater should also be excluded 

to account for discharges associated with short term equipment maintenance and leaks, 

especially from bottom ash transport water systems and zero liquid discharge systems.

Finally, if EPA finalizes the proposed internal monitoring requirement for FGD wastewater (See 

Proposed § 423.13(g)(3)), it should retain the language therein allowing for the commingling of 

FGD wastewater with combustion residual leachate or other FGD wastewater without having to 

demonstrate compliance with the BAT for FGD wastewater prior to such commingling. While it 

may not be realistic or feasible to co-treat FGD wastewater and leachate at all power stations, the 

rule should nevertheless give power generators the option to do so without having to conduct 

internal monitoring.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

EPA agrees with the commenter that the requirements for bottom ash transport water should not 

apply to low volume, short duration discharges of wastewater from minor leaks (e.g., leaks from 

valve packing, pipe flanges, or piping) or minor maintenance events (e.g., replacement of valves 

or pipe sections) and incorporated that in the definition of transport water in the final rule. The 

definition at 40 CFR 423.11 expressly says “Transport water does not include low volume, short 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-174

duration discharges of wastewater from minor leaks (e.g., leaks from valve packing, pipe flanges, 

or piping) or minor maintenance events (e.g., replacement of valves or pipe sections).”

Commenter Name: Thomas W. Easterly

Commenter Affiliation: Indiana Department of Environmental Management (IDEM)

Document Control Number: EPA-HQ-OW-2009-0819-5553-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. With the exception of FGD waste stream, EPA should clarify that the petmittee or permitting 

authority may use the combined waste stream formula (CWF) as described in the Guidance 

Manual for use of production-based Categorical Pretreatment Standards and Combined Waste 

Stream Formula to determine alternative ELGs for each of waste streams that are comingled.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. Further, the permitting authority may use the combined 

wastestream formula as described in the Guidance Manual as suggested by the commenter. See 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment Code 

26.d. Also, see preamble section XVI for a discussion of using the combined wastestream 

formula or the building block approach.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 117

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposes to add three provisions to the regulations that would prevent facilities from, in 

EPA’s terminology, “circumventing” the newly proposed effluent limitations guidelines and 

standards for wastewaters containing CCR pollutants.94 These would require facilities to (1) 

demonstrate compliance before using the wastestream in another plant process or mixing the 

wastestream with another wastestream; (2) not transfer effluent with a zero-discharge standard to 

another process with less stringent requirements; and (3) use “sufficiently sensitive” analytical 

methods. The first of these provisions would apply to FGD wastewater and gasification 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-175

wastewater and would require the imposition of effluent limits from the proposed ELG to these 

internal wastestreams prior to commingling with other wastestreams or use in other processes. 

The second provision would constrain the disposition of fly ash transport water, flue gas mercury 

control (FMAC) wastewater, and bottom ash transport water, all of which would be subject to 

zero discharge limitations under the proposed ELG. Duke Energy disagrees with these provisions 

and contends that they duplicate or conflict with already-existing regulations and should be 

eliminated or at a minimum, be revised as detailed below.

Internal Monitoring Requirements are Not Warranted

EPA proposes requirements for internal monitoring for certain wastestreams inside of the plant 

instead of at the discharge outfall. The proposed ELG would set effluent limits for BAT or 

NSPS, as applicable, to be applied to FGD wastewater and gasification wastewater prior to 

mixing with any other wastestream, except that FGD wastewater can be commingled with 

combustion residual leachate for shared treatment. Internal monitoring of these wastewaters 

would be required to demonstrate compliance with the effluent limits prior to reuse or mixing 

with other wastewaters. Fly ash transport water, bottom ash transport water and flue gas mercury 

control water would be subject to a “no discharge” requirement and not be allowed to transfer 

this liquid to another process or treatment system with less stringent limits. However, these 

provisions are contrary to EPA’s goal of encouraging centralized waste treatment and could 

interfere with using treated wastewater elsewhere at the plant.95

EPA stated in its 1980 Steam Electric Technical Development Document “consolidation of waste 

streams to a centralized treatment system is permitted and encouraged.” The 1974 preamble to 

the steam electric guidelines says much the same thing: “It is also recognized by EPA that, due to 

the economies of scale, combining similar waste streams for treatment to remove the same 

pollutants is generally less costly than separate treatment of these waste streams. The 

employment of cost-saving alternatives in meeting the effluent limitations should not be 

discouraged”.

Moreover, two federal courts of appeals have held that EPA lacks statutory authority to set 

internal limits, as distinguished from limits at the point of discharge to “waters of the United 

States.” Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), rehearing den., 2013 U.S. 

App. LEXIS 14034 (July 10, 2013); and American Iron & Steel Institute v. EPA, 115 F.3d 979, 

996 (D.C. Cir. 1997).

In the American Iron and Steel Institute (“AISI”) case, the D.C. Circuit Court of Appeals held 

that the Great Lakes Water Quality Guidance’s pollutant minimization program (“PMP”) 

provisions in 40 CFR Part 132, Appendix F, Implementation Procedure 8.D, cannot be 

interpreted by EPA to require water quality-based limits on an internal wastestream, even though 

it might be based on the inability to determine compliance at the final outfall with a water 

quality-based effluent limit (WQBEL) that is required to be set below the current detectable 

levels of available analytical methods. The Court gave two reasons for this.

First, the Court found that the CWA does not authorize such WQBELS on internal outfalls. 

The Court said at 115 F.3d 996:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-176

“The statute [referring to Section 302(a)] is clear: The WPA may regulate the 

pollutant levels in a waste stream that is discharged directly into the navigable 

waters of the United States through a “point source”: it is not authorized to 

regulate the pollutant levels in a facility’s internal waste stream.....We are 

apprised of nothing in the policy underlying the CWA that undercuts the plain 

meaning of the statutory text. . . .”

Second, the underlying policy reason perceived by the Court for the statute’s restrictions against 

internal WQBELs is the following:

“. . . the Congress clearly intended to allow the permittee to choose its own 

control strategy. By imposing water quality based standards upon internal facility 

waste streams, the EPA seeks to deprive the individual permittee of the ability to 

choose between a control system that meets the point-source WQBEL by means of 

point source controls and a control system that meets the point source WQBEL by 

means of internal waste stream purification.”

The following observations may be made about this ruling of the D.C. Circuit Court of Appeals:

1. The Substantive Importance of the Ruling Should Be Relevant Beyond the Specific 

Context. Even though the Court’s ruling was made in the specific context of a challenge 

to EPA’s Great Lakes Water Quality Guidance, as codified in 40 CFR Part 132, it is a 

legal determination drawn from the CWA that has broad ramifications beyond the Great 

Lakes Program. In other words, the substance of the ruling should be influential on the 

NPDES program generally and not just on the Great Lakes Program. In fact, the AISI 

decision calls into question the validity of 40 CFR § 122.45(h), which authorizes effluent 

limits on internal wastestreams under “exceptional circumstances”, such as when the 

wastes are so diluted at the discharge point as to make “monitoring impracticable.” It is 

beyond dispute that the AISI court understood that pollutants of concern may be 

undetectable at the point of discharge to waters of the United States but, nonetheless, held 

that the CWA did not authorize setting water quality-based effluent limits on an internal 

wastestream.

2. The Ruling May Be Relevant to Technology-based Limits Proposed for Internal Outfalls

as well as to Water Quality-Based Limits. The Court’s decision in the AISI case finding 

no authority for the application of water quality-based limits at internal outfalls (due to 

presumed non-detectible WQBELs at a final outfall) could just as well have been made 

for technology-based limits. The decision is, as noted, based on Section 302 of the CWA 

which addresses water quality related effluent limits and the Court placed critical reliance 

on the statute’s authorization of “effluent limits.” However, the same argument could 

logically be made with respect to technology-based limits (TBELs) since Section 301(b) 

authorizes various TBELs (including BPT, BAT and BCT limitations) expressly (and 

solely) as effluent limitations. As will be seen in the discussion of the Iowa League of 

Cities decision, the Eighth Circuit Court of Appeals has extended AISI to hold that 

internal limits are not authorized to establish technology- based effluent limitations. The 

Iowa League of Cities decision by the Eighth Circuit Court of Appeals both reinforces 

and extends the AISI decision. Both effects are evident from the following excerpt:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-177

“ . . . The CWA permits the EPA to set ‘effluent limitations based upon secondary 

treatment.’ 33 U.S.C. § 1311(b)(1)(B). But effluent limitations are restricted to 

regulations governing ‘discharges from point sources into navigable waters.’ 3 

U.S.C. § 1362(11). . . . In turn, ‘discharge of pollutant’ refers to the ‘addition of 

any pollutant to navigable waters.’ § 1362(11). The EPA would like to apply 

effluent limitations to the discharge of flows from one internal treatment unit to 

another. We cannot reasonably conclude that it has the statutory authority to do 

so. See also Am. Iron & Steel Inst. v. EPA, 115 F.3d. 979, 996. . . .” 711. F.3d at 

877- 878.

This decision further reemphasizes that the underlying policy goal of the CWA being preserved 

by the statute’s structure is that dischargers should have the latitude and discretion to select the 

specific treatment technologies and process technologies that most advantageously provide, in 

the discharger’s judgment, the ability to achieve compliance with effluent limits imposed at the 

final outfall.96 Thus, not only did Iowa League of Cities reaffirm the invalidity of EPA’s attempt 

to require limitations on internal wastestreams but the decision made clear what was already 

implied by AISI – technology-based limits cannot be legally imposed on internal wastestreams 

any more than can water quality-based limits.

Given the weight of authority of these decisions, Duke Energy recommends that EPA delete the 

proposed requirement for internal wastestream limits from the anti- circumvention provisions of 

the proposed ELG. Deletion of requirements for discharge limits on internal wastestreams 

consistent with AISI and Iowa League of Cities would not leave EPA powerless to require 

monitoring of internal wastestreams to help assure compliance with technology-based limits set 

at a discharger’s final outfall. The Court in AISI stated,

"A permitting authority might be able to calculate an otherwise unquantifiable 

point source discharge level only by adding together the measurable levels of a

pollutant contained in internal facility waste streams.” 115 F.3d at 995.

Even if EPA were to find that the legality of its internal wastestream rule, 40 CFR§ 122.45(h) is 

not thrown into serious question under the weight of the AISI and Iowa League of Cities 

decisions, EPA has not provided compelling evidence that its proposed effluent limits on internal 

wastestreams, such as FGD wastewater or gasification wastewater, is warranted under the 

constraints of § 122.45(h). Section 122.45(h) allows for internal monitoring limits to be 

established only when it would be “impractical or infeasible” to impose them at the discharge 

outfall based on the presence of “exceptional circumstances”, such as if the external outfall is 

inaccessible, the effluent is highly diluted as to make monitoring for specific constituents 

impracticable, or interferences with other pollutants impact the detection or analysis of the 

effluent. Duke Energy believes that EPA has not demonstrated that measuring compliance at the 

outfall is “impracticable or infeasible” for the wastestreams that would be subject to the new 

internal monitoring requirements, even if mixed with certain other wastestreams for treatment or 

reuse, or that the current constraints of 40 CFR § 122.45(h) are inadequate. Therefore, Duke 

Energy recommends removing the internal wastestream limit requirement from the anticircumvention section.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-178

94 78 Fed.Reg at 34465.; TDD at Sections 8.1.2.8 and 14.1.4.3 [EPA-821-R-13-002]

95 Apparently, EPA implies that these “anti-circumvention” provisions would override the 

centralized or combined waste treatment provisions of proposed 40 CFR 423.13(n) and proposed 

40 CFR 423.15(b)(18). These proposed combined waste treatment provisions are inclusive of all 

wastestreams addressed within §423.13 and §423.15(b) respectively, and do not expressly 

exclude the wastestreams proposed to be subject to anti-circumvention constraints.

96 Iowa League of Cities, 711 F.3d at 856

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards because it decided existing regulations (40 CFR Part 122 and 

403) adequately address EPA’s concern that plants meet the effluent limitations and standards in 

this rule through treatment and control strategies, rather than through. See preamble sections 

VIII.G and XVI.

EPA notes that with regard to managing wastewater, whether or not wastestreams should be 

consolidated and treated in a centralized system, generally depends on the characteristics of the 

wastestreams. See preamble section XVI. Also, where BAT limitations in this rule are more 

stringent than previously established BPT limitations, EPA generally estimated costs to comply 

with the final ELGs separately for each wastestream.

EPA is promulgating the second anti-circumvention provision that will, as the commenter states, 

require steam electric power plants to “not transfer effluent with a zero-discharge standard to 

another process with less stringent requirements.” EPA determined it was appropriate to include 

this provision in the final rule to make clear that just because a wastestream that is subject to a 

zero discharge limitation or standard is moved to another plant process does not mean that the 

wastestream ceases being subject to the applicable zero discharge limitation or standard. EPA 

created an exception in the rule for ash transport water that is used in the FGD scrubber. See 40 

CFR 423.13(h)(1)(i) and 423.13(k)(1)(i) and preamble section VIII for additional information 

regarding EPA’s rationale for promulgating this provision. This rule does not relate to waterquality based effluent limitations and that aspect of the comment is outside the scope of this 

rule. In the technology-based portion of the Act, requirements on internal wastestreams have 

been upheld. See response to DCN EPA-HQ-OW-2009-0819-5550-A1, Excerpt Number 4. 

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 118
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-179

External Review Flag: Analytical

External Review Incorporated into Response: No

Comment Excerpt: 

In the third anti-circumvention provision, EPA proposes to include a requirement for utilities to 

use “sufficiently sensitive analytical methods”97. EPA states:

Where EPA has approved more than one analytical method for a pollutant, the 

Agency expects that permittees would select methods that are able to quantify the 

presence of pollutants in a given discharge at concentrations that are low enough 

to determine compliance with effluent limits, when such methods are available.

For purposes of the proposed anti-circumvention provision, a method is 

‘‘sufficiently sensitive’’ when the sample-specific quantitation level for the 

wastewater being analyzed is at or below the level of the effluent limitation.

For the purposes of this rulemaking, EPA is considering the following terms 

related to analytical method sensitivity to be synonymous: ‘‘quantitation limit,’’ 

‘‘reporting limit,’’ ‘‘level of quantitation,’’ and ‘‘minimum level.’’

While Duke Energy understands EPA’s rationale to include this provision in the Proposed Rule 

to minimize undetected exceedances of the limits, however, it brings with it a number of 

challenges, especially when sampling FGD wastewater. Obtaining accurate data from FGD 

wastewater samples is subject to numerous variables that include different sampling methods, 

sample preservation procedures, type of analytical instruments used, different lab procedures and 

varying degrees of lab experience.

A general “sufficiently sensitive” rule was proposed by the agency in the Federal Register98 in 

June 2010 and is still under consideration. This rule has not yet been finalized, but is scheduled 

to be issued in September 2013. While this general rule would allow the use of DRC (dynamic 

reaction cells) and CRC (collision reaction cells) with Method 200.899, the current method, as 

written, is inadequate and doesn’t provide 

sufficient detailed guidance to produce accurate and repeatable results for FGD samples. 

The only documents that provide the necessary information are two Standard Operating 

Procedures (SOPs) developed by the EPA and two guidance documents published by EPRI. The 

EPA SOPs are a helpful start to laboratories, but they do not include the details for sample 

preparation and instrument operation that are critical to obtaining accurate results, and are not as 

complete as the EPRI documents.

Nonetheless, imposing yet another version of a “sufficiently sensitive” rule in the ELG proposal 

is unnecessary and would create confusion due to potential overlap and conflict with the other 

rule under consideration. Duke Energy requests that the provisions in the ELG proposal be 

removed and that any updates to the EPA SOPs and Method 200.8 include, at a minimum, the 

additional information provided by EPRI.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-180

Another significant concern is that the provisions to use “sufficiently sensitive analytical 

methods” as included in the Proposed Rule, or the version proposed in June 2010, could require 

the use of unreliable analytical methods that are not approved in 40 CFR Part 136, if there aren’t 

any reliable approved analytical methods capable of measuring at the low regulatory effluent 

limits proposed in this rule. The proposed “sufficiently sensitive” provision is not limited to only 

Part 136-approved methods that have undergone EPA’s validation process, and thus could be 

interpreted as allowing or even encouraging the use of unapproved analytical methods.

Using unapproved methods could also result in additional costs that EPA did not take into 

account. EPA assumes that the sufficiently sensitive rule will cause “little or no new or increased

burden to applicants or permittees.”100 However, there could be increased laboratory costs if the 

rule requires the use of more advanced or more sensitive methods. If more sophisticated 

equipment is needed to meet these requirements or the analytical process is more complex, then 

the additional costs will be passed through to the cost of the analytical sampling.

Duke Energy contends that compliance sampling should be based on reliable and well-defined 

analytical methods and EPA should remove the requirement to use “sufficiently sensitive 

analytical methods” from the rule or at a minimum clarify in the final rule that it does not 

authorize analytical methods not approved for 40 CFR Part 136.

97 78 Fed. Reg. at 34466

98 75 Fed. Reg., Issue 120, June 23, 2010

99 Method Update Rule, Federal Register, Vol. 77, No. 97, May 18, 2012, 136.6(b)(4)(iv)

100 [Blank]

Comment Response: 

The final rule does not require permitees to use EPA-approved analytical methods that are 

sufficiently sensitive to provide reliable, quantified results at levels necessary to demonstrate 

compliance with the final effluent limitations and standards because another recently 

promulgated rule already accomplishes this. See preamble section VIII.G for additional 

information.

Commenter Name: Donald R. Carlson

Commenter Affiliation: Kansas Department of Health and Environment (KDHE)

Document Control Number: EPA-HQ-OW-2009-0819-3922-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-181

Comment Excerpt: 

The flue gas desulfurization (FGD) wastewater limits proposed for Best Available Technology 

(BAT), New Source Performance Standards (NSPS), Pretreatment Standards for Existing 

Sources (PSES), and Pretreatment Standards for New Sources (PSNS) contain a provision 

requiring a demonstration of compliance by monitoring for all pollutants (except pH) at a point 

prior to use of the FGD wastewater in any other plant process or commingling of the FGD 

wastewater with any water or other process wastewater, except for combustion residual leachate 

or any other FGD wastewater. The prohibition is intended to prevent the permittee from 

essentially diluting the FGD wastewater to achieve compliance. While we understand and 

support the intent of this provision, its strict interpretation will create a problem with a facility in 

Kansas that has pilot plant tested and is in the process of constructing a wetlands treatment 

system to supplement its already existing "conventional physical-chemical treatment of the FGD 

wastewater. When Westar Energy began upgrading its air pollution control scrubbers at their 

Jeffrey Energy Center facility, KDHE began working with Westar to address an antidegradation 

evaluation as well as considering treatment options to satisfy surface water quality 

standards. The option chosen for implementation is a constructed wetland treatment system 

following the FGD wastewater solids dewatering, sulfate precipitation I dewatering, and mercury

treatment (organo sulfide and polymer feed). The constructed wetland treatment system 

provides for enhanced removals of fluoride and metals. Selenium and mercury were metals of 

particular concern from a water quality standpoint. The wetland treatment system was found to 

provide an 82% reduction of mercury (effluent < 0.0002 ppm) following "conventional 

treatment", a 92% reduction of selenium (effluent 0.0113 ppm), and a 94% reduction in fluoride 

(effluent 0.0380 ppm). The wetland treatment system also provides for a reduction of nitrogen in 

the air scrubber wastewater. Westar Energy developed a design and constructed a pilot wetland 

treatment system that would treat approximately 7% of the FGD wastewater flow to test the 

wetland treatment system concept. The pilot treatment plant design and construction cost 

approximately $2.9 million. KDHE approved the antidegradation study supporting construction 

of a full-scale wetland treatment system that is under construction at this time. The issue 

regarding the demonstration of compliance relates to the high TDS (salt content) of the FGD 

wastewater and its impacts to the vegetation utilized in the wetland treatment system. In 

developing the pilot plant study design it was recognized the high salt content of the FGD 

wastewater would adversely impact the vegetation employed in the wetland treatment system. It 

was determined that the "conventionally treated" FGD wastewater had to be diluted by 50% with 

fresh water to maintain the viability of the vegetation. The percentage reductions previously 

referenced occurred on the FGD wastewater following dilution by 50% with freshwater. Based 

on the results of the pilot plant, Westar Energy has modified the design of the wetland treatment 

system consisting of two equalization basins (4.5 acres total), eight vertical flow wetland 

treatment cells (19.2 acres total), and two vegetated submerged bed wetland treatment cells (4.5 

acres total). The basins will be lined with a single 60-mil impermeable synthetic membrane liner 

with a minimum of a 12-inch protective soil cover above the liner. We believe the green 

technology that will be employed by the Westar Jeffrey Energy Center following the 

"conventional treatment" provides a viable alternative to the BAT identified by EPA i.e., 

chemical precipitation and anaerobic/anoxic biological treatment. For this technology to be 

successful, it is critical to maintain the viability of the vegetation in the wetland cells and address 

the dilution required for protection of the vegetation. In this case, the point of compliance should 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-182

be at the discharge from the wetland treatment system, rather than at the point of water addition 

to adjust the wastewater's salinity.

In the proposed regulations, EPA is proposing total mercury discharge criteria for both FGD and 

Gasification wastewater in the BAT, NSPS, PSES, and PSNS effluent limitations and for 

discharges from combustion residual leachate in the NSPS and PSNS effluent limitations. Each 

of the referenced effluent limitations also contains a provision that compliance with the effluent 

limitation must reflect results obtained from sufficiently sensitive analytical methods. The three 

methods commonly used in the NPDES program that EPA has approved for monitoring mercury 

under 40 CFR Part 136 are Method 245.1, 245.2, and Method 1631E. Methods 245.1 and 245.2 

have a quantification level for mercury of 200 parts per trillion (ng/1) while Method 1631E has a 

quantification level of 0.05 parts per trillion (ng/1). While EPA has also approved Method 245.7 

as well as a number of other modified versions involving sample preparation digestion 

procedures such as the use of reagents similar in properties to ones used in the approved 

methods, changes in equipment operating parameters such as use of an alternate more sensitive 

wavelength, adjusting sample volume to optimize method performance, and changes in the 

calibration ranges, many of the more sensitive test methods require clean sample collection as 

well as clean lab procedures. The proposed lower limits for mercury will most likely require 

permittees to modify how samples are collected as well as analyzed. Most facilities are neither 

equipped nor are the facility staff trained for clean sample collection and preservation. Has EPA 

considered whether sufficient commercial laboratories available 

and are certified to analyze wastewater compliance samples when mercury limits for the 

gasification wastewater discharges are set at 1.76 ng/1 daily maximum and 1.29 ng/130-day 

average? With such low mercury discharge limits, it appears use of Method 1631E as well 

as clean sample collection and lab procedures will be required.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the specific operations and permitting of the Westar Energy constructed wetland 

system, see response to DCN EPA-HQ-OW-2009-0819-4469-A1, Excerpt Number 1 in 

Comment Code 12.

The final rule does not require sufficiently sensitive analytical methods. See response to DCN 

EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118 and the preamble for the rule.

EPA agrees with the commenter that “clean sample collection and lab procedures will be 

required” to comply with the low mercury discharge limits. EPA has accounted for the labor and

material costs for plants to collect the samples using EPA Method 1669 procedures and has 

accounted for the laboratory costs accounting for use of EPA Method 1631E. See Section 5 of 

the Incremental Costs and Pollutant Removals for Final Effluent Limitations Guidelines and 

Standards for the Steam Electric Power Generating Point Source Category (Cost & Loads 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-183

Report) (DCN SE05831/SE05832) for additional details on the methodology EPA used to 

estimate the monitoring costs.

Regarding low-level metals analysis and the availability of laboratories to perform the analyses, 

see response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 67 in Comment Code 

32. EPA notes that there are only three gasification plants operating in the steam electric power 

generating industry, and only two of those plants will need to have samples analyzed for 

compliance. Therefore, EPA has determined that there will be sufficient laboratories to analyze 

the gasification wastewater samples.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Oklahoma Department of Environmental Quality (DEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4181-A2

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

While this is a good option, DEQ has concerns that only allowing Dry Handling eliminates a 

critical opportunity for water conservation. In many power plants in Oklahoma, the fly ash sluice 

water is reused in the scrubber process in order to reduce the amount of potable/fresh water that 

is used in their facility. With many corporations now required to provide a "water footprint" to 

stockholders or other investors, it would be unwise for EPA to establish a new standard that 

prohibits an opportunity to use water a second or third time prior to treatment and discharge. 

DEQ encourages EPA to consider how to allow facilities to reuse the wastewater prior to 

treatment to meet ELGs. If facilities are required to treat the water twice instead of once, the 

additional cost of treatment could result in an increase in water use.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3,

Excerpt Number 117 in Comment Code 26.d.

EPA supports water conservation and estimates that the final rule will result in significant 

reductions in intake water withdrawals primarily because steam electric power plants will 

convert from wet to dry ash handling. See preamble section XII. EPA encourages the reuse of 

wastewater where appropriate, but not to the extent that it undermines the zero discharge effluent 

limitations and standards in this rule (which would occur, for example, if bottom ash wastewater

were used as cooling water make-up and then discharged. In this example, there would be no 

reduction in the mass of pollutants in the bottom ash transport water).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-184

The one anti-circumvention provision that EPA decided to establish in the final rule applies only 

to those wastestreams with zero discharge limitations or standards. With two exceptions, this 

provision prevents steam electric power plants from circumventing the final rule by moving 

effluent produced by a process operation for which there is an applicable zero discharge effluent 

limitation or standard to another plant process operation for discharge. EPA determined it was 

appropriate to include this provision in the final rule to make clear that, just because a 

wastestream that is subject to a zero discharge limitation or standard is moved to another plant 

process, it does not mean that the wastestream ceases being subject to the applicable zero 

discharge limitation or standard because that would not represent the BAT/BADCT level of 

control. The exceptions established in the final rule apply to the final BAT/PSES requirements 

for bottom ash and fly ash transport wastewater that is used in the FGD scrubber. Thus, when 

bottom ash or fly ash transport water is used in the FGD scrubber, rather than being subject to a 

zero discharge limitation or standard, any resulting discharge must meet the final limitations and 

standards applicable to FGD wastewater.

As explained in Section VIII of the final preamble, EPA disagrees that zero discharge effluent 

limitations and standards for ash transport water, together with the anti-circumvention provision, 

would prohibit water reuse and prevent water withdrawal reduction at steam electric power 

plants. EPA expects most plants will choose to comply with the final requirements for ash 

transport water by operating either a dry or closed-loop wet-sluicing system to handle their fly 

and bottom ash, which will eliminate or substantially reduce the amount of water they currently 

use in a traditional wet-sluicing system. To the extent that a plant currently uses (or was 

considering using) ash transport water, such as the effluent from an impoundment, as makeup 

water for other plant processes (e.g., cooling water system) and would find it difficult to do so 

because of the anti-circumvention provision in this rule, the plant could merely switch to an 

alternate source for the makeup water, such as the water that was (prior to implementing the zero 

discharge requirement for ash transport water) used to sluice fly ash or bottom ash to the 

impoundment. In other words, the volume of water that is currently used to sluice ash to an 

impoundment and subsequently reused as makeup water would no longer be needed to sluice the 

ash and could instead be directly used as makeup water for the cooling water system or other 

processes. Because of this, the zero discharge limitations in this rule will not lead to a net 

increase at the plant and in fact could result in a decrease in water withdrawal. Lastly, a plant is 

free to reuse ash transport water, and would be in compliance with the anti-circumvention 

provision, so long as it is used in a process that does not ultimately result in a discharge (unless it 

is used in the FGD scrubber, in which case it would be subject to the final FGD wastewater 

limitations).

EPA did not apply the anti-circumvention provision in the final rule to the use of ash transport 

water in an FGD scrubber for the reasons specified in preamble section VIII.G.

EPA notes that the anti-circumvention provision in the final rule only applies to the final zero 

pollutant discharge BAT/PSES limitations and standards for bottom ash transport water, fly ash 

transport water. It does not apply to previously established regulations for this point source 

category.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-185

Commenter Name: Black Hills Corporation (BHC)

Commenter Affiliation: Black Hills Corporation (BHC)

Document Control Number: EPA-HQ-OW-2009-0819-4184-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention - EPA’s proposed anti-circumvention measures will ultimately discourage 

or eliminate water recycling and reuse that is already prevalent in the industry for specific water 

wastestreams. The preferred options for fly ash handling (3, 3a, 3b, and 4a), and bottom ash 

handling (4a >400mw) require dry handling, or no discharge of water used for ash transport. The 

proposed rules require facilities to demonstrate compliance (no discharge of pollutants) before 

using a waste stream in another plant process or mixing waste stream with another waste stream 

(proposed 423.13(l)(3)); (ii) not move waste streams subject to zero discharge to another process 

operation with less stringent limits (proposed 423.13(n)); and (iii) use “sufficiently sensitive” 

analytical methods.

BHC recommends that EPA delete these three provisions from the ELG rule. As discussed 

below, they either duplicate or conflict with already-existing regulations. They are also contrary 

to the concepts of centralized waste treatment and the objective of conserving water. BHC 

recycles and reuses many water streams, when possible, to conserve water. Clean water is a 

valued commodity in the West and BHC not only recycles and reuses water to save money, but 

also to preserve natural resources. These proposed rules will degrade existing water conservation 

measures that industry has already voluntarily implemented.

Another feature of the anticircumvention rules is requirements for internal monitoring. Proposed 

§ 423.13(l)(3) (for BAT); Proposed § 423.13(n). However, EPA already has an internal 

monitoring rule, 40 C.F.R. § 122.46(h) (“Internal waste streams”). EPA’s proposed ELG 

anticircumvention rules may be inconsistent with this rule.

The third of the proposed “anti-circumvention measures” is a requirement that permittees use 

“sufficiently sensitive” methods. As a practical matter, this proposal is unnecessary and would 

create confusion due to potential overlap and conflict with a separate general “sufficiently 

sensitive” rule under consideration, which is scheduled to be finalized in September 2013, 75 

Fed. Reg. 35,712 (June 23, 2010).

BHC believes that EPA should continue to rely on the established protocol for analytical 

methods and analysis in 40 CFR Part 136.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-186

The final rule does not require sufficiently sensitive analytical methods because another rule 

does this. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

The final rule does include an anti-circumvention provision that generally prevents plants from 

moving wastestreams subject to zero pollutant discharge requirements to another process that 

discharges. See response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. There 

is an exception to this, however for ash transport water that is used in the FGD scrubber. See 40 

CFR 423.13(h)(1)(i) and 423.13(k)(1)(i). 

Commenter Name: Doris Cooksey

Commenter Affiliation: City Public Service of San Antonio (CPS Energy)

Document Control Number: EPA-HQ-OW-2009-0819-4283-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed internal monitoring and anti circumvention provisions will likely reduce the 

beneficial reuse or recycling of wastewater because of the difficulty and cost to re-configure 

systems. A better option would be for EPA to put in place measures that encourage sources to 

recycle and re-use water which is of significant importance in drier regions as mentioned above.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule.

Commenter Name: Chas Spell

Commenter Affiliation: Arizona Public Service Company

Document Control Number: EPA-HQ-OW-2009-0819-4303-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-187

EPA’s “anti-circumvention” proposals will interfere with efforts to reuse and thus conserve 

water. Water conservation is critical in the arid Southwest, and APS goes to great lengths to 

operate in a manner that minimizes water loss and thus waste. It is common for APS generating 

facilities to conserve water by combining waste streams for re-use in other plant processes. For 

example, the APS Four Corners Power Plant re-uses decant water from its lined impoundments 

for scrubber makeup water. This re-use not only conserves water but has led to increases in 

scrubber efficiency due to the unique chemistry of the makeup water. EPA’s anti-circumvention 

requirements will stifle this innovative approach to conservation and cause more fresh water to 

be used in plant processes.

EPA should now, as it has in the past, encourage facilities to combine waste streams for re-use 

and centralized treatment. In its 1980 Steam Electric Development Document, the Agency 

expounds “[c]onsolidation of waste streams to a centralized treatment system is permitted and 

encouraged.” 1980 Development Document at 470. And in the preamble of the 1974 steam 

electric guidelines, EPA recognizes that “due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.” 39 Fed. Reg. 36186, 36,196, col. 3 (Oct. 8, 

1974). Since 1974, EPA has clearly understood the importance of combining waste streams for 

cost-effective treatment. APS encourages EPA to continue this reasonable and proven approach 

by removing the anti-circumvention requirements from the proposed rule.

Comment Response: 

The final rule does not requires internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in scrubbers, see response to DCN EPA-HQ-OW-2009-

0819-4181-A2, Excerpt Number 7.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Provisions: The internal monitoring and “sufficiently sensitive” provisions 

duplicate or conflict with similar existing regulations and/or legal precedent and should be 

eliminated.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-188

Comment Response: 

The final rule does not require sufficiently sensitive analytical methods because it would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 106

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

While Duke Energy supports the option of comingling leachate with FGD wastewater for 

treatment, if feasible, at a specific site, Duke Energy disagrees with the anti-circumvention 

provisions that include a requirement for internal monitoring for combustion residual leachate80. 

Although EPA is concerned with pollutant loading and is attempting to avoid dilution, EPA has 

itself acknowledged that leachate contributes a “very small portion of the pollutants discharged 

... less than 1⁄2 a percent.” It is Duke Energy’s contention that leachate should not require 

monitoring at an internal outfall prior to going to an impoundment for treatment in instances 

where that impoundment also receive other process wastewaters and the effluents. Due to 

variable flows, it may not be cost-effective for a designated impoundment just for leachate. 

Therefore many of these impoundments that comingle process wastewaters such as stormwater 

runoff, gypsum storage/loading area runoff, and runoff from the ash silo area should not be 

subjected to internal monitoring when managed with similar wastewaters (i.e. other low volume 

wastewater) under the final ELG rule.

80 78 Fed. Reg. at 34465

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding comingling leachate with FGD wastewater for treatment, if feasible, at a specific site, 

the final rule establishes limits for leachate for the reasons discussed in the preamble. Nothing in 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-189

the rule prohibits comingling as long as the operator meet the limits applicable to each 

wastestream, with the exception for ash transport water that may be used in the FGD scrubber

and is then subject to the FGD limits.

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Across the industry there are many different varieties of waste water management 

strategies. Many, like SIPC, have integrated their waste water management system in such a 

manner as to achieve clean water before the water is discharged from the facility. Under the 

proposed rule, many of these water management systems will no longer be an option. As 

proposed, facilities will face the possibility of having to show compliance with the new standards 

with several waste streams within its own boundaries. This type of management has never been 

required. The task of changing these water management systems will be costly for little (if any) 

environmental gain. SIPC suggests that EPA needs to create more flexible compliance 

alternatives for facilities that have waste water management systems that have proven to be 

effective. 

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d and the preamble to the final rule.

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NPPD supports the development of flexible mechanisms for monitoring and demonstrating 

compliance with the new ELG requirements. EPA should focus on the important issue of 

minimizing the release of pollutants and reducing the requirements associated with monitoring 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-190

and compliance. There are several ways in which flexibility in monitoring and compliance 

demonstration can decrease the cost of the proposed rule without affecting human health or the 

environment.

First, the ELG proposal imposes internal monitoring obligations that require sources to 

demonstrate compliance internally prior to the mixing of a waste stream with other streams. The 

proposed rule explains that an integral part of the monitoring operation is the point at which a 

sample is collected for testing. Each of EPA’s options in the proposed rule appears to require 

internal monitoring. Because the proposed rule covers existing facilities where piping layouts 

already exist and access point s are limited, the internal monitoring may be required at locations 

in the facility where it is costly and difficult to install the required equipment. Therefore, these 

requirements could lead to a reduction in beneficial reuse or recycling of wastewater if the 

monitoring obligations cannot be met due to system configuration or other constraints.

The Technical Development Document for Proposed Effluent Limitations Guidelines and 

Standards for the Steam Electric Generating Point Source Category (TDD) notes that under 

various waste steams internal compliance monitoring requirements will apply, including for FGD 

wastewater, ash transport water and FGMC wastewater, gasification wastewater, and combustion 

residual leachate.

EPA should provide sufficient flexibility such that facilities are encouraged to recycle and reuse 

waste streams in varying process designs, many of which may have constraints on the available 

options for internal monitoring . For example, EPA should allow waste streams to be measured

subsequent to blending when the facility design or operation makes it impracticable to measure 

the waste stream earlier in the process.

EPA has requested comment on how internal monitoring will affect water re-use, noting that the 

agency believes that dilution and waste stream interaction make internal monitoring necessary to 

ensure compliance. If EPA insists upon imposing an internal monitoring requirement, on 

wastewater streams that are eventually discharged to waters of the United States, one alternative 

option could be to require monitoring at the point of discharge using the most restrictive limit of 

all upstream processes. This would allow existing treatment systems designed to handle 

combined waste streams to continue operation while ensuring that the discharge requirements are 

met.

By making these changes in the monitoring and compliance requirements, EPA can reduce the 

burden on regulated sources without compromising health and environmental quality. Sources 

that chose to take proactive environmental actions such as creating a zero pollutant discharge 

process or engaging in beneficial reuse or recycling of water should not be penalized for taking 

such an approach, but rather should be encouraged to engage in these actions. By removing 

unnecessary monitoring requirements EPA will promote such innovations and benefit the 

environment.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-191

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Water is a precious commodity. The ELG proposal imposes internal monitoring obligations that 

require sources to demonstrate compliance internally prior to the mixing of a waste stream with 

other streams. EPA generally refers to these requirements as "anti-circumvention" provisions that 

are intended to prevent dilution and maximize the reductions achieved at the facility.

The proposed rule explains that an integral part of the monitoring operation is the point at which 

a sample is collected for testing. Each of EPA's options in the proposed rule appears to require 

internal monitoring. If the wastewater cannot be discharge due to a dry handling requirement, the 

proposed rule would prohibit the reuse of that wastewater in a system that would eventually 

discharge the water. For example, fly ash sluice water would no longer be able to be used in the 

scrubber process if the water would eventually be discharged. NPPD, and others within the 

electric power industry, have taken steps to re-use water in plant systems to minimize 

withdrawals from natural surface water bodies. These internal monitoring provisions would 

significantly impair industry's ability to beneficial re-use water within the plants.

For example at one of our facilities, NPPD was recently required to separate the waste streams, 

and build four settling ponds to provide treatment and conduct internal monitoring for each of 

the wastewater point source categories found in the present regulation. The separation of the 

waste streams increased our water usage. The total cost of rerouting piping and the installation 

of the treatment ponds and monito1ing equipment was approximately $14,000,000. In the future 

we need to be able to continue to use this state of the art facility, without additional new internal 

monitoring requirements and restrictions on re-use of water. For these reasons, NPPD urges that 

the final rule be directed to encourage, not discourage, new water re-use practices for power 

plants.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-192

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see responses to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7 and 40 CFR 423.13(h)(1)(i) and 423.13(k)(1)(i).

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must simplify and clarify the monitoring and compliance requirements in the proposed rule 

to facilitate an orderly transition to the new standards.

Comment Response: 

See preamble Section VIII.G and Section XVI.

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must simplify and clarify the monitoring and compliance requirements in the proposed rule 

to facilitate an orderly transition to the new standards.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4310-A1, Excerpt Number 16. 

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 25
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-193

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must simplify and clarify the monitoring and compliance requirements in the proposed rule 

to facilitate an orderly transition to the new standards.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4310-A1, Excerpt Number 16.

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition the ash pond serves as a settling basin for the chemical precipitation treatment system 

for the FGD and landfill leachate as the combined waters enter the pond. The ash pond, which 

accepts both bottom and fly ash into a single pond, serves as the primary source water for 

multiple locations including FGD wash downs, sl uice waters and other wash waters in addition 

to functioning as the settling basin for multiple waste water streams. Section 423.16 (e)(1) of the 

proposed rule would prevent the reuse of the pond water and therefore require additional waters 

to be pulled from the river to serve as wash waters. This is not a net benefit to the environment. 

As described in the previous Bottom Ash comments there are limited days that even have a 

discharge from the pond as neither of our plants discharge from the combined fly ash/bottom ash 

ponds on a daily or routine basis.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-194

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention - Requiring individual waste waters to demonstrate compliance prior to comingling with other waste streams is counter to water conservation and minimization efforts.

The proposed requirement in 423.13 that forces demonstration of compliance with various 

individual category limits prior to reusing the water in other plant processes or co-mingling with 

other waste water sources discourages water conservation. Specifically, reuse of ash pond water 

would be strictly prohibited since for fly ash sluice water, the most restrictive requirement is zero 

discharge. Our A.B. Brown plant recirculates the combined fly and bottom ash pond waters in 

numerous systems at the plant. If ash pond water is no longer available for use in other systems 

at the plant, the additional water will have to be pulled from the Ohio River or groundwater 

wells.

While it is understood that the goal of EPA is to prevent the dilution of pollutants through 

excessive volumes of waters, other methods for achieving this should be considered. The point 

of compliance for all waste water systems described in the proposed ELG should be prior to 

mixing with non-contact cooling water or designated storm water outfalls with specific limits for 

certain pollutants of concern added for the discharge. A facility should be allowed to reuse water 

internally and co-manage multiple waste streams in a single treatment system or series of 

treatment systems that have a point of compliance prior to mixing with high flow, non-contact 

cooling water. The pollutant loading calculations should be based on actual effluent to the river 

or water body (excluding non-contact cooling waters), and not internal points of compliance.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

this final rule.

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-195

Comment Excerpt Number: 25

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Restrictions on the discharge of fly ash sluice water and the inability to co-mingle waste waters 

prior to treatment discourages internal reuse of water and conservation.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule.

Commenter Name: P. J. Becker

Commenter Affiliation: City Water, Light and Power (CWLP)

Document Control Number: EPA-HQ-OW-2009-0819-4349-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Provisions

CWLP is concerned with and opposed to the anti-circumvention provisions, especially when 

considering the complexities of our facility, which generates electricity and produces drinking 

water for our citizens. Our power plant and drinking water complex share common waste 

streams, which allows us to re-use and recycle water, which is vitally important. The primary 

purpose of Lake Springfield is to provide a source of drinking water to approximately 160,000 

customers. It is imperative that we adequately maintain lake levels to provide a source of this 

drinking water. Since Lake Springfield is the only source of drinking water, CWLP carefully 

manages our use of this invaluable resource by following a carefully subscribed drought 

management plan anytime we are below full pool. Part of this plan is to recycle as much water as 

possible at the water purification plant and power plant complex in accordance with our National 

Pollutant Discharge Elimination System (NPDES) Permit. Recycling this water was critical to 

maintaining an adequate water supply during the central Illinois drought of 2012. This proposed 

rule will discourage water recycling at CWLP.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-196

CWLP also contends that the anti-circumvention and internal wastestream provisions of the ELG 

require clarification; terms are complex and confusing, such that CWLP has made specific email 

inquiries to USEPA following USEPA’s ELG webinar. The webinar and email responses have 

been helpful; however, as this proposed rule addresses a variety of options as to a variety of 

different plant streams, the rule itself should be clear, so that a facility such as CWLP can easily 

ensure compliance. USEPA should clarify for example, if impoundments end up being the BAT 

for bottom ash transport water, which is the existing BPT, would anti-circumvention provisions 

apply to this wastestream? CWLP utilizes our ash impoundments to accept wastewater streams 

from more than one source; however this proposal appears to force CWLP to sample these 

sources prior to discharge into the impoundments and not taking in account any removal of 

solids, oil and grease that would take place. Many of these internal wastestreams will be difficult 

to obtain representative samples and establishing sampling points that are safe and accessible can 

be challenging. For example, sampling bottom ash that is being sluiced over to the 

impoundments, an employee would need to stand at the end of an ash pipeline to collect a 

specific water sample during ash sluicing. Additionally, flow rates are usually intermittent and 

have short discharge times that vary from just minutes to a few hours a day, creating issues of 

timing the sample collection. Finally, different wastestreams can share the same piping system 

and this makes it difficult to target a specific sample and have assurance that sample is not 

contaminated by other wastestreams that use the same piping system.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule. EPA notes that this commenter did not provide any specific information on the reuse and recycle practices it uses to maintain lake levels and did not provide any details as to 

support a position that the final anti-circumvention provisions prevent them from doing so. The 

record for the final rule indicates that conversion from wet to dry handling are expected to reduce 

withdrawals nationally. See the TDD for the final rule. 

Commenter Name: P. J. Becker

Commenter Affiliation: City Water, Light and Power (CWLP)

Document Control Number: EPA-HQ-OW-2009-0819-4349-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-197

This proposed ELG is the first revision to effluent limits for coal and steam fired generating units 

since 1982, which, for the first time in thirty (30) some years, imposes new stringent limits on 

plant discharges to surface waters of the United States or to a POTW; it should be enacted with 

limits only on true point- source effluent discharges. Once enacted, the level of compliance and 

protection of our waters can then be examined, so as to determine then whether there is an actual 

need to monitor and place limits on the internal wastestreams of the facilities subject to this new 

rule.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: P. J. Becker

Commenter Affiliation: City Water, Light and Power (CWLP)

Document Control Number: EPA-HQ-OW-2009-0819-4349-A2

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CWLP especially requests consideration of 250 MW or less as the threshold for Small Generator 

Units for exemption from certain effluent limits, reconsideration of the prohibition on mixing 

wastestreams so as to enable recycling critical to CWLP to continue, and reconsideration of the 

requirement to monitor and place limits on internal wastestreams.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding a 250-MW threshold, see response to DCN EPA-HQ-OW-2009-0819-4349-A2, 

Excerpt Number 1 in Comment Code 5.c.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 13
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-198

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposes “anti-circumvention” provisions that will either duplicate or conflict with existing 

or near-final EPA regulations that also address the same issues (i.e., mixing of wastestreams,

internal limits, and analytical methods with sufficiently sensitive detection limits). These 

provisions would also discourage central treatment and the recycling, reuse, and conservation of 

water.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods as this would be 

duplicative with another rule already promulgated. See response to DCN EPA-HQ-OW-2009-

0819-4305-A3, Excerpt Number 118.

The final rule does include an anti-circumvention provision that generally prevents plants from 

moving wastestreams subject to zero pollutant discharge requirements to another process that 

discharges. See response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7, with 

the exception of fly ash or bottom ash transport water that is used in the FGD scrubber. See 

423.13(h)(1)(i) fly ash 423.13(k)(1)(i) bottom ash and .preamble to the final rule.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 135

External Review Flag: Analytical

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s “Anti-Circumvention” Rules Are Not Appropriate

EPA proposes so-called “anti-circumvention” measures. See 78 Fed. Reg. at 34,465-66, 34,524. 

These have three parts:

1. a mixing rule;

2. an internal monitoring rule; and

3. a “sufficiently sensitive methods” rule relating to analytical methods.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-199

Southern recommends that EPA delete the three “anti-circumvention” provisions from the ELG 

Rule. They either duplicate or conflict with already-existing regulations. They are contrary to 

EPA’s traditional goal of encouraging centralized waste treatment, and they conflict with the 

goal of conserving water, as explained in the sections below.

Mixed Wastestreams

 The Existing “Mixed Wastestream” Rule is Already the Regulation

EPA’s existing “mixed wastestream” rule for the steam electric industry is 40 C.F.R. §§ 

423.12(b)(12) (for BPT) and 423.13(h) (for BAT). It says that, if wastestreams are combined for 

treatment or discharge, the quantity of each pollutant “attributable to each controlled waste 

source” shall not exceed the specified limit for that waste source. This is already the regulation.

The new, proposed ELG mixed wastestreams rule for BAT (proposed § 423.13(n)) repeats this 

traditional mixed wastestream formula for all wastestreams: if wastestreams are combined for 

treatment or discharge, the “quantity of each pollutant attributable” to each controlled source 

shall not exceed the specified limitation for the separate individual waste source.

EPA in the past has encouraged centralized treatment. The 1974 Preamble to the steam electric 

guidelines said:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. 36,186, 36,196, col. 3 (Oct. 8, 1974). Likewise EPA’s 1980 Steam Electric 

Development Document said “[c]onsolidation of waste streams to a centralized treatment system 

is permitted and encouraged.” 1980 Development Document at 470.

For the steam electric industry, EPA already has a “mixed wastestream” rule, 40 C.F.R. § 

423.12(b)(12):

In the event that waste streams from various sources are combined for treatment or discharge, 

the quantity of each pollutant or pollutant property controlled in paragraphs (b)(1) through (11) 

of this section attributable to each controlled waste source shall not exceed the specified 

limitations for that waste source.

It is not clear why EPA wants to change its mixed wastestream rule. Now, in the steam electric 

ELG proposal, EPA repeats this “attributable” language. Proposed § 423.13(n), 78 Fed. Reg. at 

34,536 col. 1-2. In addition, EPA proposes an “antimixing” provision for flue gas mercury 

control (FGMC) wastewater.

Also, EPA proposes a provision that for some wastestreams the discharger “must demonstrate 

compliance “at a point prior to use ... in any other plant process or commingling ... with any 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-200

water or other process wastewater...” Proposed 40 C.F.R. § 423.13(g)(3) (BAT for FGD 

wastewater), (j)(3) (BAT for gasification wastewater).

EPA provides very little justification for these proposed changes and does not explain how the 

changes fit with the existing regulatory language.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative with another rule. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 118.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 137

External Review Flag: Analytical

External Review Incorporated into Response: No

Comment Excerpt: 

“Sufficiently Sensitive” Methods

Another of the proposed “anti-circumvention measures” is a requirement that permittees use 

“sufficiently sensitive” methods. But this is unnecessary, and the proposal has serious 

shortcomings.

EPA already has a “sufficiently sensitive” rule under consideration, and it is scheduled to be 

finalized in September 2013. See the Unified Regulatory Agenda, 

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=2040-AC84. There 

is no reason to propose a separate “sufficiently sensitive” rule for just one industry, when it will 

not be final until months after the general rule is in effect.

Moreover, the “sufficiently sensitive” rule, whether the general one or the one just for the steam 

electric industry, is flawed for reasons that were explained in industry comments on the general 

sufficiently sensitive rule.

The overall concern is that either version of the rule could require the use of unreliable analytical 

methods, not approved in 40 C.F.R. Part 136, when there is no reliable method of measuring 

down to the regulatory limit (in this case, the limits in the ELG rules). None of the proposed 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-201

“sufficiently sensitive” rules limits itself to only Part 136-approved methods that have undergone 

EPA’s validation process.

As discussed in comments on the proposed “sufficiently sensitive” rule by the Inter- Industry 

Analytical Group (IIAG), the “sufficiently sensitive” rule disregards the fundamental issue of 

defining acceptable analytical methods by setting measurement quality objectives (MQOs) and 

then adopting a uniform definition of detection limit and quantitation level (currently MDL and 

ML). These concerns are explained in the Comments of the Inter-Industry Analytical (IIAG) on 

EPA’s Proposed Rule for Use of Sufficiently Sensitive Test Methods for Permit Applications 

and Report (August 9, 2010) (the IIAG Sufficiently Sensitive Comments), a copy of which is 

Attachment 26 to UWAG’s comments on this proposal.

EPA’s present method for calculating detection and quantitation levels is unsatisfactory. In 2003, 

36 companies and organizations, representing a cross-section of municipalities, industries, and 

laboratories, described the shortcomings of the MDL in a letter to EPA. Widespread 

dissatisfaction with the MDL and ML led EPA to convene a Federal Advisory Committee 

(FAC), which issued a carefully considered report in December 2007 after two years of work. 

See http://water.epa.gov/scitech/methods/cwa/det/index.cfm. The FAC found that the current 

MDL (detection limit) procedure has deficiencies that “can and should be corrected.” Id. at i-ii. 

The FAC further recommended “that a formal peer review of the procedure proposed for 

promulgation be undertaken and that a follow up pilot study be completed to confirm the 

performance of whatever procedure/s EPA proposes to promulgate.” Id. at ii. The FAC further 

recommended that “... Quantitation Limits be promulgated only using a nationally promulgated 

approach yet to be defined” and that “EPA generate National Quantitation Limits as rapidly as 

possible.” Id. at iii.

To date none of these FAC recommendations has been accomplished. EPA has done a pilot study 

of procedures to determine detection and quantitation levels, but no details have been released. 

EPA has not defined or promulgated a national approach to quantitation limits based on FAC 

recommendations. A TNI/NELAC work group and EPA’s Environmental Laboratory Advisory 

Board (ELAB) are addressing this issue, but their work is a long way from being finished. In the 

meantime, it is premature to propose a technically unsupported “sufficiently sensitive” rule that 

does nothing to address the FAC recommendations or the controversy over the MDL and ML 

procedure.

Moreover, the proposed rule (and possibly the ELG Rule) might require that, when there is no 

approved Part 136 method, monitoring must be conducted according to an unapproved

“sufficiently sensitive” test method. As with most of the definitions of “ML,” this provision does 

not account for precision or accuracy. Also, it might allow permitting agencies to use 

unapproved methods outside EPA’s Alternate Test Procedure (ATP) program, and yet the 

proposed rule contains none of the procedural safeguards in the ATP program.

In addition (as the IIAG Sufficiently Sensitive Comments point out), EPA’s analysis of the EPA 

“impacts” of the proposed rule is not credible. EPA appears to assume that the sufficiently 

sensitive rule will cause “little or no new or increased burden to applicants or permittees.” Id. at 

16. But any rule that requires the use of advanced or more sensitive methods, particularly those 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-202

that are experimental, inadequately vetted, or unapproved test methods alleged to be more 

“sensitive,” will invariably increase the cost of analyses required by permits.

Finally, it appears that, even though the sufficiently sensitive rule is not final, EPA has been 

treating it as legally binding by means of “guidance.” An EPA guidance memorandum of June 7, 

2010, says that it is “essential” that permitting agencies make decisions based on sufficiently 

sensitive data. Memorandum, James A. Hanlon to Water Division Directors, Regions 1-10, 

“National Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater 

Discharges for Flue Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) 

Impoundments at Steam Electric Power Plants” (June 7, 2010) (Hanlon Memo), Attachment A at 

6, http://www.epa.gov/npdes/pubs/steamelectricbpjguidance.pdf. The memorandum adds that 

using insufficiently sensitive analytical methods could result in the permitting agency’s making 

an incorrect permitting decision and result in undetected exceedances of permit limits. But the 

Agency fails to point out that the use of more “sensitive” unapproved methods will lead to 

greater variability at or near the ML and therefore could increase the number of “false positives” 

that result in permit exceedances. Finally, the guidance tells permitting agencies not to rely 

solely on sensitivity measures such as MDLs or MLs in the published methods but assures them 

that analysts have the flexibility to modify and approve a method without EPA review.

The proposed “sufficiently sensitive methods” requirement is not consistent with Executive 

Order 13563. The proposed ELG Rule does not observe the Order’s instructions that EPA 

consider the burden of its rules, that it specify performance objectives to the extent feasible, or 

that it ensure the objectivity of scientific information and processes.

Before EPA makes any “sufficiently sensitive” rule final, the Office of Management and Budget

should complete its review of the general rule and EPA should address the recommendations of 

the Federal Advisory Committee, set measurement quality objectives, and develop and 

implement a sound procedure for determining the detection and quantitation levels of analytical 

methods.

Comment Response: 

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative of another rule. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 118.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 171

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-203

Interference with Water Reuse Objectives

As part of what it has characterized as “anti-circumvention” measures, EPA’s proposed rule 

revisions would require compliance monitoring for several wastestreams prior to reuse or other 

comingling with process wastewater. This requirement would apply to FGD wastewater as well 

as the zero discharge limits for ash transport water and FGMC wastewater. EPA specifically 

requested comments on whether and to what extent these anti-circumvention provisions “may 

discourage water re-use.” The proposed anti-circumvention provisions would discourage water 

reuse, and therefore would create significant problems for the State of Florida

and the state’s regulated community.

As EPA may be aware, water supply challenges in Florida are very considerable. Between 1980 

and 2010 the population of Florida increased from 9.7 million to 18.8 million. Additionally, it 

has been estimated that Florida has 76 million visitors every year. This has put a significant 

strain on Florida’s supply of fresh water, which primarily comes from groundwater.Increased 

extraction of groundwater, as Florida has grown, has resulted in salt water intrusion and concerns 

regarding maintenance of water levels in lakes and rivers.

Florida has been responding to its water supply/water level challenges through several regulatory 

initiatives. One of the most meaningful tools for managing these matters has been enhancing 

water reuse in Florida. Water utilities in Florida have increased reuse by approximately 500% 

since 1986, in part due to the cooperation of Gulf Power Company and other steam electric 

generating systems that work cooperatively with the water utilities on reuse projects. 

Additionally, steam electric plants have been highly incentivized to develop and implement 

opportunities to reuse their own waste streams within their electric generating

processes. In addition to conserving water supply resources, such reuse also constitutes 

effective pollution control management.

Currently Gulf Power Company’s plants direct wastewater to the ash ponds for re-use in various 

plant systems. The Company utilizes the wastewater for both fly and bottom ash sluicing. In 

addition, we use several hundred thousand gallons a day for use in our shield water system 

(boiler seal water and refractory cooling). It is unclear whether, under the proposed 

rule revisions, the Company will be able to continue with reusing wastewater in this manner 

or whether it will be necessary to utilize alternative water sources such as groundwater. In 

addition, at one of our plants, we send a small slip-stream of cooling tower blowdown and 

stormwater (which could have some ash contact water present) to a POTW. This water is treated 

by the POTW and returned to our plant for re-use. It is unclear whether this would be allowed in 

the future under the anti-circumvention features of the proposed rule.

EPA’s proposed anti-circumvention language appears to be based on a stringent application of 

the existing internal wastestream rule, as set forth at 40 CFR §122.45(h). EPA’s internal 

wastestream rule was first promulgated several decades ago, and its continued environmental 

policy value has been surpassed by a Florida regulatory paradigm that places a considerable 

premium on maximizing reuse of wastewater. Reuse as implemented by Gulf Power Company 

and other Florida steam electric generating systems is environmentally beneficial both in terms 

of resource conservation and pollution management. EPA needs to ensure that its proposal to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-204

micro-manage individual wastestreams does not thwart the systematic and thoughtful policy 

objectives associated with reusing plant wastewaters.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule.

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 41

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

EPA's "Anti-circumvention" Measures Are Not Appropriate.

EPA proposes so-called "anti-circumvention" measures. See 78 Fed. Reg. at 34,465-66, 

34,524. The proposed anti-circumvention measures have three parts:

1. a mixing rule;

2. an internal monitoring rule; and

3. a "sufficiently sensitive methods" rule relating to analytical methods.

Georgia Power recommends that EPA delete the three "anti-circumvention" provisions from the 

Proposed Rule because they either duplicate or conflict with already-existing regulations; they 

are contrary to EPA's traditional goal of encouraging centralized waste treatment; and they 

conflict with the goal of conserving water, as explained in the sections below.

1. Mixed Wastestreams

EPA's existing "mixed wastestream" rule for the steam electric industry is 40 C.F.R. §§ 

423.12(b)(l2) (for BPT) and 423.13(h) (for BAT). It says that, if wastestreams are combined for 

treatment or discharge, the quantity of each pollutant "attributable to each controlled waste 

source" shall not exceed the specified limit for that waste source. Notably, in the past, EPA has 

encouraged centralized treatment. The 1974 Preamble to the steam electric guidelines said:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-205

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. 36,186, 36,196, col. 3 (October 8, 1974). Likewise, EPA's 1980 Steam Electric 

Development Document said, "[c]onsolidation of waste streams to a centralized treatment system 

is permitted and encouraged." 1980 Development Document at 470.

Given the current mixed wastestream rule and EPA's past encouragement of centralized 

treatment, it is not clear why, in the Proposed Rule, EPA wants to change its current mixed 

wastestream rule. Especially since the new, proposed ELG mixed wastestreams rule for BAT 

(proposed§ 423.13(n)) repeats the traditional mixed wastestream formula for all wastestreams: if 

wastestreams are combined for treatment or discharge, the "quantity of each 

pollutant attributable" to each controlled source shall not exceed the specified limitation for the 

separate individual waste source. See 78 Fed. Reg. at 34,536 col. 1-2.

Notwithstanding, in the Proposed Rule, EPA proposes an "antimixing" provision for Flue Gas 

Mercury Control (FGMC) wastewater. Also, EPA proposes a provision that for some 

wastestreams the discharger "must demonstrate compliance "at a point prior to use ... in 

any other plant process or commingling ... with water or any other process 

wastewater." Proposed

39 C.F.R. § 423.13(g)(3) (BAT for FGD wastewater), (j)(3) (BAT for gasification wastewater). 

EPA provides very little justification for these proposed changes and does not explain how the 

changes fit with the existing regulatory language.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods because that would be 

duplicative of another rule. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 118.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 44

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-206

EPA has also proposed anti-circumvention provisions that would prevent facilities from 

circumventing the effluent limitation and standards. The first of these would require, “that 

compliance with the new effluent limits applicable to a particular waste stream (e.g. FGD, 

gasification wastewater, leachate) be demonstrated prior to use of the wastewater in another plant 

process that results in surface water discharge or mixing the treated waste stream with other 

waste streams” (78 FR at 34465). While not specifically stated, it appears that the agency wishes 

to eliminate the dilution of wastewater with less polluted wastewater (i.e. noncontact 

storm water). This implies that noncontact storm water runoff from a covered portion of a 

landfill could not be commingled with landfill leachate prior to treatment. The agency has not 

been clear on how it defines noncontact storm water, but should it define noncontact storm water 

as not being leachate, then the anti-circumvention provision also needs to be revised to 

accommodate situations where leachate and storm water (both contact and noncontact) are 

commingled prior to treatment. It is generally not practicable to divert noncontact storm water 

from landfill runoff ponds that also receive landfill leachate. Portions of a landfill are continually 

closed and covered, creating new sources of “clean” storm water runoff. The commingling of 

these water sources prior to treatment should continue to be allowed.

Comment Response: 

The final rule does not establish require internal monitoring to demonstrate compliance with 

certain numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-

A3, Excerpt Number 117 in Comment Code 26.d.

See responses to Comment Code 6.g.i regarding leachate and stormwater runoff from landfills.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 62

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

E. EPA’s proposed anti-circumvention provisions would discourage water reuse and 

should be revised to allow water reuse, provided all applicable water quality standards are 

met.

EPA has proposed anti-circumvention provisions that would 1) require that compliance with new 

effluent limits applicable to a particular waste stream be demonstrated prior to use in another 

plant process that results in a discharge or mixing with other waste steams; 2) would prevent the 

circumvention of an effluent subject to a zero discharge limit to a process with discharge limits 

that are less stringent than intended by the ELGs; and 3) require the use of EPA approved 

analytical methods that are sufficiently sensitive to provide reliable quantified results at levels 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-207

necessary to demonstrate compliance with applicable effluent limits (78 FR at 34465-

34466). These anti-circumvention provisions, particularly the first and second provisions, would 

limit opportunities for water reuse. For example, bottom ash transport water is used at some 

power plants for scrubber make-up water, fly ash conditioning or other plant services. However, 

the second proposed anti-circumvention provision, along with the proposed zero discharge limit 

for bottom ash transport water pollutants, would prevent the use of this water in any power 

plant process.

It is also unclear why the agency would allow the discharge of treated FGD wastewater, a waste 

stream with a relatively heavy pollutant loading, but not allow the reuse and ultimate discharge 

of bottom ash transport water, which has a much lower pollutant loading. Perhaps the agency is 

more focused on the elimination of coal ash impoundments than it is on the reduction of 

pollutant loadings to the environment. We remind the agency that its authority under the Clean 

Water Act effluent guidelines/NPDES program, as discussed in the next section, is limited to 

controlling discharges and not specific waste handling practices.

In the past, the agency has encouraged the commingling and centralized treatment of 

wastewater. In the 1980 Steam Electric Development Document, the agency states that the, 

“consolidation of waste streams to a centralized treatment system is permitted and 

encouraged.”37 The 1974 preamble to the steam electric guidelines makes a similar statement, 

“It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged” (39 FR at 36196). Finally, the agency notes 

that, “In the event that waste streams from various sources are combined for treatment or 

discharge (italics added), the quantity of each pollutant or pollutant property controlled in 

paragraphs (a) through (g) of this section attributable to each controlled waste source shall not 

exceed the specified limitation for that waste source.”38 EPA is obviously not prohibiting the 

combination of wastewaters, but it is prohibiting the use of dilution to meet discharge limits.

With regards to the agency’s third proposed anti-circumvention provision (i.e. use of sufficiently 

sensitive methods), AEP encourages EPA to only accept analytical results that have been 

obtained through the use of methods following those listed in 40 CFR Part 136.

37 EPA. Development Document for Proposed Effluent Limitations Guidelines, New Source 

Performance Standards, and Pretreatment Standards for the Steam Electric Point Source 

Category. (Sept. 1980), at 470.

38 40 C.F.R. § 423.13(h); See also 40 C.F.R. § 423.12(b)(12) (BPT)

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-208

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

The final rule does not require sufficiently sensitive analytical methods because that would be 

duplicative of another rule. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 118.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’S PROPOSED ANTI-CIRCUMVENTION PROVISIONS ARE ARBITRARY, 

CAPRICIOUS, AND AN ABUSE OF DISCRETION, AND WILL DISCOURAGE THE 

RECYCLE AND REUSE OF WASTEWATERS

EPA has taken the unprecedented step of proposing three stringent “anti- circumvention” 

provisions in the Proposal. As summarized by EPA, these provisions would:

1. Require that compliance with the new limits applicable to a particular wastestream (e.g., 

FGD, gasification wastewater, and leachate) be demonstrated prior to use of the 

wastewater in another plant process that results in surface water discharge or mixing the 

treated wastestreams with other wastestreams.

2. Establish requirements intended to prevent steam electric power plants from 

circumventing the effluent limits and standards by moving effluent produced by a process 

operation for which there is a zero discharge effluent limit/standard to another process 

operation for discharge under less stringent requirements than intended by the steam 

electric guidelines.

3. Expressly require permittees to use analytical EPA-approved methods that are 

sufficiently sensitive to provide reliable quantified results at levels necessary to 

demonstrate compliance with the effluent limits proposed by the rulemaking when such 

methods are available.

See, 78 Fed. Reg. at 34465 – 34466. See also, Proposed §§ 423.12(b)(13), 423.13(g)(3), 

423.13(h)(1), 423.13(i)(1), 423.13(j)(3), 423.13(k)(1), 423.13(n), and associated provisions in 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-209

Proposed §§ 423.15 (NSPS), 423.16 (PSES), and 423.17 (PSNS). The first two of these 

provisions are wrongheaded, unnecessarily will increase treatment costs while actively 

discouraging the recycle/reuse of wastewater, and may lead to competitive disadvantages.

EPA has a long standing policy of promoting responsible water recycling/reuse. For example, 

just one year ago, EPA stated in an update to national guidance that “[t]he ability to reuse water, 

regardless of whether the intent is to augment water supplies or manage nutrients in treated 

effluent, has positive benefits that are also the key motivators for implementing reuse programs. 

These benefits include improved agricultural production; reduced energy consumption associated 

with production, treatment, and distribution of water; and significant environmental benefits, 

such as reduced nutrient loads to receiving waters due to reuse of the treated wastewater.” 2012 

Guidelines for Reuse of Water, p. 1-5 (EPA/600/R-12/618 | September 2012). Indeed, water 

recycle/reuse is common in the electric power generation industry, and in some cases has been 

required by the permitting authorities.

For example, at the FirstEnergy Hatfield’s Ferry Station located near Masontown, Pennsylvania, 

the Station installed $700 million Limestone Forced Oxidation Flue Gas Desulfurization Units 

(“scrubbers”) in 2009. During the permitting process, the Pennsylvania Department of 

Environmental Protection Clean Water Program permitting staff repeatedly expressed its 

“desire” that as much of the scrubber makeup water come from Station wastewaters as 

possible. The Station ultimately complied with the staff’s request, redesigning the scrubber 

project to ensure that this goal was met.

The first two of EPA’s proposed “anti-circumvention” provisions will throw these beneficial 

recycling projects into turmoil, and will actively encourage people to separately manage 

wastewater streams, rather than face the potential of having to treat additional wastewaters to 

more stringent (and more costly) standards. EPA therefore should not promulgate these 

provisions.

Indeed, EPA already has adequate regulations in place to deal with these issues. The provisions 

of 40 C.F.R. §§ 122.44(i)(1)(iii) and 122.45(h) provide permit writers with the authority to 

establish internal monitoring points or “outfalls” when “permit effluent limitations or standards 

imposed at the point of discharge are impractical or infeasible,” and the provisions of 40 C.F.R. § 

403.6(e) provide permit writers with details to calculate limits using the “combined wastestream” 

formula. Permit writers are well versed in these authorities, and commonly use them when 

drafting NPDES permits for steam electric generating stations. See, e.g., the Pennsylvania 

Department of Environmental Protection’s Technical Guidance for Development of NPDES 

Permit Requirements Steam Electric Industry (Doc. No. 362-2183-004 12/97). Different, 

supplemental provisions in the Effluent Limitations Guidelines are neither necessary nor 

appropriate. Moreover, the supplemental provisions may lead to unfair competitive advantages 

for other electricity generators not covered by the provisions of Part 423 (i.e., they may be able 

recycle/reuse wastewaters at much lower cost than the generators covered by Part 423).

For all of these reasons, EPA should not promulgate the first two of its proposed “anticircumvention” provisions.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-210

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

EPA notes that there is nothing in the final rule that prevents the plant from using other sources 

of plant wastewater for scrubber make-up water. 

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and the preamble to 

the final rule.

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-circumvention Measures

Wastewater Reuse – EPA is proposing a provision that would require demonstration of effluent 

limitation compliance prior to use of the wastewater in another plant process that results in 

surface water discharge or mixing the treated waste stream with other waste streams. This 

proposal appears inconsistent with EPA’s water re-use initiatives since it would require a utility 

to design and construct separate treatment facilities for waste streams of similar quality. This 

would result in the use of substantially more water to serve several treatment systems as opposed 

to one centralized system that would require less water to operate. It is also unclear how this 

provision relates to or affects EPA’s proposed Tier 2 voluntary incentives, which promote the 

elimination of process water discharges to waters of the United States through the minimization 

of water used, treatment, and wastewater reuse. At face value, this anti-circumvention provision 

appears to be at odds with EPA’s Tier 2 incentives to promote sustainable water use. This anticircumvention provision limits the number of options available to a utility for internal 

wastewater management and provides little or no flexibility for water reuse. As long as the 

internal wastewater management process treats the effluent to ELG limits or water quality 

restricted levels, the utility should have the flexibility to operate such its’ treatment system in a 

sustainable manner. We find this proposed anti- circumvention measure to be at odds with 

sustainable water use practices.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-211

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

EPA did not finalize the proposed voluntary incentive program referenced by this commenter for 

the reasons specified in responses to comments in Comment Code 26.a.

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

An additional item of concern relative to the discussion of “sufficiently sensitive analytical 

methods” is the mention of a “sample-specific quantitation level for the wastewater matrix”. It 

appears that a Method Detection Limit (MDL) study would need to be performed in the matrix of 

each sample to be analyzed, and not just in spiked reagent water, as is currently the protocol in 

most laboratories. While a sample-specific MDL study may rarely be justified in a particular 

matrix, there is no scientific justification for a separate, sample-specific MDL study for each and 

every sample’s wastewater matrix. Such a requirement would add substantially to the time 

required for analysis and would add thousands of dollars per sampling period. We do not believe 

EPA can justify the need for such MDL studies, or that it can justify the benefits of routine 

matrix MDL studies given these substantial costs.

Consumers Energy urges EPA to withdraw both the “wastewater reuse” and the “sufficiently 

sensitive methods” anti-circumvention proposals from this proposed rule.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods because it would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 

(ARIPPA)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-212

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Further, the exclusion of FGD wastewater, combustion residual leachate, and carbon capture 

wastewater from the low volume waste source category. (Note, many of the sites today have 

integrated their runoff (including runoff that may be classified now as a “combustion residual 

leachate”)). This could result in significant change to the sites and operations going forward.

1. As discussed in Section 8.1.1, EPA is proposing to exclude FGD wastewater, combustion 

residual leachate, and carbon capture wastewater from the low volume waste source 

category.

2. This was and is part of the efforts to require treatment of all water associated with CCRs 

individually and not allow for commingling of waters.

3. This would require the Plants to redesign and re-permit their NPDES Permits to address 

this concern.

The costs could be significant, especially for the treatment of the various metals and EPA’s 

approach to managing treated effluent limitations by adding a loading aspect.

ARIPPA Is concerned that the agency has significantly increased the cost of wastewater 

treatment based on the proposed rule. Furthermore, it will greatly increase the complexity of 

wastewater treatment and management potentially resulting in greater opportunity for upset 

conditions and inefficient treatment. The proposed rule prevents comingling of select streams. 

The management of these flows could become very expensive in terms of equipment retrofits 

and impoundment storage capacity as well as managing biological treatment systems for 

selenium and having the system function properly.

Commingling and CCRs

The proposed rule has produced a concept of non-commingling of select waters associated 

with CCRs with other waters produced within the EGU Facility. By doing this, EPA is imposing 

significant costs for facilities to redesign and implement new water management systems to 

prevent commingling which will result in significant expenditures for new treatment technology 

and operations further impacting and increasing cost of electricity. Piping modifications, pumps, 

wet wells, storage tanks, separate sampling points and other modifications to appurtenances, and 

potential changes to plant balance of water will incur costs. New and separate treatment systems 

for separated waste streams will also result in significant expenditures.

Accordingly, commingling of waters from faculties utilizing dry ash management systems 

should be allowed.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-213

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule appropriately defines FGD wastewater and combustion residual leachate 

separately from low volume wastes as it establishes limitations and standards based on 

BAT/PSES/NSPS/PSNS for these two wastestreams. EPA notes, however, this rule establishes a 

BAT limitation on TSS in combustion residual leachate equal to the previously promulgated

BPT limitation on TSS in low volume waste sources. For FGD wastewater, the final BAT/PSES 

limitations and standards that apply to non-legacy wastewaters are more stringent than BPT 

limitations on low volume wastes. EPA recognizes some plants will incur costs to comply with 

the final FGD limitations and standards including costs to manage biological treatment systems 

to achieve the final selenium limitations. See the TDD and RIA. EPA determined the final rule is 

economically achievable. See preamble Section VIII.

For a discussion of combustion residual leachate and stormwater runoff see responses to 

Comment Code 6.g.i.

The definition of low volume wastes in the final rule specifies that “wastewater from carbon 

capture or sequestration systems are not included in this definition of low volume wastes.” EPA 

is not aware of anyone currently generating carbon capture wastewaters and the final rule does 

not establish BAT/NSPS/PSES/PSNS requirements for discharges of such wastewater. Any 

future discharges would be subject to best professional judgement technology based limitations.

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 

(ARIPPA)

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Commingling of waters from facilities utilizing dry ash management systems should be allowed.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4453-A1, Excerpt Number 13.

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-214

(ARIPPA)

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

With the proposed rule preventing commingling of select waste water streams, the agency 

has significantly increased the cost of water treatment.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4453-A1, Excerpt Number 13.

Commenter Name: Nysa Hogue

Commenter Affiliation: Indianapolis Power & Light Company (IPL)

Document Control Number: EPA-HQ-OW-2009-0819-4454-A2

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Pursuant to 40 CFR 403.6(e), "where process effluent is mixed prior to treatment with 

wastewaters other than those generated by the regulated process, fixed alternative discharge 

limits may be derived by the Control Authority or by the Industrial User with the written 

concurrence of the Control Authority. These alternative limits shall be applied to the mixed 

effluent". If a facility chooses to reuse bottom ash water as FGD make-up water, the facility, if 

approved by the Control Authority, can utilize the combined wastestream formula (CWF) to 

establish alternative categorical limits. Where a treated regulated process wastestream is 

combined prior to treatment with wastewaters other than those generated by the regulated 

process, a facility may monitor either the segregated process wastestream or the combined 

wastestream for the purpose of determining compliance with applicable Pretreatment Standards. 

Based on 40 CFR 423.l3(g)(3), 423. l 3(j)(3), and 423.13(n), it appears EPA is indirectly 

eliminating the potential use of the CWF. Please clarify the intent of the aforementioned 

proposed requirements in regards to 1.) utilization of the CWF and monitoring compliance of the 

combined wastestream to the proposed regulated wastestreams and existing wastestreams (such 

as cooling tower blowdown), 2.) applicability of the proposed requirements if the combined 

wastestreams do not discharge to a final outfall (e.g. treated bottom ash wastestream reused as 

FGD or cooling tower make-up water and FGD wastewater is treated via ZLD), and 3.) 

applicability of the proposed requirements if the combined wastestreams does discharge to a 

final outfall.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-215

In addition to eliminating the option to use the CWF and impacting the options to reuse 

wastewaters, EPA’s proposal also requires compliance with the discharge limits for certain 

wastestreams, such as FGD wastewater, to be demonstrated at internal monitoring 

points. Pursuant to 40 CFR 122.45(h), imposing limits on internal wastestreams such as EPA is 

proposing to do only is allowed when "exceptional circumstances" exist such as the presence of 

inaccessible discharge points, dilution of the waste to an extent rendering monitoring impractical, 

or interference at the point of discharge making detection or analysis impractical. In each of 

these cases, the need for internal limits must be based on site-specific factors. In the proposed 

rule, EPA appears to assume these factors always will exist for specific wastestreams, such as 

FGD wastewaters, but fails to provide any factual basis for that assumption. Indeed, the 

assumption that internal monitoring is required to demonstrate compliance for these specific 

wastestreams comes from the 2010 John Hanlon Memorandum "National Pollutant Discharge 

Elimination System (NPDES) Permitting of Wastewater Discharges from Flue Gas 

Desulfurization (FGD) and Coal Combustion Residuals (CCR) impoundments at Steam Electric 

Generating Power Plants." In that memo, EPA assumed internal monitoring would be required 

because FGD wastewaters are mixed with cooling water and/or ash transport water in 

impoundments prior to discharge which EPA claimed diluted the FGD wastestream. Including 

such an assumption as part of guidance is questionable. However, using that assumption to 

impose internal monitoring by way of a rule is improper when EPA has failed to provide any 

factual basis supporting the need for such internal monitoring particularly in light of the changes 

that will result in the generation and management of steam electric generating wastewaters if the 

rule is finalized. For example, EPA completely ignores that the proposed rule is recommending 

the elimination of all fly ash wastewaters. If fly ash wastewater no longer can be discharged, 

FGD wastewater certainly will not be diluted with it prior to discharge. Therefore, the factual 

predicate allowing the imposition of an internal monitoring point under 40 CFR 122.45(h) will 

not exist and monitoring to demonstrate compliance at the point of discharge would be 

appropriate. The need for an internal monitoring point to demonstrate compliance should 

continue to be determined on a case by-case basis in light of the specific situation at individual 

facilities and EPA has failed to provide any support for imposing such limits internal limits a 

global basis through this rule.

IPL emphasizes that the potential reuse of process wastestreams in other plant processes is vital 

in potentially reducing the cost of treatment, reducing the discharge, conserving water, and yet 

providing treatment flexibility with no adverse impact to the environment. For example, reusing 

a different process wastestream for purposes of FGD make-up water reduces or eliminates the 

discharge of the different process wastestream being used for make-up water. The elimination of 

this wastestream is consistent with one of the goals of Section 10l (a) of the CWA which is the 

foundation for the establishment of the technology-based effluent limits. In addition, by utilizing 

the CWF, the alternative FGD BAT limits will take into account any potential dilution of the 

bottom ash wastestream being combined with the FGD wastestream. Therefore, there will be no 

circumvention of the individual process wastestream categorical limits and adverse impacts to 

the environment.

Please clarify if the proposed anticircumvention provisions apply to scenarios which would 

involve Stormwater co-mingling with FGD wastewater with and without discharge under 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-216

regulatory options 1, 2, 3b (for plants with a total wet-scrubbed capacity of 2,000 MW or 

greater), 3, 4a, 4, and 5.

Please clarify under regulatory option 4a (for generating units with a capacity of 400 MW or 

greater), 4, and 5, BA transport water could be used as FGD make-up water if 1.) there is a 

discharge, and 2.) there is no discharge.

Please clarify if the anticircumvention provisions apply to existing technology-based effluent 

limits (e.g. low volume wastes).

Please clarify if the anticircumvention provisions apply to the proposed non-chemical 

wastestream effluent limits.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. As explained in 

that response and preamble Section VIII.G, the final rule allows a plant to use ash transport water 

as scrubber make-up water and then be subject to the ELGs for FGD. The referenced response 

also clarifies that the final anti-circumvention provision does not apply to previously established 

requirements for this point source category.

The final rule reserves limitations and standards for non-chemical metal cleaning wastes. See 

preamble Section VIII.

Commenter Name: Jerry Purvis

Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC)

Document Control Number: EPA-HQ-OW-2009-0819-4455-A1

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

All four preferred regulatory options would provide for effluent limits for coal combustion 

residual leachate based upon use of impoundments that would be equal to current 

BPT limitations for low-volume wastes. EKPC supports that approach. However, EKPC 

requests that certain implementation issues be clarified related to monitoring and compliance as 

set forth herein.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-217

In the Technical Development Document, EPA notes that internal wastestream monitoring is 

required prior to mixing the treated combustion leachate wastestream with other wastestreams. 

EPA notes that an exception to the proposed prohibition for prior mixing or comingling of 

wastestreams is where "BAT limitations are equivalent to BPT limitations." Technical 

Development Document at pp. 14-15. EPA should clarify that surface impoundments that are 

currently utilized to meet BPT limitations under 40 CFR 423.12(b) may also be utilized to treat 

combustion residual leachate and that the prohibition on comingling of wastestreams would not 

apply. This appears to be authorized by proposed 40 CFR 423.12(b)(13), but the preamble to the 

proposed rule and the supporting documents did not specifically address this issue. Similarly, 

EPA has noted at page 34450 of the June 7, 2013 proposed rule that stormwater runoff from 

flyash landfills also contacts combustion residual pollutants and is typically treated in a single 

impoundment along with leachate. However, the preamble to the proposed rule does not make 

clear that both leachate and contaminated stormwater runoff from fly ash landfills may be treated 

in the same surface impoundment. 5

EPA should also clarify that commingling of leachate with other wastestreams, such as 

contaminated stormwater runoff associated with construction activity or other industrial activity, 

is not prohibited where the other wastestream is also subject to similar TSS and oil and grease 

limitations based upon technology-based standards. Where two wastestreams are subject to 

equivalent technology-based standards, the prohibition on commingling would serve no 

legitimate purpose since the two wastestreams are subject to the similar technology-based 

standards and thus dilution is not an issue under 40 CFR 125.3(f). In such an instance, there 

would be no circumvention of technology-based standards. EPA rules do not prohibit 

commingling of wastestreams that are subject to technology-based standards as long as 

compliance can be determined through a combined wastestream formula.6 Accordingly, EPA 

should clarify that mixing of combustion residual leachate with other industrial wastestreams that 

are subject to essentially the same technology-based standards prior to treatment is not subject to 

the anti-circumvention provisions.

Finally, there may be instances where a surface impoundment used for treatment of leachate does 

not discharge on a continuous basis. In such cases, the monthly average TSS limit of 30 mg/L 

could effectively become the daily maximum limit due to the inability to sample the 

impoundment on more than one occasion per month due to the lack of flow. For example, 

during dry months, surface impoundments below fly ash landfills may only discharge in response 

to precipitation events where leachate is initially held in tanks or reapplied to landfill surfaces.

EKPC requests that in instances where it is impractical to obtain more than one sample 

per month of a discharge due to the lack of flow, the monthly average limitation would not 

apply.

5 Although the preamble to the proposal appears to acknowledge that stormwater "that flows 

over the landfill" and ultimately enters an impoundment is not "leachate" (78 Fed. Reg. at 

34450), that should also be clarified by EPA in the final rule in the definition of "leachate." 

Obviously, the volume of runoff from a landfill can be very large. Runoff is not the result of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-218

percolation or drainage through waste, and it may commingle with other runoff from active 

construction or other areas prior to entering the impoundment. Isolation of landfill runoff from 

all other stormwater runoff would be technically infeasible in many topographies.

6 See "NPDES Permit Writers' Manual", U.S. EPA (September 2010) at pages 5-35 to 5-36.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule establishes the following BAT limitations for combustion residual leachate: a 

numeric effluent limitation on TSS in the discharge of combustion residual leachate from 

landfills and surface impoundments. This limitation is equal to the monthly average and daily 

maximum TSS limitation in the previously established BPT regulations.

Regarding the definition of combustion residual leachate and the applicability of stormwater 

runoff, see responses to Comment Code 6.g.i.

Regarding monitoring requirements in the event of inadequate flow, the permitting authority 

must determine what will constitute representative monitoring to effectuate the requirements of 

this rule.

Commenter Name: Jerry Purvis

Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC)

Document Control Number: EPA-HQ-OW-2009-0819-4455-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

For example, we request EPA clearly define within the rule that comingling internal streams is 

acceptable if the combined streams meet the new technology based limits and demonstrate 

benefit to the environment. If this flexibility were provided by EPA within the rule, it gives 

industry a chance to explore possible untapped resources in innovation.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-219

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposal also creates a disincentive for water conservation and reuse with facilities which 

could increase water demand pressures in areas already subject to arid and semi-arid conditions. 

This is counterproductive to addressing impacts of climate variation.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and preamble.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 30

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Anti-Circumvention requirements create a disincentive for water reuse and conservation, 

and therefore should not be included in any final rule.

The anti-circumvention requirements create a disincentive for wastewater reuse and conservation 

at a facility. In order to minimize environmental impacts and support water conservation, power 

generation facilities will typically attempt to reuse water from different waste streams. 

Sometimes it is co-mingled with other waste streams and used waters. This reduces the need for 

additional appropriations of fresh water and makes the facilities more resilient in drought 

conditions.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-220

EPA’s anti-circumvention requirements dictate the treatment of individual waste streams before 

co-mingling with other waste streams or waters will dramatically change whether or not it is 

cost-effective to reuse water within a facility. Any wastewater reuse within a power plant should 

be encouraged. Establishing policies and regulations that specifically deter such reuse is 

inappropriate and detrimental to supporting water conservation. For facilities that are located in 

dry climates, this requirement could increase the use of fresh water further straining local and 

regional water supply sources.

As a result of the case law presented in section B.1. above and the practical need to encourage 

reuse and conservation, EPA should remove the proposed anti-circumvention requirements.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. Also, see 

preamble.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In a discussion of "anti-circumvention" measures in the Preamble, EPA proposes requirements 

for internal monitoring of a number of categorical waste streams within a plant instead of at the 

outfall where they discharge to waters of the US. The proposed ELGs adds this requirement for 

"monitoring prior to use or comingling" specifically in BAT standards for FGD wastewater and 

gasification wastewaters (per § 423.13(g) and (h)) and in NSPS for these two wastewaters plus 

leachate (per § 423.15(b)(13), (15) and (16)).While restricted uses of such anti-circumvention 

criteria are not excessively burdensome for these few waste streams, we are concerned that there 

could be unintended and significant impacts if such criteria were broadly applied. We offer one 

example, with potential impacts at AER power stations.

At most of our coal-fired power stations, coal pile runoff is routed to and co-treated within ash 

ponds. Even without regard to the proposed changes in ash transport waste streams the existing 

effluent limitations for coal pile runoff and low volume wastes are different. Thus if monitoring 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-221

prior to use, or comingling is required, co treatment may no longer be viable, forcing design and 

construction of separate treatment systems to achieve essentially similar effluent quality.

As a result AER urges EPA not to expand these or similar anti-circumvention measures to any 

other waste streams.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The anti-circumvention measures proposed by EPA for certain new categorical waste streams 

should not be expanded to any other waste stream categories.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The anti-circumvention provision in the final rule, which generally prevents steam electric power 

plants from circumventing this final rule by moving effluent produced by a process operation for 

which there is an applicable zero discharge effluent limitation or standard to another plant 

process operation for discharge (except for fly ash water used in the FGD scrubber) does not 

apply to previously established regulations for this industry. See preamble section VIII.G.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 77

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-222

Comment Excerpt: 

EPA’s Anti-Circumvention Measures are Unwarranted and the Potential Impacts of them have 

Not been Fully Evaluated by the Agency.

EPA’s proposes three anti-circumvention measures to prevent facilities from circumventing the 

effluent limitations guidelines through commingling and dilution of wastewaters: 1) require 

compliance monitoring with new effluent limits applicable to a particular waste stream prior to 

commingling with other waste streams; 2) require that where wastewaters subject to zero 

discharge are commingled with other waste streams, the resulting effluent discharge must not 

have any of the pollutants associated with the zero discharge wastewater; and 3) require use of 

sufficiently sensitive methods to analyze the wastewaters. Not only are these provisions 

unnecessary for assuring compliance with the effluent limitations guidelines, but they will also 

increase costs of compliance and have a detrimental effect on conservation efforts to reuse 

water. 

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

The final rule does include an anti-circumvention provision that generally prevents plants from 

moving wastestreams subject to zero pollutant discharge requirements to another process that 

discharges. See response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. 

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 79

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Internal Monitoring Requirements Discourage Water Re-use.

This anti-circumvention provision would discourage the reuse of water, which conflicts with 

EPA’s previous statements encouraging the use of centralized treatment systems. See EPA’s 

1980 Steam Electric Development Document at 470 (“Consolidation of waste streams to a 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-223

centralized treatment system is permitted and encouraged.”). As EPA stated in the 1974 

Preamble to the steam electric guidelines:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. at 36,186, 36,196 (Oct. 8, 1974). EPA even has a “mixed wastestream” rule for the 

steam electric industry. See 40 C.F.R. § 423.12(b)(12). However, in the Draft Rule, EPA 

discourages mixing. For example, EPA states that whenever flue gas mercury control wastewater 

is used in any other plant process or is sent to a treatment system at the plant, the resulting 

effluent must comply with the discharge prohibition for flue gas mercury control. 78 Fed. Reg. at 

34523-24, 34535 (proposed for codification at 40 C.F.R. § 423.12(i)(1)).

EPA is also proposing to require that FGD wastewater and non-metal cleaning wastewater either 

be treated in a chemical treatment tank before being transferred to an impoundment, or else, if 

any newly generated wastewater is mixed with legacy wastewater, all of the water in the 

impoundment must go to the treatment tank for treatment before being discharged to a water of 

the United States. See EPA, Technical Development Document for Proposed Effluent 

Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source 

Category, Doc. No. EPA-821-R-13-002 (Apr. 2013), at 14-4 (hereinafter referred to as “TDD”). 

As explained below, requiring monitoring before these wastewaters go to the impoundment cuts 

off the treatment process, requires the use of additional chemicals, and will require piping to 

accommodate the tank or series of tanks used. On the other hand, requiring all of the wastewater 

in the impoundment to go through a treatment tank is wasteful. Not only will it increase costs, as 

there will be a much larger volume of fluid transported (which will require additional piping and 

re-routing of current pipes), but it will also increase the amount of chemicals needed to treat all 

of the impoundment water, which up until now has been considered wastewater with minimal 

environmental impact.

As EPA explains in the TDD, surface impoundments are designed to remove particulates from 

wastewater by means of gravity. Id. at 6-9. The FGD solids, as well as any fly ash or bottom ash 

from other waste streams that are commingled in the impoundment settle out of the wastewater 

into the bottom of the impoundment. In order for this to occur, the wastewater must reside in the 

impoundment long enough to settle the desired particle size. As EPA states:

Impoundments can effectively reduce TSS in ash transport water, particularly bottom ash 

transport water, which contains relatively dense ash particles. Because impoundments remove 

solid particles, they may also effectively remove some metals from fly ash transport water when 

the metals are present in suspended particulate form.”

Id. Thus, requiring chemical treatment before the internal wastewater goes to the impoundment 

cuts off the treatment process. A facility may be subject to site-specific NPDES permit limits that 

may require additional internal treatment by the facility. However, the facility should be able to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-224

choose the internal treatment processes needed to comply with end-of-the-pipe limits without 

EPA dictating what they must be.

If EPA is concerned with commingling and dilution of wastewaters, EPA should require internal 

monitoring of waste streams, but not internal numerical limitations.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 81

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Restrictions on Reuse of Zero Discharge Wastewaters.

Under this anti-circumvention provision, whenever a wastewater that is subject to zero discharge 

is mixed with other wastewaters or used in any other plant process, the resulting effluent must 

comply with the discharge prohibition. The effect of this rule would be that the zero discharge 

waste stream is either dry-handled or converted to a closed loop system. Whereas fly ash 

wastewater, for example, was recycled for use in ash transport processes and/or other plant 

processes, as a result of this rule, that could no longer occur, because the zero discharge limit on 

the discharge of pollutants in ash transport water would also now apply to the discharge of 

wastewater from plant processes that used the ash transport waters. This rule not only 

discourages water re-use, but also unjustifiably imposes the use of expensive and unreliable zero 

limit discharge (ZLD) technology on power plants.

For example, EPA proposes under Option 4 to require dry handling for bottom ash waste. 

However, EPA has recognized for decades that bottom ash (and therefore bottom ash transport 

water) is relatively inert and generally contains only small amounts of pollutants. For instance, in 

1980, EPA proposed to reject more stringent regulations of bottom ash because it found that, at 

most plants, the priority inorganic pollutants detected in bottom ash were less than the 

concentrations detected in the raw or intake water source. 45 Fed. Reg. 68,328, 63,338 (Oct. 14, 

1980). EPA concluded that the high costs associated with recirculating bottom ash sluice water 

made the option unjustified because of the inability to quantify pollutant reductions. Id. In 

confirming this finding in 1982, EPA determined that the “[a]nalysis of available wastewater 

sampling data did not indicate that a quantifiable reduction of pollutants would be achieved by 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-225

requiring technologies beyond the BPT control level.” EPA, Development Document for 

Effluent Limitations Guidelines and Standards and Pretreatment Standards for the Steam Electric 

Point Source Category, EPA-HQ-OW-2009-0819-2186 at 498 (1982 Development Document).

The same reasoning applies today. The low level of pollutants in bottom ash transport water and 

other similar wastewaters, and the high costs of retrofitting bottom ash handling systems and 

other similar systems at existing facilities renders any “zero discharge” approach unjustified.

Moreover, some power plants use bottom ash transport water for makeup water for the scrubber. 

Usually the bottom ash transport water is sent to a settling pond, and then routed to the scrubber 

as makeup. Therefore, this anti-circumvention proposal would interfere with a power generator’s 

efforts to reuse and thus conserve water. This also conflicts with EPA’s previous statement 

encouraging the use of centralized treatment systems and the mixing of similar waste streams for 

treatment. See 39 Fed. Reg. at 36,196.

Furthermore, EPA simply does not have the data to demonstrate that ZLD technology is 

available. There are not many ZLD treatment systems available, and the ZLD systems used for 

FGD wastewater, for example, are known to experience many difficulties and operational 

uncertainties. Much of the uncertainty is due to the high variability in FGD wastewater 

constituents. For instance, some ZLD systems form hygroscopic salts that melt down in a short 

time, making disposal challenging. If these salts are to be landfilled, the chlorides and other 

substances may end up in the landfill leachate and runoff. The ZLD systems also need large 

amounts of chemicals to treat the FGD wastewater, which produce large amounts of sludge that 

must be dewatered and disposed of offsite. Moreover, other effects of ZLD systems are 

unknown. The ZLD system may release volatile components such as mercury, selenium, boron, 

or ammonia to the environment from the brine concentrator’s deaerator or the crystallizer’s 

vacuum system.

In addition, the need to use expensive metals and alloys in the concentrators, evaporators, and 

crystallizers will drive up the capital cost of the ZLD option. The O&M costs to the generation 

facility will also be greatly impacted, as all power plants systems will have to be cycled much 

more often than originally designed due to the unreliability of the ZLD equipment. Moreover, it 

is arbitrary for EPA to assume that the treatment system that works best for one facility will 

work at others. In sum, the ZLD technology for FGD wastewater is extremely expensive and is 

not reliable enough for the power industry. EPA should not force such unproven technologies on 

any power plants.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

EPA acknowledges the statements it made in 1982 regarding bottom ash. However, this final rule 

is based on the cumulative data in the current rulemaking record. The record demonstrates that 

zero discharge is technologically available and economically achievable for the reasons 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-226

explained in the preamble to the final rule. For pollutant reduction estimates, see the TDD and 

other comment responses regarding bottom ash. In particular, see response to DCN EPA-HQ2009-0819-4499-A1, Excerpt Number 72 in Comment Code 15.d. See preamble section VIII.

The final rule does not establish FGD wastewater requirements that require zero pollutant 

discharge. EPA does note, however, that it established a voluntary incentives program and 

NSPS/PSNS based on falling film evaporation technology. EPA disagrees this technology is not 

reliable or that it prevents a barrier to entry. See preamble section VIII and responses to 

comments in Comment Code 11 and 11.a thru 11.d. 

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including using ash transport water as make-up for the scrubber, see response to DCN EPA-HQOW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Barbara A. Walz

Commenter Affiliation: Tri-State Generation and Transmission Association, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4465-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed "anti-circumvention" provisions conflict with EPA regulations that also address 

the same issues (i.e., mixing of wastestreams, internal limits, and analytical methods with 

sufficiently sensitive detection limits). Colorado balances ELG limits and the need for reuse and 

recycling of wastewaters through the use of internal limits, thereby advancing important water 

conservation efforts, particularly important in the arid to semi-arid West. Central treatment 

systems maximize treatment efficiencies and effectiveness, minimizing treatment and energy 

costs.

Comment Response: 

The final rule does not establish require internal monitoring to demonstrate compliance with 

certain numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-

A3, Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-227

Commenter Name: Paul Bailey

Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE)

Document Control Number: EPA-HQ-OW-2009-0819-4466-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s “anti-circumvention” provisions are flawed. EPA is proposing to add “anticircumvention” provisions to the Effluent Guidelines to “prevent facilities from circumventing 

the effluent limitations guidelines and standards.”19 As part of the proposed anti-circumvention 

provisions, EPA would require that compliance with the new effluent limits applicable to a 

particular waste stream be demonstrated prior to use of the wastewater in another plant process 

that results in surface water discharge or mixing the treated waste stream with other waste 

streams.20 ACCCE believes that this practice would discourage longstanding, EPA-encouraged, 

consolidated/centralized treatment of waste streams. This provision would prevent facilities from 

commingling and consolidating their waste streams prior to treatment, without subjecting the 

combined waste streams to more stringent effluent limitations. Under this proposed provision, 

facilities would be forced to treat all of their newly-generated wastewater streams prior to 

commingling them with other waste streams. In addition, EPA’s proposed anti-circumvention 

measures would require internal monitoring of some waste streams inside the plant instead of at 

the discharge point.21 This anti- circumvention requirement would be tremendously inefficient 

and could arbitrarily make the treatment process more expensive.

19 78 Fed. Reg. at 34,465, col. 2.

20 Ibid.

21 See 78 Fed. Reg. at 34,465-66, 34,524.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 3
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-228

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Raven Power does not support EPA’s anti-circumvention provision requiring compliance with 

new effluent limits be demonstrated prior to use of the wastewater in another plant process that 

results in surface water discharge or mixing the treated waste stream with other waste streams as 

it discourages re-use of wastewater. Additionally, this will cause the creation of multiple small 

treatment systems when one would be as or more effective for multiple waste streams, at 

significant additional cost.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 34

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt:

EPA is proposing provisions to the rules that would prevent facilities from circumventing the 

effluent limitations and guidelines. These provisions would require facilities to: 1) demonstrate 

compliance before using the waste stream in another plant process or mixing the treated waste 

stream with another waste stream; 2) not transfer effluent with a zero-discharge standard to 

another process with less stringent requirements; and 3) use “sufficiently sensitive” analytical 

methods. These provisions pose undue burdens and costs with little additional environmental 

benefit, as described below:

Internal Monitoring Requirements are Not Warranted

The proposed rule requires internal monitoring of specific internal waste streams instead of at 

external outfalls. FGD wastewater must meet the effluent limits prior to comingling with any 

other wastewater, except CCR leachate for shared treatment. This requirement is contrary to 

EPA’s goal of encouraging reuse, recycle and reduction of wastewater streams.

This proposed rule would prohibit the current beneficial reuse of municipal grey water for 

temperature, chloride and TDS reduction of FGD wastewater prior to entering nutrient-reducing 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-229

SBRs. The Brandon Shores plant’s current process uses a municipal waste stream that would 

otherwise be directly discharged to Waters of the U.S., and further reduces, through co-treatment 

with FGD wastewater, the total nitrogen discharge into the Chesapeake Bay Watershed. 

Applying this rule would not only increase the net nutrient load being discharged, but would also 

increase the requirement for fresh water for non- contact cooling and hinder the performance of 

the biological treatment systems reducing nitrogen and phosphorus compounds in compliance 

with site specific water quality based effluent limits (WQBELs). An additional impact would be 

a potential loss of revenue to the local municipality operating the sanitary wastewater system 

which sells the grey water to the FGD facility.

“Sufficiently Sensitive” Analytical Method Requirement should be Eliminated

As one of the anti-circumvention provisions, EPA proposes to include a requirement for utilities 

to use “sufficiently sensitive analytical methods"8. EPA states:

Where EPA has approved more than one analytical method for a pollutant, the Agency expects 

that permittees would select methods that are able to quantify the presence of pollutants in a 

given discharge at concentrations that are low enough to determine compliance with effluent 

limits, when such methods are available.

For purposes of the proposed anti-circumvention provision, a method is ‘‘sufficiently sensitive’’ 

when the sample-specific quantitation level for the wastewater being analyzed is at or below the 

level of the effluent limitation.

For the purposes of this rulemaking, EPA is considering the following 

terms related to analytical method sensitivity to be synonymous:

‘‘quantitation limit,’’ ‘‘reporting limit,’’ ‘‘level of quantitation,’’ and ‘‘minimum level.’’

While the intent of this provision, to minimize undetected exceedances of the limits, is 

understandable, it fails to account for the challenges in sampling and analyzing FGD wastewater. 

Obtaining accurate, i.e. repeatable and reproducible, data from FGD wastewater is subject to 

numerous variables including the analytical method and instrumentation utilized, along with the 

level of experience with the FGD matrix that the lab’s technicians have.

A “sufficiently sensitive” rule was proposed by EPA in June 20109and is not scheduled to be 

issued until September 2013. While this rule would allow the recognized need to use either a 

DRC (dynamic reaction cell) or a CRC (collision reaction cell) with Method 200.810, the current 

approved method, as written, is still inadequate and does not provide sufficient detail to produce 

accurate and repeatable results when analyzing FGD waters. EPA has generated two SOPs for 

use with Method 200.8 when analyzing FGD water samples. These SOPs alone, while helpful, 

still do not include sufficient details for sample preparation and instrument operation.

Both of the proposed “sufficiently sensitive” rules may allow for labs to use unreliable analytical 

methods that are not approved in 40 CFR Part 136, if there are not approved methods capable of 

measuring to the low limits proposed in the ELGs. The provision allows for the potential use of 

methods that have not been rigorously examined through EPA’s validation process.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-230

Raven Power requests that, due to a potential conflict in rules, the “sufficiently sensitive” 

requirement proposed in the ELG be removed. Additionally, Raven Power requests that EPA 

update the Method 200.8 SOPs as they relate to FGD waters to provide sufficient detail to labs so 

that reproducible and reliable data may be generated.

8

78 Fed. Reg. at 34466

9

75 Fed. Reg., Issue 120, June 23, 2010

10 Method Update Rule, 77 Fed. Reg. Issue 97, May 18, 2012, 136.6(b)(4)(iv)

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Regarding the use of EPA’s SOPs for analysis of FGD wastewater, see response to DCN EPAHQ-OW-2009-0819-4467-A1, Excerpt Number 28 in Comment Code 32.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 41

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The anti-circumvention provisions duplicate or conflict with existing regulations, disincentivize 

efficient treatment of similar waste sources, eliminates the re-use of treated wastewater 

(commingling) for plant purposes and, therefore, should be revised.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-231

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Commenter Name: Jared Morrison

Commenter Affiliation: Westar Energy

Document Control Number: EPA-HQ-OW-2009-0819-4469-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ANTI-CIRCUMVENTION PROVISIONS

We offer limited comments on this issue, related to the unique needs of constructed wetlands. 

The pilot project was operated to treat a 50/50 mix of FGD wastewater and raw water. This was 

done out of concern that feeding 100% FGD wastewater could impede plant growth within the 

wetland. The Anti-Circumvention Provisions, however, indicates that the FGD wastewater could 

not be mixed with raw water for treatment in the CWTS, although constructed wetlands were not 

specifically mentioned within the framework of this provision. Because of these proposed 

provisions within the proposed guidelines, we are testing the pilot CWTS with 100-percent FGD 

wastewater to evaluate effects on the plant life. We are anticipating that the use of full-strength 

FGD wastewater could impede plant growth, and request this provision be amended to allow 

mixing of FGD wastewater with other waters when necessary to accommodate the proposed 

CWTS technology.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the specific operations and permitting of the Westar Energy constructed wetland 

system, see response to DCN EPA-HQ-OW-2009-0819-4469-A1, Excerpt Number 1 in 

Comment Code 12.

Commenter Name: Michalene Reilly

Commenter Affiliation: Hoosier Energy Rural Electric Cooperative
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-232

Document Control Number: EPA-HQ-OW-2009-0819-4471-A1

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Continued and expanded use of centralized wastewater treatment and measures to 

encourage recycling, re-use and conservation of water. The proposed "anticircumvention" provisions will either duplicate or conflict with EPA regulations that also address 

the same issues (i.e., mixing of wastestreams, internal limits, and analytical methods with 

sufficiently sensitive detection limits). Instead of such an environmentally ill-advised approach, 

EPA should explicitly allow facilities to implement "water bubbles" such as those allowed as in 

the effluent guidelines for the iron and steel industry.

Hoosier agrees with UWAG's comments regarding "anti-circumvention" versus 

commingling. EPA implies that the only reason utilities would commingle waste streams is to 

dilute a concentrated stream to meet limits. While that could happen, that is not the only reason 

why streams are commingled. One reason would be to avoid having multiple systems that are 

performing the same chemical functions. A traditional physical/chemical system raises the pH 

to precipitate higher concentration metals such as iron, copper, aluminum, and zinc. The only 

commercially available high flow rate treatment for selenium, the GE ABMet system, requires 

that these metals be removed prior to treatment in this biological system. Therefore to remove 

selenium from FGD Wastewater prior to commingling would require an additional phys/chem 

system to be installed at many facilities. At Hoosier's Merom Generating Station, depending on 

how the system is configured, this could result in $10MM to $15MM of modifications in 

addition to a selenium treatment system.

A second reason to commingle could be to improve the treatability of the waste streams. EPA for 

years has allowed and in fact recommended commingling waste streams in a centralized 

treatment system (1980 Steam Electric Development Document). One benefit is that streams of 

differing pH can self-neutralize. This practice, as EPA has stated, reduces costs and the use of 

new chemicals when they are not necessary. A second benefit to commingling is that it provides 

a waste stream to be treated that is more consistent, more easily treated, and less likely to cause 

upsets with the treatment system.

Also as UWAG notes, the anti-circumvention rule would impede water conservation. To not 

allow Bottom Ash Transport Water to be used as makeup to an FGD system makes no sense and 

only encourages the use of more water on the plant site. Bottom Ash Transport Water has low 

concentrations of POC's and would have minimal effect on the quality of the FGD Wastewater 

that is eventually produced.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-233

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

The final rule does not require sufficiently sensitive analytical methods as that would be 

duplicative. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Commenter Name: Michalene Reilly

Commenter Affiliation: Hoosier Energy Rural Electric Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4471-A1

Comment Excerpt Number: 20

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

Any requirement that regulated wastewaters are to meet discharge limits prior to combining with 

other waters or wastewaters would be illogical, inefficient and contradictory to the intent of the 

Clean Water Act. If these wastewaters cannot be reused, it would cause an increase in water 

consumption at power plants when EPA has touted the benefits of reduced water use in justifying 

this rule. Additionally, 40 CFR 423.12(b)(l 2) states that "In the event that waste streams from 

various sources are combined for treatment or discharge, the quantity of each pollutant or 

pollutant property controlled in paragraphs (b)(1) through (11) of this section attributable to each 

controlled waste source shall not exceed the specified limitation for that waste source." That 

regulation does not require or authorize regulation of internal outfalls or imposition of effluent 

limits to internal wastestreams. It requires only that the pollutants from each regulated source or 

activity that contributes to a combined wastestream must be accounted for, and the effluent limits 

at the point source discharge of those pollutants must be at least as stringent as the effluent 

limitations that would apply to each regulated source or activity if that source or activity had a 

point source discharge. This may require application of a mass balance analysis and calculation 

to account for combined wastestreams with differing effluent limits at the point where the 

discharge is actually regulated - at the primary outfall. Instead, EPA should authorize use of the 

Combined Wastestream Formula as the correct approach for dealing with combined 

wastestreams.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-234

Commenter Name: James S. Alves

Commenter Affiliation: Gulf Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4474-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Interference with Water Reuse Objectives

As part of what it has characterized as “anti-circumvention” measures, EPA’s proposed rule 

revisions would require compliance monitoring for several wastestreams prior to reuse or other 

comingling with process wastewater. 78 Fed. Reg. 34465. This requirement would apply to FGD 

wastewater as well as the zero discharge limits for ash transport water and FGMC wastewater. 

EPA specifically requested comments on whether and what extent these anti- circumvention 

provisions “may discourage water re-use.” 78 Fed. Reg. 34466. The proposed anti-circumvention 

provisions would discourage water reuse, and therefore create significant problems for the State 

of Florida and its regulated community.

As EPA may be aware, water supply challenges in Florida are very considerable. Between 1980 

and 2010 the population of Florida increased from 9.7 million to 18.8 million. Additionally, it 

has been estimated that Florida has 76 million visitors every year. This has put a significant 

strain on Florida’s supply of fresh water, which primarily comes from groundwater. Increased 

extraction of groundwater as Florida has grown has resulted in salt water intrusion and concerns 

regarding maintenance of water levels in lakes and rivers.

Florida has been responding to its water supply/water level challenges through several regulatory 

initiatives. One of the most meaningful tools for managing these matters has been enhancing 

water reuse in Florida. Water utilities in Florida have increased reuse by approximately 500% 

since 1986, in part due to the cooperation of Gulf Power Company and other steam electric 

generating systems that work cooperatively with the water utilities on reuse projects. 

Additionally, steam electric plants have been highly incentivized to develop and implement 

opportunities to reuse their own waste streams within their electric generating processes. In 

addition to conserving water supply resources, such reuse also constitutes effective pollution 

control management.

Currently Gulf Power Company’s plants direct wastewater to the ash ponds for re-use in various 

plant systems. The Company utilizes the wastewater for both fly and bottom ash sluicing. In 

addition, we use several hundred thousand gallons a day for use in our shield water system. It is 

unclear whether, under the proposed rule revisions, the Company will be able to continue with 

reusing wastewater in this manner or whether it will be necessary to utilize alternative water 

sources such as groundwater. In addition, at one of the plants we send a small slip steam of 

cooling tower blowdown and stormwater (which could have some ash contact water present) to a 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-235

POTW. This water is treated by the POTW and returned to our plant for re-use. It is unclear 

whether this would be allowed in the future under the anti-circumvention features of the 

proposed rule.

EPA’s proposed anti-circumvention language appears to be based on a stringent application of 

the existing internal wastestream rule, as set forth at 40 C.F.R. §122.45(h). EPA’s internal 

wastestream rule was first promulgated several decades ago, and its continued environmental 

policy value has been overtaken by a Florida regulatory paradigm that places a considerable 

premium on maximizing reuse of wastewater. Such reuse, as implemented by Gulf Power 

Company and other Florida steam electric generating systems, is environmentally beneficial both 

in terms of resource conservation and pollution management. Gulf Power Company requests that 

EPA consider whether its proposal to micro-manage individual steam electric generating plant 

wastestreams under the Part 423 revisions thwarts the systematic and thoughtful Florida policy 

objectives associated with reusing plant wastewaters.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7. The final rule does not prohibit reuse of water.

Commenter Name: James S. Alves

Commenter Affiliation: Florida Electric Power Coordinating Group

Document Control Number: EPA-HQ-OW-2009-0819-4474-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Interference with Water Reuse Objectives

As part of what EPA characterized as “anti-circumvention” measures, the proposed rule 

revisions would impose compliance monitoring for several individual wastestreams prior to 

comingling with other wastestreams for reuse within the steam electric generating process. 78 

Fed. Reg. 34465. These requirements would apply to FGD wastewater as well as the zero 

discharge limits for ash transport water and FGMC wastewater. EPA requested input as to 

whether and to what extent these anti-circumvention provisions “may discourage water re-use.” 

Fed. Reg. 34466.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-236

The FCG submits that EPA’s proposed anti-circumvention compliance monitoring requirements 

would discourage wastewater reuse, and therefore would create significant problems for the State 

of Florida and the state’s regulated community.

As EPA likely is aware, water supply challenges in Florida are very considerable. Between 1980 

and 2010 the population of Florida increased from 9.7 million to 18.8 million. Additionally, it 

has been estimated that Florida has 76 million visitors every year. Population growth in Florida 

has resulted in concerns regarding the sustainability of Florida’s supply of fresh water, which 

primarily comes from groundwater. Increased extraction of groundwater as Florida has grown 

over the years has resulted in salt water intrusion and concerns regarding water levels in lakes, 

rivers, and wetlands.

Florida has responded to its water supply/water level challenges through several regulatory 

initiatives. A meaningful tool for managing these matters is promoting and facilitating the reuse 

of reclaimed water. The Florida Legislature set as statewide policy “that the reuse of reclaimed 

water is a critical component of meeting the state's existing and future water supply needs while 

sustaining natural systems.” §403.064(1), Florida Statutes. In accordance with this Legislative 

direction, the FDEP and the state’s five water management districts advocate and direct the reuse 

of reclaimed water as an integral part of water management programs, rules and plans. These 

efforts have paid significant dividends. Water utilities in Florida have increased reuse by 

approximately 500 percent since 1986, and Florida’s current reuse capacity is approximately 64 

percent of the total permitted domestic wastewater treatment capacity. These successes would 

not be possible without willing partners in the regulated community, particularly including the 

steam electric generation sector. Lakeland Electric, Gulf Power Company, Tampa Electric 

Company, JEA and other FCG members accept treated POTW wastewater for use in electric 

generating systems. Additionally, steam electric plants have been highly incentivized to develop 

and implement opportunities to reuse their own waste streams within their electric generating 

processes. These projects amount to a “twofer” for the environment: water supply resources are 

conserved and pollutant discharges are reduced.

Currently several FCG members combine wastestreams from various processes for re-use in 

various plant systems. Under the proposed rule revisions, it appears that many of these internal

practices will no longer be viable, making it necessary to utilize alternative water sources such 

as groundwater.

EPA’s proposed anti-circumvention language appears to be based on a stringent application of 

the existing internal wastestream rule, which has existed for decades as set forth at 40 C.F.R. 

§122.45(h). EPA’s internal wastestream rule was first promulgated during a different regulatory 

era, and its continued environmental policy value in the context of 40 C.F.R. Part 423 has been 

overtaken by a Florida regulatory paradigm that places a considerable premium on maximizing 

reuse of process wastewaters. Such reuse is environmentally beneficial both in terms of resource 

conservation and pollution management. The FCG requests that EPA consider whether its 

proposal to micro-manage individual steam electric generating plant wastestreams thwarts the 

systematic and thoughtful Florida policy objectives associated with reusing plant wastewaters.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-237

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7. The final rule does not prohibit reuse of water but 

instead contemplates that the appropriate technology-based controls will apply to each 

wastestream, with the exception of ash transport water used in the FGD scrubber. For more 

information se preamble.

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-circumvention provisions, as currently written, may negatively impact water reuse or 

prohibit mixing prior to treatment and discharge. The proposed anti- circumvention 

provisions, as written, require compliance with the new effluent limitations applicable to a 

particular wastestream to be demonstrated prior to water reuse or mixing with other waste 

streams. We are concerned that this may negatively impact water reuse or discontinue the costeffective practice of commingling and treating combined wastewaters. For example, reuse of 

landfill leachate as bottom ash transport water can reduce the need for freshwater supplies as 

make-up water to this system. In addition, it seems appropriate to commingle similar 

wastestreams with the same proposed limitations (i.e., bottom ash transport water, combustion 

residual leachate, low volume wastewater), to treat the combined waste streams, and to measure 

compliance with the limitations after treatment. EPA has held a favorable long-standing view of 

this cost- effective practice of combining similar waste streams for treatment, and the anticircumvention provisions, as written, may discourage this practice.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 72

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-238

Comment Excerpt: 

Proposed Anti-Circumvention Provisions, As Written, May Negatively Impact Water 

Reuse or Prohibit Mixing Prior to Treatment and Discharge.

We Energies is concerned the proposed anti-circumvention provisions, as written, may prevent 

water reuse or mixing prior to treatment and discharge at several of our facilities. The Preamble 

describes the first requirement of the anti-circumvention as follows (emphasis added):

First the anti-circumvention provision would require that compliance with the new effluent 

limits applicable to a particular wastestream (e.g., FGD, gasification wastewater, leachate) be 

demonstrated prior to use of the wastewater in another plant process that results in surface 

water discharge or mixing the treated wastestream with other wastestreams...Because of the 

high degree of dilution and the number of wastestream sources containing similar pollutants, 

effluent limits and monitoring requirements for certain internal wastestreams (e.g., FGD 

wastewater, combustion residual leachate, gasification wastewater) are necessary to ensure 

appropriate control of the pollutants present in the wastewater. Id. at 34,465 col. 2 – 34,466 col. 

1.

However, during the EPA hosted webcast, held on August 20, 2013, which provided an overview 

of the proposed rule and answers to questions submitted by participants, EPA provided a 

different stance specifically in regards to anti-circumvention provisions applied to nonchemical 

metal cleaning wastes and landfill leachate. During the Question and Answer period, a question 

was asked to clarify how anti-circumvention provisions would apply to nonchemical metal 

cleaning wastes and landfill leachate. EPA’s answer indicated that if the BAT limits for existing 

dischargers for both of these wastestreams were equivalent to the current BPT limits (for total 

suspended solids and oil and grease), which are the same BPT limits for Low Volume Waste, 

then the anti-circumvention provisions would not apply. We Energies agrees with this position, 

especially if the Final BAT Limits are equivalent to the current BPT Limits. EPA needs to 

clarify this interpretation in the final rule. The anti-circumvention provision, as written, may 

discourage water reuse and co-treatment at several We Energies facilities.

Currently, combustion residual leachate collected from company owned landfills located at We 

Energies Presque Isle Power Plant (PIPP) is transported back to the plant and reused in the 

bottom ash transport system. The wet bottom ash transport system is a partially recirculated 

system. Wet bottom ash is mechanically separated from the transport water by dewatering bins 

and the bottom ash transport water is continuously reused. On an intermittent basis, excess 

bottom ash transport water is released from this system and sent to an on-site conventional 

physical-chemical treatment system for treatment of suspended solids prior to discharge to Lake 

Superior. We Energies is concerned that the proposed anti-circumvention provisions, as written, 

may prevent the plant from reusing the landfill leachate in its wet bottom ash transporting 

operation.25 Following process use the combined bottom ash transport water and landfill 

combustion residual leachate are treated prior to discharge. Therefore, no requirements are 

circumvented as each of these sources of wastewater are ultimately routed through a chemical 

precipitation system. The PIPP site does not have wet flue gas desulfurization air pollution 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-239

control equipment, so the leachate would not be able to be mixed with FGD wastewater prior to 

treatment (as there is no FGD wastewater generated at the site).

Two additional We Energies sites treat their landfill leachate along with other wastewater 

streams (that consist of primarily bottom ash transport water and low volume wastewater). Oak 

Creek Power Plant treats the combined wastestreams through chemical addition (ferric chloride), 

pH-adjustment, and settling via settling ponds. Pleasant Prairie Power Plant currently transports 

its landfill leachate to a low volume wastewater equalization basin where it mixes with other low 

volume wastewater (including bottom ash transport water). The current conventional physicalchemical wastewater treatment system treats the low volume wastewater equalization basin as 

needed to comply with the BPT permit limits. The proposed anti-circumvention provisions may 

prevent landfill leachate from mixing with the other wastewater streams (other than FGD 

wastewater) prior to treatment and discharge. Since impoundment is described as BAT under all 

four preferred regulatory options for landfill leachate and bottom ash transport water (except 

bottom ash transport water under Option 4a for units > 400 MW), it makes sense to allow this 

continued cost-effective practice of co-mingling the characteristically similar waste streams and 

treating the mixed influent via wastewater treatment systems involving impoundments.

EPA has held a favorable long-standing view of this cost-effective practice of combining similar 

waste streams for treatment. The 1974 Preamble to the steam electric guidelines says:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged. 39 Fed. Reg. 36,186, 36,196 col. 3 (Oct. 8, 

1974).

EPA continued this philosophy with the revisions of the steam electric guidelines in 1980. 

According to the 1980 Development Document, “Consolidation of waste streams to a centralized 

treatment system is permitted and encouraged.” 1980 Development Document at 470.

We Energies believes it is EPA’s intention to allow combustion residual leachate from landfills 

to continue to be mixed with bottom ash transport water and other low volume wastes, especially 

if the BAT for existing dischargers is impoundments. We Energies has concerns, though, that 

the anti-circumvention provisions, as written, would prohibit water reuse and mixing and cotreatment prior to discharge. For this reason, We Energies asks EPA to clarify its position in the 

Final Rule.

25 As these units are less than 400 MW, under all preferred regulatory options for existing 

dischargers, bottom ash could continue to be managed wet. Using dewatering bins and treating 

the bottom ash transport water blowdown stream prior to discharge to waters of the United States 

would be an acceptable practice. However, the anti-circumvention provision may require the 

company to increase its use of Lake Superior freshwater to offset the loss of the landfill leachate 

in the bottom ash system – a perfect reuse application.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-240

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

EPA notes that because EPA is establishing a zero discharge requirement for non-legacy bottom 

ash transport water, the commenter’s plant will not be able to discharge pollutants from bottom 

ash transport water once the final rule requirements are incorporated into the plants’ NPDES 

permits. However, the plant could continue to use combustion residual landfill leachate in the 

bottom ash system subject to the requirements for leachate as long as the resulting bottom ash 

transport water meet the zero discharge requirement.

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 91

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed anti-circumvention provisions, as written, may negatively impact water reuse or 

prohibit the cost-effective practice of commingling and treating similar waste streams.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 16

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

Compliance Monitoring Locations - "Anti-Circumvention"

EPA's ELG proposal also imposes internal monitoring requirements that require sources to 

demonstrate compliance with the requirements on individual waste streams prior to their mixing 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-241

with other streams, or prior to their use in another plant process that results in a discharge. These 

provisions are generally referred to as "anti-circumvention" and are intended to prevent dilution 

and maximize the reductions achieved at the facility.

The Preamble states that the provision will apply to FGD Wastewater, Ash Transport Water and 

FGMC Wastewater, Gasification Wastewater, and Combustion Residual Leachate .12 However, 

the existing regulations at 40 C.F.R. 122.45(h) state that internal monitoring is only permitted 

when standards at the point of discharge are impractical or infeasible.13 EPA has requested 

comment 14 on how the anti circumvention provisions will affect water re-use, noting that the 

agency believes that dilution and waste stream interaction make internal monitoring necessary to 

ensure compliance .15 EPA has not met the burden of demonstrating that compliance monitoring 

at the point of discharge is impractical or infeasible.

The proposed rule explains that an integral part of the monitoring condition is the monitoring 

point.16 If the wastewater cannot be discharged due to a dry handling requirement, the proposed 

rule would prohibit the reuse of that wastewater in a system that would eventually discharge the 

water. For example, ash sluice water would no longer be able to be used in the scrubber process 

if the water would eventually be discharged. Santee Cooper has taken steps to re-use water in 

plant systems to minimize water use. These internal monitoring provisions would significantly 

impair beneficial re-use of water within the plants.

Because the proposed rule covers existing facilities where piping layouts already exist and access 

points are limited, these requirements may be required at locations in the process where it is 

costly to make piping changes and difficult to install the required monitoring equipment. 

Therefore, these requirements could lead to a reduction in beneficial reuse or recycling of 

wastewater at existing facilities and result in an increase in water use.

Santee Cooper therefore urges that the final rule strives to maintain current water re-use practices 

and encourage, not discourage, new water re-use practices for power plants. These proposed 

provisions will create a significant regulatory burden and will not result in an environmental 

benefit. We therefore request that EPA eliminate the anti-circumvention provisions and continue 

to allow compliance determination at the outfall to the receiving stream.

12 78 FR 34523.

13 40 C.F.R. 122.45(h).

14 Because of the high degree of dilution and the number of waste stream sources containing 

similar pollutants, effluent limits and monitoring requirements for certain internal waste streams 

(e.g.,FGD wastewater ,combustion residual leachate, gasification wastewater) are necessary to 

ensu re appropriate control of the pollutants present in the wastewater . EPA requests comment 

on the extent, if any, to which this provision may discourage water re use." 78 FR 34465-34466.

15 Id.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-242

16 78 FR 34523.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Thomas W. Curtis

Commenter Affiliation: American Water Works Association (AWWA)

Document Control Number: EPA-HQ-OW-2009-0819-4478-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

4. Require monitoring of power plant effluent contaminant levels including bromide levels at 

sufficient frequency relative to plant operations to inform measures to limit adverse 

consequences for downstream drinking water treatment plants.

Comment Response: 

Monitoring to determine if water quality-based effluent limits are necessary is outside the scope 

of the final rule. 

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 65 in Comment 

Code 25.a.iii.

The final rule does not establish BAT or PSES limitations for bromide for the reasons stated in 

the preamble.

Commenter Name: Vicki Card

Commenter Affiliation: Colorado Springs Utilities

Document Control Number: EPA-HQ-OW-2009-0819-4483-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ANTI-CIRCUMVENTION
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-243

Colorado Springs Utilities feels that EPA’s anti-circumvention provision, which requires 

monitoring of select waste streams prior to re-use or mixing with other plant wastewaters, is not 

necessary to achieve the desired protection of surface water bodies and will impose an 

unwarranted hardship on facilities desiring to treat and re-use this water. As stated on Page 

344465 of EPA’s proposed rule, 40 CFR §122.45 allows for imposition of ELG standards before 

a wastewater mixes with other waste streams. However, the proposed rule neglects to mention 

that 40 CFR § 122.45 also states that “Limits on internal waste streams will be imposed only 

when the fact sheet under § 124.56 sets forth the exceptional circumstances which make such 

limitations necessary” (emphasis added). EPA’s proposed rule appears to be inconsistent with 40 

CFR § 122.45 since it does not explain the “exceptional circumstances” that justify the Proposed 

Rule’s requirement for internal monitoring of FGD, gasification wastewater and leachate at 

every power plant. For example, EPA appears to assume that mixing of Power Plant process 

waters prior to discharge will render ELG regulated contaminants undetectable in the mixed 

effluent industry wide - but EPA fails to provide any data to back up that assumption. Colorado 

Springs Utilities believes that the need for internal monitoring be determined by the individual 

permit writer on a case by case basis based on the unique circumstances at an individual plant. It 

is also unclear why EPA is including this provision in the proposed ELG Rule when the authority 

to require internal monitoring already exists under 40 CFR § 122.45.

EPA’s requirement to monitor select wastestreams before mixing with other plant wastewaters 

would also create an un-necessary hardship for facilities with centralized wastewater treatment 

systems. Many of these systems employ a central pond or tank into which process waters are 

discharged and held to control flow into the treatment system. The anti-circumvention provision 

would require that each wastestream be stored and treated separately to avoid “mixing”. This 

would result in significant expenditures to re-configure systems to isolate and create separate 

storage units for each wastestream. It should also be noted that plants may not have the space to 

accommodate this re-configuration. Treatment of only one wastestream at a time to avoid 

“mixing” is also not desirable. Combining similar wastewaters for treatment to remove the same 

types of pollutants is generally less costly and more efficient than treating these wastewaters 

separately.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-244

Comment Excerpt: 

The anti-circumvention provision of the proposed ELG regulation and the inclusion of new nonchemical metal cleaning wastewater sources would result in non-chemical metal cleaning waste 

regulations that would be impractical to implement, resulting in excessive costs without the 

provision of commensurate environmental protection.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Separately, it is well known that EPA is concerned about the current commingling of NCMCWs 

with other waste streams and the purported dilution of the concentration of certain chemical 

constituents that occurs as a result. In an attempt to eliminate this issue, EPA is proposing to 

utilize internal compliance monitoring. As explained in detail below, such monitoring is beyond 

the agency’s regulatory authority except in very limited, exceptional circumstances. Yet, even 

under the regulatory scheme proposed under the Proposed Rule, there is no practical way to 

regulate dilution. EPA has no means of knowing or predicting how much water a permittee will 

need to use to clean its equipment and facilities to a satisfactory level, nor does EPA have a right 

to regulate such cleaning. Nonetheless, EPA will create a perverse incentive to use more water 

since using less will necessarily raise pollutant concentration levels in the NCMCWs. 

Commingling of waste streams is about providing an efficient, centralized method of treatment 

in accordance with the facility’s original design and has nothing to do with secretly diluting 

waste water.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4484-A1, Excerpt Number 12.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-245

Commenter Name: Joseph G. Eutizi

Commenter Affiliation: San Miguel Electric Cooperative, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4485-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention

San Miguel believes mixing of various water streams should be encouraged in order to recycle 

and conserve water. San Miguel mixes water streams from our cooling tower blowdown, wet 

bottom ash closed loop system and wet flue gas scrubber in order to recycle water to maintain a 

zero liquid discharge. Without the ability to mix the various water streams a zero liquid 

discharge facility would be nearly impossible. It appears the anti-circumvention provisions 

proposed would discourage conservation and recycling of water.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d in Comment Code 26.d.

The example provided by this commenter would not be in conflict with the anti-circumvention 

requirements of the final rule as the plant may re-use ash transport water as long as it is not 

ultimately discharged. See preamble Section VIII.G for more information.

Some commenters asked EPA to clarify in the rule that if a wastestream is not discharged, 

compliance monitoring is not required. The final rule does not establish monitoring 

requirements. Permitting authorities establish monitoring requirements in a facility’s NPDES 

permit.

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The rule proposes a concept of no-comingling of select waters produced by a steam electric 

generating unit and CCR management. This will impose significant costs for facilities to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-246

redesign and implement new water management systems. Piping modifications, pumps, wet 

wells, storage tanks, separate sampling points and other modifications to appurtenances, and 

potential changes to plant balance of water will incur costs. New and separate treatment systems 

for separated waste streams will also result in significant expenditures. These changes will 

increase the cost of electricity to CIBO members and other power purchasers.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Of concern to CIBO members directly regulated by this rule, EPA has identified that the sample 

and analysis methods for each of the parameters being regulated must be a “sufficiently sensitive 

analytic method”. CIBO agrees with this and also points out that the sampling procedures and 

techniques will be critical for demonstrating compliance. Low-level Hg analysis in particular is 

very difficult to complete successfully. New methods are recently available for low-level As, Se 

and other compounds. Yet most laboratories are not certified in running the analytic methods.

These methods are not proven out in practical application for the low-levels in the permits and 

specifically in FGD wastewaters, coal ash wastewaters, leachate, or surface impoundment runoff.

Furthermore, it will be extremely difficult to identify and isolate compliance sampling points to 

the newly designated waste streams:

 FGD effluent

 FGMC effluent

 Bottom ash transport effluent

 Fly ash effluent

 Landfill leachate and surface impoundment effluents

 Gasification wastewaters

 Non-chemical metal cleaning wastewaters
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-247

Many of these streams are combined at existing facilities in such a way that it may be physically 

impossible to extract them and isolate them from interconnected systems. These 

interconnections are often integrated water re-use systems in power plants such as using nonchemical metal cleaning wash water combined with plant wash-down to be used as makeup for 

bottom ash water for cooling sand sluicing.

With the proposed rule having both effluent limitations and loading requirements, will result in the need not only to 

monitor quality, but to monitor flow volumes in order to determine compliance with loading limits.

These complex ways power plants use and reuse water have been overlooked in the proposed 

regulations and as a result will make compliance with the ELGs impossible. EPA has 

acknowledged the level of complex engineering interactions in the power plant balance of water 

by suggesting it could not get enough data on water chemistry of the proposed designated 

wastewaters because of the complex interactions. EPA’s difficulty collecting the data during the 

research phase of this regulatory proves reflects the same difficulty that plants will have in 

deriving data to comply with the rule. This is self-evidence that the achievability of the proposed 

regulations is not supported.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Regarding the capabilities of analytical laboratories, see response to DCN EPA-HQ-OW-2009-

0819-4467-A1, Excerpt Number 28 and DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 67 both in Comment Code 32.

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should allow the wastewater streams to be comingled but use other approaches to ensure 

that desired reductions in effluent loads of metal are met. EPA could set daily and monthly loads 

in permits, instead of requiring measurements of streams prior to comingling of wastewaters (as 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-248

proposed). Isolated sampling of the different streams will be difficult to implement and not 

provide significant benefit in treatment or monitoring.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

 Do not isolate the wastewater streams; allow facilities the latitude to manage the streams 

as needed to achieve treatment to meet permit conditions.

 Facilitate re-use by allowing utilities to identify the best way to manage wastewater 

streams, including allowing co-mingling.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Further, EEI recommends that EPA not impose requirements that prevent reuse of water to 

manage wastes within generating facilities, as long as the facilities meet technology- based limits 

in their discharges.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-249

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 30

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed anti-circumvention provisions should be eliminated or at a minimum revised to address 

negative consequences for reuse strategies and sampling methodology.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 91

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Negative Consequence s of “Anti -Circumvention” Rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-250

A. Proposed “Anti-Circumvention” Measures

EPA proposes three “anti-circumvention” requirements. These would require facilities to (i) 

demonstrate compliance before using a wastestream in another plant process or mixing a 

wastestream with another wastestream (proposed 423.13(l)(3)); (ii) not move wastestreams 

subject to zero discharge to another process operation with less stringent limits (proposed 

423.13(n)); and (iii) use “sufficiently sensitive” analytical methods. These proposed anticircumvention provisions should be eliminated or at a minimum revised to address negative 

consequences for reuse strategies and sampling methodology.

EEI recommends that EPA delete these three provisions from the ELG rule. As discussed below, 

they either duplicate or conflict with already-existing regulations. They are contrary to EPA’s 

traditional goal of encouraging centralized waste treatment. And they are likely to interfere with 

the important goal of conserving water. For example, some power stations use bottom ash 

transport water as makeup water for the scrubber. The bottom ash transport water is sent to a 

settling pond, then routed to the scrubber as makeup. Requiring internal limits may discourage 

this process.

B. Mixed Wastestreams

EPA in the past has encouraged centralized treatment. As EPA’s 1980 Steam Electric 

Development Document says, “[c]onsolidation of wastestreams to a centralized treatment system 

is permitted and encouraged.” 1980 Development Document at 470; see also 39 Fed. Reg. at 

36,196, col. 3.

Furthermore, for the steam electric industry, EPA already has a “mixed wastestream” rule, 40 

C.F.R. § 423.12(b)(12):

In the event that wastestreams from various sources are combined for treatment or discharge, the 

quantity of each pollutant or pollutant property controlled in paragraphs (b)(1) through (9) of this 

section attributable to each controlled waste source shall not exceed the specified limitation for 

that waste source.

It is not clear why EPA wants to change this rule now. And the changes will discourage mixing, 

for example:

Whenever flue gas mercury control wastewater is used in any other plant process or is sent to a 

treatment system at the plant, the resulting effluent must comply with the discharge prohibition 

[for flue gas mercury control.]

Proposed 40 C.F.R. § 423.13(i)(1).

C. Internal Limits

Another feature of the anticircumvention rules is the requirement for internal 

monitoring. Proposed 40 C.F.R. § 423.13(l)(3) (for BAT); Proposed 40 C.F.R. § 423.13(n). 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-251

However, EPA already has an internal monitoring rule, 40 C.F.R. § 122.46(h) (“Internal 

wastestreams”). EPA’s proposed ELG anticircumvention rules may be inconsistent with this 

rule.

Moreover, two courts have held that EPA lacks statutory authority to set internal limits, as 

distinguished from limits at the point of discharge to “waters of the United States.” Iowa League 

of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), reh’g denied, 2013 U.S. App. LEXIS 14034 (July 

10, 2013), citing Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 996 (D.C. Cir.1997).

More specifically, in Iowa League of Cities, 711 F.3d at 877-78, the Eighth Circuit held that EPA 

lacked the statutory authority under the Clean Water Act (CWA) to limit POTWs’ ability to 

bypass secondary treatment in wet weather events, even if the recombined flows downstream of 

the secondary treatment met the standards at the end of the pipe. While the court’s decision 

focused on rules applicable to POTWs, its rationale under the CWA applies more broadly to all 

effluent limitation guidelines.

The court points out that, under the CWA, effluent limitations are restricted to regulations 

governing “discharge[s] from point sources into navigable waters.” 33 U.S.C. § 1362(11). 

Moreover, while EPA is authorized to administer more stringent water quality related effluent 

limitations, the court notes that these limitations must still be aimed at “discharges of pollutants 

from a point source,” and the term “discharge of pollutant” refers to the “addition of any 

pollutant to navigable waters.” 33 U.S.C. §§ 1312(a); 1362(12).16 Because an internal discharge 

is not a discharge “into navigable waters,” the court held that EPA could not apply effluent 

limitations to the discharge of flows from one internal treatment unit to another.

The rationale in Iowa League of Cities applies to non-POTW effluent limitations because the 

CWA provisions relied on by the court—33 U.S.C. §§ 1362(11); 1362(12); 1312(a)—are 

applicable to both POTWs and other point sources. The definitions of “effluent limitation” and 

“discharge of pollutant” are contained in the CWA’s “General Provisions-Definitions” section, 

and are not limited to particular point sources. Likewise, section 1312(a) authorizes the EPA to 

develop water quality related effluent limitations for any “point source or group of point 

sources;” it is not limited to POTWs. Because the operative sections of the CWA relied on by 

the Eighth Circuit apply to non-POTW effluent limitations, the ruling supports the argument that 

EPA may not regulate internal processes at steam electric generating units.

The D.C. Circuit reached the same result in American Iron & Steel v. EPA. In that case, which 

did not involve POTWs, an industry group challenged EPA guidance seeking to apply waterquality based effluent limitations not only at point sources but also at internal streams and pools 

inside the facility. 115 F.3d at 995. According to the D.C. Circuit, “The statute is clear: The 

EPA may regulate the pollutant levels in a wastestream that is discharged directly into navigable 

waters of the United States through a ‘point source’; it is not authorized to regulate the pollutant 

levels in a facility’s internal wastestream.” Id. at 996. The agency was permitted, however, to 

require monitoring of internal streams when it was necessary to determine the concentration of 

pollutants at a downstream point source.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-252

EPA has argued that these holdings apply only to water quality-based effluent limits, not 

technology-based ones. But the courts’ opinions do not make that distinction.

D. “Sufficiently Sensitive” Methods Ignores Flaws in EPA Sampling Methods

The third of the proposed “anti-circumvention measures” is a requirement that permittees use 

“sufficiently sensitive” methods. As an initial matter, this proposal is unnecessary and would 

create confusion due to potential overlap and conflict with a separate general “sufficiently 

sensitive” rule that is currently under consideration and is scheduled to be finalized in September 

2013. 75 Fed. Reg. 35,712 (June 23, 2010); Unified Regulatory Agenda, available at 

http://www.reginfo.gov/public/do/eAgendaViewRule?

pubId=201304&RIN=2040-AC84. Furthermore, EPA’s proposal ignores fundamental flaws in 

EPA’s present method for calculating detection and quantitation levels, which were previously 

identified and recommended for change by federal task force, yet remain unaddressed (see e.g., 

Inter-Industry Analytical Group comments dated August 9, 2010 and Federal Advisory 

Committee report of December 2007; see also UWAG Comments for additional history).

EEI believes that the proposed rule, along with a prior guidance memorandum17 asserting the 

same, is not consistent with Executive Order 13563, which instructs that EPA consider the 

burden of its rules, specify performance objectives to the extent feasible, and ensure the 

objectivity of scientific information and processes. For example, the proposed rule could require 

the use of unreliable analytical methods, not approved in 40 C.F.R. Part 136, when there is no 

reliable method of measuring down to the regulatory limit (in this case, the limits in the ELG 

rule). The proposed “sufficiently sensitive” provision is not limited to only Part 136-approved 

methods that have undergone EPA’s validation process, and thus could be interpreted as 

allowing or even encouraging the use of unapproved analytical methods. EEI believes such a 

position is contrary to the policies of scientific soundness and reliable, representative 

measurements, as emphasized in Executive Order 13563 Sec. 5.

Furthermore, Part 136 already says that its procedures “shall” (except for alternate procedures 

approved under section 136.5) be used for permit applications, discharge monitoring reports, and 

section 401 certifications. 40 C.F.R. §§ 136.1; 122.41(j)(4). EPA’s rules also say that NPDES 

permits must include monitoring requirements “[a]ccording to test procedures approved under 40 

C.F.R. part 136....” (or required by 40 C.F.R. subparts N or O) (40 C.F.R. § 122.44(i)(1)(iv).18

At a minimum, if EPA does include a “sufficiently sensitive” provision in the final rule, it should 

accompany it with an explanation that it does not authorize analytical methods not approved for 

40 C.F.R. Part 136, which is consistent with statements of EPA staff to UWAG counsel as 

discussed in the UWAG Comments.

16 The court mistakenly cites section 1362(11) for the definition of “discharge of pollutant.” This 

definition is actually included in subsection (12) of section 1362.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-253

17 Memorandum, James A. Hanlon to Water Division Directors, Regions 1-10, “National 

Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater Discharges for Flue 

Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam 

Electric Power Plants” (June 7, 2010),

http://www.epa.gov/npdes/pubs/steamelectricbpjguidance.pdf.

18 If there are no Part 136-approved methods, a test procedure may be specified in the permit.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Regarding the legal comments, see response to DCN EPA-HQ-OW-2009-0819-5550-A1, 

Excerpt Number 4.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 123

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed anti-circumvention provisions should be eliminated or at a minimum revised to address 

negative consequences for reuse strategies and sampling methodology.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-254

Regarding water conservation related to dry ash handling and the anti-circumvention provisions 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Henry Eby

Commenter Affiliation: Lower Colorado River Authority (LCRA)

Document Control Number: EPA-HQ-OW-2009-0819-4488-A1

Comment Excerpt Number: 1

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed requirements include compliance requirements for internal wastestreams that are 

commingled with other wastestreams. LCRA is seeking clarification on EPA's intended scope 

and applicability of the proposed compliance requirements for wastestreams that are commingled 

internally but not discharged ultimately.

Proposed Internal Wastestream Requirements

Included in the Proposed ELGs are "anti-circumvention provisions" intended to prevent facilities 

from circumventing the Proposed ELGs. As a part of these anti-circumvention provisions, 

compliance with the Proposed ELGs must be demonstrated at certain internal points "prior to use 

of the wastewater in another plant process that results in surface water discharge or mixing the 

treated wastestream with other wastestreams." Proposed ELGs , 78 Fed. Reg. 34432, 34465 

(June 7, 2013) . LCRA requests that EPA clarify the applicability of these compliance 

requirements to internal wastestreams.

The Clean Water Act (CWA) provides EPA with the authority to regulate facilities that are 

discharging effluent into the waters of the U.S. As such, EPA's Proposed ELGs would apply to a 

particular Regulated Wastestream only when that Regulated Wastestream is discharged either 

"directly" to surface water or "indirectly" to a publically owned treatment works (POTW). If a 

Regulated Wastestream is mixed with other wastestreams internally at a facility, and the

resulting mixed wastestream is never discharged from the facility to waters of the U.S., then any 

compliance requirements , including internal monitoring requirements, should not apply.

However, the language in the preamble and the Proposed ELGs appears to be ambiguous. The 

language could be read in such a way that a facility with no direct or indirect discharges of a 

Regulated Wastestream to waters of the U.S., including any discharges in a commingled form, 

would still be subject to the internal compliance requirements. LCRA believes it is essential that 

EPA clearly state that the internal compliance requirements only apply to direct or indirect 

discharges of Regulated Wastestreams, and, if a facility does not discharge the wastestream in 

any form to waters of the U.S., including as part of a commingled wastestream, then the 

wastestream is not a Regulated Wastestream and the facility does not have to comply with the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-255

compliance requirements, including internal monitoring requirements, for the Regulated 

Wastestream.

LCRA believes this is what EPA intended and such a position is supported by the CWA and by 

EPA's statements in the Proposed ELG preamble:

[T]he anti-circumvention provisions would allow power plants to recycle/reuse these 

wastestreams in ash transport processes or other plant processes , but only to the extent that the 

plants do not discharge any pollutants associated with flue gas 

mercury controls or transporting fly ash. The presence of a zero discharge wastestream 

in a process that ultimately discharges to surface water (e.g., use of fly ash transport water as 

FGD absorber make-up water in a scrubber that discharges FGD wastewater) would not be 

in compliance with the effluent limit.

78 Fed. Reg. 34466. (emphasis added). This statement expresses EPA's intent that the Proposed 

ELGs prevent the ultimate discharge of the Regulated Wastestreams to waters of the U.S. and 

clarifies that the Proposed ELGs are not intended to apply internal compliance requirements to 

wastestreams that will not, at any point, be discharged from the facility to waters of the U.S. 

either alone or as part of a commingled wastestream.

2 EPA defines "direct discharges" as "wastewater discharges to surface waters" and "indirect 

discharges to POTWs" as wastewater discharges "to publically owned treatment works." 78 Fed. 

Reg. 34432, 34435 (June 7, 2013). We use the terms with these same definitions throughout 

these comments.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Additionally, EPA agrees with the commenter’s assessment that “[i]f a Regulated Wastestream is 

mixed with other wastestreams internally at a facility, and the resulting mixed wastestream is 

never discharged from the facility to waters of the U.S., then any compliance requirements, 

including internal monitoring requirements, should not apply. This is true for the anticircumvention provision that was promulgated in the final rule. Fly ash transport water or bottom 

ash transport water can be commingled with other plant operations as long as the resultant mixed 

wastestreams is not discharged.

Commenter Name: Henry Eby

Commenter Affiliation: Lower Colorado River Authority (LCRA)

Document Control Number: EPA-HQ-OW-2009-0819-4488-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-256

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The imposition of internal compliance requirements on wastestreams that are not discharged to 

waters of the U.S. would have significant economic impacts. Depending on their current 

configuration, facilities could be required to install expensive and unnecessary treatment systems 

for individual Regulated Wastestreams prior to the mixing or commingling with other internal 

wastestreams. Such treatment systems would come at significant costs, but would offer no public 

health or environmental benefit, especially if the wastestreams are never directly or indirectly 

discharged to waters of the U.S. Applied in such a way, the proposed internal requirements are 

also likely to dramatically discourage facilities from the re-use of water in facility systems.

Although LCRA does not believe that EPA intends to impose internal compliance requirements 

in instances where there will be no direct or indirect discharge of a Regulated Wastestream to 

waters of the U.S., LCRA believes there is ambiguity in the Proposed ELGs as written. EPA 's 

comments in the preamble, the text of 40 C.F.R. § 122.45(h), the case law interpreting 40 C.F.R. 

§ 122.45(h), and economic factors all support the position that the internal compliance 

requirements can apply only when there is a discharge of a Regulated Wastestream to waters of 

the U.S. LCRA believes that the text of the Proposed ELGs does not make it clear that the 

internal compliance points only apply to Regulated Wastestreams, including commingled 

Regulated Wastestreams, that are directly or indirectly discharged to waters of the U.S. LCRA 

respectfully requests that EPA clarify its intentions and state that if a facility has no direct or 

indirect discharges of a specific Regulated Wastestream to waters of the U.S., then it would not 

be subject to the proposed internal compliance requirement for that Regulated Wastestream.

To address these concerns and to reconcile the Proposed ELG language with the CWA, LCRA 

respectfully recommends the following redline change to proposed §423.13(g)(3):

A discharger, who either directly or indirectly discharges FGD wastewater or other water or 

wastewater that contains FGD wastewater to waters of the United States, must demonstrate 

compliance with the effluent limitations in paragraph (g)(l) of this section, as applicable by 

monitoring for all pollutants (except pH) at a point prior to the use of FGD wastewater in any 

other plant process or commingling of the FGD wastewater with any water or any other process 

wastewater, except for any combustion residual leachate or any other FGD wastewater.

78 Fed. Reg. 34535. Although we are only providing one example, LCRA requests that similar 

language be included for all Regulated Wastestreams with proposed internal monitoring 

requirements.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-257

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding the application of the anti-circumvention provisions in the final rule to wastewater 

that are not ultimately discharged, see response to DCN EPA-HQ-OW-2009-0819-4485-A1, 

Excerpt Number 5.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 47

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VII. EPA’s Anti-Circumvention Provisions in the Proposed Rule

EPA proposes to add anti-circumvention provisions to prevent facilities from circumventing the 

effluent limitations guidelines through commingling and dilution of wastewaters. 78 Fed. Reg. at 

34465-66. Not only are these provisions unnecessary for assuring compliance with the effluent 

limitations guidelines, but they will also increase costs of compliance and have a detrimental 

effect on conservation efforts to reuse water.

Specifically, EPA proposes three anti-circumvention measures: (1) require compliance 

monitoring for a particular waste stream prior to commingling with other waste streams; (2) 

require that where wastewaters subject to zero discharge are commingled with other waste 

streams, the resulting effluent must comply with the zero discharge limit; and (3) require use of 

sufficiently sensitive methods to analyze the wastewaters.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-258

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 49

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

2. Internal Monitoring Requirements Discourage Water Re-use

This anti-circumvention provision would discourage the reuse of water, which conflicts with 

EPA’s previous statements encouraging the use of centralized treatment systems. See EPA’s 

1980 Steam Electric Development Document at 470 (“Consolidation of waste streams to a 

centralized treatment system is permitted and encouraged.”). As EPA stated in the 1974 

Preamble to the steam electric guidelines:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. at 36,186, 36,196 (Oct. 8, 1974). EPA even has a “mixed waste stream” rule for the 

steam electric industry. See 40 C.F.R. § 423.12(b)(12). However, in the Proposed Rule, EPA 

discourages mixing. For example, EPA states that whenever flue gas mercury control wastewater 

is used in any other plant process or is sent to a treatment system at the plant, the resulting 

effluent must comply with the discharge prohibition for flue gas mercury control. 78 Fed. Reg. 

at 34523-24, 34535 (proposed for codification at 40 C.F.R. § 423.12(i)(1)).

EPA is also proposing to require either that FGD wastewater and non-metal cleaning wastewater 

be treated in a chemical treatment tank before being transferred to an impoundment, or else, if 

any newly generated wastewater is mixed with legacy wastewater, all of the water in the 

impoundment must go to the treatment tank for treatment before being discharged to a water of 

the United States. See 2013 TDD at 14-4. As explained below, mandating monitoring before 

these wastewaters go to the impoundment cuts off the treatment process, requires the use of 

additional chemicals, and necessitates piping to accommodate the tank or series of tanks used. 

On the other hand, requiring all of the wastewater in the impoundment to go through a treatment 

tank is wasteful. Not only will it increase costs, as there will be a much larger volume of fluid 

transported (which will require additional piping and re-routing of current pipes), but it will also 

increase the amount of chemicals needed to treat all of the impoundment water, which up until

now has been considered wastewater with minimal environmental impact.

As EPA explains in the 2013 TDD, surface impoundments are designed to remove particulates 

from wastewater by means of gravity. Id. at 6-9. The FGD solids, as well as any fly ash or 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-259

bottom ash from other waste streams that are commingled in the impoundment, settle out of the 

wastewater into the bottom of the impoundment. In order for this to occur, the wastewater must 

reside in the impoundment long enough to settle the desired particle size. As EPA states:

Impoundments can effectively reduce TSS in ash transport water, particularly bottom ash 

transport water, which contains relatively dense ash particles. Because impoundments remove 

solid particles, they may also effectively remove some metals from fly ash transport water when 

the metals are present in suspended particulate form.”

Id. Thus, requiring chemical treatment before the internal wastewater goes to the impoundment 

cuts off the treatment process. A facility may be subject to site-specific NPDES permit limits that 

may require additional internal treatment by the facility. However, the facility should be able to 

choose the internal treatment processes needed to comply with end-of-the-pipe limits without 

EPA dictating what they must be.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently-sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 51

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. Restrictions on Reuse of Zero Discharge Wastewaters

Under this anti-circumvention provision, whenever a wastewater that is subject to zero discharge 

is mixed with other wastewaters or used in any other plant process, the resulting effluent must 

comply with the discharge prohibition. The effect of this rule would be that the zero discharge 

waste stream is either dry-handled or converted to a closed loop system. Whereas fly ash 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-260

wastewater, for example, was recycled for use in ash transport processes and/or other plant 

processes, that could no longer occur because the zero discharge limit on the discharge of 

pollutants in ash transport water would also now apply to the discharge of wastewater from plant 

processes that used the ash transport waters. This rule not only discourages water re-use, but 

also unjustifiably imposes the use of expensive and unreliable zero limit discharge (ZLD) 

technology on power plants.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the anti-circumvention provision imposing the use of ZLD systems for FGD 

wastewater treatment, see response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt 

Number 81.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 53

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Moreover, some power plants use bottom ash transport water for makeup water for the scrubber.

Usually the bottom ash transport water is sent to a settling pond, and then routed to the scrubber 

as makeup. Therefore, this anti-circumvention proposal would interfere with a power generator’s 

efforts to reuse and thus conserve water. This also conflicts with EPA’s previous statement 

encouraging the use of centralized treatment systems and the mixing of similar waste streams for 

treatment. See 39 Fed. Reg. at 36,196.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-261

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

including use of ash transport water as scrubber makeup, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ANTI-CIRCUMVENTION PROVISION

EPA’s proposed anti-circumvention provision would, in part, require that compliance with new 

effluent limits applicable to a particular wastestream (e.g., FGD wastewater) be demonstrated 

prior to mixing the treated wastestream with other wastestreams. 78 Fed. Reg. at 34,465. 

Accordingly, EPA’s proposal would require internal compliance monitoring points for specific 

wastestreams, 78 Fed. Reg. at 34,523, with certain exceptions. For example, EPA would allow 

FGD wastewater to be mixed with combustion residual leachate prior to the compliance 

monitoring point. See, e.g., proposed § 423.13(g)(3). In addition, as stated in EPA’s preamble, 78 

Fed. Reg. at 34,523, and the TDD (p. 14-15), internal monitoring points would not be required 

“where BAT limitations are equivalent to BPT limitations[.]”

EPA should clarify in the final ELG rule or the final rule preamble that nonchemical metal 

cleaning wash waters and bottom ash transport water may be comingled prior to compliance 

monitoring at the outfall. Many power plants discharge numerous wastewaters (except oncethrough cooling waters) to ash ponds. This includes low-volume wastewaters (e.g., floor 

drainage wastewaters), bottom ash transport water, and nonchemical metal cleaning wash waters. 

Dynegy’s coal-fired power stations discharge their nonchemical metal cleaning wash waters to 

their ash pond systems in accordance with and as approved by their NPDES permits. That 

practice should be allowed to continue.

EPA’s preamble and TTD discuss internal monitoring points in the context of several 

wastestream comingling scenarios, but do not address comingling nonchemical metal cleaning 

wash waters and bottom ash transport waters. That appears to be because, as stated by EPA, 

internal monitoring points would not be required “where BAT limitations are equivalent to BPT 

limitations”. In other words, comingling nonchemical metal cleaning wash waters and bottom 

ash transport waters apparently is not discussed because, under Options 1, 2, 3a, 3b, 3 (and 4a for 

units less than or equal to 400 MW), the proposed BAT limitations for both nonchemical metal 

cleaning wash water and bottom ash transport water would remain equal to current BPT effluent 

limits. However, in light of the importance of this issue, EPA should clearly state that 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-262

nonchemical metal cleaning wash waters may be comingled with bottom ash transport waters 

prior to the compliance monitoring point.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d in Comment Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Regarding the commingling of bottom ash transport water, see response to DCN EPA-HQ-OW2009-0819-4454-A2, Excerpt Number 17 in Comment Code 26.d.

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 32

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In short, EPA should clarify that the anti-circumvention provision does not prohibit comingling 

nonchemical metal cleaning wash water with bottom ash transport water, especially where such 

comingling is currently allowed. Internal monitoring requirements for nonchemical metal 

cleaning wash water are not necessary to ensure appropriate control of the pollutants present in 

the wastestream.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Regarding the commingling of bottom ash transport water, see response to DCN EPA-HQ-OW2009-0819-4454-A2, Excerpt Number 17.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-263

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 33

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

RE-USE, RECYCLING AND WATER CONSERVATION

Generating plants with cooling ponds may recycle bottom ash transport water to those ponds. 

Under Options 4 and 5 or EPA preferred Option 4a (for units above 400 MW), zero discharge of 

bottom ash transport water would be required, eliminating a plant’s ability to re- use the bottom 

ash transport water if the cooling pond potentially discharged to a water of the United States (i.e., 

emergency overflow). This would have the perverse effect of requiring a plant to draw more 

water from nearby rivers, aquifers or municipal supplies during dry summer periods, essentially 

reducing or eliminating a plant’s efforts to conserve water use for cooling.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. 

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 31

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed anti-circumvention provisions should be eliminated from the rule.

EPA proposes to add provisions that would prevent facilities from circumventing the ELG rule. 

The goals of the provisions purportedly are threefold. First, compliance with effluent limits 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-264

would have to be demonstrated “prior to use of the wastewater in another plant process that 

results in surface water discharge or mixing the treated waste stream with other waste streams.”23

Second, the provisions would establish requirements to prevent facilities from moving effluent 

produced by a process operation for which there is a “zero discharge” limit to another process 

operation to discharge under less stringent requirements. Third, the provisions would require 

permittees to use EPA-approved analytical methods that are “sufficiently sensitive” to provide 

quantified results at levels necessary to demonstrate compliance with the effluent limits. 

MidAmerican recommends that all three anti-circumvention provisions be eliminated from the 

final rule.

23 Id. at 34465

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the sufficiently-sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 33

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

“Sufficiently sensitive” analytical methods

The proposed provisions that require the use of sufficiently sensitive EPA-approved methods to 

provide quantified results to demonstrate compliance are duplicative and unnecessary. NPDES 

permits already require that only analytical and sampling methods specified in 40 CFR 136 may 

be used to demonstrate compliance. The methods used to demonstrate compliance are also 

required to have minimum detection limits at least as low as the effluent limit for the given waste 

stream. Because these protections are already in place, it is unnecessary to add additional 

language to the proposed rule. If EPA does include a “sufficiently sensitive” provision in the 

final rule, it should clarify that the provision does not authorize analytical methods not approved 

for 40 C.F.R. § 136.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-265

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Commenter Name: Paul Chu

Commenter Affiliation: Electric Power Research Institute (EPRI)

Document Control Number: EPA-HQ-OW-2009-0819-4499-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The anti-circumvention provision would discourage plants from pursuing water reuse and cause 

plants currently recycling water to incur further costs to separate their wastewater streams.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Paul Chu

Commenter Affiliation: Electric Power Research Institute (EPRI)

Document Control Number: EPA-HQ-OW-2009-0819-4499-A1

Comment Excerpt Number: 103

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

14.1 The anti-circumvention provision would discourage plants to pursue water 

reuse and cause plants currently recycling water to incur further costs to 

separate their wastewater streams

EPA’s proposed ELG rule for the steam electric industry would prevent plants from 

circumventing the effluent limits and standards by moving wastewaters with a zero discharge 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-266

effluent limit/standard to another process that has less stringent requirements. Option 4a

includes a zero-discharge requirement on bottom ash water.

As written, this provision would discourage plants from pursuing water reuse and cause plants 

currently recycling water to incur further costs to separate their wastewater streams. Water 

conservation and reduction of the volume of water discharged typically have a net environmental 

benefit that should be taken into account.

It is known that at least 6 plants currently recycle their bottom ash wastewater (4 after settling 

ponds, 2 before) as source water for their FGD system. A case study is a plant in the northeast 

which reuses 1.3 million gallons per day—or nearly half a billion gallons per year—of lowvolume wastewater, primarily bottom ash water, as FGD makeup water.

Promoting the recycle and reuse of bottom ash transport water could potentially result in a net 

decrease of loading to the environment, especially if the water were to go to a system with a 

more advanced treatment process, such as FGD wastewater with proposed BAT. The proposed 

FGD limits have strict performance levels for three key metals (arsenic, mercury, and selenium) 

and nitrates/nitrites. Treating these three metals will remove other pollutants of concern as well. 

The required treatment to remove these metals will also remove the same pollutants of concern 

from bottom ash. Bottom ash transport water is a low-pollutant stream. Banning sending bottom 

ash wastewater to other streams, even those regulated by BPT and/or BAT limits, is an onerous 

and cost-inefficient requirement.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Daniel K. Plath

Commenter Affiliation: Northern Indiana Public Service Company (NIPSCO)

Document Control Number: EPA-HQ-OW-2009-0819-4508-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-267

NIPSCO also supports USEPA’s position that the anti-circumvention provisions not apply to 

nonchemical metal cleaning wastes and recommends that USEPA directly state that position (as 

it did on the August 20, 2013 call) in the preamble to the final rule.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Daniel K. Plath

Commenter Affiliation: Northern Indiana Public Service Company (NIPSCO)

Document Control Number: EPA-HQ-OW-2009-0819-4508-A2

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Provisions

NIPSCO operates surface impoundments to treat water at four power plants. The surface 

impoundments receive, in most cases, pre-treated waters from a number of monitored internal 

outfalls. NIPSCO is committed to flow minimization and actively searches for opportunities to 

reuse water internally, hence some internal outfalls can have commingled process waters. A few 

sources of wastewater may enter the surface impoundments directly. NIPSCO notes that 

discharge from the surface impoundments to the receiving waters are limited and monitored to 

assure protection of receiving water quality. As USEPA has explained the anti-circumvention 

provisions in the TDD and proposed rule preamble, NIPSCO is unsure of the benefit of requiring 

ELG compliance requirements for all internal wastestreams prior to mixing. However, NIPSCO 

understands that USEPA clarified in the August 20, 2013 webcast that the anti- circumvention 

provisions are not intended to apply to all process wastewaters; in particular, the provisions are 

not intended apply to non-chemical metal cleaning waste or combustion residual leachate when 

the wastewaters are subject to BPT. Although that clarification is useful, NIPSCO is concerned 

that the proposed anti-circumvention provisions would complicate and reduce water re-use 

opportunities. NIPSCO recommends that the USEPA further consider the ramifications of the 

proposed anti-circumvention clause which would limit the waters that can be co-managed and 

reused internally which would force more fresh water to be withdrawn from state water bodies. 

NIPSCO believes this would have a negative impact to our current efficient and effective water 

resource management practices if we are not allowed to recycle water internally.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-268

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Stephen M. Frank

Commenter Affiliation: NRG Energy, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4510-A2

Comment Excerpt Number: 40

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Provisions (Recycle/Reuse)

EPA is proposing to add provisions to the regulations that are intended to prevent facilities from 

circumventing the effluent limitations guidelines and standards. These require that compliance 

with the new effluent limits be demonstrated prior to comingling or use of the wastewater in 

another plant process that results in a surface water discharge.

NRG provides the following comments:

 Wastewaters (e.g., metal cleaning water, leachate, FGD wastewater, contaminated storm 

water, coal pile runoff) comingled prior to higher levels of treatment such as chemical 

precipitation should be excluded from this requirement.

 De minimis quantities of wastewater should be excluded to account for discharges 

associated with short term equipment maintenance and leaks especially from bottom ash 

transport water systems.

 Comingling of wastewaters should be acceptable in situations where monitoring at or less 

than water quality criteria for pollutant of concern is demonstrated to be practicable and 

where interferences among pollutants do not make detection or analysis impracticable. In 

these cases, pollutant loadings can easily be calculated and utilized to establish WQBELs 

and effectively protect surface water.

In addition, EPA should encourage the use of “zero” discharge waste streams in processes that 

ultimately discharge to surface water in specific cases where pollutant loadings can easily be 

calculated and utilized to establish WQBELs and effectively protect surface water.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-269

Examples include:

1. Use of bottom ash transport water as FGD absorber make-up water in a scrubber that 

discharges FGD wastewater treated by chemical precipitation.

2. Discharge of bottom ash transport water to a leachate impoundment that is treated by 

chemical precipitation before reuse or discharge to surface water.

3. Use of bottom ash transport water (or leachate) as cooling tower make-up water. The 

quality of makeup water for cooling towers is critical for proper operation of the 

generating station. Therefore, it is in the industry’s best interest to only use high quality 

water that will not cause deposits and scale on the condenser tubes.

4. Reuse of water will reduce the quantity of water needed for plant operations. This is 

critical in “water short” states. Any activity to reduce the water supply requirements will 

make more water available for other uses, such as municipal uses.

Some NRG stations use the iron in leachate wastewater so that the iron can be used as a 

coagulant in makeup water system and bottom ash systems. For example, at Homer City, this 

type of water is commingled with raw makeup water in the cooling tower clarifier mixing 

chamber. After agglomeration, flocculation, and sedimentation, clarified water continues on to 

provide the necessary makeup to the station’s water systems. Without the use of iron in this 

manner, the station’s cooling systems would clog with sediment from the river and impair the 

cooling processes needed for power generation.

Homer City, as well as other NRG stations, would be significantly burdened by a new 

requirement to meet effluent limitations for leachate prior to using the leachate in other system. 

If, as a result of EPA’s rule, NRG stations must first demonstrate compliance with TSS and oil 

and grease limits prior to any reuse or recycling, it would incur substantial costs to install and 

operate leachate treatment technology. Moreover, because such treatment (specifically, for TSS) 

would remove iron from the leachate that is needed for coagulation, stations would incur 

additional costs from having to introduce a substitute material to the clarifier to replace the lost 

iron source.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d in Comment Code 26.d.

EPA agrees with the commenter that the requirements for bottom ash transport water should not 

apply to low volume, short duration discharges of wastewater from minor leaks (e.g., leaks from 

valve packing, pipe flanges, or piping) or minor maintenance events (e.g., replacement of valves 

or pipe sections) and incorporated that in the definition of transport water in the final rule.

Also, EPA disagrees with the commenter that “EPA should encourage the use of ‘zero’ discharge 

waste streams in processes that ultimately discharge to surface water in specific cases where 

pollutant loadings can easily be calculated and utilized to establish WQBELs and effectively 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-270

protect surface water.” First, water quality based effluent limits are outside the scope of this 

rulemaking. This rule establishes technology based effluent limitations and standards. Regarding 

water conservation related to dry ash handling and the anti-circumvention provisions, see 

response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 in Comment Code 

26.d.

Also see the referenced response regarding the use of ash transport water as scrubber makeup. Second, the anti-circumvention provisions, (except for ash transport water used in FGD 

scrubbers), ensure that the BAT or BADCT level of control are applied to the particular 

wastestream. EPA explains in the preamble why it made an exception for flu and bottom ash 

transport water that is used in the FGD scrubber. The final rule establishes nationally applicable 

BAT limitations and PSES for combustion residual leachate based on surface impoundments, 

and NSPS and PSNS based on chemical precipitation. The BAT level of control for leachate is 

less stringent than the BAT level of control for bottom ash transport water thus allowing bottom 

ash transport water to be treated only to the level applicable for leachate would not represent best 

available technology economically achievable. As such, the example identified as #2 above 

would conflict with the final anti-circumvention provisions in the final rule.

Regarding use of ash transport water as cooling tower make-up water see preamble section 

VIII.G.

Commenter Name: Josie Gaskey

Commenter Affiliation: Pennsylvania Coal Association (PCA)

Document Control Number: EPA-HQ-OW-2009-0819-4515-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should ensure that agency-wide policies do not conflict with proposed rulemakings 

and allow the States their existing permitting authority with respect to the establishment of 

internal monitoring points and combined waste streams. For years, EPA has promoted 

responsible water recycling/reuse not only for the electric power industry, but for other industries 

and the public in general. Proposed regulations that force the management of separate waste 

streams flies in the face of beneficial recycling and states’ rights to manage their programs.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-271

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. EPA fails to consider the cost to comply with the proposed limits for bottom ash transport 

water at facilities which operate units less than or equal to 400 megawatts (MW);

2. The rule has the potential to limit the ability to re-use certain wastewaters , thereby 

potentially increasing water usage;

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4516-A2, Excerpt Number 13.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. EPA fails to consider the cost to comply with the proposed limits for bottom ash transport

water at facilities which operate units less than or equal to 400 megawatts (MW).

It does not appear that EPA has evaluated the impacts of complying with the bottom ash 

transport water requirements for facilities with units that are less than or equal to 400 MW. 

Proposed option 4a would allow units of this size to continue to utilize surface impoundments 

(ponds) for handling bottom ash wet sluicing operations, but would impose limitations prior to 

bottom ash transport water co-mingling with other wastewaters. Most Alliant Energy facilities 

with units of this size utilize a pond system for managing bottom ash transport water. These 

same ponds are used to manage other wastewater streams generated at the facility, including 

non-chemical metal cleaning wastewaters and other low volume waters. Therefore, most Alliant 

Energy facilities would incur engineering design and construction costs to isolate the bottom ash 

transport water in order to demonstrate compliance with the proposed limits prior to mixing with 

other wastewaters. This may include construction of a separate pond or large tank system. 

Factors influencing the design of additional ponds may include, but are not limited to, the 

following: available land near the facility, design specifications, and balance of plant changes as 

a result of separating the bottom ash transport water. We did not see any relevant discussion in 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-272

the docket which considered the cost to isolate bottom ash transport waters for units less than or 

equal to 400MW. While the cost to re-design piping and pond systems may not compare to the 

cost of retrofitting to a dry bottom ash handling system, it will nevertheless be an additional cost 

which EPA does not appear to have considered. Alliant Energy requests that EPA re-examine 

and update the cost to comply with the bottom ash transport water requirements contained in the 

proposed option 4a for units that are less than or equal to 400 MW.

2. The rule has the potential to limit the ability to re-use certain wastewaters, thereby potentially 

increasing water usage.

Alliant Energy understands and supports the concept of anti-circumvention which EPA presents 

in the proposed ELG rule, i.e., placing requirements on certain wastewater discharges and 

limiting the potential to circumvent these requirements through re-use and discharge via another, 

un-regulated (or less-regulated) wastewater discharge point. However, the broad application of 

the anti-circumvention requirements in the proposed ELG rule will impact current water 

management practices by discouraging water re-use.

Instead of supporting water re-use, the proposed rule will penalize a facility which has the ability 

to make good use of certain wastewater streams, but will find it too costly to do so because of 

proposed treatment requirements, or that it simply cannot because of the proposed prohibition of 

re-use. For example, if certain wastewaters were collected in a surge tank to be utilized as 

makeup for a dry scrubber system or perhaps a dry bottom ash handling system, the proposed 

rule may exclude the facility from the ability to do so. Instead, additional fresh water would 

likely be substituted for the possible re-usable water source. This is an important issue at a time 

when utilities face 

challenges to water sources and desire to operate in a more sustainable manner. Alliant Energy re

quests that EPA develop an alternative scope under the ELG rule which preserves water re-use 

options without treatment for waters that do not discharge directly to waters of the United 

States.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7 and preamble.

EPA notes that there is nothing in the final rule, which would prohibit “certain waters collected 

in a surge tank to be utilized as make-up for a dry scrubber system or a dry bottom ash handling 

system.

Regarding EPA not accounting for costs for bottom ash transport water at steam electric power 

plants that operate units less than or equal to 400 MW, EPA disagrees. EPA included costs for 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-273

the plants to install a dry bottom ash handling system for steam electric generating units greater 

than 50 MW. See Section 9.7.2 of the TDD and Section 8 of the Incremental Costs and Pollutant 

Removals for Final Effluent Limitations Guidelines and Standards for the Steam Electric Power 

Generating Point Source Category (Cost & Loads Report) (DCN SE05831/SE05832) for more 

details on the bottom ash cost methodology. In addition, EPA notes that the BAT zero pollutant 

discharge limitations and standards for ash transport water do not apply to generating units with 

a capacity of 50 MW or less; therefore, these generating units do not incur related compliance 

costs.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA fails to consider cost to comply with non-chemical metal cleaning wastewater limits.

In addition to the early compliance requirements for non-chemical metal cleaning wastewater 

discussed above in Comment 4, EPA has failed to consider the cost impacts of complying with 

the proposed requirements placed on this wastestream. In section 9.2.7 of the TDD, EPA 

explains that facilities should already be able to meet the proposed limits for non-chemical metal 

cleaning wastewater, indicating that these wastewaters are already subject to the proposed limits. 

EPA infers that facilities should already be meeting these limits, and therefore facilities should 

not incur any additional cost. This is not the case. As discussed in Comment 4, Alliant Energy 

has several facilities that generate low-volume wastewaters, including non-chemical metal 

cleaning wastewaters. Typically, these wastewaters are discharged, along with other low-volume 

waters to a surface impoundment (pond) system. Compliance with current permit requirements is 

measured at the discharge point to the receiving stream - not at the point prior to co-mingling at 

the pond as EPA believes. Technically, as a separate wastestream, the non- chemical metal 

cleaning wastewaters are not already meeting the proposed ELG limits for non-chemical metal 

cleaning waste. Facilities will incur costs to reconfigure their current wastewater management 

system to ensure compliance with the limits prior to July 1, 2017. This will likely result in the redesign of the discharge system to include isolation of non-chemical metal cleaning wastewaters 

and a large collection system, perhaps 200,000 gallons or more in size depending on the 

wastewater volumes generated at each facility . Alliant Energy requests that EPA re-examine its 

assumptions regarding current practices for non-chemical metal cleaning wastewater and, 

accordingly, update the cost impact analysis to include the cost to comply with the proposed 

limits for this wastestream.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-274

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Mike Roddy

Commenter Affiliation: Seminole Electric Cooperative, Inc. (SECI)

Document Control Number: EPA-HQ-OW-2009-0819-4518-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Water Reuse/Coal Combustion Residual Leachate

As part of what EPA characterized as "anti-circumvention" measures, the proposed rule revisions 

would impose compliance monitoring for several individual wastestreams prior to comingling 

with other wastestreams for reuse within the steam electric generating process. While SECI 

believes that this requirement discourages water re-use for all wastestreams, we are particularly 

concerned with potential restrictions on re-use of coal combustion residuals.

As EPA likely is aware, water supply challenges in Florida are very considerable. Between 1980 

and 2010 the population of Florida increased from 9.7 million to 18.8 million. Additionally, it 

has been estimated that Florida has 76 million visitors every year. Population growth in Florida 

has resulted in concerns regarding the sustainability of Florida's supply of fresh water, which 

primarily comes from groundwater. Increased extraction of groundwater as Florida has grown 

over the years has resulted in saltwater intrusion and concerns regarding water levels in lakes, 

rivers, and wetlands.

Florida has responded to its water supply/water level challenges through several regulatory 

initiatives. One of the most meaningful tools for managing these matters is promoting and 

facilitating the reuse of reclaimed water. The Florida Legislature set as statewide policy "that the 

reuse of reclaimed water is a critical component of meeting the state's existing and future water 

supply needs while sustaining natural systems" In accordance with this Legislative direction, 

the Florida Department of Environmental Protection and the state's five water management 

districts advocate and direct the reuse of reclaimed water as an integral part of water 

management programs, rules and plans.

SECI currently reuses its combustion residuals leachate within the FGD scrubber modules; the 

leachate is mixed with stormwater and FGD blowdown in a holding pond prior to reuse in the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-275

FGD system. Comingled wastewater not reused is treated with advanced metal removal 

technologies prior to being discharged through a permitted NPDES internal outfall. This reuse 

practice allows SECI to reduce its water consumption while still providing adequate treatment of 

the leachate wastestream. The EPA's proposed rule requiring separation of leachate would 

require significant engineering and cost while providing no better pollutant management than our 

existing process. Therefore, SECI finds this provision to demand a significant cost while 

providing no environmental benefit.

SECI believes that leachate should be exempt from the anti-circumvention provision and should 

be allowed to mix with other wastestreams for make-up to the FGD system. SECI believes the 

EPA's goal of treatment can still be attained without eliminating an important method of 

reducing consumptive use.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Paul Carpmone

Commenter Affiliation: Tampa Electric Company (TEC)

Document Control Number: EPA-HQ-OW-2009-0819-4520-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Rule Discourages Water Reuse and Conservation

It is TEC’s goal to operate Big Bend and Polk PS generating units as efficiently as possible while 

protecting the environment, maintaining a positive community relationship , and building a 

relationship of trust with regulatory agencies and environmental groups. Water conservation and 

recycling are key factors in accomplishing this goal. To illustrate our concerns with the anticircumvention provision, we must provide some background information specific to the affected 

facilities.

Big Bend employs once-through cooling by drawing approximately 1- 1.5 billion gallons per 

day of salt water from adjacent Hillsborough Bay and pumping this water through the plant 

condensers prior to discharging it back to the Bay. The station's separate process makeup water 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-276

system is supplied by a combination of: 1) reclaimed treated secondary effluent water from a 

Hillsborough County, Florida treatment plant; 2) stormwater collected from the zero-discharge 

plant site stormwater runoff system; and 3) recycled process water from various plant 

operations. The latter component is comprised mainly of treated FGD system blowdown (i.e., 

chloride purge), recycled coal combustion residuals (CCR) sluice water and plant equipment 

wash water. The FGD blowdown, wash water and stormwater are collected and stored within 

the Big Bend Recycle Water System, consisting of a Solids Separation Unit, a settling pond and 

two recycle water storage ponds. Recycled CCR sluice water is normally contained within the 

dedicated closed loop sluice systems for each of the wet-handled CCRs (i.e., slag and bottom 

ash) produced at the facility. However, if necessary to equalize water levels between the CCR 

impoundments and the Recycle Water System ponds at the facility, water from any or all of these 

storage units may be commingled. The combined recycle water is used for makeup to the FGD 

system, as additional sluice water for the transport of CCRs, and for various other purposes such 

as fire protection and equipment washing. By this arrangement, TEC has not only achieved its 

water conservation goal at Big Bend, but has succeeded in eliminating virtually all process water 

discharges to Tampa Bay. The only remaining process water discharge from the plant is a 

treated sidestream of the FGD systems at the plant.

The FGD chloride purge sidestream is collected from the common gypsum dewatering facilities 

(hydroclones) servicing the FGD systems for Units 1 through 4 and is directed to a dedicated 

wastewater treatment plant with a combined (all four units operating at design scrubbing 

capacity) maximum service rate of 230 gallons per minute (gpm). The treatment plant consists of 

a precipitation/chemical adsorption treatment train, solids settling and filtration equipment, 

sludge dewatering equipment, a recently installed pilot breakpoint chlorination system for 

nitrogen reduction and chemical feed/storage facilities. The treated effluent sidestream from the 

FGD chloride purge stream treatment plant may either be conveyed to the Units 1, 2, 3 or 4 

circulating water discharge lines for co-mixing with the once-through cooling water prior to 

discharge to the station discharge canal or returned to the Recycle Water System for reuse.

If bottom ash transport water becomes a "zero discharge" waste stream, the net effect of the anticircumvention provision on this normal operating practice would be the following:

1. Continued operation of the Recycle Water System in the manner described without the 

ability to discharge this treated sidestream altogether, or

2. Severely restrict the amount of recycled water available to the to the FGD systems, which 

could require additional groundwater pumping.

Polk PS has also made every effort to conserve water, and the reuse of process wastewater is 

vital to the minimization of groundwater pumping. To that end, all process wastewater is 

commingled and ultimately directed to a grey water storage tank. Water from the grey water 

storage tank is reused throughout the plant for screen wash water, plant washdown, and make-up 

water for the two scrubbers. Periodically, to maintain overall reuse water quality, some of this 

commingled flow is directed from the grey water storage tank to a grey water surge tank and 

then to the brine vapor compression evaporator (BVCE). The condensate from the BVCE is 

returned to the reuse system. The permeate from the BVCE is directed through a forced 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-277

circulation evaporator (FCE). The solids from the FCE are removed for disposal and the 

condensate of the FCE is returned to the reuse system.

Occasionally, in conjunction with startup, this reuse water may be blown down by one of the 

scrubbers. The blowdown flows through the drainage system to the 3.5-billion gallon onsite 

reservoir for seven to ten days of mixing and settling prior to discharge to surface water. Based 

on the proposed effluent limitations guidelines as written, this blowdown would need to be 

returned to the BVCE prior to discharge into the on-site reservoir. The piping and drainage 

modifications as well as the potential need for a larger BVCE would make process wastewater 

reuse more costly compared to pumping additional groundwater. The costs of making these types 

of plant modifications are not included the proposed rule.

Both Big Bend and Polk PS lie within Southern Water Use Caution Area (SWUCA)1, with Big 

Bend located in the Most Impacted Area. TEC has expended considerable resources to conserve 

and recycle water sources at Big Bend and Polk PS. These efforts have not only resulted in a

drastic reduction in the amount of valuable water resources consumed by the facility, but in the 

complete elimination of almost all process water discharges from the facility. The remaining 

process discharges have been reduced to the greatest extent possible as dictated by process water 

quality requirements.

The benefits of managing process water needs in this manner at the stations are not only 

economically beneficial, but also environmentally beneficial due to the minimized groundwater 

use, increased water conservation, and decreased surface water discharges. The limitations that 

EPA proposes placing on the internal water management facilities (including process water 

recycling systems) to prevent "circumvention" would present an immediate and complete 

subversion of the many benefits resulting from Tampa Electric Company's water conservation 

and environmental stewardship achievements at these facilities.

1 The SWUCA was established by the Governing Board of the Southwest Florida Water 

Management District in 1992. The SWUCA encompasses an area of approximately 5,100 

square miles covering the southern half of the Southwest Florida Water Management District , 

and includes all of Manatee, Sarasota, Hardee and Desoto Counties and portions of Hillsborough, 

Charlotte, Polk and Highlands Counties. The water use caution areas are those with water 

resource concerns that require an extended time period to address.

Comment Response: 

The final rule does not require internal monitoring to demonstrate compliance with certain 

numeric limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 117 in Comment Code 26.d. Regarding water conservation related to dry ash 

handling and the anti-circumvention provisions, including use of ash transport water in 

scrubbers, see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-278

It is not apparent to EPA that the practices described here would be in conflict with or prohibited 

by the final rule. The commenter’s statement “Recycled CCR sluice water is normally contained 

within the dedicated closed loop sluice systems for each of the wet-handled CCRs (i.e., slag and 

bottom ash) produced at the facility” indicates the plant does not discharge these wastewaters, 

consistent with the final rule’s requirements. The commenter also notes “if necessary to equalize 

water levels between the CCR impoundments and the Recycle Water System ponds at the 

facility, water from any or all of these storage units may be commingled. The combined recycle 

water is used for makeup to the FGD system, as additional sluice water for the transport of 

CCRs, and for various other purposes such as fire protection and equipment washing.” EPA 

notes that if ash transport water, even ash transport water used in another plant process, is 

ultimately discharged, this would not be consistent with the final rule’s zero discharge 

requirements – unless it was used in the FGD scrubber (see preamble section VIII.G). The final 

rule prohibits the discharge of pollutants in bottom ash transport water and fly ash transport 

water generated after a particular date for non oil-fired units and units greater than 50 MW.

EPA notes that the plant has other options as well. The steam electric power plant could convert 

to a dry bottom ash handling system, and then continue to use the Recycle Water System as it 

has been. EPA notes that, in this situation, the steam electric power plant may need to add fresh 

intake water to the Recycle Water System to make up for the amount that would no longer be 

contributed by the bottom ash sluicing system, but in this case, the amount of water would be no 

more than the amount of intake that was previously withdrawn for use in the bottom ash sluicing 

system.

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 3

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

2. Internal Monitoring

The ELG proposal also imposes internal monitoring obligations that require sources to 

demonstrate compliance internally prior to the mixing of a waste stream with other streams. EPA 

generally refers to these requirements as "anti-circumvention" provisions that are intended to 

prevent dilution and maximize the reductions achieved at the facility.

The proposed rule explains that an integral part of the monitoring operation is the point at which 

a sample is collected for testing. Each of the EPA's options in the proposed rule appears to 

require internal monitoring. If wastewater cannot be, discharged due to a dry handling 

requirement, the proposed rule would prohibit the reuse of that wastewater in a system that 

would eventually discharge the water. OPPD has taken steps to re-use water in plant systems to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-279

minimize withdrawals from natural surface water bodies. These internal monitoring provisions 

would significantly impair OPPD's ability to beneficially re-use water within the plants.

Because the proposed rule covers existing facilities where piping layouts already exist and access 

points are limited, these requirements may come at locations in the process where it is costly and 

difficult to install the required monitoring equipment. Therefore, these requirements could lead 

to a reduction in beneficial reuse or recycling of wastewater at existing facilities if the 

monitoring obligations cannot be met due to system configuration or other constraints.

For these reasons, OPPD urges that the final rule to maintain current water re-use practices and 

to encourage, not discourage, new water re-use practices for power plants.

Finally, the Technical Development Document for Proposed Effluent Limitations Guidelines and 

Standards for the Steam Electric Generating Point Source' Category (TDD) notes that under 

various wastewater streams internal compliance monitoring requirements will apply, including 

for Flue Gas Desulfurization (FGD) wastewater, ash transport water and Flue Gas Mercury 

Control (FGMC) System wastewater, gasification wastewater, and combustion residual 

leachate. However, the existing regulations at 40 C.F.R. 122.45(h) state that internal monitoring 

is only permitted when standards at the point of discharge are impractical or infeasible. EPA has 

requested comment5on how internal monitoring will affect water re-use, noting that the agency 

believes that dilution and waste stream interaction make internal monitoring necessary to ensure 

compliance. EPA has not met the burden of demonstrating that monitoring at the point of

discharge is impractical. If EPA insists upon imposing an internal monitoring requirement, one 

alternative option could be to require monitoring at the point of discharge using the most 

restrictive limit of all upstream processes. This would allow existing treatment systems designed 

to handle combined waste streams to continue operation while ensuring that the discharge 

requirements are met.

5 Because of the high degree of dilution and the number of waste stream sources containing 

similar pollutants, effluent limits and monitoring requirements for certain internal waste streams 

(e.g., FGD wastewater, combustion residual leachate, gasification wastewater) are necessary to 

ensure appropriate control of the pollutants present in the wastewater. EPA requests comment on 

the extent, if any, to which this provision may discourage water re-use." 78 Fed. Reg. 34465-

34466 (June 7, 2013).

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-280

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regardless of the form of the above considerations, EPA should provide sufficient flexibility 

such that sources are encouraged to recycle and reuse waste streams in varying process designs, 

many of which may have constraints on the available options for internal monitoring. By making 

these changes in the monitoring and compliance requirements, EPA can reduce the burden on 

regulated sources without compromising environmental quality. Sources that chose to take 

proactive environmental actions such as creating a zero pollutant discharge process or engaging 

in beneficial reuse or recycling of water should not be penalized for taking such an approach, but 

rather should be encouraged to engage in these actions. By removing unnecessary monitoring 

requirements EPA will promote such innovations and benefit the environment.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NRECA also recommends:

Continued and expanded use of centralized wastewater treatment and measures to 

encourage recycling, re-use and conservation of water.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-281

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Continued and expanded use of centralized wastewater treatment and measures to 

encourage recycling, re-use and conservation of water. The proposed “anti- circumvention” 

provisions will either duplicate or conflict with EPA regulations that also address the same issues 

(i.e., mixing of wastestreams, internal limits, and analytical methods with sufficiently sensitive 

detection limits). Instead of such an environmentally ill-advised approach, EPA should explicitly 

allow facilities to implement “water bubbles” such as those allowed in the effluent guidelines for 

the iron and steel industry. EPA should also allow trading between and among sources –

including power plants subject to the ELG rule – on a local, state, or even interstate basis of 

pollutants such as that currently being piloted in the Ohio River basin.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Regarding trading and “water bubbles,” see response to DCN EPA-HQ-OW-2009-0819-3922-

A1, Excerpt Number 3.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-282

Commenter Name: Erik Silvola

Commenter Affiliation: Great River Energy (GRE)

Document Control Number: EPA-HQ-OW-2009-0819-4572-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We also believe the “anti-circumvention” provisions are problematic. These provisions could 

require multiple identical treatment systems for waste streams that are similar composition and 

often irrelevant in terms of their chemical composition and volume. They could also discourage 

recycling, reuse, and water conservation.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

LPPC supports the development of flexible mechanisms for monitoring and demonstrating 

compliance with the new ELG requirements. There are several ways in which flexibility in 

monitoring and compliance demonstration can decrease the cost of the proposed rule without 

adversely affecting human health or the environment. It is imperative that EPA focus on the 

important issue of minimizing the release of pollutants, while also reducing the burdens 

associated with monitoring and compliance that do not efficiently advance health and 

environmental goals. EPA must clarify in the rule that the ELG requirements do not apply to 

waste streams that are not discharged to waters of the United States, for example from zero 

discharge facilities or facilities where wastewater is recycled or otherwise beneficially reused. 

Notable examples discussed below include the monitoring of zero discharge waste streams and 

internal monitoring of separate waste streams.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-283

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the application of the anti-circumvention provisions in the final rule to wastewater 

that are not ultimately discharged, see response to DCN EPA-HQ-OW-2009-0819-4485-A1, 

Excerpt Number 5.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Requiring monitoring of such zero discharge processes is not justified from an environmental 

policy perspective. To put it simply, it adds significant costs for compliance while providing no 

public health or environmental benefits.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4485-A1, Excerpt Number 5.

Commenter Name: Katherine Rubin

Commenter Affiliation: Los Angeles Department of Water and Power (LADWP)

Document Control Number: EPA-HQ-OW-2009-0819-4658-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

During the development of the proposed ELGs Rule, USEPA considered some data from 

generating stations which comply with the Clean Water Act by not discharging to any surface 

waters or a sewer. LADWP is concerned that the new ELGs Rule is not clear on its applicability 

and may be extended beyond its intended scope; that is, by regulating internal processes in 

generating stations that do not discharge to surface waters or POTWs. EPA needs to clarify that 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-284

the proposed rule would exempt those waste streams from coverage under the guidelines because 

they are not regulated by an NPDES permit or sewer discharge permit.

LADWP requests USEPA insert a clarification into the ELGs stating that the ELGs apply only 

for those facilities with National Pollutant Discharge Elimination System (NPDES) permits and 

for permits that provide limitations for discharge to municipal sewers in compliance with 

National Pretreatment Regulations. Further, LADWP requests USEPA state in the ELGs that 

impoundment ponds that do not discharge effluent to surface waters are not to be considered as 

subject to NPDES permits.

LADWP also supports the LPPC comments that request USEPA clarify in the ELGs that in-plant 

liquid waste streams that are recycled and not discharged to surface waters are not regulated 

using the ELGs.

Finally, LADWP requests that the USEPA clarify that combustion residualleachates from 

unlined landfills that are on-site, which do not directly or indirectly discharge to surface waters 

(and thus are not permitted under the NPDES) are not covered by the ELGs Rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4485-A1, Excerpt Number 5. What facilities are 

point sources requiring a permit is outside the scope of the final rule. This rule applies to 

facilities requiring NPDES permits.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The ELG proposal also imposes internal monitoring obligations that require sources to 

demonstrate compliance internally prior to the mixing of a waste stream with other streams. EPA 

generally refers to these requirements as “anti‐circumvention” provisions that are intended to 

prevent dilution and maximize the reductions achieved at the facility.

The proposed rule explains that an integral part of the monitoring operation is the point at which 

a sample is collected for testing.12 Each of EPA’s options in the proposed rule appears to require 

internal monitoring. These internal monitoring provisions would significantly impair industry’s 

ability to beneficial re‐use water within the plants.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-285

For example, if the wastewater cannot be discharged due to a dry handling requirement, the 

proposed rule would prohibit the reuse of that wastewater in a system that would eventually 

discharge the water. In addition, fly ash sluice water would no longer be able to be used in the 

scrubber process if the water would eventually be discharged. LPPC members, and others within 

the electric power industry, have taken steps to re‐use water in plant systems to minimize 

withdrawals from natural surface water bodies. Beneficial re‐use of water within plants should be 

encouraged and these internal monitoring provisions would inhibit industry’s ability to do so.

Because the proposed rule covers existing facilities where piping layouts already exist and access 

points are limited, the internal monitoring may be required at locations in the facility where it is 

costly and difficult to install the required equipment. Therefore, these requirements could lead to 

a reduction in beneficial reuse or recycling of wastewater at existing facilities if the monitoring 

obligations cannot be met due to system configuration or other constraints.

For these reasons, LPPC urges that the final rule maintain current water re‐use practices and to 

encourage, not discourage, new water re‐use practices for power plants.

Finally, the Technical Development Document for Proposed Effluent Limitations Guidelines and 

Standards for the Steam Electric Generating Point Source Category (TDD)13 notes that under 

various wastewater streams internal compliance monitoring requirements will apply, including 

for FGD wastewater, ash transport water and FGMC wastewater, gasification wastewater, and 

combustion residual leachate.14 However, the existing regulations at 40 C.F.R. 122.45(h) state 

that internal monitoring is only permitted when standards at the point of discharge are 

impractical or infeasible.15

EPA has requested comment16 on how internal monitoring will affect water re‐use, noting that 

the agency believes that dilution and waste stream interaction make internal monitoring 

necessary to ensure compliance.17 EPA has not met the burden of demonstrating that monitoring 

at the point of discharge is impractical. If EPA insists upon imposing an internal monitoring 

requirement on wastewater streams that are eventually discharged to waters of the United States, 

one alternative option could be to require monitoring at the point of discharge using the most 

restrictive limit of all upstream processes. This would allow existing treatment systems designed 

to handle combined waste streams to continue operation while ensuring that the discharge 

requirements are met.

12 78 Fed Reg. 34,523 (June 7, 2013).

13 Technical Development Document for the Proposed Effluent Limitation Guidelines and 

Standards for the Steam Electric Power Generating Point Source Category, EPA‐821‐R‐13‐002, 

April 2013.

14 78 Fed. Reg. 34,523 (June 7, 2013).

15 40 C.F.R. 122.45(h).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-286

16 Because of the high degree of dilution and the number of waste stream sources containing 

similar pollutants, effluent limits and monitoring requirements for certain internal waste streams 

(e.g., FGD wastewater, combustion residual leachate, gasification wastewater) are necessary to 

ensure appropriate control of the pollutants present in the wastewater. EPA requests comment on 

the extent, if any, to which this provision may discourage water re‐ use.” 78 Fed. Reg. 34,465‐

34,466 (June 7, 2013).

17 Id.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regardless of the form of the above considerations, EPA should provide sufficient flexibility 

such that sources are encouraged to recycle and reuse waste streams in varying process designs, 

many of which may have constraints on the available options for internal monitoring. By making 

these changes in the monitoring and compliance requirements, EPA can reduce the burden on 

regulated sources without compromising environmental quality. Sources that take proactive 

environmental actions such as creating a zero pollutant discharge process or engage in beneficial 

reuse or recycling of water should not be penalized for taking such an approach, but rather 

should be encouraged to engage in these actions. By removing unnecessary monitoring 

requirements EPA will promote such innovations and benefit the environment.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-287

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: H. Morriss Barney IV

Commenter Affiliation: Texas Municipal Power Agency (TMPA)

Document Control Number: EPA-HQ-OW-2009-0819-4584-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

TMPA feels the requirement to meet discharge limits for wastestreams/process water prior to 

mixing other process water adds the cost of treatment to water that could be used in other 

processes that do not require fresh/raw water. As a result the proposed measures would 

discourage central treatment and the recycling, re-use, and conservation of water.

TMPA believes the proposed “anti-circumvention” provisions will either duplicate or conflict 

with EPA regulations that also address the same issues (i.e., mixing of wastestreams, internal 

limits, and analytical methods with sufficiently sensitive detection limits). In addition, the 

proposed measures would discourage central treatment and the recycling, re-use, and 

conservation of water. All efforts should be made to encourage recycling and re-use of water. It 

would be foolish for this EPA rulemaking on ELG to have an unintended consequence to reduce 

the amount of water re-use and recycling.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Thomas N. Effinger

Commenter Affiliation: South Carolina Electric & Gas (SCE&G)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-288

Document Control Number: EPA-HQ-OW-2009-0819-4593-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention

The EPA has proposed to utilize specific measures which they call anti-circumvention. The anticircumvention measures place specific requirements on the point of compliance for individual 

waste streams within the power plant. In particular, compliance with FGD wastewater, landfill 

leachate, and other waste streams will be determined prior to any internal mixing. This is a very 

unusual and inconsistent measure to apply to the power industry. We are not aware of any other 

instances where the EPA has applied anti-circumvention measures to other industries or to 

NPDES permits. We believe that this measure will not result in an increased protection of the 

water quality of the receiving stream. We also believe that the EPA is applying this measure to 

the power industry in a manner that is inconsistent with the entire categorical standards program 

and the other 56 categorical standards. It will create a significant regulatory burden on SCE&G 

and the power industry and will not result in an environmental benefit. We recommend that the 

EPA eliminate the anti-circumvention requirement to monitor individual internal wastewater 

streams and continue to determine compliance at the designated outfall of the power generating 

facility to protect the water quality of the receiving stream.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Commenter Name: Thomas N. Effinger

Commenter Affiliation: South Carolina Electric & Gas (SCE&G)

Document Control Number: EPA-HQ-OW-2009-0819-4593-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The EPA has proposed to apply anti-circumvention measures to the individual process streams at 

power plants. We believe this action is inconsistent with the implementation of all the other 

categorical standards developed by EPA. It will result in a significant financial burden to power 

utilities and have very little environmental impact on our water resources.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-289

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d. 

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VIII. Anticircumvention Measures are Unnecessary and Limit Cost-Effective Compliance 

Options

EPA’s plan to require compliance with wastewater limits prior to use in “any other process” is 

more restrictive than the “compliance without dilution” provision currently applicable to 

technology-based limits. TVA does not agree with the proposed approach as it prohibits mixing 

which could be a viable, efficient treatment option (with a concomitant reduction in treatment 

chemicals used).

The proposed ELG condition of having to meet limits prior to use in any other process 

discourages some opportunities for outright discharge elimination which conflicts with the stated 

goals of the Clean Water Act. For example, some facilities might opt to use a wet scrubber’s 

discharge as reagent make-up for a new dry scrubber in an integrated design which would 

essentially evaporate the wet FGD wastewater stream. EPA’s proposed requirement to meet 

limits prior to use in any other process would make that prudent treatment path less attractive.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the application of the anti-circumvention provisions to wastewater that are not 

ultimately discharged, see response to DCN EPA-HQ-OW-2009-0819-4485-A1, Excerpt 

Number 5.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-290

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 41

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt:

A. Sufficiently sensitive analytical methods (SSM)

SSM requirements should be promulgated in general NPDES language, not in individual ELGs.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Commenter Name: Kim Mireles

Commenter Affiliation: Luminant

Document Control Number: EPA-HQ-OW-2009-0819-4614-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

 Luminant believes that this rule will inhibit water reuse and/or recycling, which is of 

particular concern in western and southwestern states like Texas where water is a limited 

resource. Some of the provisions of this regulation may serve to discourage water reuse, 

which is counter to state water use objectives.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-291

Commenter Name: Kim Mireles

Commenter Affiliation: Luminant

Document Control Number: EPA-HQ-OW-2009-0819-4614-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA's Anti-Circumvention" Provisions Would Discourage Water Reuse and Increase 

Demand for Fresh Water

Because water is a scarce resource that calls for good management practices, luminant 

proactively looks for opportunities to reuse and/or recycle water within the plants. For example, 

Bottom Ash Transport Water can be used for make-up water for the FGD system. Under the 

proposal, this use would require additional testing and impose BAT limitations, for internal 

consumptive use, even though this water is not being released to the waters of the U.S. The 

additional expense of treating water to meet discharge limits makes it likely that the water would 

be discharged rather than reused or recycled.

Any additional use of the water for reuse or recycling would only add treatment challenges after 

the next process and add risk to meeting discharge limitations.

The anti-circumvention provisions of the proposed regulation present a number of problems not 

addressed in the preamble. Each of these could result in great expense, with little or no reduction 

in pollutants or environmental improvement, and could result in increased water discharge.

Facilities with aggressive water reuse and recycle water practices to minimize the use of fresh wa

ter and avoid the need to discharge wastewater will be adversely affected by a requirement to tre

at a wastestream to meet permit limits prior to reuse in another system. For these facilities the 

new requirements will not result in a reduction in pollutants and could easily result in an increase 

in the volumes discharged, an increase in the demand for freshwater, the production of additional 

waste streams and even higher water consumption due to the treatment process for discharge. At 

a minimum, higher water consumption would be expected because most treatment processes lose 

approximately 20% of the volume through evaporation or as a result of concentrating the 

wastestream.

If the facility has to treat a wastestream to achieve the permit limits prior to sending the product 

waste water to another internal process for reuse or recycling, the entire cost associated with this 

treatment is essentially an unnecessary expense from a process prospective and will provide no 

benefit to the environment. The prudent decision to ensure compliance may very well be to not 

reuse/recycle the water but to discharge the water immediately and not face the cost and risk that 

additional treatment would be needed after reuse. Consequently, the same volume of freshwater, 

plus the volume lost in treatment (an approximate 120% increase), would then be needed as 

replacement for a consumptive use.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-292

The ability to conserve, recycle and reuse water is particularly important in states where water is 

strictly allocated. For example, some states allocate access and use of "waters in the state" 

through "water rights" or permits, in which water rights or permits holders have limits on the 

amount of water they can access for use and on the amount of water they can consume. These 

states are typically found in the more arid west and southwest regions of the country, and in 

many cases there is no additional water available for allocation, especially for consumptive use. 

The reuse and recycling for consumptive use is not only the most effective and best use of 

wastewaters such as Bottom Ash Transport and FGD, but it also is sometimes a necessity due to 

water availability.

Luminant owns and/or operates numerous coal-fired facilities, and each has various outfalls for 

wastewater types addressed by the proposed rules such as FGD, Bottom Ash Transport water, 

etc. However, none of these outfalls have discharged in over 20 years, and most have never been 

used for a discharge. The outfalls are maintained to provide a degree of flexibility for possible 

catastrophic events such as massive equipment failure, or extreme weather (e.g., hurricanes or 

tropical storms that result in a >25 year- 24 hour rainfall). In fact, over the last 20 years some of 

those sites have had such catastrophic events and were still able to avoid discharge; however, 

each situation and event is different so a discharge could have been necessary with only a small 

change in circumstances.

If the anti-circumvention provisions had been in place during the last 20+ years, Luminant would 

have collected over 5,000 analyses for each parameter and would have reported values on the 

Discharge Monitoring Reports (DMR) - even though no water was actually discharged. During 

that same period, Luminant avoided the consumption of an estimated additional 30,000 to 60,000 

acre-feet of fresh water3and also avoided the discharge of a similar amount of wastewater.

The requirement to report values on a Discharge Monitoring Report (DMR) for water that has 

transferred internally and has in-fact not been discharged into the environment is a major 

concern. Reporting such information would seem to be, at best, false or misleading and 

completely counter to the original purpose of the DMR. Not only could it present several legal 

issues, but it would also be easily susceptible to misunderstandings and misuse, and possibly 

even subject a permittee to enforcement actions for water that was never actually released to the 

environment.

The agency should also consider that the anti-circumvention provisions could, and in many cases 

would, necessitate the construction and operation of additional wastewater facilities to provide 

storage for wastewater awaiting treatment or for periods where treatment processes are out-ofservice or do not achieve the required quality. Depending on the physical size and/or location of 

the facility, there may not be adequate space for the necessary additional facilities.

Water availability and the prudent use of water are critical issue in many parts of the country. 

Reuse and recycling minimizes discharge of wastewater and the demand for freshwater. As 

proposed, the anti-circumvention provisions would greatly penalize facilities that currently 

reuse/recycle waste water for consumptive uses. While these practices minimize discharges and 

the use offreshwater, sites still need to be prepared to discharge in emergency situations. These 

situations, costs, and impacts were not considered by the agency. Discouraging water reuse and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-293

recycling are not just counter to the purported purpose of this regulation but also EPA's mission 

of preserving resources. EPA has not adequately considered the cost and potential negative 

impacts of the anti-circumvention concept on sound wastewater management practices employed 

at many sites across the county. For these reasons, the agency should eliminate the proposed 

anti-circumvention requirements.

3 An acre foot of water equals 325,851 gallons, and is the unit of measure used for "water rights" 

or water use permits.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the application of the anti-circumvention provisions to wastewater that are not 

discharged, see response to DCN EPA-HQ-OW-2009-0819-4485-A1, Excerpt Number 5. 

EPA expects that steam electric power plants will be able to meet their effluent limitations or 

standards at all times. If an exceedance is caused by an upset condition, the plant would have an 

affirmative defense to an enforcement action if the requirements of 40 CFR § 122.41(n) are met. 

See preamble section XVI.

Commenter Name: Kim Mireles

Commenter Affiliation: Luminant

Document Control Number: EPA-HQ-OW-2009-0819-4614-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

While issues associated with coal types high in chlorides may prevent the reuse of water and 

increase effluent discharges from such facilities, consideration should be given to plants like 

Luminant's that burn lignite and PRB coals and are not hindered by high chloride effluent. At 

these types of facilities, it is important to support the recycling and reuse of water because of 

importance of water conservation. EPA should reconsider whether it is appropriate to establish 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-294

internal effluent limitations that could potentially affect a plant's ability to reuse water, especially 

for plants located in drought prone areas that do not burn high-chloride fuels.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

However, guidance is needed for the BPJ standards and we believe all stakeholders may have an 

interest in commenting on any such BPJ guidance before it is issued in its final form.

Comment Response: 

Guidance for BPJ is outside the scope of the final rule.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire (PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

This anti-circumvention provision would discourage the reuse of water, which conflicts with 

EPA’s previous statements encouraging the use of centralized treatment systems. See EPA’s 

1980 Steam Electric Development Document at 470 (“Consolidation of waste streams to a 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-295

centralized treatment system is permitted and encouraged.”). As EPA stated in the 1974 

Preamble to the steam electric guidelines:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. at 36,186, 36,196 (Oct. 8, 1974). EPA even has a “mixed wastestream” rule for the 

steam electric industry. See 40 C.F.R. § 423.12(b)(12). However, in the Proposed Rule, EPA 

discourages mixing. For example, EPA states that whenever flue gas mercury control waste 

water is used in any other plant process or is sent to a treatment system at the plant, the resulting 

effluent must comply with the discharge prohibition for flue gas mercury control. 78 Fed. Reg. at 

34523-24, 34535 (proposed for codification at 40 C.F.R. § 423.12(i)(1)).

EPA is also proposing to require that FGD waste water and non-metal cleaning waste water 

either be treated in a chemical treatment tank before being transferred to an impoundment, or 

else, if any newly generated waste water is mixed with legacy waste water, all of the water in the 

impoundment must go to the treatment tank for treatment before being discharged to a water of 

the United States. See TDD at 14-4. As explained below, requiring monitoring before these 

waste waters go to the impoundment cuts off the treatment process, requires the use of additional 

chemicals, and will require piping to accommodate the tank or series of tanks used. On the other 

hand, requiring all of the waste water in the impoundment to go through a treatment tank is 

wasteful. Not only will it increase costs, as there will be a much larger volume of fluid 

transported (which will require additional piping and re-routing of current pipes), but it will also 

increase the amount of chemicals needed to treat all of the impoundment water, which up until 

now has been considered waste water with minimal environmental impact.

As EPA explains in the TDD, surface impoundments are designed to remove particulates from 

waste water by means of gravity. Id. at 6-9. The FGD solids, as well as any fly ash or bottom ash 

from other waste streams that are commingled in the impoundment settle out of the waste water 

into the bottom of the impoundment. In order for this to occur, the waste water must reside in the 

impoundment long enough to settle the desired particle size. As EPA states:

Impoundments can effectively reduce TSS in ash transport water, particularly bottom ash 

transport water, which contains relatively dense ash particles. Because impoundments remove 

solid particles, they may also effectively remove some metals from fly ash transport water when 

the metals are present in suspended particulate form.”

Id. Thus, requiring chemical treatment before the internal waste water goes to the impoundment 

cuts off the treatment process. A facility may be subject to site-specific NPDES permit limits that 

may require additional internal treatment by the facility. However, the facility should be able to 

choose the internal treatment processes needed to comply with end-of-the-pipe limits without 

EPA dictating what they must be.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-296

If EPA is concerned with commingling and dilution of waste waters, EPA should require internal 

monitoring of waste streams, but not internal numerical limitations. The Eighth Circuit and D.C. 

Circuit have both held that the agency does not have the authority to impose effluent limitations 

upon such nonpoint source discharges, but the agency can require monitoring. See AISI, 115 

F.3d at 996 (“although the EPA has the statutory authority to require the monitoring of 

discharges from sources within a facility, the agency exceeded its authority when it sought to 

impose effluent limitations upon nonpoint-source discharges.”). Only discharges to waters of the 

U.S. should be numerically limited. Nevertheless, as described below, commingling and dilution 

of waters should not be a concern for EPA.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire (PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 63

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Under this anti-circumvention provision, whenever a waste water that is subject to zero discharge 

is mixed with other waste waters or used in any other plant process, the resulting effluent must 

comply with the discharge prohibition. The effect of this rule would be that the zero discharge 

waste stream is either dry-handled or converted to a closed loop system. For example, no longer 

could fly ash waste water be recycled for use in ash transport processes and/or other plant 

processes because to continue to do so would also subject any subsequent processes to which this 

fly ash waste water is routed to a zero waste water discharge limitation.. This rule not only 

discourages water re-use, but also unjustifiably imposes the use of expensive and unreliable ZLD 

technology on power plants.

For example, EPA proposes under Option 4 to require dry handling for bottom ash waste. 

However, EPA has recognized for decades that bottom ash (and therefore bottom ash transport 

water) is relatively inert and generally contains only small amounts of toxic pollutants. For 

instance, in 1980, EPA proposed to reject more stringent regulations of bottom ash because it 

found that, at most plants, the priority inorganic pollutants detected in bottom ash were less than 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-297

the concentrations detected in the raw or intake water source. 45 Fed. Reg. 68,328, 63,338 (Oct. 

14, 1980). EPA concluded that the high costs associated with recirculating bottom ash sluice 

water made the option unjustified because of the inability to quantify pollutant reductions. Id. In 

confirming this finding in 1982, EPA determined that the “[a]nalysis of available wastewater 

sampling data did not indicate that a quantifiable reduction of toxic pollutants would be achieved 

by requiring technologies beyond the BPT control level.” EPA, Development Document for 

Effluent Limitations Guidelines and Standards and Pretreatment Standards for the Steam Electric 

Point Source Category, EPA-HQ-OW-2009-0819-2186 at 498 (1982 Development Document).

The same reasoning applies today. The low level of toxics in bottom ash transport water and 

other similar waste waters, and the high costs of retrofitting bottom ash handling systems and 

other similar systems at existing facilities renders any “zero discharge” approach unjustified.

Moreover, some power plants use bottom ash transport water for makeup water for the scrubber. 

Usually the bottom ash transport water is sent to a settling pond, and then routed to the scrubber 

as makeup. Therefore, this anti-circumvention proposal would interfere with a power generator’s 

efforts to reuse and thus conserve water. This also conflicts with EPA’s previous statement 

encouraging the use of centralized treatment systems and the mixing of similar waste streams for 

treatment. See 39 Fed. Reg. at 36,196. Furthermore, as explained in detail above, EPA simply 

does not have the data to demonstrate that ZLD technology is available for the industry as a 

whole.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 81.

Commenter Name: Roger E. Claff

Commenter Affiliation: American Petroleum Institute (API)

Document Control Number: EPA-HQ-OW-2009-0819-4641-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA's Imposition of Internal Monitoring of Waste Streams Has Not Been Appropriately 

Justified

EPA's NPDES Permit Writers' Manual (Chapter 5.2, page 5-35) provides the following 

definition of the "Building Block" concept when establishing Technology Based Effluent Limits 

(TBELs) for a facility's final effluent based on the effluent guidelines for industrial categories 

that have many subcategories (such as the existing and proposed Steam Electric Power Plant 

ELG's):
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-298

NPDES permit writers often find that a facility employs multiple processes each with its own 

effluent guidelines requirement. In addition, sometimes effluent guidelines .from multiple 

categories and subcategories apply to wastewaters for a single facility. When a facility is

subject to effluent guidelines for two or more processes in a subcategory or to effluent guidelines 

.from two or more categories or subcategories, the permit writer must apply each of the 

applicable effluent guidelines to derive TBELs. In applying multiple effluent guidelines, the 

permit writer should use measures of actual production or flow that are reasonable with respect 

to operation of multiple processes at the same time. For example, if maximum production for one 

process can occur only when there is reduced production for a second process , it might not be 

reasonable to assume maximum production levels for both processes at the same time when 

applying the effluent guidelines. If all wastewaters regulated by effluent guidelines are treated 

separately but are combined before the discharge, the permit writer may establish internal 

outfalls and separately apply the effluent guidelines at the respective internal outfall as 

discussed in § 122.45(h) and in Step 7 below. More commonly, wastewater streams regulated by 

effluent guidelines are combined during or before treatment. In such a case, the permit writer 

combines the allowable pollutant loadings from each set of requirements or from each set of 

effluent guidelines to arrive at a single TBEL for the facility using a building block approach.

Page 5-32 of the NPDES Permit Writers' Manual previously describes how the Building Block 

approach is used to define the TBELs for a facility's final effluent:

The effluent limitations guidelines and standards for the TEC industry... [example industry used 

in the Manual] are concentration-based and adhere to the building block concept. Each 

regulated wastestream in an outfall is typically assigned a mass-based discharge allowance 

based on a calculation of its applicable concentration-based limitation and annual average 

flow. The sum of the allowances is the total mass discharge allowance for the outfall. In other 

words, the applicable permit limitations for facilities in more than one subcategory is the sum 

of the mass loadings based upon production in each subcategory and the respective subcategory 

effluent limitations guidelines. Mass-based limitations for unregulated or dilution wastewater 

streams at direct discharging facilities are established using [BPJ].

Based on this "Building Block" approach, the final effluent limits for a complex facility with 

numerous sub-categories within the effluent guidelines for industries such as Steam Electric 

Power Generation and Petroleum Refining are derived by adding up the mass allocations for 

each pollutant across all relevant sub-categories within a given facility. Depending on the 

industry, these mass allocations are based on individual process water flow rates and 

concentration limits (e.g. Steam Electric Power Generation) or the production rates of major 

process units (e.g. Petroleum Refining).

The permitting authority, then, imposes final effluent limits calculated by this "Building Block" 

approach and compliance is ascertained at the point of facility discharge. Even for facilities with 

submerged outfalls, the final effluent outfalls can have metering stations (to monitor and record 

flow) and sampling stations (to collect composite or grab samples) for final effluent compliance 

determinations. 40 CFR Part 122.45(h) provides the criteria that must be considered before a 

permitting authority can abandon this "Building Block" approach and impose effluent limits on 

an internal waste stream:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-299

(h) Internal waste streams. (1) When permit effluent limitations or standards imposed at the 

point of discharge are impractical or infeasible, effluent limitations or standards for discharges 

of pollutants may be imposed on internal waste streams before mixing with other waste streams 

or cooling water streams. In those instances, the monitoring required by

§ 122.48 shall also be applied to the internal waste streams.

(2) Limits on internal waste streams will be imposed only when the fact sheet under § 124.56 

sets forth the exceptional circumstances which make such limitations necessary, such as when 

the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at 

the point of discharge are so diluted as to make monitoring impracticable, or the interferences 

among pollutants at the point of discharge would make detection or analysis impracticable.

The Proposed Rule imposes effluent limits on internal waste streams for Flue Gas 

Desulfurization (FGD) and gasification wastewaters. For example, the proposed FGD 

wastewater Best Available Technology (BAT) regulations at 40 CFR Part 423.13 include the 

following requirements:

(g)(1) Except for those discharges to which paragraph (g)(2) of this section applies, 

dischargers must meet the effluent limitations in this paragraph by a date determined by the 

permitting authority that is as soon as possible within the next permit cycle beginning July 1, 

2017. These effluent limitations apply to pollutants in FGD wastewater generated on or after the 

date the permitting authority has determined is as soon as possible. Such effluent limitations 

shall not allow the quantity of pollutants in FGD wastewater to exceed the quantity determined 

by multiplying the flow of FGD wastewater times the concentration listed in the following table:

[table includes Daily Maximum and 30-day Average values for Arsenic, Mercury, Selenium and 

Nitrate]

(g)(2) For any electric generating unit with a total nameplate capacity of less than or equal to 50 

megawatts or that is an oil-fired unit, the quantity of pollutants discharged in FGD wastewater 

shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the 

concentration listed in § 423.12(b)(11).

(g)(3) A discharger must demonstrate compliance with the effluent limitations in paragraph 

(g)(l) of this section, as applicable, by monitoring for all pollutants (except pH) at a point 

prior to use of the FGD wastewater in any other plant process or commingling of the FGD 

wastewater with any water or other process wastewater, except for any combustion residual 

leachate or any other FGD wastewater. Compliance with the effluent limitations must reflect 

results obtained from sufficiently sensitive analytical methods.

The above paragraph (g)(3) of this proposed BAT requirements at 40 CFR Part 423.13 

establishes an internal outfall and point of compliance for FGD wastewater within a steam 

electric power plant. This requirement (and other similar requirements for FGD wastewater and 

gasification wastewater throughout the proposed effluent guidelines) fails to meet EPA's 

"Building "Block" approach for the establishment of final effluent limits for a facility based on 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-300

multiple subcategories, and fails as well to meet the criteria for the establishment oflnternal 

Outfalls as specified by 40 CFR Part 122.45(h)(l) and (2).

Per 40 CFR 122.45(h), internal monitoring shall be required only when monitoring at the point 

of discharge is impractical or infeasible, and in such event, the permit fact sheet shall set forth 

the exceptional circumstances [similarly, under the pretreatment program, the Control Authority 

and Industrial User may derive alternative limits for monitoring at the point of discharge to the 

POTW, in accordance with the Combined Waste Stream Formula, 40 CFR 403.6(e)]. Clearly the 

intention of these regulations is to monitor for compliance with effluent limitation guidelines at 

the facility's point of discharge, not at an internal wastewater stream. Indeed, these provisions 

were established because industrial process and wastewater handling configurations are facility

specific; only monitoring at the point of facility discharge ensures monitoring downstream of all 

categorical process, non-categorical process, and non-process waters, as well as downstream 

of all wastewater treatment operations. Yet EPA has imposed internal monitoring requirements 

on all facilities within the Steam Electric point source category, without specifying for all of 

these facilities the impracticality or infeasibility of monitoring them at point-of-discharge.

The imposition of internal monitoring requirements would likely necessitate costly plant 

reconfigurations and the installation of additional wastewater treatment equipment to treat FGD 

wastewaters (if even allowed by the proposed ELGs) at many facilities with no commensurate 

environmental benefit. The only alternative to these costly facility modifications would be to 

seek a different low-metal fuel for the power plant (see below). EPA should not impose internal 

monitoring requirements on all facilities when costs for many facilities will be quite high and in 

any case the costs and benefits do not apply to all facilities but are clearly facility-specific. EPA 

should delete the provisions requiring internal monitoring.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Commenter Name: Roger E. Claff

Commenter Affiliation: American Petroleum Institute (API)

Document Control Number: EPA-HQ-OW-2009-0819-4641-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Imposition of Internal Monitoring/Compliance Requirements for Power Plant FGD 

Waters Interferes with Commerce by Regulating Chemical Characteristics of Energy 

Sources Without Commensurate Environmental Benefit
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-301

For any energy source utilized by a Steam Electric Power plant (e.g. coal, fuel oil, natural gas, 

etc.), the concentration and mass loading of mercury, selenium, arsenic and other trace elements 

in FGD waters will be directly related to the concentration of such elements in the plant's energy 

source(s). By not allowing the above-described Building Block approach to establish TBELs for 

the plant's final effluent and by establishing an internal outfall and monitoring point for FGD 

wastewater prior to the installation of any additional FGD wastewater or combined wastewater 

treatment, EPA is attempting to regulate the chemical characteristics of the energy source(s) to a 

power plant. Without the opportunity for additional treatment of FGD wastewaters or combined 

final effluent treatment, the only way a plant could meet these requirements is by self-imposing 

criteria for the concentration of mercury, selenium and arsenic in the plant's energy source(s), 

severely constraining the power plant to the exclusive use of low-metal fuels. Such a constraint 

would be extremely costly, if indeed such low-metal fuels could even be found. Such a 

requirement provides no corresponding water quality benefits commensurate with this cost. The 

imposition of this requirement on energy sources extends well beyond the authority granted to 

EPA under the Clean Water Act and will interfere with national and international commerce and 

the nation's energy supplies.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed “anti-circumvention” provisions are undesirable because they will either duplicate 

or conflict with EPA regulations that address the same issues (i.e., mixing of wastestreams, 

internal limits, and “sufficiently sensitive” analytical methods). Moreover, the proposed 

measures would discourage central treatment and the recycling, re-use, and conservation of 

water.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-302

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 215

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXIX. EPA’s Internal Limits Are Unnecessary and May Discourage Water Reuse

As part of its so-called “anti-circumvention” measures, EPA proposes requirements for internal 

monitoring of some wastestreams inside the plant instead of at the outfall to receiving 

waters. See 78 Fed. Reg. at 34,465-66, 34,524.

The proposed ELG rule would add a “monitoring prior to use or comingling” rule for FGD 

wastewater and gasification wastewater:

(3) A discharger must demonstrate compliance ... at a point prior to use of the [wastestream] in 

any other plant process or commingling of the [wastestream] with any water or other process 

wastewater,...

Proposed § 423.13(g)(3) (BAT for FGD wastewater), § 423.13(j)(3) (gasification 

wastewater). (This also appears in the new source performance standards.) Exceptions are that 

FGD wastewater may be mixed with combustion residual leachate or other FGD wastewater.

The proposed rule also contains “resulting effluent” language for “no discharge” requirements 

for FGMC wastewater and bottom ash transport water, which says that, whenever the wastewater 

is used in any other plant process or sent to a treatment system at the plant, the resulting effluent 

must comply with the “discharge prohibition” of the individual wastestream. Proposed §§ 

423.13(i)(1) (FGMC wastewater), 423.13(k)(1) (bottom ash transport water “no discharge” 

requirement).

EPA discusses these internal monitoring provisions briefly at 78 Fed. Reg. at 34,523, 34,465-66, 

and Section 14 of the TDD. In a nutshell, FGD wastewater limits must be met internally, before 

mixing with any other wastestream except other FGD wastewater or combustion residual 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-303

leachate. Wastestreams with a “no discharge” limit (ash transport water and FGMC wastewater) 

must also comply internally. Gasification wastewater must also (unless completely reused in the 

gasification process). And combustion residual leachate would have to comply internally under 

Options 4 and 5, except that leachate could be comingled with FGD wastewater or legacy 

combustion residual leachate that is treated to the BAT/NSPS standards. See 78 Fed. Reg. at 

34,523 col. 3.

On their August 20, 2013 webcast, EPA staff said that EPA’s existing mixed wastestream 

formula would cause “insurmountable challenges.” Attachment 28, p. 26. EPA staff’s concern 

is that FGD wastewater might be mixed with ash transport water or coal pile runoff. Id. Based 

on a phone call between UWAG and EPA staff on August 28, it appears EPA is also concerned 

that power plants do not have precise measures of internal flow rates.

Nevertheless, UWAG recommends that EPA delete the internal monitoring requirements for 

bottom ash transport water, FGMC wastewater, FGD wastewater, and combustion residual 

leachate.

The proposed requirements are contrary to EPA’s traditional goal of encouraging centralized 

waste treatment. EPA in the past has encouraged centralized treatment. The 1974 Preamble to 

the steam electric guidelines said:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost-saving alternatives in meeting the 

effluent limitations should not be discouraged.

39 Fed. Reg. at 36,196, col. 3. Likewise, EPA’s 1980 Proposed Development Document for the 

Effluent Limitations Guidelines and Standards for the Steam Electric Point Source Category said 

“[c]onsolidation of waste streams to a centralized treatment system is permitted and 

encouraged.” 1980 Development Document at 470.

Moreover, the mixing requirements, if broadly applied, might interfere with the important goal of 

reusing and conserving water. For example, some power stations use bottom ash transport water 

as makeup water for the scrubber. The bottom ash transport water is sent to a settling pond, then 

routed to the scrubber as makeup. Requiring internal limits may discourage this practice.

As another example, internal limits or restrictions on comingling might require separate ponds 

for coal pile runoff and low volume waste. At present, coal pile runoff has a TSS maximum 

limit of 50 mg/L (40 C.F.R. § 423.12(b)(a) (BPT). Low volume waste has TSS limits of 100.0 

mg/L daily max and 30.0 mg/L monthly average (40 C.F.R. § 423.12(b)(3) (BPT)). At many 

plants it is sensible to treat both coal pile runoff and low volume waste in a single pond.

The proposed new anti-circumvention measures (except for the “sufficiently sensitive” rule) do 

not appear to apply to either of these wastestreams. But the example shows that EPA must be 

careful not to write the rule in a way that prevents centralized treatment of different 

wastestreams.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-304

Another example is combustion residual leachate. If EPA separated leachate from low volume 

wastes and made it a separate wastestream and if, as in Options 4 and 5, EPA required leachate 

to be separately monitored and treated, normal operations at some plants would be disrupted. A 

plant that was permitted to send collected leachate to an ash pond would have to make significant 

changes, and EPA has not adequately considered the cost of these changes.

It is likely the internal monitoring requirements would prevent water reuse at many power 

plants. At one nuclear plant, for example, water treatment plant blowdown, demineralizer 

regeneration wastewater, and miscellaneous (non-radiological) floor drains – all low volume 

wastes – are partially treated in sedimentation lagoons before being recycled to the head of the 

water treatment plant. These wastestreams contribute to the makeup water flow to the plant 

(modestly reducing river intake demand) and are further treated by the conventional intake water 

treatment (flocculation and settling) before being used for cooling tower makeup or radwaste 

treatment effluent dilution or both (as required by the NRC license). Sanitary wastewater at this 

plant is treated separately in a three-cell lagoon treatment system, polished in two constructed 

wetlands, and also recycled to the head of the water treatment plant. Because of this recycling, 

the state permitting agency considers individual wastestreams/treatment systems nondischarging. There would be little incentive to continue this reuse if effluent from each of the 

sedimentation ponds and wetlands had to be monitored and meet low volume waste and state 

sanitary effluent limitations.

We do not believe EPA has justified why the existing “internal limits” rule is not adequate. As 

noted, EPA already has an internal monitoring rule, 40 C.F.R. § 122.45(h) (“Internal waste 

streams”). EPA’s proposed ELG anti-circumvention rules are not consistent with this rule, 

which recognizes that internal controls are authorized only for unusual circumstances.

In particular, § 122.45(h) allows internal limits where it would be “impractical or infeasible” to 

impose them at the outfall. Internal limits will be imposed only when “exceptional 

circumstances” make internal limits necessary, such as when the final discharge is inaccessible, 

the wastes are so diluted as to make monitoring impracticable, or interactions among pollutants 

would make detection or analysis impracticable. UWAG does not believe EPA’s record in this 

rulemaking supports the idea that these “exceptional circumstances” are present categorically for 

FGD wastewater or combustion residual leachate or for the “no discharge” wastestreams of ash 

transport water, FGMC wastewater, and gasification wastewater. Nor has EPA shown that the 

existing mixed wastestream rule (“the quantity of each pollutant ... attributable to each 

controlled waste source shall not exceed the specified limitation for that waste source,” 40 C.F.R. 

§ 423.13(h)) is categorically inadequate for those wastestreams.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-305

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Jerry Schwartz

Commenter Affiliation: American Forest & Paper Association (AF&PA)

Document Control Number: EPA-HQ-OW-2009-0819-4656-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

UWAG’s comments also highlight numerous problems with the “anti-circumvention provisions” 

in that they would duplicate or conflict with existing EPA regulations addressing the same issue 

and would inhibit practices EPA should be encouraging, such as re-use and conservation of 

water.

The Proposal also includes application of requirements from the “Sufficiently Sensitive” 

rulemaking. EPA has yet to issue a final rule, and it should not be including provisions from that 

rulemaking in the Proposal. In any event, EPA should not include in the final ELGs a 

requirement for using an analytical method that is not already in 40 CFR Part 130.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently-sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Amy Trojecki

Commenter Affiliation: Exelon Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4662-A2

Comment Excerpt Number: 9
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-306

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Moreover, the proposed anti-circumvention measures would prevent water reuse at many power 

plants. In any event, EPA confirmed in its August 20, 2013 webcast that these requirements do 

not apply with respect to nonchemical metal cleaning wastes. Transcript p. 18, 

http://water.epa.gov/scitech/wastetech/guide/steam-electric/upload/webcast_8202013.pdf.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Brian Brazil

Commenter Affiliation: TransAlta Centralia Generation, LLC (TCG)

Document Control Number: EPA-HQ-OW-2009-0819-4665-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comments on Anti-circumvention

The proposed to implement anti-circumvention requirements for demonstrations of compliance 

on individual process wastewater streams within a plant would definitely limit the flexibility of 

plants to recycle wastewater as needed. TCG currently has many uses for recycled wastewater, 

including using combined plant effluent as a portion of the makeup water to the FGD, the bottom 

ash quench system, and the plant fire protection systems. This allows us to significantly reduce 

effluent flows to the receiving water and improve water conservation. Requiring compliance 

demonstration on the low volume wastewater of FGD bleed wastewater after the chemical 

precipitation before it can be recycled to other processes would reduce our ability to utilize this 

water in other processes. To achieve specific limits on the small bleed from the FGC would 

likely eliminate using combined wastewater as makeup and would require more raw water 

makeup for the scrubber as well as for processes where scrubber bleed is recycled, significantly 

increasing total plant effluent discharge flow to the receiving water.

While it may make sense for EPA to prohibit dilution of wastewater with non-contact cooling 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-307

water, EPA must not require compliance on individual wastewater streams within the plant at 

plants that do not dilute effluent streams with non-contact cooling water (once-through water). 

Re-use of these effluent streams must be freely allowed within all plants for water use reduction. 

We do not support any in-plant compliance demonstrations points for individual wastewater 

streams as these will reduce opportunities for water reduction within the plant. If EPA proceeds 

with anti-circumvention guidelines, these must only be applied at plants that have use oncethrough cooling water and could use it in an effort to dilute effluent.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

including use of ash transport water as scrubber makeup, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7. Ash transport water may not be discharged in other 

wastestreams other than to the FGD scrubber. See preamble section VIII for more information.

Commenter Name: John Fainter, Jr.

Commenter Affiliation: Association of Electric Companies of Texas, Inc. (AECT)

Document Control Number: EPA-HQ-OW-2009-0819-4669-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Many AECT members, and other companies that operate electric power plants in Texas, 

aggressively reuse and recycle wastewater that is generated at their electric power plants , such 

as bottom ash transport wastewater and flue gas desulfurization (FGD) wastewater. Such reuse 

and recycling provides the benefits of decreasing the need for raw/unused water at the plants and 

preventing the need for the plants to discharge such wastewater. AECT is concerned that the 

proposed anti-circumvention provision would discourage such reuse and recycling by electric 

power plants in Texas, and possibly stop such reuse and recycling.

The proposed anti-circumvention provision would require that compliance with the new effluent 

limits that are applicable to a particular wastewater stream (e.g., bottom ash transport 

wastewater) be demonstrated prior to use of that wastewater in another plant process (78 

Fed. Reg. 34465), even if the receiving process is typically considered to consumptively use 

the wastewater and there is no real potential to discharge that wastewater. The anticircumvention provision would discourage the reuse and recycling of wastewater by electric 

power plants in Texas because the requirement to treat such wastewater to meet the effluent 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-308

limits could often lead to a decision to discharge wastewater, rather than incur additional cost 

related to handling and subsequently treating it with no commensurate process benefit. Some of 

those increased costs would be due to the treatment equipment and related infrastructure that 

would be required to meet those limits, and the analyses that would be required to demonstrate 

compliance with them. In addition, this would increase the use and consumption of raw/unused 

water that would be required to replace the approximately 20% of the wastewater that would be 

lost during the treatment process, as well as the volume of the wastewater that would be 

discharged. Those increased costs and impacts were not considered by EPA, and they likely 

would be high enough to lead to some, if not many, power plants deciding to no longer reuse or 

recycle some or all of their wastewater, but instead to discharge it.

Less reuse and recycling of wastewater by electric power plants in Texas would cause a 

significant negative impact on Texas' economy and citizens due to current and anticipated future 

water shortage issues in Texas, which necessitate reuse and recycling of wastewater. It appears to 

AECT that EPA does not fully and appropriately understand (i) the extent to which water reuse 

or recycling occurs, and is currently, and will be, required, at electric power plants in Texas, or 

thus, (ii) the extent to which the proposed anti-circumvention provision would discourage, and in 

many cases, lead to the elimination of reuse and recycling of wastewater by such plants. AECT 

believes EPA’s inadequate understanding is likely primarily due to EPA developing 

the Proposed Rules based on data and information regarding electric power plants located in the 

Northeast United States that bum bituminous coal, rather than sub-bituminous coal and lignite 

coal, as are burned at coal-fired electric power plants in Texas. There is probably little to no 

wastewater reuse or recycling at power plants that burn bituminous coal because the high 

chloride content f bituminous coal causes the chloride content of the resulting wastewater to be 

too high for the wastewater to be reused or recycled. In comparison, the chloride content of 

the sub-bituminous coal and lignite coal that are burned in Texas electric power plants is low 

enough that the chloride content of the resulting wastewater does not prevent such wastewater 

from being reused or recycled. As a result, much of the wastewater generated at electric power 

plants in Texas can be, and is, reused or recycled.

In addition to the wastewater generated by electric power plants in the Northeast United States 

that burn bituminous coal not being amenable to being reused or recycled , there is another 

significant difference between such electric power plants and those located in Texas with regard 

to reuse or recycling of wastewater: there is much less of a need to reuse or recycle 

wastewater at electric power plants in the Northeast than at power plants in Texas because 

raw/unused water is generally much more available in the Northeast than it is in Texas . There is, 

and will continue to be, a very significant need for electric power plants in Texas to reuse or 

recycle wastewater because there is both a current and anticipated water shortage in most parts of 

Texas. The anticipated water shortage is due to the increasing demand for water in Texas. The 

increasing need for water in Texas is due to the very significant growth Texas is and will 

continue to experience, in its economy and population. This growth has increased the need for 

raw/unused water for industrial, commercial, municipal, residential, and other purposes. There 

has historically been less water available in Texas than in most parts of the Northeast and Eastern 

United States due to rainfall patterns. The shortage of water in Texas has been exacerbated by

the much lower rainfall that has occurred in almost all of Texas in the past few years, and such 

shortage is expected to be further exacerbated by the much lower rainfall that is expected to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-309

occur for the next few years. This lack of rainfall has caused the severe and record drought that 

is, and has been, impacting almost all of Texas over the last few years, and is expected to 

continue to do so for the next few years.

Another concern about the anti-circumvention provision is that, in many cases, it would 

necessitate the construction and operation of additional wastewater facilities at power plants to 

provide storage for wastewater during periods when the wastewater is awaiting treatment before 

it can be reused or recycled , or when the wastewater treatment process is out-ofservice. Construction of additional wastewater facilities may not be possible for some power 

plants because they have inadequate remaining property on which to locate such ponds.

For the foregoing reasons, AECT requests that EPA not adopt the proposed anti-circumvention 

provision.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards.

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the application of the anti-circumvention provisions to wastewater that are not 

ultimately discharged, see response to DCN EPA-HQ-OW-2009-0819-4485-A1, Excerpt 

Number 5.

Commenter Name: Julia M. Blankenship

Commenter Affiliation: American Municipal Power, Inc. (AMP)

Document Control Number: EPA-HQ-OW-2009-0819-4670-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

As such, compliance with the Proposed ELG Rule’s requirements to separate waste streams 

would be expected to result in burdensome requirements and significant costs to NGCC units 

without commensurate benefits. This is particularly true with the use of chemical and nonchemical metal cleaning wastes in the same part of the plant – segregating these waste streams, 

especially if the effluent limits are identical, makes no sense. In addition, it can prove very 

costly, as conveyances for these waste streams may not be easily accessible or modified. At a 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-310

minimum, the anti-circumvention requirements in the Proposed ELG Rule for these waste 

streams should be left to the discretion of local permit writers.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d. 

Commenter Name: Juliet Cohen

Commenter Affiliation: Chattahoochee Riverkeeper

Document Control Number: EPA-HQ-OW-2009-0819-4671-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Since the EPA's 1982 rulemaking to revise national effluent limitations guidelines (ELGs), no 

changes have been made to the ELGs. Accordingly , current regulations do not adequately 

address the toxic pollutants discharged from steam electric power plants nor have they kept pace 

with process changes that have occurred over the last three decades. Effluent limits at major 

power plants on the Chattahoochee River Basin have less than adequate monitoring requirements 

and few limitations on discharging pollutants of concern. EPA's proposed regulation should 

require monitoring and limitations for harmful pollutants that are known to be in coal 

combustion waste including arsenic, barium, mercury, selenium, lead, cadmium, boron, 

bromides, nitrogen and phosphorous, and other pollutants regulated as secondary standards for 

drinking water.

Comment Response: 

The final rule accomplishes significant removals of pollutants under the technology-based 

provisions of the Clean Water Act. The final CWA ELGs are nationally applicable technology 

based requirements and are not meant to implement standards under the Safe Drinking Water 

Act. For wastestreams where the final rule establishes numeric effluent limitations, effluent 

limitations for all pollutants of concern (POCs) are not necessary to ensure that the pollutants are 

controlled and the BAT or BADCT level of control because many of the pollutants originate 

from similar sources, have similar treatabilities, and are removed by similar mechanisms. 

Because of this, it is sufficient to establish effluent limitations for one or more indicator 

pollutants, which will ensure the removal of other POCs. For wastestreams where the final rule 

establishes zero discharge limitations, all pollutants are directly regulated. See the TDD for more 

information.

Regarding bromide specifically, see preamble sections VIII and XVI. While not part of this 

rulemaking, additional requirements under the water quality based provisions of the Act may be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-311

imposed where necessary to meet applicable water quality standards. See CWA section 

301(bb)(1)(C).

Commenter Name: Raymond L. Evans

Commenter Affiliation: FirstEnergy Corp.

Document Control Number: EPA-HQ-OW-2009-0819-4677-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-Circumvention Rule

The proposed anti-circumvention provisions should be eliminated or at a minimum revised. As 

written, the provisions would discourage the recycling, reuse, and conservation of water that has 

been a long standing policy of EPA. Also, the anti-circumvention provisions contain internal 

monitoring that is inappropriate.

Further, the proposed anti-circumvention provisions require that permittees use "sufficiently 

sensitive" sampling methods. This will lead to unending conflict regarding detection and 

quantitation levels. The measurement of water pollutants needs to be based on reliable and 

defined analytical methods.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently-sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Dennis Wene

Commenter Affiliation: Alcoa Inc.'s Warrick Operations

Document Control Number: EPA-HQ-OW-2009-0819-4765-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-312

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Alcoa-Warrick disagrees with the anti-circumvention measure(s). A requirement that regulates 

wastewater to meet discharge limits prior to combining with other waters or wastewaters would 

result in inefficiencies that run contrary to the intent of the Clean Water Act. If these wastewaters 

cannot be reused, it would cause an increase in water consumption at power plants when EPA 

has touted the benefits of reduced water use in justifying this rule. 40 CFR 423.12(b)(l2) states:

"In the event that waste streams from various sources are combined for treatment or discharge, 

the quantity of each pollutant or pollutant property controlled in paragraphs (b)(I) through (II) of 

this section attributable to each controlled waste source shall not exceed the specified limitation 

for that waste source."

That regulation does not require or even authorize regulation of internal outfalls or imposition of 

effluent limits to internal wastewater streams. It requires only that the pollutants from each 

regulated source or activity that contributes to a combined wastewater stream must be accounted 

for, and the effluent limits at the point source discharge of those pollutants must be at least as 

stringent as the effluent limitations that would apply to each regulated source or activity if that 

source or activity had a point source discharge. This may require application of a mass balance 

analysis and calculation to account for combined wastewaters with differing effluent limits at the 

point where the discharge is actually regulated- at the primary outfall.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Dennis Wene

Commenter Affiliation: Alcoa Inc.'s Warrick Operations

Document Control Number: EPA-HQ-OW-2009-0819-4765-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-313

The collection of these wastewaters is not always simple and requires sump-ponds, and pumps. 

These wastewaters should be allowed to be placed back into the ash pond system and have the 

same limits as currently regulated as low volume but not have separate sampling requirements as 

could be inferred from the "anti-circumvention measures".

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the limitations and standards established by the final rule for combustion residual 

leachate, see response to DCN EPA-HQ-OW-2009-0819-4182-A2, Excerpt Number 6 in 

Comment Code 18.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The anti-circumvention provision of the proposed ELG regulation and the inclusion of new nonchemical metal cleaning wastewater sources would result in non-chemical metal cleaning waste 

regulations that would be impractical to implement, resulting in excessive costs without the 

provision of commensurate environmental protection.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding non-chemical metal cleaning wastes, see response to DCN EPA-HQ-OW-2009-0819-

4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Mark W. Metcalf

Commenter Affiliation: Wisconsin Public Service Corporation (WPS)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-314

Document Control Number: EPA-HQ-OW-2009-0819-4770-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA is considering anti‐circumvention measures, which might require dischargers to 

demonstrate compliance before using a waste stream in another plant process or mixing a waste 

stream with another waste stream. The proposed requirements are contrary to EPA’s traditional 

goal of encouraging centralized waste treatment. EPA in the past has encouraged centralized 

treatment. The 1974 Preamble to the steam electric guidelines said:

It is also recognized by EPA that, due to the economies of scale, combining similar waste 

streams for treatment to remove the same pollutants is generally less costly than separate 

treatment of these waste streams. The employment of cost‐saving alternatives in meeting the 

effluent limitations should not be discouraged.

Under Options 4 and 5, EPA is proposing to require monitoring for compliance prior to use of 

leachate in any other plant process or commingling of the leachate with water or any other 

process wastewater (78 Fed. Reg. at 34,523). As combustion residual leachate is proposed to be 

regulated with effluent limitations equal to the BPT for low volume wastes, it is illogical to 

require this waste stream to meet the BPT/BAT effluent limitations prior to comingling with 

another process that has the same or more restrictive effluent limitation (i.e., bottom ash 

transport water, low volume waste, or nonchemical metal cleaning waste). Moreover, the 

proposed measures would discourage central treatment and the recycling, re‐use, and 

conservation of water. WPSC understands that the intent of the anti‐circumvention language, 

but as proposed the language would effectively eliminate the ability to co‐mingle waste 

streams. The language in 40 C.F.R. § 423.13(h) already identifies that comingling is allowed, yet 

the resultant water is subject to the more restrictive limitations of the original waste stream. 

Additional restrictions requiring compliance with effluent limitations prior to co‐mingling will 

result in significant costs to facilities and is not justified.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-315

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-circumvention and compliance monitoring

The TCEQ recommends that the EPA revisit and reconsider the proposed anti-circumvention 

provisions that would very likely result in significant resource and cost burden to users and 

permitting authorities associated with permitting, compliance monitoring, and reporting.

The proposed rule contains a new "Anti-Circumvention" requirement not found in any other 

effluent limitation guideline. This provision requires monitoring and compliance for specific 

waste streams prior to commingling with any other waste stream (e.g. this effectively requires 

individual outfalls along with individual treatment systems for every waste stream generated at 

steam electric stations). This contradicts historical permitting practices and conflicts with EPA's 

NPDES Permit Writers Manual that establishes a building block approach to allocating pollutant 

loadings when waste streams are combined in common treatment systems (e.g. ponds) prior to 

discharge. The Anti-Circumvention provision is not found in any other effluent limitation 

guideline and TCEQ does not support inclusion of these requirements in these revised effluent 

limitation guidelines.

When considering the number of wastestreams, this provision would clearly result in a 

significant increase in the time and resources for permitting authorities (e.g., POTWs and states).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-316

This is very likely to significantly affect water conservation and reuse and is a significant issue 

today related to the drought and water supply issues. Steam Electric Stations are likely to choose 

not to employ treatment to meet these stringent limitations prior to reusing waste streams within 

the plant and increase use of raw and potable water. Furthermore there are several waste streams 

that Best Available Technology (BAT) has been identified as zero discharge which may further 

impact reuse since these waste streams that could be reused and treated when employed in 

another process and discharged, would no longer be amenable to that practice.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Impacts to Permitting Authorities

TCEQ is of the opinion that by inclusion of the Anti-Circumvention provision there will be a 

substantial increase in effort to permit steam electric stations

The preamble to this rulemaking indicates that there is no impact to permitting authorities 

(including the Paperwork Reduction Act and Federalism) based on these revised guidelines. By 

inclusion of the Anti-Circumvention provision there will be a substantial increase in effort to 

permit steam electric stations. Many new outfalls and requirements will have to be established in 

permits, including development of rationale for new limits, etc. All of these new outfalls will 

require additional testing and record keeping of this new data, including data in permit 

applications and discharge monitoring reports (DMRs). If the impoundment BMPs and other 

associated requirements are included in the adopted rule, that would establish a significant

increase in workload related to review of plans and specs, annual certifications, etc. TCEQ does 

not concur with EPA's finding of no impact to permitting authorities and believes the preamble 

should be revised accordingly.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-317

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

The final rule does establish BMPs. See preamble section VIII for more information.

Commenter Name: Lili Kranitz

Commenter Affiliation: GEA EGI Contracting/Engineering Co. Ltd.

Document Control Number: EPA-HQ-OW-2009-0819-5093-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Therefore, care should be exercised in crafting the anti-circumvention language to allow mixing 

of wastewater for purposes of solidification and stabilization of ash products while preserving 

the intent of the Anti-Circumvention Provisions.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment

Code 26.d.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 38

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed “anti-circumvention” provisions will either duplicate or conflict with EPA 

regulations that also address the same issues (i.e., mixing of wastestreams, internal limits, and 

analytical methods with sufficiently sensitive detection limits). In addition, the proposed 

measures would discourage central treatment and the recycling, re-use, and conservation of 

water. The majority of coal-fired power plants that are owned by public power utilities are 

operated by cities that also operate drinking water or wastewater utilities. All efforts should be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-318

made to encourage recycling and re-use of water. It would be foolish for this ELG rulemaking to 

have the unintended consequence of reducing the amount of water re- use and recycling between 

these two city functions.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.

Commenter Name: Paul Ling

Commenter Affiliation: Kansas City Power & Light Company

Document Control Number: EPA-HQ-OW-2009-0819-5406-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed anti-circumvention provisions should be eliminated or at a minimum revised to address 

negative consequences for reuse strategies and sampling methodology. They are contrary to 

EPA’s traditional goal of encouraging centralized waste treatment.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding the sufficiently sensitive anti-circumvention provision, the final rule does not 

establish an anti-circumvention provision that would have required sufficiently sensitive 

analytical methods. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 

118.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-319

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: J. S. Alves

Commenter Affiliation: Gulf Power Company

Document Control Number: EPA-HQ-OW-2009-0819-5490-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

2. Interference with Water Reuse Objectives

As part of what it has characterized as “anti-circumvention” measures, EPA’s proposed rule 

revisions would require compliance monitoring for several wastestreams prior to reuse or other 

comingling with process wastewater. 78 Fed. Reg. 34465. This requirement would apply to FGD 

wastewater as well as the zero discharge limits for ash transport water and FGMC wastewater. 

EPA specifically requested comments on whether and what extent these anti- circumvention 

provisions “may discourage water re-use.” 78 Fed. Reg. 34466. The proposed anti-circumvention 

provisions would discourage water reuse, and therefore create significant problems for the State 

of Florida and its regulated community.

As EPA may be aware, water supply challenges in Florida are very considerable. Between 1980 

and 2010 the population of Florida increased from 9.7 million to 18.8 million. Additionally, it 

has been estimated that Florida has 76 million visitors every year. This has put a significant 

strain on Florida’s supply of fresh water, which primarily comes from groundwater. Increased 

extraction of groundwater as Florida has grown has resulted in salt water intrusion and concerns 

regarding maintenance of water levels in lakes and rivers.

Florida has been responding to its water supply/water level challenges through several regulatory 

initiatives. One of the most meaningful tools for managing these matters has been enhancing 

water reuse in Florida. Water utilities in Florida have increased reuse by approximately 500% 

since 1986, in part due to the cooperation of Gulf Power Company and other steam electric 

generating systems that work cooperatively with the water utilities on reuse projects. 

Additionally, steam electric plants have been highly incentivized to develop and implement 

opportunities to reuse their own waste streams within their electric generating processes. In 

addition to conserving water supply resources, such reuse also constitutes effective pollution 

control management.

Currently Gulf Power Company’s plants direct wastewater to the ash ponds for re-use in various 

plant systems. The Company utilizes the wastewater for both fly and bottom ash sluicing. In 

addition, we use several hundred thousand gallons a day for use in our shield water system. It is 

unclear whether, under the proposed rule revisions, the Company will be able to continue with 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-320

reusing wastewater in this manner or whether it will be necessary to utilize alternative water 

sources such as groundwater. In addition, at one of the plants we send a small slip steam of 

cooling tower blowdown and stormwater (which could have some ash contact water present) to a 

POTW. This water is treated by the POTW and returned to our plant for re-use. It is unclear 

whether this would be allowed in the future under the anti-circumvention features of the 

proposed rule.

EPA’s proposed anti-circumvention language appears to be based on a stringent application of 

the existing internal wastestream rule, as set forth at 40 C.F.R. §122.45(h). EPA’s internal 

wastestream rule was first promulgated several decades ago, and its continued environmental 

policy value has been overtaken by a Florida regulatory paradigm that places a considerable 

premium on maximizing reuse of wastewater. Such reuse, as implemented by Gulf Power 

Company and other Florida steam electric generating systems, is environmentally beneficial both 

in terms of resource conservation and pollution management. Gulf Power Company requests that 

EPA consider whether its proposal to micro-manage individual steam electric generating plant 

wastestreams under the Part 423 revisions thwarts the systematic and thoughtful Florida policy 

objectives associated with reusing plant wastewaters.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

see response to DCN EPA-HQ-OW-2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: S. L. Phillips

Commenter Affiliation: Louisiana Department of Environmental Quality

Document Control Number: EPA-HQ-OW-2009-0819-5509-A2

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Anti-circumvention Provisions

There are "anti-circumvention" provisions in the proposal, which are intended to prevent dilution 

and ensure reductions in the mass of pollutants released. For example, all technology-based 

limits must be met before a wastewater is reused. If the waste water cannot be discharged (i.e. 

dry requirement), it cannot be reused in a system that will eventually discharge the water. For 

example, fly ash sluice water would no longer be able to be used in the scrubber process if the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-321

water would eventually be discharged. Power plant operators have taken steps to re-use water in 

plant systems to minimize withdrawals from natural surface water bodies. These provisions will 

limit the ability to re-use water within the plants. The anti-circumvention provisions are contrary

to water conservation principle of reuse and recycle. Rules which prevent the reuse of 

wastewater have the unintended result of increase groundwater withdrawal at many facilities at a 

time when there a significant declines critical aquifers. This impact (environmental, social, and 

economic) does not appear to have been addressed in the revised rule.

Current water re-use practices should be maintained and new re-use opportunities should be 

encouraged, not discouraged, by the guidelines.

Comment Response: 

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.

Regarding water conservation related to dry ash handling and the anti-circumvention provisions, 

including the use of ash transport water in the scrubber, see response to DCN EPA-HQ-OW2009-0819-4181-A2, Excerpt Number 7.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 217

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXX. The “Sufficiently Sensitive” Methods Rule Is Unnecessary

One of the proposed “anti-circumvention measures” is a requirement that permittees use 

“sufficiently sensitive” methods. But this is unnecessary, and the proposal would create 

confusion.

A. The ELG “Sufficiently Sensitive” Rule Duplicates the Sufficiently Sensitive Rule 

Proposed Earlier

In the first place, EPA already has a “sufficiently sensitive” rule under consideration, and it is 

scheduled to be finalized in September 2013. 75 Fed. Reg. 35,712 (June 23, 2010); “Unified 

Regulatory Agenda,” available at

http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=2040-AC84. There 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-322

is no reason to propose a separate “sufficiently sensitive” rule for just one industry, when it will 

not be final until months after the general rule is in effect.

Moreover, UWAG believes the “sufficiently sensitive” rule, whether the general one or the one

just for the steam electric industry, is flawed, for reasons that were explained in industry 

comments on the proposed general sufficiently sensitive rule.

B. The Sufficiently Sensitive Rule Suggests that Unapproved Analytical Methods Should 

Be Used

Our concern is that either version of the rule could require the use of unreliable analytical 

methods, not approved in 40 C.F.R. Part 136, when there is no reliable method of measuring 

down to the regulatory limit (in this case, the limits in the ELG rule). None of the proposed 

“sufficiently sensitive” rules limits itself to only Part 136-approved methods that have undergone 

EPA’s validation process.

UWAG believes that encouraging the use of unapproved analytical methods is contrary to the 

policies of scientific soundness and reliable, representative measurements. Executive Order 

13563 Sec. 5 emphasizes “scientific integrity” and calls on agencies to ensure the objectivity of 

scientific and technological information used to support regulatory actions. U.S. Presidential 

Executive Order No. 13563 of January 18, 2011 – Improving Regulation and Regulatory 

Review, 76 Fed. Reg. 3821 (Jan. 21, 2011). We believe this calls for measurements of water 

pollutants to be based on reliable and well-defined analytical methods.

Part 136 already says that its procedures “shall” (except for alternate procedures approved under 

§ 136.5) be used for permit applications, discharge monitoring reports, and § 401 certifications. 

40 C.F.R. §§ 136.1; 122.41(j)(4). EPA’s rules also say that NPDES permits must include 

monitoring requirements “[a]ccording to test procedures approved under 40 C.F.R. part 136....” 

(or required by 40 C.F.R. subparts N or O) (40 C.F.R. § 122.44(i)(1)(iv).88

If EPA does create a “sufficiently sensitive” rule, it should accompany it with an explanation that 

it does not authorize analytical methods not approved for 40 C.F.R. Part 136. EPA staff, in a 

phone conversation with UWAG on August 28, 2013, said that the rule would not require 

unapproved methods to be used and confirmed that 40 C.F.R. § 122.41(j)(4) requires the use of 

Part 136-approved methods. But it would be helpful to remind the reader of this limitation in the 

“sufficiently sensitive” rule itself.

C. The Sufficiently Sensitive Rule Ignores the Need to Reform EPA’s Method of 

Determining Detection Limits

As discussed in Comments of the Inter-Industry Analytical Group (IIAG) on EPA’s Proposed 

Rule for Use of Sufficiently Sensitive Test Methods for Permit Applications and Reporting, the 

“sufficiently sensitive” rule disregards the fundamental issue of defining acceptable analytical 

methods by setting measurement quality objectives (MQOs) and then adopting a uniform 

definition of detection limit and quantitation level (currently MDL and ML). These concerns are 

explained in the IIAG comments dated August 9, 2010 (Attachment 26 to these comments).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-323

EPA’s present method for calculating detection and quantitation levels is unsatisfactory. In 

2003, 36 companies and organizations, representing a cross-section of municipalities, industries, 

and laboratories, described the shortcomings of the MDL in a letter to EPA. Widespread 

dissatisfaction with the MDL and ML led EPA to convene a Federal Advisory Committee, which 

issued a carefully considered report in December 2007 after two years of work. See

http://water.epa.gov/scitech/methods/cwa/det/index.cfm. The FAC found that the current MDL 

(detection limit) procedure has deficiencies that “can and should be corrected.” Id. at i-ii. The 

FAC further recommended “that a formal peer review of the procedure proposed for 

promulgation be undertaken and that a follow up pilot study be completed to confirm the 

performance of whatever procedure/s EPA proposes to promulgate.” Id. at ii. The FAC further 

recommended that “... Quantitation Limits be promulgated only using a nationally promulgated 

approach yet to be defined” and that “EPA generate National Quantitation Limits as rapidly as 

possible.” Id. at iii.

None of these FAC recommendations has yet been accomplished. EPA has done a pilot study of 

procedures to determine detection and quantitation levels, but EPA has not revised its approach 

to quantitation limits based on the FAC recommendations.

A TNI/NELAC work group and EPA’s Environmental Laboratory Advisory Board (ELAB) are 

addressing this issue, but their work is not finished. TNI has published a new draft procedure for 

determining the MDL at http://www.nelac-institute.org/cms/posts/1377223536.php. In the 

meantime, it is premature to propose technically unsupported “sufficiently sensitive” provisions 

that do nothing to address the FAC recommendations or the past 26 years of controversy over the 

MDL and ML procedure.

Moreover, the proposed rule (and possibly the ELG rule) might require that, when there is no 

approved Part 136 method, monitoring must be conducted according to an unapproved

“sufficiently sensitive” test method. As with most of the definitions of “ML,” this provision 

does not account for precision or accuracy. Also, it might allow permitting agencies to use 

unapproved methods outside EPA’s Alternate Test Procedure (ATP) program, and yet the 

proposed rule contains none of the procedural safeguards in the ATP program.

In addition (as the attached IIAG (including UWAG) Sufficiently Sensitive Comments point 

out), EPA’s analysis of the EPA “impacts” of the proposed rule is not credible. EPA appears to 

assume that the sufficiently sensitive rule (or similar provisions in the ELG rule) will cause 

“little or no new or increased burden to applicants or permittees.” Id. at 16. But any rule that 

requires the use of advanced or more sensitive methods, particularly those that are experimental, 

inadequately vetted, or unapproved test methods alleged to be more “sensitive,” will invariably 

increase the cost of analyses required by permits.

The increase in cost is due to the research and development required to run a non-approved 

method and the significant cost to purchase advanced equipment needed for more sensitive 

methods. As EPA’s ELAB said, the rule “may result in significantly greater cost....” Letter 

from Judy Morgan, Chair, EPA ELAB, to Kathryn Kelley, EPA Office of Wastewater 

Management (April 28, 2011). See also Letter from David N. Speis, Chair, EPA ELAB, to 

Kathryn Kelley (October 18, 2010) (“market costs of the various approved Mercury methods 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-324

vary by 300% - 600%”). UWAG has found that the cost of Method 1668C for PCBs is about 

$1,000 per sample; a commenter on EPA’s proposal to approve Method 1668C estimated that the 

method would cost one manufacturing facility at least $200,000 a year.

One source of increased costs might be the “simple-specific” quantitation level in the definition 

of “sufficiently sensitive analytical method” (see 78 Fed. Reg. at 34,533 col. 3). If an MDL 

study had to be performed in the matrix to be analyzed rather than in spiked reagent water, there 

would be additional costs, especially with seven different wastestreams to monitor. It does not 

appear that EPA has adequately analyzed the costs of the “sufficiently sensitive” provisions in 

the proposed rule.

It appears that, even though the sufficiently sensitive rule is not final, EPA has been treating it as 

legally binding by means of “guidance.” An EPA guidance memorandum of June 7, 2010, says 

that it is “essential” that permitting agencies make decisions based on sufficiently sensitive 

data. Memorandum, James A. Hanlon to Water Division Directors, Regions 1-10, “National 

Pollutant Discharge Elimination System (NPDES) Permitting of Wastewater Discharges for Flue 

Gas Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam 

Electric Power Plants” (June 7, 2010) (Hanlon Memo), Attachment A at 6, 

http://www.epa.gov/npdes/pubs/steamelectricbpjguidance.pdf. The memorandum adds that 

using insufficiently sensitive analytical methods could result in the permitting agency’s making 

an incorrect permitting decision and result in undetected exceedances of permit limits, a 

significant burden to permittees. But the Agency fails to point out that the use of more 

“sensitive” unapproved methods will lead to greater variability at or near the ML and therefore 

could increase the number of “false positives” that result in permit exceedances. Finally, the 

guidance tells permitting agencies not to rely solely on sensitivity measures such as MDLs or 

MLs in the published methods but assures them that analysts have the flexibility to modify and 

approve a method without EPA review.

In short, UWAG believes that the proposed “sufficiently sensitive” rules are not consistent with 

Executive Order 13563. The proposed ELG rule does not observe the Order’s instructions that 

EPA consider the burden of its rules, that it specify performance objectives to the extent feasible, 

or that it ensure the objectivity of scientific information and processes.

Before EPA makes any “sufficiently sensitive” provisions final, the Office of Management and 

Budget should complete its review of the general rule and EPA should address the 

recommendations of the Federal Advisory Committee, set measurement quality objectives, and 

develop and implement a sound procedure for determining the detection and quantitation levels 

of analytical methods.

D. The Sufficiently Sensitive Rule Will Cause Problems with “No Discharge” Limits

It may appear that the steam electric industry would have no problem with a “sufficiently 

sensitive” rule, because there are Part 136-approved methods for measuring down to the 

proposed BAT and NSPS limits, mostly for metals.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-325

This is not the case, though, for “no discharge” limits. A “no discharge” limit lends itself to 

being recharacterized as “zero discharge” (as EPA does at 78 Fed. Reg. at 34,523 col. 2 for ash 

transport water and FGMC wastewater). And this in turn may be reinterpreted to mean “the 

detection limit of whatever is the most sensitive analytical method, approved or not, at the 

moment.”

This problem is discussed separately in these comments for the “no discharge” requirement for 

PCBs. But the ELG proposal creates the same issue with “no discharge” limits for ash transport 

waters and FGMC wastewater.

88 If there are no Part 136-approved methods, a test procedure may be specified in the permit.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118. Comments 

related to EPA’s final Sufficiently Sensitive rulemaking are outside the scope of this final 

rulemaking. ..

In addition, EPA does not agree that its analysis of the “impacts” of the proposed rule are not 

credible and EPA has incorporated the costs associated with compliance monitoring in their 

costing analysis. Where a regulatory option would establish requirements for pollutants not 

regulated in the previously established ELGs, EPA calculated plant-level compliance monitoring 

costs for plants to sample and analyze their discharges to assess their compliance with the final 

rule effluent limitations and standards. This includes sampling labor costs, sampling materials 

costs, sample preservation costs, sample shipping costs, and sample analysis costs. For low level 

metals (excluding mercury which is analyzed separately using EPA Method 1631E), EPA 

conservatively based the compliance monitoring costs on the costs EPA incurred during its field 

sampling program which included analysis for 28 low-level metals, while the final rule 

monitoring requirements only cover two of these metals (i.e., arsenic and selenium). EPA also 

assumed that samples would be sent to two different laboratories, one for analysis of low-level 

mercury and one for analysis of other metals. See Section 5.2 of EPA’s Incremental Costs and 

Pollutant Removals for Final Effluent Limitations Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category (Cost & Loads Report) (DCN 

SE05831/SE05832) for more details on the compliance monitoring cost methodology.

Regarding the PCB “no discharge” requirements, see response to DCN EPA-HQ-OW-2009-

0819-4655, Excerpt Number 213 in Comment Code 5.d.

EPA notes that the final anti-circumvention provisions do not apply to previously established 

requirements for this point source category.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-326

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 65

External Review Flag: Analytical

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed Limits for FGD Wastewater Effluent are Set Too Low to be Detected Reliably 

and Consistently by Currently Approved Methods

To obtain accurate and reproducible results, much of the work over the years has been conducted 

in research laboratories not commercial labs. Sample turnaround times are measured in weeks 

and at a significant cost. Commercial laboratories are just now beginning to perform these types 

of tests on FGD wastewater, however Round Robin analytical testing that Duke Energy recently 

performed shows that the labs are not currently capable of providing accurate and repeatable data 

with statistical confidence for permit writers or permittees to rely on as discussed below.

Given the documented matrix interferences for FGD wastewater sampling, Duke Energy 

contends that it is unrealistic to set technology-based limits:

 for which an appropriate 40 CFR 136 approved method that meets the definition of 

“sufficiently sensitive” is not available;

 that may not be analytically achievable due to the required dilution ratios needed to 

address the higher Total Dissolved Solids (TDS) concentrations found in FGD 

wastewater;

 where commercial labs generally lack the experience and/or necessary resources to 

accurately and repeatedly measure these constituents at or below the proposed limits; and

 are established so close to the Method Detection Limits (MDLs) that they do not allow 

for normal analytical variability or noise.

Comment Response: 

EPA finds 40 CFR Part 136 contains analytical methods capable of analyzing for compliance 

with the final limitations and standards. See response to DCN EPA-HQ-OW-2009-0819-4305-

A3, Excerpt Number 67 in Comment Code 32 as well as responses to other comments in 

Comment code category 32.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 66
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-327

External Review Flag: Analytical

External Review Incorporated into Response: No

Comment Excerpt: 

1. A Sufficiently-Detailed Method for Analyzing FGD Wastewater is not Currently 

Approved

The Proposed Rule requires “sufficiently” sensitive analytical methods to be used to demonstrate 

permit compliance, if “available"16. However it is not clear whether unapproved methods may be 

used or be required by permit writers to detect levels below the proposed limits and what 

methods are considered “available”.

The use of “sufficiently sensitive analytical methods” was proposed by the agency in the Federal 

Register17 in June 2010 and, to date, has not been approved. While it is allowable to use DRC 

(dynamic reaction cells) and CRC (collision reaction cells) with Method 200.818, the current 

method, as written, it is inadequate and does not provide sufficient detailed guidance to produce 

accurate and32 repeatable results for FGD samples at these very low levels. As acknowledged in 

the June 7, 2010 Hanlon memo to EPA Region Water Division Directors, FGD wastewater 

sampling may require labs to alter analytical methods and the need for experienced labs and 

analysts.

It is essential that the Director make permitting decisions based on sufficiently sensitive data 

and, thus, sound science. The use of insufficiently sensitive analytical methods could lead the 

Director to make an incorrect determination about the presence or absence of a pollutant in an 

applicant’s discharge. These assumptions, in turn, could result in the Director making an 

incorrect permitting decision. Additionally, requiring insufficiently sensitive analytical methods 

in permits for compliance monitoring purposes could result in an undetected exceedance of 

permit limits.

Due to advances in instrumentation since a method was developed and the benefit of experienced 

analysts, an analyst may achieve detection limits (MDLs) and minimum levels (MLs) lower than 

the published values. Thus, the Director should not rely solely on sensitivity measures, such as 

MDLs or MLs, in published methods. These measures only give an upper, not a lower, bound on 

capabilities. In addition, EPA provides analysts the flexibility to modify an approved method 

without EPA review. This flexibility allows a laboratory to demonstrate performance better than 

the published MDL or ML.

EPA’s 2009 Final Study Report19 further documents the inaccuracy of EPA Method 200.8 

as currently written, without the use of reaction cells, for selenium, arsenic and a number of other 

metals in FGD waters. This study documents that the use of reaction cells helps eliminate matrix 

interferences that result in positive biases of the analytical measurements that would not be 

detected through matrix spike and recovery. In addition, allowing analysts the flexibility to 

modify the method adds variability and decreases the reproducibility of the analytical results 

between different labs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-328

Duke Energy recognizes that EPA has addressed some issues related to FGD wastewater 

analysis. However, since there is still not a sufficiently-detailed and approved method to 

accurately and reliably analyze FGD wastewater matrices at these low levels, EPA should revise 

the FGD wastewater effluent limits to account for these issues.

16 78 Fed. Reg. at 34466

17 75 Fed. Reg., Issue 120, June 23, 2010

18 Method Update Rule, Federal Register, Vol. 77, No. 97, May 18, 2012, 136.6(b)(4)(iv)

19 USEPA. Steam Electric Power Generating Point Source Category: Final Detailed Study 

Report [EPA-HQ-OW-2009-0819-0004] October 29, 2009

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118. Comments 

related to EPA’s final Sufficiently Sensitive rulemaking are outside the scope of this final 

rulemaking. Also, see response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 67 

in Comment Code 32, as well as other comment responses in Comment Code 32. 

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

6. Mercury

The proposed ELG provides a standard of 1.76 ng/L as a daily maximum and a monthly average 

of 1.29 ng/L. From the National Environmental Methods Index (https://www.nemi.gov/), the 

lowest approved method, Method 245.7, has a detection limit of 1.8 ng/L, using cold-vapor 

atomic fluorescence spectrometry.

In consultation with the Department's laboratory, we have seen some low level mercury 

analytical methods by cold vapor atomic absorption or cold vapor atomic fluorescence 

spectrometry with a detection range of 0.05 ng/L to approximately 100 ng/L, when using 

"clean" procedures and rooms to minimize contamination. This shows using "clean" procedures 

may not get detection values below the monthly average effluent limit of 1.29 ng/L.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-329

Given a 1.8 ng/L method detection limit is higher than the monthly average limit of 1.29 ng/L, 

meaning if mercury is detected, the facility would be in violation oftheir permit and the effluent 

limit guidelines.

Comment Response: 

The commenter is referring to the BAT/PSES/NSPS/PSNS limitations and standards for mercury 

in gasification wastewater which in the final rule are a daily maximum of 1.8 ng/L and monthly 

average of 1.3 ng/L. EPA disagrees with the commenter that “the lowest approved method [for 

analysis of mercury is] Method 245.7. EPA Method 1631E is an approved method and achieves 

a method detection limit of 0.05 ng/L. EPA used Method 1631E for its sampling program, which 

collected the data used to develop the effluent limitations and standards for gasification 

wastewater.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 83

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Use of Sufficiently Sensitive Methods.

EPA proposes to require that compliance with effluent limitations must reflect results obtained 

from “sufficiently sensitive” analytical methods. 78 Fed. Reg. at 34524. A “sufficiently 

sensitive” method is defined as “a method that ensures the sample-specific quantitation level for 

the wastewater being analyzed is at or below the level of the effluent limitation.” Id. This Draft 

Rule would require the use of methods with quantitation levels low enough to measure the 

pollutant level in a facility’s discharge, the effluent limit in an NPDES permit, or water quality 

criteria. However, where there are methods approved in 40 C.F.R. Part 136, the rule encourages 

monitoring by some unapproved “sufficiently sensitive” method. This provision might allow 

permitting agencies to use unapproved methods outside EPA’s Alternative Test Procedure 

(ATP), which would not account for precision, accuracy or any of the procedural safeguards in 

the ATP program.

Measurements of water pollutants must be based on reliable and well-defined analytical 

methods. EPA’s present method for calculating detection and quantitation levels is 

unsatisfactory. As EPA is well aware, laboratories have struggled for decades to meet detection 

limits specified by EPA even under approved methods. See, e.g., 75 Fed. Reg. 15500, 15516 

(Mar. 29, 2010). In response to numerous complaints regarding the shortcomings of EPA’s 

method detection limits (“MDL”), EPA convened a Federal Advisory Committee in 2007, which 

found that the current MDL procedure had deficiencies that should be corrected. However, to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-330

date, none of the Committee’s recommendations for correcting the MDL deficiencies have been 

accomplished. If EPA is going to require the use of “sufficiently sensitive” methods, EPA should 

also require that only EPA-approved methods, if available, should be used. Stated differently, the 

“sufficiently sensitive” rule should apply only to choosing from among methods in 40 C.F.R. 

Part 136. We request that EPA state this in the actual rule and not just in the Preamble.

Nevertheless, use of sufficiently sensitive monitoring methods should not be required. Many of 

these methods are unnecessarily complicated and would not only increase lab costs, but they 

could also require long waiting times for the results, which could create problems with filing 

DMRs on time. For instance, for flow minimization techniques for FGD wastewater (i.e., 

recycling to maximum chloride level), the TDS levels are sometimes so high (due to recycling) 

that the laboratory would have to dilute the sample to 0.02% in order to be able to analyze it 

using the most sensitive method for metals determination, Method 200.8, due to instrumentation 

constraints.

EPA erroneously concluded that the Draft Rule will cause little increased burden to applicants or 

permittees. Any rule that requires the use of more sensitive methods, particularly experimental 

and unapproved test methods will increase the cost of analyses required by the permits. Such cost 

increases include the research and development required to run a non- approved method and the 

cost to purchase the advanced equipment needed to run more sensitive methods. For example, 

the cost of Method 1668C for PCBs is estimated to cost $1,000 per sample. See UWAG 

Comments at Section XXIII.

In sum, before EPA makes any “sufficiently sensitive” rule final, the Office of Management and 

Budget should conduct a full review of the potential impacts of the rule and EPA should address 

the recommendations of the Federal Advisory Committee it created. EPA should also set 

measurement quality performance objectives to ensure the objectivity of scientific information 

and processes. Moreover, EPA should only require the use of sufficiently sensitive methods if 

EPA eliminates the internal effluent limitations and continues to allow commingling of waste 

streams. If internal effluent limitations are implemented, then there is no need for extra sensitive 

and more expensive monitoring methods.

Comment Response: 

Regarding the sufficiently sensitive anti-circumvention provision in the proposed ELG, see 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Regarding EPA’s Sufficiently Sensitive rulemaking, comments related to EPA’s final 

Sufficiently Sensitive rulemaking are outside the scope of the final rule.

Commenter Name: Jared Morrison

Commenter Affiliation: Westar Energy

Document Control Number: EPA-HQ-OW-2009-0819-4469-A1

Comment Excerpt Number: 2
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-331

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Data Validation Concerns

Westar Energy employed the use of two different national laboratories in conducting the pilot 

research. We are concerned that the local branches of these laboratories are unable to offer 

testing services for the numeric limits currently proposed in some of EPA’s preferred options. 

Pace Analytical Services, Inc. for example, which is a nationally-known laboratory, noted 

Westar samples would need to be delivered to their Green Bay, Wisconsin office to achieve the 

mercury limits given in some preferred options of the proposed guidelines. Pace also noted that 

the Green Bay office would have to become certified in Kansas to perform these tests. This 

situation indicates having a suitable laboratory within the state would be desirable, but we have 

yet to learn of any that are able to detect the low limits proposed. If these limits are put in place, 

we are concerned that we will have difficulty getting consistent and timely results if only a 

limited number of laboratories exist that can offer detection limits at the low values proposed.

The question of how non-detect values should be handled in this regulatory environment also 

needs to be addressed. In speaking with industry experts, even laboratories that do offer testing 

at low method detection and practical quantitation limits, may encounter a significant amount of 

interferences in testing FGD wastewater with the current methods used. Sufficiently sensitive 

approved standard methods do not exist for FGD wastewaters.

Our research has also indicated a great deal of variation in quality assurance between 

laboratories. EPA should identify, in detail, what methods and laboratories can be used to 

achieve consistent results for FGD wastewater and standardize how non-detect results are 

incorporated into data summaries.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 67 in Comment 

Code 32.

EPA notes that how non-detect values should be handled in compliance monitoring is governed 

by 40 CFR Part 122 and 403 and outside the scope of the final rule.

Commenter Name: Roger E. Claff

Commenter Affiliation: American Petroleum Institute (API)

Document Control Number: EPA-HQ-OW-2009-0819-4641-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-332

Comment Excerpt: 

EPA's Proposed Requirement that Analytical Methods be "Sufficiently Sensitive" is 

Inappropriate

On June 23, 2010 (75 Fed. Reg. 35712) EPA proposed minor amendments to Clean Water Act 

regulations, to require use of "sufficiently sensitive" analytical methods when testing for 

compliance with NPDES permit limits or when testing for completion of an NPDES permit 

application. The regulated community expressed its concerns with this proposal; see for example 

the comments submitted by the Inter-Industry Analytical Group (HAG), the Utility Water Act 

Group (UWAG), and the Federal Water Quality Coalition (FWQC). In light of the comments 

received from the regulated community and others, EPA took the proposed rule under

advisement but has not to date issued a final rule on this matter. Absent a final rule addressing 

public comments including those from the regulated community, defining "sufficiently sensitive" 

within this regulatory context, and requiring the use of "sufficiently sensitive" analytical methods 

for determining compliance in the NPDES program, EPA's insertion of "sufficiently sensitive" 

analytical method requirements in the Steam Electric Effluent Guideline Proposed Rule is 

arbitrary, inappropriate, and inconsistent with the Administrative Procedures Act.

As noted in comments by the HAG, UWAG, and FWQC, the definition of "sufficiently 

sensitive" for determining compliance with permit limits set at the limit of quantification must 

hinge on use of the EPA procedures for establishing the analytical method detection limit (MDL) 

and minimum level (ML), procedures determined by the analytical community to be technically 

and statistically flawed, and about which a Federal Advisory Committee (FACA) was convened 

from 2005 to 2007. The FACA failed to develop a consensus alternative to the flawed MDL/ML 

but charged EPA with the expeditious development of an alternative procedure. Such a 

procedure has yet to be developed. Absent a revised, technically sound method for setting the 

analytical limits of detection and quantification at levels of known precision and accuracy, EPA 

should not extend the application of its flawed methods, the MDL and ML, in the setting of 

additional permit limits or in the selection of analytical methods for determining compliance 

with those limits.

Additionally, the sensitivity of analytical methods varies considerably with the analyte and the 

sample matrix. The limits of detection and quantification will vary accordingly. Given this 

variability, who is to determine what constitutes a "sufficiently sensitive" analytical method, and 

how? The regulated facility should have a voice in this determination and be permitted to submit 

analytical data in support. Yet the Proposed Rule does not specify how "sufficiently sensitive" is 

determined, nor allow for industry appeal and data submission.

Finally, analytical methods used for compliance determinations must be listed in 40 CPR 136; 

yet the provisions concerning "sufficiently sensitive" in the Proposed Rule do not constrain 

method selection to 40 CPR 136 methods.

Compliance costs for pollutants at trace concentrations in effluents are extremely high, and the 

regulated community insists upon certainty in permit limits compliance determinations before 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-333

incurring those costs. EPA should strike the requirements for use of "sufficiently sensitive" 

analytical methods.

Comment Response: 

Regarding the sufficiently sensitive anti-circumvention provision in the proposed ELG, see 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Regarding EPA’s Sufficiently Sensitive rulemaking, comments related to EPA’s final 

Sufficiently Sensitive rulemaking are outside the scope of this final rulemaking.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 55

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. Use of Sufficiently Sensitive Methods

EPA proposes to require that compliance with effluent limitations must reflect results obtained 

from “sufficiently sensitive” analytical methods. 78 Fed. Reg. at 34524. A 

“sufficiently sensitive” method is defined as “a method that ensures the sample-specific 

quantitation level for the wastewater being analyzed is at or below the level of the effluent 

limitation.” Id. This proposed rule would require the use of methods with quantitation levels low 

enough to measure the pollutant level in a facility’s discharge, the effluent limit in an NPDES 

permit, or water quality criteria. However, where there are methods approved in 40 C.F.R. Part 

136, the rule encourages monitoring by some unapproved “sufficiently sensitive” method. This 

provision might allow permitting agencies to use unapproved methods outside EPA’s Alternative 

Test Procedure (“ATP”), which would not account for precision, accuracy or any of the 

procedural safeguards in the ATP program.

Measurements of water pollutants must be based on reliable and well-defined analytical 

methods. EPA’s present method for calculating detection and quantitation levels is 

unsatisfactory. As EPA is well aware, laboratories have struggled for decades to meet detection 

limits specified by EPA even under approved methods. See, e.g., 75 Fed. Reg. 15500, 15516 

(Mar. 29, 2010). In response to numerous complaints regarding the shortcomings of EPA’s 

method detection limits (“MDL”), EPA convened a Federal Advisory Committee in 2007 that 

found the current MDL procedure had deficiencies that should be corrected. However, to date, 

none of the Committee’s recommendations for correcting the MDL deficiencies have been 

accomplished. If EPA is going to require the use of “sufficiently sensitive” methods, EPA should 

also require that only EPA-approved methods, if available, should be used. Stated differently, the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-334

“sufficiently sensitive” rule should apply only to choosing from among methods in 40 C.F.R. 

Part 136. We request that EPA state this in the actual rule and not just in the Preamble.

Nevertheless, the use of sufficiently sensitive monitoring methods should not be required. Many 

of these methods are unnecessarily complicated and would not only increase lab costs, but could 

also require long waiting times for the results, creating problems with filing DMRs on time. For 

instance, for flow minimization techniques for FGD wastewater (i.e., recycling to maximum 

chloride level), the TDS levels are sometimes so high (due to recycling) that the laboratory 

would have to dilute the sample to 0.02% in order to be able to analyze it using the most 

sensitive method for metals determination, Method 200.8, due to instrumentation constraints.

EPA erroneously concluded that the Proposed Rule will cause little increased burden to 

applicants or permittees. Any rule that requires the use of more sensitive methods, particularly 

experimental and unapproved test methods will increase the cost of analyses required by the 

permits. Such cost increases include the research and development required to run a nonapproved method and the cost to purchase the advanced equipment needed to run more sensitive 

methods. For example, the cost of Method 1668C for PCBs is estimated to cost $1,000 per 

sample.

In sum, before EPA makes any “sufficiently sensitive” rule final, the Office of Management and 

Budget should conduct a full review of the potential impacts of the rule and EPA should address 

the recommendations of the Federal Advisory Committee it created. EPA should also set 

measurement quality performance objectives to ensure the objectivity of scientific information 

and processes. Moreover, EPA should only require the use of sufficiently sensitive methods if 

EPA eliminates the internal effluent limitations and continues to allow commingling of waste 

streams. If internal effluent limitations are implemented, then there is no need for extra sensitive 

and more expensive monitoring methods.

Comment Response: 

Regarding the sufficiently sensitive anti-circumvention provision in the proposed ELG, see 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Regarding EPA’s Sufficiently Sensitive rulemaking, comments related to EPA’s final 

Sufficiently Sensitive rulemaking are outside the scope of the final rule.

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-335

Analytical Test Methods

TCEQ suggests revisions to the revised analytical methods guidelines to allow site specific test 

method and detection levels where warranted.

The revised guidelines contain a requirement that "sufficiently sensitive" analytical methods be 

used for compliance monitoring to provide quantifiable results at levels necessary to demonstrate 

compliance with effluent limits.

This provision requires methods to be used that can detect pollutants at the proposed technologybased standards. TCEQ's latest revisions to the minimum analytical methods (MALs) contained 

in "Procedures to Implement the Texas Surface Water Quality Standards" indicate that the 

proposed BAT limits are very close to these new proposed MALs. The revised guidelines do not 

appear to allow establishment of site specific MALs where matrix interference of other issues are 

encountered which would prevent proper detection at these levels. These guidelines appear to 

supersede EPA's regulations which allow site specific detection levels to be established. TCEQ 

suggests revisions to the revised guidelines to allow site specific test method and detection levels 

where warranted.

The increased number of internal monitoring points coupled with requirements to use sufficiently 

sensitive analytical methods for compliance determinations and the associated increase in the 

cost of testing and reporting, will likely be a significant burden on users and permitting 

authorities. In addition, it is not clear that the increased burden would be offset by the reduced 

impacts on POTWs.

Comment Response: 

Regarding the sufficiently sensitive anti-circumvention provision in the proposed ELG, see 

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 118.

Regarding EPA’s Sufficiently Sensitive rulemaking, comments related to EPA’s final 

Sufficiently Sensitive rulemaking are outside the scope of this final rulemaking.

Regarding the internal monitoring anti-circumvention provisions, the final rule does not require 

internal monitoring to demonstrate compliance with certain numeric limitations and standards. 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 117 in Comment 

Code 26.d.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-336

26.e. Regulatory Implementation – Net Credits 

Commenter Name: Doris Cooksey

Commenter Affiliation: City Public Service of San Antonio (CPS Energy)

Document Control Number: EPA-HQ-OW-2009-0819-4283-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should consider the quality of the influent water on the final effluent limitations set Plants 

should not be burdened with meeting limits so stringent the influent water would not pass. CPS 

Energy's plants use secondary effluent as our source water for both cooling and process water 

from Braunig and Calaveras lakes. Therefore, EPA should provide an exemption or credit for 

concentrations of metals found in the source water.

Comment Response: 

The final rule establishes requirements on pollutants in discharges from the steam electric power 

generating industry, not on influent.

EPA did not adjust the final limitations based on possible source water contributions as 

suggested by the commenter. In order to adjust the final limitations based on possible source 

water contributions, EPA would have needed paired data comparing source water pollutant 

concentrations to treated effluent pollutant concentrations for a range of process streams, plants, 

and plant locations. EPA does not have such data. Even then, it would be difficult if not 

impossible to assess what impact the source water had on the effluent discharges after treatment 

on a national basis.

Moreover, even if EPA had such data, it does not agree that it is appropriate to adjust the 

nationally applicable ELGs to account for source water. None of the existing ELGs for other 

industrial point source categories include such a provision. Further, it is not unusual for an 

NPDES permit to contain limitations on specific pollutants that are lower than the concentrations 

of a pollutant in their source water.

EPA notes that 40 CFR Part 122.45(g) allows facilities to request, on a case-by-case basis, a 

specific permit adjustment to an effluent standard based on the presence of a pollutant in their 

intake water (see 40 CFR 122.45(g) below):

(1) Upon request of the discharger, technology-based effluent limitations or standards shall be 

adjusted to reflect credit for pollutants in the discharger's intake water if:

(i) The applicable effluent limitations and standards contained in 40 CFR subchapter N 

specifically provide that they shall be applied on a net basis; or
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-337

(ii) The discharger demonstrates that the control system it proposes or uses to meet applicable 

technology-based limitations and standards would, if properly installed and operated, meet the 

limitations and standards in the absence of pollutants in the intake waters.

(2) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended 

solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the 

generic measure in the effluent are substantially similar to the constituents of the generic 

measure in the intake water or unless appropriate additional limits are placed on process water 

pollutants either at the outfall or elsewhere.

(3) Credit shall be granted only to the extent necessary to meet the applicable limitation or 

standard, up to a maximum value equal to the influent value. Additional monitoring may be 

necessary to determine eligibility for credits and compliance with permit limits.

(4) Credit shall be granted only if the discharger demonstrates that the intake water is drawn 

from the same body of water into which the discharge is made. The Director may waive this 

requirement if he finds that no environmental degradation will result.

(5) This section does not apply to the discharge of raw water clarifier sludge generated from the 

treatment of intake water.

EPA did not propose, and the final rule does not establish, new or revised requirements related to 

cooling water discharges, so related comments are outside the scope of the final rulemaking.

Commenter Name: Doris Cooksey

Commenter Affiliation: City Public Service of San Antonio (CPS Energy)

Document Control Number: EPA-HQ-OW-2009-0819-4283-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CPS Energy owns and operates two man-made lakes in southeast Bexar County, Texas for the 

purpose of power plant cooling. These lakes are subject to the water quality standards of the 

Clean Water Act The industrial discharge, primarily once through cooling water, from our 

power plants is tested and reported regularly to the Texas Commission on 

Environmental Quality under the terms of our TPDES permit Our lakes are subject to 

environmental influences that are beyond our control in some instances. The source water for 

the lakes treated effluent from nearby municipal wastewater treatment plant that discharges for a 

short distance to a river where it is then pumped into the cooling lakes. Therefore, the receiving 

water is already degraded before entering into any plant processes.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-338

This comment is specific to discharges of power plant cooling water. EPA did not propose, and 

the final rule does not establish, new or revised requirements related to cooling water discharges, 

so related comments are outside the scope of the rulemaking.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The ELG limits must take into consideration intake water baseline considerations.

The regulated community can not be held accountable for discharged water where the intake 

water exhibits concentrations above the proposed standards. The regulated community can only 

be accountable for what its facility contributes above background or baseline intake conditions, 

not what already contained in the source water.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4283-A1, Excerpt Number 15.

Commenter Name: Dennis Wene

Commenter Affiliation: Alcoa Inc.'s Warrick Operations

Document Control Number: EPA-HQ-OW-2009-0819-4765-A1

Comment Excerpt Number: 9

External Review Flag: Statistics

External Review Incorporated into Response: No

Comment Excerpt: 

Finally, Alcoa-Warrick's intake waters are at or near the level of the limitations set by this rule 

making it virtually impossible to discharge these waters without treatment for pollutants that 

were not created by the process. According to the ORSANCO database, copper levels can exceed 

0.010 ppm and iron levels can exceed 5 ppm. Compared to current proposed limits for non

chemical metal cleaning wastewater discharge of 0.20 ppm for copper and 1.0 ppm for iron, the

intake water will exceed discharge levels for iron frequently and the contributing factors for 

copper could be problematic in attaining the prescribed limits.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-339

The rule fails to address intake allowances and the natural chemistry that will occur once the pH 

of the wastewater is stabilized to discharge levels.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4283-A1, Excerpt Number 15.

This final rule reserves BAT/NSPS/PSES/PSNS for non-chemical metal cleaning wastes for the 

reasons described in preamble section VIII.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-340

26.f. Regulatory Implementation – Other 

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 27

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Florida Department of Environmental Protection regulates solid waste and wastewater 

management of each coal power plant on a case by case basis, creating dangerous inconsistencies 

in safety standards.

...

Third, five coal fired power plants have no limits on discharges of any heavy metals, and no 

plant in Florida has permit limits on all of the toxic metals of concern.

The St. Johns River Power Park in Duval County is operating with an expired NPDES permit, 

and the Seminole Plant in Putnam discharges wastewater into Rice Creek, which is impaired 

with cadmium, iron, lead, nickel, and silver. And the Big Bend Power Plant, Hillsborough 

County, is one of the worst offenders. In 2011 alone, the plant reported discharging over 1,200 

pounds of selenium into the Big Bend Bayou.

Comment Response: 

The final rule establishes national technology based discharge requirements for pollutants in 

certain wastestreams generated at steam electric power plants. The requirements in this rule 

apply to discharges from steam electric power plants through incorporation into NPDES permits 

issued by the EPA or authorized states under Section 402 of the Act and through local 

pretreatment programs under Section 307 of the Act. Permits or control mechanisms issued after 

this rule’s effective date must incorporate the ELGs, as applicable. Comments on specific 

NPDES permits are outside the scope of this final rulemaking.

Also, for a summary of the final rule’s requirements see preamble section III.B.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 31

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-341

Comment Excerpt: 

Of all the coal fired power plants in the country, 182 of them discharge their pollution into 

watersheds of 49 of our member waterkeeper organizations. Every second of every day, the 

wastewater outfalls at these power plants constantly pours staggering amounts of toxic heavy 

metals into our rivers, lakes, and streams, often without any limits or even monitoring 

requirements.

Without adequate federal limits on toxic discharges from coal fired power plants, it is these 

Waterkeeper organizations, rather than government regulators, who often bear the burden of 

safeguarding their waterways in their communities by monitoring the effects of this dangerous 

pollution.

These public advocates document pollution, warn the public of hazardous water quality 

conditions, and when necessary bring enforcement actions. All too often, however, this work is 

hampered by industry friendly state regulators and, importantly, the lack of enforceable federal 

limits on toxic discharges.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 33

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In 2010, the Miller plant generated more than 5 million pounds of toxic waste, making it the 

biggest ash polluter in the country that year.

Despite this pollution, the State of Alabama does not require monitoring for or limit the 

discharges of poisons like arsenic, mercury, and lead from the Miller plant. Even though 

Alabama doesn't know exactly what is being discharged from the plant, the pollution from this 

power plant is clearly having an impact.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-342

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

This is not unique. In North Carolina, not far up the Cape Fear River from the coastal estuaries 

that provide habitat for precious species like the Atlantic Green Sea turtle, the Duke Energy L.V. 

Sutton Power Plant dumps toxic waste into the river. With no treatment other than settling, the 

ash water flows directly from unlined ash ponds into Sutton Lake where scores of people make 

use of a public boat launch near the plant to fish and recreate. North Carolina, however, imposes 

no limits on the concentration of metals that Sutton may discharge, and according to the plant's 

own records, it discharged 603 pounds of arsenic in 2012 along with 526 pounds of selenium.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 46

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Valley Power Plant's 2012 permit, which was just issued, includes very lax monitoring 

requirements in general for mercury, selenium, and cyanide. They included no requirement for 

copper, even though there was strong indication that it was coming in the waste stream, and there 

is also very limited effluent limitations put into that permit, which we just got in November. So 

we are very supportive and hopeful that these proposed effluent limits could address this issue in 

the future.

The Valley Power Plant is a very significant factor in degradation of our water quality and 

wildlife habitat in general, and these federal rules would help reduce pollution in our rivers and 

also downstream waterways, such as Lake Michigan, which provide drinking water for over 40 

million people, both Canadians and Americans. And additionally, these limits would also help 

us protect aquatic life, which is also given very short shrift in many of our permits.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-343

The good news is that there's many stakeholder groups, including Milwaukee Riverkeeper and 

others, that are working hard to improve the conditions in our urban rivers and to get us back on 

a path to achieving water quality standards in meeting fishable, swimmable rivers.

Comment Response: 

The NPDES permit regulations at §122.41(j)(4) and the pretreatment regulations at 

§403.12(b)(5)(vi) require that facilities conduct sampling and analyses to monitor compliance 

according to the techniques set out at 40 CFR 136, as amended so related comments are outside 

the scope of this final rulemaking. Comments on specific NPDES permits are outside the scope 

of this final rulemaking.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 70

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

To use an example of how these outdated guidelines have failed in the real world, I will provide 

a quick summary of a National Pollution Discharge Elimination System permit, a NPDES 

renewal permit challenge that our organization brought against a NPDES permit issued from one 

of Maryland's oldest and dirtiest power plants, the R. Paul Smith Power Plant in Williamsport, 

Maryland, which has been retired since the case was brought.

This power plant dated back to the Eisenhower administration and was discharging effluent from 

on site bottom ash and fly ash ponds directly into the Upper Potomac River, which contained the 

following pollutants in this wastewater stream: arsenic, radium, selenium, sulfate, boron, zinc, 

barium, mercury, and nickel, just to name a few.

The state issued a NPDES renewal permit in the winter of 2009 for this power plant and set no 

technology based effluent limitations for any of these toxic metals and sometimes radioactive 

pollutants that I just listed. In fact, the only limits in the permit were for total suspended solids, 

oil and grease, nitrogen, phosphorous, and pH. That's it.

We challenged this permit in state court under the judicial review provision of the Clean Water 

Act and lost because of the very reason we are here today. The state court judge in that case 

deferred to the judgment of the Maryland Department of the Environment based on EPA's 

Effluent Limitation Guidelines, which dated back to the 1980s.

Our intention in that case was to protect the local water quality and citizens' health from 

dangerous water pollution coming from that very old power plant. Many of our members swim, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-344

fish, boat, and recreate just a few hundred feet from that power plant's outfall pipes and had no 

idea that they were encountering dangerous toxins every time they use that waterway.

These rules have real world consequences for people living near these plants. They are not just 

regulatory hurdles that industry must jump through.

State regulatory agencies have been hiding behind these outdated guidelines when issuing water 

pollution permits for these massive industrial facilities for far too long.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 85

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

It makes me think linking the dark line of the Ohio up there. I'm thinking of all the plants that 

pour into it, of a time I spent some years ago in a former bourbon warehouse, which now holds 

the Kentucky Department of the Environment it's a good environment for bourbon and less so 

for people deposing them as to why the Trimble Power Plant and LG&E facility, just upstream 

of Louisville wastewater intakes, has been allowed to discharge huge amounts of coal 

contaminated water from its ash ponds, both from leaks and through permits.

And two lines stayed with me. The first was asking a treatment engineer there, "Well, shouldn't 

you clean this up?" and he said, "Well, we could, but we won't know where to start. They're all 

leaking," and asking the permit writer, "Well, didn't EPA say in the Hanlon memo, that you have 

a best professional judgment allegation to take care of this, despite the absence of national 

standards?" and having not just the permit writer, but the administrative law judge tell me, "EPA 

can say whatever it likes in guidance. We just aren't going to do that, and Kentucky hasn't."

I remember thinking at the time, "Well, that's Kentucky. Surely, it's not a national problem," but 

I'm here to tell you now that having reviewed the water discharge permits for every coal power 

plant in the country, it is a national problem. No one has done this consistently and well. Most 

states haven't done it at all, and many, many states don't even provide consistent monitoring.

And it's become clear that neither the Clean Water Act's best professional judgment mandate nor 

EPA's helpful comments nor permit objectives if they ever come are sufficient. We need our 

national standards, and we need them now in this narrow window where scrubbers are being 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-345

installed as a result of their rules. It's, I think, really generational opportunity to address this 

problem, that if it fails, leaves the protection of our nation's waterways to the legal tenacity of 

citizens groups, and that although the option was never the intent of Congress, it is tragic that 

folks who really should be able to spend their lives, just having their lives -- are forced to devote 

their time and treasure to securing basic human rights, rights that EPA and government should be 

securing for them. It is personally and professionally offensive that we have to do this work, and 

it's time for that to change.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. 

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 91

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

And yet, this power plant, Bruce Mansfield, operates under an expired water permit that imposes 

no discharge limits or monitoring requirements for any of these metals where the impoundment 

enters public waters.

The people of Pennsylvania and residents across the country have been left vulnerable by states 

that don't act and by outdated rules that haven't changed in the last three decades. This is why it 

is time for the EPA to finalize these long overdue standards and to require all coal plants to 

eliminate their most toxic discharges. Doing so will prevent children from getting sick, will save 

lives, and ensure that our water is safe to drink and our fish are safe to eat.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. 

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 118

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-346

Comment Excerpt: 

And I wanted to speak, just give an example in North Carolina of why it's so important that EPA 

do that.

In North Carolina, more than half of our residents are on well water, myself included, and we 

also happen to be home to what is now the largest and most powerful electric utility in the United 

States.

In recent years, we have seen an unprecedented rollback of state rules protecting surface and 

groundwater, but as a result of bills that have been written by this very powerful utility -- and the 

most recent example is a bill passed just last week that redefines the compliance boundary 

around coal ash ponds. And it used to be 250 to 500 feet. Now they've put it at the property 

line. What that means is that based on the state rules, we don't have any authority to address 

groundwater pollution coming from these coal ash ponds until it's already crossed over into 

neighboring properties. That kind of ridiculousness has occurred not because it's good public 

policy. It's because the most politically powerful lobby in the state is pushing it, and precisely to 

prevent the sort of political manipulation by powerful entities that EPA was given the authority 

that it has, and we strongly encourage you to use it.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

EPA’s CWA effluent limitations guidelines and standards set national standards for point source 

discharges of industrial wastewater to surface waters and publicly owned treatment 

works. Therefore, comments related to state rules on groundwater are outside the scope of this 

rulemaking.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 125

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, we also work with the communities in states like in Michigan, as I mentioned, and where 

toxic coal water is a problem in Michigan, has 21 active coal plants, only 8 that have permits, to 

limit the dumping of any toxic metal. No permits limit the arsenic, cadmium, or lead.

Detroit Electric River Rouge Plant, which the NAACP has identified as one of the worst 

environmental justice offenders in the nation, lack such limits, for instance.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-347

At least 16 of these plants have discharges contaminated by metalating coal ash and dangerous 

smokestacks from scrubber sludge. Worst, of these plants, only three of them report how much 

toxic arsenic and selenium they are discharging to EPA's TRI.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. EPA notes that 

TRI reporting requirements are outside the scope of this rulemaking.

Commenter Name: Cheryl Nenn

Commenter Affiliation: Milwaukee Riverkeeper

Document Control Number: EPA-HQ-OW-2009-0819-3920-A7

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Valley Power Plant's 2012 permit contains lax monitoring requirements for mercury, selenium, 

and cyanide, and no requirement for copper, even though there are indications that it is present in 

low volume wastewater. There are very limited effluent limitations on these pollutants presently, 

and these standards could address this issue in the future.

The Valley Power Plant is a major factor in degradation of both water quality and wildlife habitat 

in the lower Menomonee River, and these Federal rules would help reduce pollution in many of 

our rivers and downstream water bodies such as Lake Michigan and our other Great Lakes, 

which provide drinking water to over 40 million Americans and Canadians. Additionally, these 

limits would also help protect aquatic life, which are given short shrift in many power plant 

permits.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Cheryl Nenn

Commenter Affiliation: Milwaukee Riverkeeper

Document Control Number: EPA-HQ-OW-2009-0819-3920-A7

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-348

These standards should be protective of receiving waters as well as downstream waterways. For 

example, the Valley Plant discharges to the Menomonee River and then to the Milwaukee 

Estuary and Lake Michigan downstream. The 2012 Valley permit limits did not take downstream 

waterways into account when putting in protective limits. During summer 2012, we experienced 

extreme drought conditions and topped the nation in record breaking heat in Wisconsin. Lake 

Michigan reached its highest temperature ever in late 2012, and in January 2013, its lowest water 

level ever. Lake Michigan is showing signs of stress and needs to be protected from upstream 

discharges to tributary rivers.

The good news is that there are many stakeholder groups including Milwaukee Riverkeeper that 

are working hard to improve conditions in our urban rivers and to get us on a path to achieving 

water quality standards and fishable, swimmable rivers.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Diana Dascala-Joffe

Commenter Affiliation: Chesapeake Climate Action Network

Document Control Number: EPA-HQ-OW-2009-0819-3920-A9

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

To use an example of how these outdated guidelines have failed in the real world, I will provide 

a quick summary of a National Pollution Discharge Elimination System (NPDES) permit 

renewal challenge that our organization brought against a NPDES permit issued for one of 

Maryland's oldest and dirtiest power plants, the R. Paul Smith power plant in Williamsport, MD 

(which has been retired since this case). This power plant dated back to the Eisenhower 

administration, and was discharging effluent from onsite bottom ash/fly ash ponds into the upper 

Potomac River which containing the following pollutants: arsenic, radium, selenium, sulfate, 

boron, zinc, barium, mercury and nickel, just to name a few. The state issued a NPDES renewal 

permit in the winter of 2009 for this power plant and set NO technology-based effluent 

limitations for any of the toxic and sometimes radioactive pollutants I just listed. In fact, the only 

limits in the permit were for total suspended solids, oil and grease, nitrogen, phosphorous and 

ph. We challenged the permit in state court, under the judicial review provision of the Clean 

Water Act, and lost because of the very reason we are here today. The state court judge in that 

case deferred to the judgment of the state implementing agency based on EPA's effluent 

limitation guidelines which date back to the 1980s. Our intention in that case was to protect 

local water quality and citizen's health from the dangerous water pollution coming from that 

power plant. Many of our members swim, fish, boat and recreate a few hundred feet from that 

power plant's outfall pipes and had no idea that they were encountering dangerous toxins every 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-349

time they used the waterway. These rules have real-world consequences for people living near 

these plants. They are not just regulatory hurdles that industry must jump through.

State regulatory agencies have been hiding behind these outdated guidelines when issuing water 

pollution permits for these massive industrial facilities for far too long.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. 

Commenter Name: Donald R. Carlson

Commenter Affiliation: Kansas Department of Health and Environment (KDHE)

Document Control Number: EPA-HQ-OW-2009-0819-3922-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA is proposing nitrate/nitrite (as N) limits for BAT, NSPS, PSES, and PSNS in the proposed 

rule set at 0.17 mg/1 daily maximum and 0.13 mg/1 30-day average. As a result of the low 

limits, industries are inquiring regarding the possibility of employing nutrient trading to address 

the proposed effluent guideline limits for nitrate/nitrite. The EPA Office of Water published a 

Water Quality Trading Policy dated January 13, 2003. In Part III.E.4., the policy states: 

"4. Technology-Based Trading. EPA does not support trading to 

comply with existing technology-based effluent limitations except as expressly 

authorized by federal regulations. Existing technology-based effluent guidelines for the iron 

and steel industry allow intraplant trading of conventional, nonconvential and toxic pollutants 

between outfalls under certain circumstances (40 CFR 420.03). EPA will consider including 

provisions for trading in the development of new or revised technology-based effluent guidelines 

and other regulations to achieve technology-based requirements, reduce implementation costs 

and increase enviromnental benefits." Since the proposed effluent guideline standards do not 

address the possibility of nutrient trading, it is unclear whether EPA considered this in 

developing the proposed rule. We believe that if the proposed low nitrate/nitrite effluent limits 

remain, that nutrient trading should be considered and expressly addressed in the final effluent 

guideline standards.

Comment Response: 

The final rule establishes national technology based discharge requirements (BAT/PSES) for 

nitrate/nitrite in FGD wastestreams generated at steam electric power plants. The final rule 

establishes limitations and standards applicable to the discharge of pollutants from the steam 

electric power generating industry based on the “best available technology economically 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-350

achievable” and the “best available demonstrated control technology,” as those terms are used in 

sections 301, 304, and 306 of the Clean Water Act.

EPA’s final standards for FGD wastewater for nitrate/nitrite are more than an order of magnitude 

greater than the proposed limits. See preamble section XI. EPA did not propose and is not 

including nutrient trading or any pollutant trading in as an alternative to meeting the final 

rule. EPA supports under the water quality-based provisions of the Clean Water Act (which are 

outside the scope of this technology-based rulemaking), a number of existing trading projects 

involving nutrients, such as the one in the Ohio River Basin.

There are unanswered legal questions about whether the Clean Water Act authorizes trading as a 

“technology” under the technology-based provisions of the CWA. Among the questions is 

whether the technology-based provisions allow a point source category for which there are 

supposed to be ELGs reflecting a particular level of control (BCT, BAT; BADCT) to trade for 

pollutant reductions with other point source categories or nonpoint sources in order to achieve 

compliance with technology-based effluent limitations under section 301(b)(2)(A) of CWA, 

because that provision calls for effluent limitations based on Best Available Technology to be 

achieved for categories and classes (hereinafter “categories”) of point sources. As the steam 

electric category is a “category” of point sources, it may not be consistent with the Act to allow 

its pollutant reductions to be accomplished by other categories of point sources or nonpoint 

sources. Note, also that section 306 of the Act governing new sources expressly lists categories 

to be covered by new source performance standards. And section 304(m) calls for the revision of 

existing ELGs and identification of categories of sources for which guidelines have not been 

published, and the establishment of schedules for promulgation of effluent guidelines for 

categories of point sources. Further, the legislative history of the Act shows that Congress 

intended the technology-based provisions of the Act in sections 301, 304 and 306 to establish a 

“base level” of discharges for each industrial category, above which no individual plant may 

discharge. Congress apparently envisioned that “[i]n no case . . . should any plant be allowed to 

discharge more pollutants per unit of production than is determined by that base 

level.” FWPC72 Leg. Hist. 13. Technology-based rules look to the plant without respect to 

receiving water quality and as such are very different that water quality-based effluent limits 

which look to the water first and require limitations to achieve applicable water quality 

standards.

Before EPA would adopt an interpretation of the Act to allow trading between the point source 

category and other point source categories or other nonpoint sources, it would want to vet its 

interpretation and take comment on it because then the Agency would receive the highest 

deference for any new interpretation. Chevron, USA v. NRDC, 467 U.S. 837 (1984). EPA did 

not establish a trading mechanism in the final rule in part because it would have wanted to vet it 

fully, including its legal underpinnings, before establishing it in effluent guidelines rulemaking 

for the first time.

Moreover, there are policy reasons why this particular rulemaking is not the best vehicle for 

trading. Two of the wastestreams, fly ash and bottom ash, have zero discharge limitations and 

standards based on dry handling or closed loop. Dry handling of fly ash is already practiced by 

over 80 percent of coal and petroleum coke-fired generating units and half of the entities that 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-351

would be subject to requirements for bottom ash are already employing zero discharge 

technologies or planning to do so in the near future. Further, 45 percent of all steam electric 

power plants with wet scrubbers already have equipment or processes in place able to meet the 

final effluent limitations based on chemical precipitation and biological treatment 

technology. Given that the technology is available and economically achievable, there is not a 

great need to develop a complex trading system here. Furthermore, because the limits are zero 

discharge, they control all pollutants, not just nutrients, and even for the FGD waste stream that 

is not zero discharge, limitations reduce many pollutants other than nutrients, including mercury, 

arsenic, selenium and other metals. Handling a complex suite of pollutants when other potential 

traders (such as agricultural producers) are not discharging these metals and pollutants other than 

nutrients would have greatly added to the complexity of this rule.

Instead, as required by CWA, the final requirements are based on the performance of welldesigned and well-operated control and treatment technologies.

In this case, EPA is setting a national technology-based standard for the control of nitrate/nitrite 

from FGD wastewaters at steam electric power plants. Consistent with the Act, these standards 

establish a floor for permitting authorities who will also consider local water quality standards 

when developing facility-specific permit limits.

Bubbling:

In the Iron and Steel ELGs, EPA adopted a “water bubble” policy to allow for intra-plant trading 

of technology-based limitations. Pursuant to the “water bubble” policy, “dischargers with 

multiple outfalls may discharge greater amounts of pollutants from outfalls where treatment costs 

are high in exchange for an equivalent decrease in pollutants discharged from outfalls at the 

same plant where abatement is less expensive.” 47 FR 23258, 23271 (May 27, 1982). As 

adopted in the Iron and Steel regulation, the water bubble policy contains the following three 

conditions “designed to ensure that there will not be a net increase in the discharge of toxic 

pollutants”: (1) no more pounds of pollutants can be discharged from a single plant than would 

be discharged under the traditional process specific limitations, (2) dischargers must meet water 

quality standards, (3) each outfall must have a specific discharge limit.[1]

Due to the first condition on trading under the Iron and Steel ELGs (in which no more pounds of 

a pollutant may be discharged from a single plant overall than would be discharged under a rule 

that set process-specific effluent limitations and did not allow trading), the regulation ensures 

that each plant within the Iron and Steel point source category does not discharge more than a 

predetermined amount. It is therefore in keeping with Congress’s apparent intent that no plant 

should be allowed to discharge more pollutants per unit of production than is determined by a 

“base level,” as discussed above. Moreover, as EPA explained in the preamble to the Iron and 

Steel ELGs, the water bubble approach gives plant managers an incentive to develop new control 

strategies for their plants, Id. at 23273, rather than simply to outsource pollutant reductions to 

another source entirely. This is in keeping with the Act’s technology-forcing principle, also 

discussed above. Thus, unlike an effluent guidelines regulation allowing market-based trading 

between point sources and nonpoint sources or between point sources located at different plants, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-352

EPA’s Iron and Steel regulation allowing intra-plant trading to achieve compliance with ELGs is 

a permissible one under the statute.

EPA also did not propose and is not including a water bubble for nitrate/nitrite or any pollutant 

as an alternative to meeting the final rule as requested by some commenters. As explained above, 

this is a regulatory flexibility mechanism which would allow for trading of credits for identical 

pollutants at any single steam electric facility with multiple compliance points. EPA notes the 

previously established requirements for the steam electric point source category do not include a 

water bubble provision and that no ELGs for any other point source category include a water 

bubble provision other than Iron and Steel. Further, one of the main reasons cited for including a 

water bubble provision in the iron and steel rule is cost savings. EPA notes that while some 

commenters requested EPA include a water bubble, they didn’t provide any specific examples of 

how it might be used within a plant, especially considering zero discharge requirements for ash 

transport water and FGD wastewater discharge requirements based on chemical precipitation and 

biological treatment. Consistent with current industry practice, EPA does not anticipate multiple 

chemical precipitation and biological treatment processes (or their equivalent) at one plant to 

treat the pollutants in FGD wastestream to the level of treatment that would need to be “bubbled” 

to reduce costs. EPA determined this final rule is economically achievable in absence of a water 

bubble. See the RIA. 

Commenter Name: Jamie Rhodes

Commenter Affiliation: Environment Council of Rhode Island

Document Control Number: EPA-HQ-OW-2009-0819-4034-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Clean Water Act requires states to set strong discharge standards for polluters in the absence

of federal standards.3 Unfortunatly, most state permitting agencies have failed to set limits in 

discharge permits for individual plants that reflect the best available treatment technology and 

protect water quality. In fact, a coalition of environmental groups recently released a report that

found that nearly 70% of the power plants that discharge coal ash wastewater or sludge from flue 

gas desulphurization (“FGD”) systems, also known as scrubbers, have NO limits for arsenic, 

boron, cadmium, lead, mercury, and selenium, all of which are toxics commonly found in these 

wastewater streams.4

EPA has an obligation under the Clean Water Act to end this reckless practice.

3

33 U.S.C. § 1314 (b); 40 C.F.R. § 122.44(a)(1), 123.25, 125.3
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-353

4Environmental Integrity Project, Sierra Club, Clean Water Action, Earthjustice and 

Waterkeeper Alliance, Closing the Floodgates: How the Coal Industry is Poisoning Our Water 

and How We Can Stop It (2013), available at http://cleanwater.org/files/publications/closingfloodgates.pdf

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. 

Commenter Name: Patrick O’Loughlin

Commenter Affiliation: Buckeye Power, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4183-A2

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA Should Consider Impacts of ELG on Water Quality Trading

The proposed ELG rules target nitrate/nitrite as a pollutant of concern. Unfortunately, the 

proposed nitrate/nitrite limits will eliminate water quality trading as a compliance strategy, to the 

detriment of the utility industry and its potential agricultural trading partners. EPA seems to be 

comfortable with this consequence because it believes that (1) biological treatment is a cost

effective technology for removing selenium; and (2) biological treatment technology will 

incidentally remove nitrate/nitrite. Even assuming that biological treatment is a cost-effective 

means to remove selenium, it is not cost-effective for removal of nitrate/nitrite.

Not only is biological treatment much more expensive than water quality trading, it represents 

removal overkill -biological treatment typically achieves nitrate/nitrite removal (0.17 and 0.13 

mg/l) exceeding that necessary to meet and maintain water quality standards for aquatic life and 

human health. Buckeye Power urges EPA to allow parties to control nitrogen levels through the 

most technologically feasible, and cost-effect approach, whether that is chemical or biological 

treatment or water quality trading.

Comment Response: 

The final rule establishes national technology based discharge requirements (BAT/PSES) for 

nitrate/nitrite in FGD wastestreams generated at steam electric power plants. The final rule 

establishes limitations and standards applicable to the discharge of pollutants from the steam 

electric power generating industry based on the “best available technology economically 

achievable” and the “best available demonstrated control technology,” as those terms are used in 

sections 301, 304, and 306 of the Clean Water Act.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-354

Although not required by the CWA, and not a determining factor for establishing BAT/PSES or 

BADCT/PSNS, cost-effectiveness analysis can be a useful tool for describing regulatory options 

that address toxic pollutants. As presented in preamble section XV.B and in Appendix F of the 

RIA, the final BAT requirements for the selected regulatory option (Option D) have a costeffectiveness ratio of $134/lb-eq ($1981). This cost-effectiveness ratio is well within the range of 

cost-effectiveness ratios for BAT requirements in other industries. For the role of costeffectiveness in EPA’s decisions for the final rule, see response to DCN EPA-HQ-OW-2009-

0819-4655, Excerpt Number 27 in Comment Code 6.h.

EPA’s final standards for FGD wastewater for nitrate/nitrite are more than an order of magnitude 

greater than the proposed limits. See preamble section XI. 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 regarding trading.

EPA disagrees that technology based requirements are “overkill” if the plant is meeting water 

quality standards or if the limitations are below drinking water standards (which the final 

limitations are not). The nitrate/nitrite limits were not based on the concentrations needed to 

protect aquatic life or human health or drinking water. Instead, as required by CWA, they are 

based on the performance of well-designed and well-operated control and treatment 

technologies. As explained in Section IV.B of the final preamble, Congress passed the CWA to 

"restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 

U.S.C. 1251(a). In order to achieve this objective, the Act has, as a national goal, the elimination 

of the discharge of all pollutants into the nation’s waters. 33 U.S.C. 1251(a)(1). The CWA 

establishes a comprehensive program for protecting our nation’s waters. Among its core 

provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the 

U.S., except as authorized under the CWA. Under section 402 of the CWA, 33 U.S.C. 1342, 

discharges may be authorized through a National Pollutant Discharge Elimination System 

(NPDES) permit. The CWA establishes a dual approach for these permits, technology-based 

controls that establish a floor of performance for all dischargers, and water quality-based effluent 

limitations, where the technology-based effluent limitations are insufficient to meet applicable 

WQS. To serve as the basis for the technology-based controls, the CWA authorizes EPA to 

establish national technology-based effluent limitations guidelines and new source performance 

standards for discharges from categories of point sources (such as industrial, commercial, and 

public sources) that occur directly into waters of the U.S.

EPA disagrees that biological treatment “will incidentally remove nitrate/nitrite or that it will 

simultaneously remove nitrate/nitrite in all cases. The BAT biological treatment system needs to 

be optimized for both selenium and nitrate/nitrite in order to achieve satisfactory removal. In 

particular, higher levels of nitrates can reduce the effectiveness of the BAT biological treatment 

system without pretreatment. As described in preamble section VIII.C.1, FGD wastewater 

containing exceptionally high levels of nitrates (for example, greater than 100 ppm nitrate/nitrite, 

as N) can be pretreated using standard denitrification technologies such as membrane bioreactors 

or stirred-tank bioreactors, prior to treatment through an anoxic/anaerobic fixed-film biological 

treatment system. If necessary, the biological processes can also be modified to include a step to 

nitrify and remove ammonia. EPA included costs for moving-bed biofilm reactors in its 

evaluation of the BAT technology for plants with a nitrate/nitrite concentration greater than 100 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-355

ppm nitrate/nitrite, as N. See the TDD for further details. EPA also notes that the rule does not 

require a plant to use BAT, only that it achieves the BAT numerical limitations. EPA is aware of 

development in non-biological technologies that may enable a plant to meet the selenium, 

arsenic, and mercury BAT limitations but would not achieve the final nitrate/nitrite limitations. 

Even if EPA concluded biological treatment would remove all nitrate/nitrite incidentally or 

simultaneously to selenium, EPA would still have established limitations on nitrate/nitrite to 

ensure its reduction regardless of the technology employed.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Combustion Residual Leachate:

The compliance timing for this wastestream (i.e. the effective date of the rule) is not appropriate 

if the installation of treatment technology or any operational/process modifications are required 

to comply.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. Also, see 

preamble sections VIII and XVI. 

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Nonchemical Metal Cleaning:

Similar to combustion residual leachate, the compliance timing for this wastestream (i.e. the 

effective date of the rule) is not appropriate if the installation of treatment technology or any 

operational/process modifications are required to comply.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-356

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 126. Also, see 

preamble sections VIII and XVI.

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should also allow trading between and among sources – including power plants subject to 

the ELG rule – on a local, state, or even interstate basis of pollutants such as that currently being 

piloted in the Ohio River basin.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 101

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Pretreatment standards for new sources applicable to copper limits for CMCW and NCMCW 

should only apply where publicly-owned treatment works (POTWs) do not have advanced 

treatment technologies capable of treating copper.

Comment Response: 

Upon further evaluation, EPA decided that it does not have enough information on a national 

basis to establish BAT/NSPS/PSES/PSNS requirements for non-chemical metal cleaning wastes. 

The final rule, therefore, continues to reserve BAT/NSPS/PSES/PSNS for non-chemical metal 

cleaning wastes, as the previously promulgated regulations did. For more information about nonchemical metal cleaning waste see responses for Comment Code 22.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-357

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Department is working on permit synchronization, with the future potential of establishing 

nutrient (including nitrate) trading programs. With the proposed rule, a possible impact is the 

nitrate limits could hinder establishment of trading programs. If nitrate/nitrate remains in the 

ELG, the Department suggests EPA include additional language that would specifically allow for 

nitrate trading.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Under Option 3a, EPA is proposing that states use best professional judgment (BPJ) to make 

technology determinations. BPJ, as proposed under Option 3a, is not an effective regulatory 

strategy. Under the Hanlon memo14, states may require biological treatment, which is not a 

preferred treatment technology under Options 1 and 3a. This also forces states to make 

technology assessments for which they may not have sufficient technical expertise to conduct, 

and seems to allow EPA to abdicate a core responsibility under § 304 of the CWA.

14 Memorandum from James A. Hanlon, EPA Office of Water, to EPA Water Division Directors, 

June 7, 2010.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-358

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

h. Impact of ELGs on Water Quality Trading

The proposed ELG rule identifies nitrate/nitrite as a pollutant of concern, which, according to 

EPA, is simultaneously reduced when applying biological treatment for the control of 

selenium.19 Within the proposed rule, EPA lists four preferred options (4a, 3, 3b, 3a). Three of 

the four, 4a, 3 and 3b, include FGD waste water limits for nitrate/nitrite for steam electric 

generating plants greater than 2000 MW total scrubbed capacity. A third option, 3a, includes a 

BPJ determination for FGD nitrate/nitrite limits.

Under the proposed rule, the options that include limits on nitrate/nitrite also include limits for 

selenium based on biological treatment. Because nitrate/nitrite is incidentally removed by the 

treatment process that removes selenium, EPA does not expect the rule to create a demand by 

regulated entities for trading in nitrogen credits. In fact, the proposed nitrate/nitrite limits 

preclude the use of water quality trading as a compliance strategy. However, the agency 

assumes that biological treatment will remove nitrate/nitrite and selenium in an equally effective 

manner, while in fact, such treatment systems need to be optimized for one pollutant or the other 

in order to achieve satisfactory removal.

Even if it is assumed that biological treatment is a cost effective technology for removing 

selenium, it is certainly not cost effective for the removal of nitrate/nitrite. Based on a business 

case study done by Keiser and Associates for EPRI,20 it was demonstrated that total nitrogen 

(TN) removal to meet nutrient standards could be accomplished at a cost of $2 to $8 per pound 

or at a cost of approximately $100,000 per year for a typical power plant. However, according to 

EPA, to achieve similar control of nitrate/nitrite using a bioreactor would cost similarly sized 

power plants approximately $9.05 million in capital costs and approximately $543,000 in annual 

O&M (2010$).21 AEP’s own estimates, which are based on an actual installation and are more 

accurate than those of the agency, include capital costs of $22.3 million (2010$).

Not only is biological treatment vastly more expensive than water quality trading, it achieves a 

control level which exceeds what is necessary to be protective of water quality. There is no need 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-359

to control nitrate/nitrite to the low levels proposed by the agency in the ELG rule (0.17 mg/L 

daily max. and 0.13 mg/L monthly avg.). These levels are much lower than needed to protect 

aquatic life or human health and are lower than necessary to prevent the formation of nuisance 

algae blooms. It would be much more cost effective for the agency to limit biological treatment 

applications to the control of selenium and to allow water quality trading as a compliance option 

to achieve any additional nutrient reductions. This approach would allow bioreactor operators to 

optimize the process to achieve efficient and economical removal of selenium without the 

additional burden of optimizing for nitrogen control. Even assuming that biological removal is a 

cost effective technology for the control of selenium, any additional treatment needed to control 

nitrogen levels should be achieved using the best, most economical treatment strategy, whether 

that be trading, trickling filters, chemical treatment or biological treatment. Should EPA 

ultimately determine that biological treatment in combination with chemical precipitation is 

BAT, it should not establish limits for nitrate/nitrite simply because of the co-benefit of some 

nutrient reduction while targeting the removal of selenium.

19 EPA Technical Development Document, April 2013, at 8-7.

20 Ohio River Water Quality Trading Pilot Program: Business Case for Power Company 

Participation, EPRI Contract No. 125935.4411, Shaw Project Number: 125935, 2008.

21 EPA Technical Development Document, April 2013.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4183-A2, Excerpt Number 20 and response to 

DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 regarding trading.

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

No Discharge Requirement for Polychlorinated Biphenyl (PCB) Needs Clarification

The “no discharge” requirement for PCBs needs clarification given today’s analytical 

capabilities and the ubiquitous presence of trace levels of PCBs in natural waters that serve as 

source waters for steam electric generating plants.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-360

Comment Response: 

Regarding the PCB “no discharge” requirements, see response to DCN EPA-HQ-OW-2009-

0819-4655, Excerpt Number 213 in Comment Code 5.d.

Commenter Name: Chad Miller

Commenter Affiliation: Montana-Dakota Utilities Co.

Document Control Number: EPA-HQ-OW-2009-0819-4457-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Flue Gas Desulfurization - Best Professional Judgment (BPJ).

In the proposed ELG rule, EPA suggests a BPJ approach to those applicable facilities with a total 

wet scrubbed capacity of less than 2,000 MW under the proposed 3a and 3b Options for flue gas 

desulfurization (FGD) wastewater.

Montana-Dakota recommends EPA to establish BPJ standards that the state permit writer must 

consider in making such decisions. Leaving the language as currently written in the proposed 

rule does not provide guidance to a permit writer, thereby creating uncertainty and possibly an 

avenue for a judgment that may have no justified requirements. Providing these standards would 

not only help the industry understand what to expect as a final BPJ and provide certainty but 

would also relieve the permit writer from making such judgments arbitrarily.

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: Chad Miller

Commenter Affiliation: Montana-Dakota Utilities Co.

Document Control Number: EPA-HQ-OW-2009-0819-4457-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-361

We encourage EPA to provide guidance to industry and regulating agencies on Best Professional 

Judgment standards for Flue Gas Desulfurization wastewater. As currently written, the industry 

is left in the dark when it comes to what BPJ standards the state regulating agency will 

eventually require.

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 31

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s proposed FGD Wastewater nitrate and nitrite limits are arbitrary and capricious.

The proposed ELG for FGD wastewater includes effluent limits for nitrate and nitrite which are 

not appropriately justified in the record. EPA did not study the varying technologies to determine 

what technology represented BAT for nitrate/nitrite removal. While the preferred treatment 

technology did remove some nitrates and nitrites, the treatment systems were not designed nor 

optimized for removal of this contaminant. Setting BAT limits for nitrate and nitrite are 

inappropriate for this reason alone; however, there are other reasons not to set limits on nitrate 

and nitrite for any of the identified waste streams.

For several years EPA has been developing a nutrient trading program to aid in the reduction of 

nutrients from waters identified as impaired for nutrients. Power plant operators have been

involved in the program and could be a potential point source that would participate in these 

types of trading schemes to improve the overall water quality. The proposed ELG would 

severely restrict, if not completely eliminate, the ability of power generation facilities to 

participate in water quality trading of technology-based effluent limits thereby making the local

or regional reductions more difficult, if not impossible, to achieve.

Since EPA did not properly study a system that is optimized for nitrate or nitrite removal and 

since the establishment of these limits would impact the effectiveness of other water quality 

programs that have demonstrated benefits, EPA should eliminate the nitrate and nitrate limits 

proposed for all ELGs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-362

If EPA moves forward with establishing limits for nitrate and nitrate based upon their flawed 

analysis, they need to harmonize the ELG nitrate/nitrite requirement with other EPA regulations. 

The proposed nitrate/nitrite standards (0.17 and 0.13 mg/l respectively) contradict the drinking 

water standard of 10 mg/L. and are arbitrary and capricious. Similar situations are associated 

with arsenic and selenium which are naturally occurring in some areas of the country above the 

proposed standards. If EPA continues to pursue these impractical and unattainable standards, 

then EPA must present why such standards are necessary for protection of human health and the 

environment when other more direct routes of exposure (e.g. drinking water) allow a much 

higher level of contamination and why these standards are achievable/feasible.

Comment Response: 

EPA disagrees the final nitrate/nitrite BAT/PSES FGD limitations and standards are arbitrary 

and capricious. They reflect technologies that are available, affordable and have acceptable nonwater quality environmental impacts. See Section VIII of the final preamble.

Also, see response to DCN EPA-HQ-OW-2009-0819-4183-A2, Excerpt Number 20 and 

response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 regarding trading.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Both the current and newly proposed Effluent Guidelines contain a 'no discharge' requirement for 

PCBs that state "There shall be no discharge of polychlorinated biphenyl compounds such as 

those commonly used for transformer fluid." These are found in BPT, BAT and NSPS at § 

423.12(b)(2), 423.13(a), and 423.15(b), respectively. The intent and basis of these requirements 

are less relevant than when originally promulgated while the generic 'no-discharge' phrase is an 

increasingly more challenging goal in light of continuing development of analytical methods and 

the resulting lowering of detection limits.

The original intent of these provisions was clearly to prevent and/or control spills and leaks from 

transformers and other PCB-containing equipment in power plants. This is an objective targeted 

by Spill Prevention, Control, and Countermeasure Plans (SPCC) now in-place at all power 

plants. Since 1979, EPA has banned the manufacture and distribution in commerce of PCBs, and 

the steam electric industry is not a significant PCB contributor, especially from new sources. 

Nonetheless, trace concentrations of PCBs are now ubiquitous in the environment at extremely 

low levels. However, since the Effluent Guidelines were issued in1982, analytical methods have 

continued to develop and detection limits have steadily decreased. Historically, the Illinois 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-363

Environmental Protection Agency has used discretion to define applicable detection limits for 

verifying compliance with such criteria. In order to avoid future ambiguity over what constitutes 

"no discharge" of PCBs, AER recommends that EPA update these dated provisions and replace 

the existing prohibition with narrative requirements in line with SPCC or other Best 

Management Practices.

Comment Response: 

Regarding the PCB “no discharge” requirements, see response to DCN EPA-HQ-OW-2009-

0819-4655, Excerpt Number 213 in Comment Code 5.d.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The prohibition on discharges of Polychlorinated Biphenyls (PCBs) should be replaced with 

narrative requirements in line with Spill Prevention Control and Countermeasure Plans or other 

Best Management Practices.

Comment Response: 

Regarding the PCB “no discharge” requirements, see response to DCN EPA-HQ-OW-2009-

0819-4655, Excerpt Number 213 in Comment Code 5.d.

Commenter Name: Ronald H. Hix

Commenter Affiliation: NextEra Energy, Inc. (NEE)

Document Control Number: EPA-HQ-OW-2009-0819-4461-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Trading Must Be Expressly Authorized.

It is important that the final rule expressly authorizes water quality trading of technology-based 

effluent limits ("TBELs") to increase environmental benefits and reduce implementation costs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-364

This authorization is necessary given that EPA policy (i) encourages water quality trading due to 

its many benefits and (ii) supports trading to comply with TBELs, but only where expressly 

considered and authorized by federal regulation (here, the ELG Rule). Such authorization is 

important to preserve and promote water quality trading programs and initiatives that have been 

established or are being developed around the countt•y, including several with EPA support and 

funding.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Michalene Reilly

Commenter Affiliation: Hoosier Energy Rural Electric Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4471-A1

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should also allow trading between and among sources - including power plants subject to 

the ELG rule - on a local, state, or even interstate basis of pollutants such as that currently being 

piloted in the Ohio River basin. (See UWAG comments Section XXV -The Final ELG Rule 

Should Authorize Pollutant Trading.)

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Thomas W. Curtis

Commenter Affiliation: American Water Works Association (AWWA)

Document Control Number: EPA-HQ-OW-2009-0819-4478-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. Instruct NPDES permit writers to adequately consider downstream drinking water supplies in 

establishing permit requirements for power plant discharges.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-365

Preamble section XVI.D provides a discussion of the site-specific conditions where it may be 

appropriate for the permitting authority to establish water-quality based effluent limitations on 

bromide or TDS for existing steam electric power plants. In addition, it also discusses the 

documented impacts of steam electric power plant discharges on downstream drinking water 

supplies and permit authority consideration of downstream drinking water supplies in preamble 

sections III.A and XIII.B.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 31

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Trading should be explicitly authorized in the rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 96

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Trading Should Be Expressly Authorized.

The final rule should expressly authorize water quality trading of technology-based effluent 

limits (TBELs) to increase environmental benefits and reduce implementation costs. This 

authorization is necessary given EPA policy (i) encouraging water quality trading due to its 

many benefits and (ii) supporting trading to comply with TBELs, but only where expressly 

considered and authorized by federal regulation (here, the ELG rule). Such authorization is 

important to preserve and promote water quality trading programs and initiatives that have been 

established or are being developed around the country, including several with EPA support and 

funding.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-366

We note that a number of existing trading projects involve nutrients, such as the one in the Ohio 

River Basin. That project is particularly relevant here because it is led by EPRI with active 

involvement by power plants that eventually will be subject to the ELG Rule. If EPA includes 

nitrate-nitrite limits for FGD wastewaters without any corresponding trading authorization, as 

proposed, then it will have dealt a major blow to power plant participation in water quality 

trading initiatives. As described in more detail elsewhere in these comments and in UWAG’s 

and EPRI’s comments, EEI believes that the proposed nitrate-nitrite limits are unsupported by 

the record and cannot be maintained. But even if they are dropped from the final rule (as we 

recommend), it will be critical for EPA to authorize other forms of TBEL trading for the broad 

range of pollutants addressed in the ELG Rule. EEI and its members endorse the UWAG 

Comments regarding the appropriateness of a trading option and recommended specific trading 

approaches for this rule. Trading should be explicitly authorized in the rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 124

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Trading should be explicitly authorized in the rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-367

On the other hand, Alabama Power recognizes the substantial burden this has the potential to 

place at the feet of certain state agencies with limited and/or shrinking budgets. Alabama Power 

also acknowledges that this regulatory option provides no certainty for the industry as a whole 

and has the potential to create an unequal playing field for facilities within a region or throughout 

the country. Accordingly, should EPA select this regulatory option, Alabama Power requests that 

the agency provide some parameters. Specifically, EPA should develop a BPJ standard that 

incorporates, and is premised on, the following tenet of the BAT standard: “Treatment for FGD 

wastewater will be determined using best professional judgment where the permittee 

demonstrates that the costs of meeting the otherwise applicable FGD limits would be 

disproportionate to the benefits.”

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: Paul Chu

Commenter Affiliation: Electric Power Research Institute (EPRI)

Document Control Number: EPA-HQ-OW-2009-0819-4499-A1

Comment Excerpt Number: 41

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Nitrate/nitrite limits can be more effectively achieved through alternative approaches under the 

Clean Water Act, including total maximum daily loads (TMDLs), water quality based effluent 

limits, and water quality trading.

...

3.4 Nitrate/Nitrite can be more effectively managed by other mechanisms under 

the Clean WAter Act, such as TMDLs, watershed permits, and water quality 

trading (WQT). Water quality trading will likely be a cost-effective approach for 

achieving nitrate/nitrite reductions.

Since the predominant nitrate/nitrite loading comes from sources outside the steam electric 

generating industry, significant reductions can be achieved only when implemented on a 

waterbody or national scale.

In the United States, point sources represent approximately 5.7 percent of the total nitrogen 

added to the environment, whereas agricultural non-point sources account for 93.5 percent 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-368

[Puckett, 2008]. Point sources include power plants, wastewater treatment plants, vehicles, and 

others. A significant portion of the nitrogen from power plants is managed via the Clean Air Act 

(CAA), which limits the air emissions of nitrogen oxides—and therefore, the atmospheric 

deposition of nitrogen to waterways. The amount of nitrate/nitrite in FGD wastewater is small 

compared to the amounts introduced from municipal wastewater treatment facilities and nonpoint sources. Thus, reductions from FGD wastewater would provide minimal, if any, 

measureable benefit to receiving waters.

EPRI, with the support of EPA, USDA, and other sectors, has been developing a holistic 

approach to nutrient reduction that will include the participation of agriculture, wastewater 

treatment plants, and others. If limits on nitrate/nitrite from FGD wastewater are deemed 

necessary for a given waterbody, approaches such as numeric nutrient criteria, the use of 

TMDLs, and/or watershed-based permitting are viable options for setting regulatory limits. Such 

approaches can achieve nitrate/nitrite reductions from all point sources regulated under the 

NPDES program, and assign load allocations to non-point sources. Further, these approaches can 

achieve more cost-effective compliance by engaging non-point sources, such as the agricultural 

industry, through water quality trading (WQT). The currently proposed limits for nitrates/nitrites 

may not meet EPA’s criteria for cost-effective technology-based standards and would provide 

minimal environmental benefit, as power plants represent such a small fraction of the nitrogen 

loading. A WQT approach would significantly reduce the cost of nutrient limit compliance, offer 

a greater likelihood of meaningful water quality improvement, and provide ancillary ecosystem 

service and social benefits.

The EPA 2003 WQT Policy states,

“The purpose of this policy is to encourage states, interstate agencies, and tribes to develop and 

implement water quality trading programs for nutrients, sediments and other pollutants where 

opportunities exist to achieve water quality improvements at reduced costs... EPA does not 

support trading to comply with existing technology-based effluent limitations.” [EPA, 2003]

EPRI’s Ohio River Water Quality Trading Program Business Case for Power Company 

Participation [EPRI, 2010], successfully demonstrated that WQT could reduce nutrient reduction 

compliance costs on the order of $1 million for a single facility, compared to conventional 

treatment technologies, depending on the level of nutrient reduction required.

As demonstrated in EPRI’s pilot, The Ohio River Basin Water Quality Trading Project, there is 

broad interest and support for WQT from the NPDES permitting authorities and from 

Departments of Agriculture for the States of Ohio, Indiana, and Kentucky, with letters of support 

from Mr. Bob Perciasepe, U.S. EPA Assistant Administrator, Ohio River Valley Sanitation 

Commission (ORSANCO), U.S. Department of Agriculture (USDA), and EPA Region 4.

Further, the National Association of Regulatory Utility Commissions adopted a resolution 

commending EPRI for, “working to develop best practices in water quality trading, and 

encourages state governments to consider similar programs in other states, given the importance 

of water quality to the nation.” [NARUC, 2013].
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-369

However, because the EPA WQT Policy does not support trading to comply with a technologybased effluent limit (TBEL), in the absence of specific authorization, inclusion of technologybased effluent limitations for nitrate/nitrite in the ELG will eliminate any reasonable opportunity 

for using WQT as a cost-effective compliance tool, and will also eliminate associated ancillary 

benefits (pollinator habitat, carbon sequestration, social benefits to farmers, improved 

agricultural practices, improved soil health, etc.). If limits for nitrate/nitrite remain in the ELG, 

EPA will need to specifically authorize use of WQT for meeting the TBEL. If a plant elects to 

address selenium in a manner that does not result in corresponding nitrate/nitrite reductions (such 

as using emerging technologies that treat selenium, but not nitrogen), then WQT could be an 

effective compliance option for meeting a nitrate/nitrite limit.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 regarding trading 

and response to DCN EPA-HQ-OW-2009-0819-4183-A2, Excerpt Number 20.

Water-quality based trading is outside the scope of this rule. EPA supports water quality trading 

initiatives, and has supported the trading program in the Ohio River Basin developed by the 

commenter. As described in Section 6 and 11 of the TDD, nitrate/nitrite is a POC in FGD 

wastewater, and there is an affordable and demonstrated technology basis for meeting the 

technology-based limitations.

Although nitrate/nitrite is limited in the ELG, it does not prevent power plants from participating 

in trading programs for other purposes. As EPRI says in their own Program Summary (located at 

http://wqt.epri.com/pdf/3002001739_WQT-Program-Summary_2014-03.pdf), “These 

stewardship credits cannot be applied towards a permit compliance obligation, but can be used to 

meet corporate sustainability goals.”

Commenter Name: Appalachian Voices

Commenter Affiliation: Appalachian Voices

Document Control Number: EPA-HQ-OW-2009-0819-4501-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Actions taken by the North Carolina General Assembly have devastated state regulators' ability 

to enforce water quality standards

Or greatest concern is that the General Assembly recently mandated a reorganization of 

North Carolina’s water quality programs by combining the Division of Water Quality with the 

Division of Water Resources, while reducing the combined budgets of these divisions by 12.4% ‐

on top of an additional 2% department‐wide cut. The result is that the state’s ability to monitor 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-370

and enforce permits will be gutted due to personnel reductions of up to 30% and the retirement 

or departure of the most experienced personnel. In addition, the agency reorganization is likely to 

be both disruptive and require remaining staff to play more generalist roles (meaning they are 

unlikely to have the experience and expertise to ask the right questions and to detect fraud and 

abuse).

In addition, the Assembly passed the Regulatory Reform Act of 2013 (House Bill 74) in August, 

an omnibus bill that packaged together an enormous number of roll‐backs of environmental 

protections including a measure that requires all state rules to be reviewed and re‐adopted every 

10 years or else expire. The bill contained the added specification that rules regarding surface 

water quality and wetlands must be reviewed in the first year. Given that this one‐year timeframe 

coincides with a massive budget cut and departmental reorganization resulting from the 

dissolution of the Division of Water, the ability of the state to monitor and enforce permits will 

be decimated and important clean water regulations are likely to automatically expire.

In addition, the Regulatory Reform Act of 2013 expands the compliance boundary around CCW 

impoundments and other WMUs for groundwater contamination all the way out to a facility’s 

property line, abandoning the current 500‐foot limit and allowing unlimited groundwater 

contamination all the way up to the property line, putting neighbors that rely on private wells at 

risk. The bill also makes it more difficult for DENR to require action inside the compliance 

boundary to reduce the flow of contaminated groundwater off site. DENR can now only require 

steps to contain contaminated groundwater by showing that the groundwater contamination has 

caused (or will cause) a specific violation or an imminent threat to health or safety. As the law is 

written, evidence that contamination has moved beyond the compliance boundary will not be 

sufficient for the state to require remedial action.

To make matters worse, all of these changes are occurring at a time when the state is already 

years behind in adopting EPA‐approved rules on measuring toxic metals and when four of the 

coal‐fired power plants in the state are operating with expired NPDES permits.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27 and DCN EPAHQ-OW-2009-0819-3920-A1, Excerpt Number 118.

Commenter Name: Jimmy Daukas

Commenter Affiliation: American Farmland Trust (AFT)

Document Control Number: EPA-HQ-OW-2009-0819-4514-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-371

The rule fails to consider the usefulness for water quality trading to address excess 

nitrates. We agree with EPA’s stated policy 

(http://water.epa.gov/type/watersheds/trading/finalpolicy2003.cfm) that water quality trading is 

an important Clean Water Act tool, yet the rule fails to consider this important tool. We believe 

that the rule should acknowledge that water quality trading could be used to reduce nitrates in 

receiving waters, although it could be limited to those situations where N removal is needed in 

amounts that would exceed those that occur as an ancillary benefit from removal of another 

pollutant of concern.

Water quality trading has benefits. EPA has established policies covering water quality 

trading that point to the significant benefits. These include:

 Reducing the cost of compliance with water quality-based requirements

 Offsetting growth and maintaining water quality

 Achieving early reductions and progress towards water quality standards pending 

development of TMDL’s for impaired waters

 Reducing the cost of implementing TMDL’s through greater efficiency and flexible 

approaches

 Establishing economic incentives for voluntary reductions from all sources, especially 

agriculture and urban storm water runoff

 Encouraging private sector investments in nonpoint source efforts to reduce nutrient 

runoff

 Providing incentives to develop more accurate quantification protocols that can then be 

incorporated into other USDA NRCS cost-share conservation programs

 Achieving greater environmental benefits than those under existing regulatory programs 

by fostering the creation and restoration of wetlands, floodplains, and endangered species 

habitat.

There have been numerous studies and pilot cases where these benefits—social, environmental 

and financial-- have been documented. These benefits from water quality trading - and 

particularly the potential for market incentives to more effectively engage farmers and ranchers 

in reducing nutrient runoff - should not be ignored by EPA in the rule.

Water quality trading can be applicable to the rule. Although steam electric power plants are 

in a wide range of locations and on different water bodies, trading can still apply to those 

situations. If excess nitrates from a power plant occur, it could offer financial savings to the plant 

to purchase credits from other sources, both point and non- point, to reduce loadings into the 

affected water body. This option should not be precluded by EPA. We encourage EPA to review 

the Water Quality Trading Assessment Handbook (Reference number EPA 841-B-04-001) to see 

how trading can be applicable to the rule.

Water quality trading must be authorized in the rule. We recognize that EPA included in the 

2003 WQT policy a provision prohibiting use of trading to comply with technology-based 

effluent limitations except as expressly authorized by federal regulations. EPA has also stated 

that it will consider including provisions for trading in the development of new and revised 

technology-based effluent guidelines and other regulations to achieve technology-based 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-372

requirements, reduce implementation costs and increase environmental benefits. If there are any 

numeric limits on nitrates-nitrites in the steam power plant rule, then water quality trading should 

be an available method to achieve those limits. We believe that this would be an important 

opportunity for EPA to specifically include authorization for trading as the proposed rule is 

promulgated. We urge EPA to do so.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 and DCN EPAHQ-OW-2009-0819-4499-A1, Excerpt Number 41.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Inclusion of nitrate/nitrite in the Biological Treatment standard for FGD appears to be for use as 

an indicator of how the anaerobic treatment is performing. This inclusion could lead to 

unintended consequences in both implementation and enforcement of a new ELG. One possible 

impact could be to hinder the ability of states to establish nitrate trading programs. If 

nitrate/nitrate remains in the ELG, EPA should include language in the final rule to justify and 

explain the requirement to the regulated community, and language that specifically allows for 

nitrate trading to avoid any confusion.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3 and DCN EPAHQ-OW-2009-0819-4183-A2, Excerpt Number 20.

Commenter Name: Becky Smith

Commenter Affiliation: Clean Water Action et al.

Document Control Number: EPA-HQ-OW-2009-0819-4548-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-373

The Clean Water Act requires states to set strong discharge standards for polluters in the absence 

of federal standards.3 Unfortunately, most state permitting agencies have failed to set limits in 

discharge permits for individual plants that reflect the best available treatment technology and 

protect water quality.

3

33 U.S.C. § 1314 (b); 40 C.F.R. § 122.44(a)(1), 123.25, 125.3

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27. 

Commenter Name: H. Morriss Barney IV

Commenter Affiliation: Texas Municipal Power Agency (TMPA)

Document Control Number: EPA-HQ-OW-2009-0819-4584-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

However, if EPA applies a BPJ approach, it must specify that it does not mean the permit writer 

has no standards for decision. To the contrary, the standards for making “BPJ” decisions have 

long been prescribed by the CWA. The permit writer “must consider” the listed statutory factors, 

including cost.

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-374

As a significant amount of nutrient loading is from non-point sources, we believe it may be more 

cost effective to conduct trading on nutrients rather than to impose numeric technology-based 

limits, unless trading is specifically allowed in those ELGs as a viable compliance option (i.e., 

provide a waiver from nitrate-nitrate ELGs to allow and encourage trading).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt Number 3. 

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire (PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 43

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Should EPA erroneously select this regulatory option, PSNH, at the very least, requests that the 

agency provide some boundaries. Specifically, EPA should develop a BPJ standard that 

establishes threshold standards for a permittee (or specifically empowers them in some other 

concrete way) to objectively demonstrate that one or more particular technologies cannot 

feasibly be implemented at their facility and/or that that the costs of implementing said 

technologies would be disproportionate to the benefits.

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 214

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXVIII. The Final ELG Rule Should Authorize Pollutant Trading
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-375

The final ELG Rule should expressly authorize water quality trading of TBELs to increase 

environmental benefits and reduce implementation costs. This authorization is necessary given 

EPA policy (i) encouraging water quality trading due to its many benefits and (ii) supporting

trading to comply with TBELs, but only where expressly considered and authorized by federal 

regulation (here, the ELG Rule). This authorization is important to preserve and promote water 

quality trading programs and initiatives that have been established or are being developed around 

the country, including several with EPA support and funding.

We note that a number of existing trading projects involve nutrients, such as the one in the Ohio 

River Basin. That project is particularly relevant here because it is led by EPRI with active 

involvement by power plants that eventually will be subject to the ELG Rule. If EPA includes 

nitrate/nitrite limits for FGD wastewaters without any corresponding trading authorization, as 

proposed, then it will have dealt a major blow to power plant participation in water quality 

trading initiatives. As described in more detail elsewhere in these comments, UWAG believes 

that the proposed nitrate/nitrite limits are unsupported by the record and cannot be 

maintained. But even if they are dropped from the final rule (as we recommend), it will be 

critical for EPA to authorize other forms of TBEL trading for the broad range of pollutants 

addressed in the ELG Rule.

Given the significance of a trading option, UWAG recommends specific approaches for this rule, 

with reference to past rulemaking and various trading programs employing analogous 

approaches, including the proposed addition of a new § 423.18.

A. Significant Benefits of Water Quality Trading

Perhaps the best statement of the significant benefits, environmental and economic, associated 

with water quality trading is EPA’s own “Final Water Quality Trading Policy” (Jan. 13, 2003) 

(“Trading Policy”). There EPA states:

Finding solutions to ... complex water quality problems requires innovative approaches that are 

aligned with core water programs. Water quality trading is an approach that offers greater 

efficiency in achieving water quality goals on a watershed basis. It allows one source to meet its 

regulatory obligations by using pollutant reductions created by another source that has lower 

pollution control costs. Trading capitalizes on economies of scale and the control cost 

differentials among and between sources.

The United States Environmental Protection Agency (EPA) believes that market-based 

approaches such as water quality trading provide greater flexibility and have potential to achieve 

water quality and environmental benefits greater than would otherwise be achieved under more 

traditional regulatory approaches. Market-based programs can achieve water quality goals at a 

substantial economic savings ... [For example, t]he National Cost to Implement Total Maximum 

Daily Loads (TMDLs) Draft Report estimates that flexible approaches to improving water 

quality could save $900 million dollars annually compared to the least flexible approach (EPA, 

August 2001) ... Market-based approaches can also create economic incentives for innovation, 

emerging technology, voluntary pollution reductions and greater efficiency in improving the

quality of the nation’s waters.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-376

http://water.epa.gov/type/watersheds/trading/finalpolicy2003.cfm. In recent testimony at a May 

22, 2013 hearing of a Senate Environmental and Public Works subcommittee, EPA’s Deputy 

Assistant Administrator for Water, Michael Shapiro, (“Shapiro Testimony”) reaffirmed the 

Agency’s policy in support of water quality trading, adding that, “[t]he EPA has for many years 

encouraged and supported the concept of water quality trading as an innovative approach for 

achieving water quality standards with flexibility and economic efficiency,” and that “EPA 

continues to support water quality trading as a tool for meeting CWA requirements in a more 

flexible and cost-effective way.” Shapiro Testimony, pp. 4-10.

As emphasized by the Agency itself, water quality trading is an innovative tool that may be used 

to minimize environmental impacts and the economic implications of regulating such impacts, 

particularly as “[p]opulation growth and development place increasing demands on the 

environment making it more difficult to achieve and maintain water quality standards.” Trading 

Policy, p. 1; see also 76 Fed. Reg. 66,286, 66,303 (Oct. 26, 2011) (EPA describing water quality 

trading, including within-plant credit trading, as an “opportunit[y] to promote innovative 

approaches” and stating its openness to using trading to implement existing TBELs in its Final 

2010 Effluent Guidelines Program Plan). Express authorization of water quality trading in the 

ELG Rule is necessary to facilitate use of this innovative tool in the steam electric industry 

sector.

B. Necessity of Providing for Trading in the ELG Rule

The ELG Rule must provide for water quality trading if this highly beneficial tool is to be made 

available in this context pursuant to EPA’s Trading Policy. EPA’s policy supports technologybased trading, but only where “expressly authorized by federal regulations” such as the ELG 

Rule. Thus, without explicit provision for trading in the ELG Rule, the steam electric industry 

will not have the flexibility to pursue trading to facilitate compliance with the ELG Rule and 

associated environmental benefits most efficiently.

The Agency has made the express commitment to consider TBEL trading in conjunction with the 

development of new and revised effluent limitation guidelines, such as those in the ELG 

Rule. EPA’s Trading Policy states that the Agency “will consider including provisions for 

trading in the development of new and revised technology-based effluent guidelines and other 

regulations to achieve technology-based requirements, reduce implementation costs and increase 

environmental benefits” (emphasis added).

C. Trading in the ELG Rule and Existing, Analogous Trading Approaches

UWAG recommends four specific approaches for providing the necessary authorization for 

trading in the ELG Rule, and provides a suggested regulatory provision incorporating these 

approaches.

1. The “Water Bubble” Approach

First, EPA should expressly allow a “water bubble.” This is a regulatory flexibility mechanism 

which would allow for trading of credits for identical pollutants at any single steam electric 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-377

facility with multiple compliance points. This approach is in keeping with EPA’s Trading 

Policy, which “supports intra-plant trading that involves the generation and use of credits 

between outfalls that discharge to the same receiving water from a single facility that has been 

issued an NPDES permit.”

Existing technology-based effluent guidelines for the iron and steel industry (“Iron and Steel 

ELG”) allow for such intra-plant trading of conventional, nonconventional, and toxic pollutants 

between outfalls under certain circumstances. Facilities have successfully used this “water 

bubble” approach to achieve compliance and/or cost savings, as well as to produce benefit for the 

environment. 65 Fed. Reg. 81,963, 82,031 (Dec. 27, 2000).

In responding to comments on the “water bubble” concept in the Iron and Steel ELG context, 

EPA explained why such a concept would not increase environmental impacts:

EPA disagrees that excessive amounts of [the pollutants] could be discharged to surface waters 

of the United States through the use of the water bubble. The total discharge of [pollutants] from 

a facility ... would not change because of this amendment ... [T]he provision allows a facility to 

exceed the otherwise applicable effluent mass limitation for a particular outfall within a group of 

outfalls so long as the facility does not exceed the allowed mass limitations for the grouped 

outfalls. This provides facilities more economic flexibility to achieve compliance with limits, 

without increasing the amount of pollutants discharged to the environment.

70 Fed. Reg. 73,618, 73,620 col. 2 (Dec. 13, 2005). This rationale would apply with equal force 

in the current proceeding, and provides further support for UWAG’s recommended approach.

2. Credit Trading on a Local, State, and/or Interstate Basis

Second, EPA should expressly allow for credit trading between and among sources – including 

power plants subject to the ELG rule – on a local, state, or even interstate basis, if supported by 

adequate modeling and data confirming that such trading would not result in adverse localized 

impacts (i.e., “hot spots”). As noted in the Shapiro Testimony, “The EPA ... believes that 

interstate trading can be an effective tool for achieving pollution reductions among states, and is 

interested to work with interested states to pursue such approaches and to ensure that they are 

consistent with the CWA.” Shapiro Testimony, p. 9. In support of such an approach, EPA has 

committed significant federal grant funding and other policy support to enable the first-of-itskind interstate water quality trading project in the Ohio River Basin, which is led by EPRI with 

support and participation from UWAG members. EPA has allocated significant resources in 

support of other states’ trading projects as well, including a 2009 grant for efforts in the 

Mississippi River and by offering multiple workshops and training opportunities for interested 

parties on water quality trading. See Shapiro Testimony, p. 7.

These trading projects are supported by robust ecological modeling and data and involve power 

plants that will be subject to the ELG Rule. It is imperative that EPA authorize TBEL trading in 

the ELG Rule, so that the absence of such authorization will not become an impediment to the 

success of the Ohio River Basin project and other trading initiatives in other watersheds around 

the country.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-378

3. Nutrient Trading

Third, if EPA elects to proceed with nutrient TBELs for FGD wastewaters (despite the absence 

of a record to support them), then EPA must authorize the trading of these TBELs. EPA has 

indicated in a Q&A document dated July 3, 2013 that nitrate/nitrite is a pollutant of concern, 

which is simultaneously reduced when applying biological treatment for the control of one 

particular metal, selenium. EPA goes on to say that “[b]ecause nitrate/nitrite is incidentally 

removed as the treatment process removes selenium, EPA does not expect the rule to create a 

demand by regulated entities for trading in nitrogen credits.” But EPA suggests that, if more 

stringent water quality-based nitrogen limits are applied to a steam electric power plant’s 

NPDES permit in the future, then the plant would be allowed to trade for this additional margin 

below the TBEL.

There are two fundamental problems with EPA’s approach. First, as described in more detail 

elsewhere in these comments and EPRI’s Comments, the record is insufficient to support EPA’s 

proposed nutrient TBELs (i.e., nitrate/nitrite limits for FGD wastewater) or to understand related 

implications of biological selenium treatment for nutrient removal. Second, due to the limited 

and unrepresentative data used, the proposed nutrient TBELs are so extremely low that the offer 

of future, marginal trading is likely illusory.

We urge EPA to retract its Q&A document and reconsider its decision to impose nutrient 

TBELs. At a minimum, if EPA retains such TBELs, then it must revise them upward to reflect 

what is in fact achievable using biological treatment. And EPA must also authorize the trading 

of such TBELs. This is in keeping with the Agency’s position that trading is especially useful in 

the context of nutrients. See, e.g., EPA’s Trading Policy (“EPA supports trading that involves 

nutrients (e.g., total phosphorus and total nitrogen) or sediment loads.”); Shapiro Testimony, p. 4 

(“An approach with significant potential to help reduce nutrient pollution ... is water quality 

trading.”). It is also necessary to support different nutrient trading projects around the country, 

including the Ohio River Basin Project, as described above and the highly successful Long 

Island Sound Nitrogen Credit Exchange Program in Connecticut, which is responsible for 15.5 

million nitrogen credits having been traded since its establishment in 2002. Shapiro Testimony, 

p. 8.

4. Trading Unrestricted by Pollutant Type

Fourth, EPA should not restrict the availability of trading on a pollutant basis. While much 

water quality trading experience to date has involved nutrients, the ELG Rule should allow for 

trading of all pollutants that are subjected to technology-based limits in the rule, including metals 

(e.g., arsenic, selenium, mercury) and TDS. Again, the Iron and Steel ELG, which allows for 

trading of a variety of pollutants (e.g., ammonia, zinc, lead), provides a working example of how 

such trading authorization should be crafted, as does the Colorado policy allowing for salinity 

trading. As acknowledged in EPA’s Trading Policy, “trading of pollutants other than nutrients 

and sediments has the potential to improve water quality and achieve ancillary environmental 

benefits ...” 

5. Recommended New Provision for Trading
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-379

UWAG recommends EPA add a new § 423.18 to allow facilities to meet the prescribed effluent 

limitations, in whole or in part, through trading. Such a new provision might read:

§ 423.18 Authorization of trading to attain technology-based effluent limitations 

representing the degree of effluent reduction attainable by the application of the best 

practicable control technology currently available (BPT), best available technology 

economically achievable (BAT), best conventional pollutant control technology (BCT) 

[reserved], new source performance standards (NSPS), pretreatment standards for existing 

sources (PSES), and pretreatment standards for new standards (PSNS).

(a) Except as provided in paragraph (c) of this section, any existing or new direct discharging 

point source subject to this part may use water quality trading between and among a combination 

of:

(i) outfalls at a single facility, and/or

(ii) other point or nonpoint sources on a local, state, or interstate basis, where supported by 

adequate modeling and data confirming that such trading would not result in adverse localized 

impacts;

to achieve the effluent limitations specified in § 423.12 through § 423.17.

(b) Trading is authorized for all pollutants subject to the effluent limitations specified in § 423.12 

through § 423.17.

(c) Trading is not permitted if it would cause or contribute to an exceedance of any applicable 

water quality standards.

Comment Response: 

EPA does not agree with the commenter that they must allow or that it is appropriate for trading 

to be a part of the final rule. See responses to DCN EPA-HQ-OW-2009-0819-3922-A1, Excerpt 

Number 3 and DCN EPA-HQ-OW-2009-0819-4499-A1, Excerpt Number 41.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-380

In the absence of ELGs to control toxic pollution from coal-burning power plants, permitting 

agencies have largely failed to set limits on toxic pollution from power plants. The 

Environmental Integrity Project, Earthjustice, Sierra Club, Clean Water Action, and Waterkeeper 

Alliance released a report on July 23, 2013 that found that nearly 70 percent of power plant 

permits (188 out of 274) set no limit on how much toxic pollution these plants can discharge.5

5 Environmental Integrity Project et al., Closing the Floodgates: How the Coal Industry is 

Poisoning Our Water and How We Can Stop It (July 23, 2013), at 7, available at 

http://www.environmentalintegrity.org/news_reports/documents/2013_07_23_ClosingTheFlood

gates-Final.pdf.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 27.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 92

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. Most states lack the resources to develop BAT-based limits in discharge permits.

The practical implications of EPA’s failure to set ELGs for FGD wastewater are enormous. As 

detailed above, experience shows that local permitting authorities fail entirely to apply best 

professional judgment for determination of the best available technology for FGD wastewater 

and coal combustion residuals, or fail to do so with any rigor.353 Despite the availability 

of economically and technologically achievable technologies to address these pollutants, and 

EPA’s exhortations to permitting authorities to make case-by-case BAT determinations,354 state 

permitting authorities have not fulfilled their obligations under the Clean Water Act. EPA is well 

aware that states have failed to establish technology-based effluent limits for these 

waste streams. EPA’s regional offices have issued dozens of objection letters to states, noting 

the absence of BAT determinations for these waste streams.355 However, few if any of these 

objections have resulted in undertaking of BPJ analyses much less the imposition of required 

BAT limits in the state’s NPDES permits.

In part, the states’ failure to include BAT-based limits stems from a lack of resources to make 

complex BAT determinations, which require the input of highly specialized engineers, chemists, 

and economists.356 EPA Region 1 has cited limited resources and the difficulty of setting 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-381

technology-based limits as an explanation for the significant backlog of NPDES permit 

renewals—some of which are 20 years overdue for renewal.357 We have heard from numerous 

state permitting officials that they do not have the capacity and expertise to make BAT 

determinations, and that they would strongly prefer EPA to promulgate effluent limitation 

guidelines for steam EGUs. Case-by-case BAT determinations are also highly inefficient from 

the perspective of the permit applicant, and for the local communities affected by these 

discharges who might seek stronger permits. In our groups’ experience, considerable staff time is 

required to evaluate, comment on, and challenge permits where the state has failed to make a 

proper BAT determination. It can cost $150,000 or more to pay for the technical and legal 

expenses necessary to evaluate BAT for a given plant and fully participate in the administrative 

review process. These expenses include hiring experts to investigate existing technologies and 

present alternative analyses regarding BAT for the waste stream affecting the public.

353 See Closing the Floodgates, supra note 5, (finding that out of 274 power plants discharging 

wastewater, only 86 had at least one limit on arsenic, boron, lead, mercury, cadmium, or 

selenium; 255 plants lacked any limits on arsenic; 235 plants lacked any limits on mercury; 232 

lacked limits on selenium; and nearly 40 percent did not even require monitoring for any of these 

pollutants).

354 Memorandum from James A. Hanlon to EPA Regional Offices, National Pollutant Discharge 

Elimination System (NPDES) Permitting of Wastewater Discharges from Flue Gas 

Desulfurization (FGD) and Coal Combustion Residuals (CCR) Impoundments at Steam Electric 

Power Plants (June 7, 2010).

355 See Compilation of EPA Regional Office Interim Objection Letter and Comments, submitted 

by Commenters as an exhibit to this letter.

356 See, e.g., Comments by Kansas Dept. of Health & Envt., EPA-HQ-OW-2009-0819-3922, at 6 

(“States have neither the luxury nor the resources to collect and evaluate the data EPA has 

collected to address a handful of NPDES permits they administer. . . . Due to the ever dwindling 

staffing and resources available to states, EPA should be making the call regarding BAT for the 

FGD wastewater.”).

357 See Declaration of David M. Webster in Support of Opposition to Petition for a Writ of 

Mandamus, In re Sierra Club and Our Children’s Earth Foundation (Case No. 12-1860, 1st Cir.) 

(Apr. 5, 2013) ¶¶ 40, 50, 63-64, & 76.

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-382

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 94

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. EPA’s proposed exemptions will perpetuate and worsen a status quo in which states 

ignore their obligation to make case-by-case BAT determinations.

A common industry argument, echoed by a number of states, is that where EPA has decided not 

to set ELGs for a particular pollutant in a waste stream, the permitting authority is not required to 

make its own BAT determination for those pollutants.359 As organizations that have challenged 

permits in many states, we have encountered this position from permit applicants and state 

officials countless times. For instance, the state of Kentucky has maintained the position that it 

has no obligation to undertake BAT determinations for pollutants other than those in EPA’s 

1982 ELGs, and was only just recently invalidated by a state lower court.360

If EPA adopts Options 3a or 3b, some state permitting offices may view this decision as 

authorizing a continuation of the status quo – i.e., that they still do not need to set TBELs for 

mercury, arsenic, selenium and other metals in FGD wastewater even after the issuance of the 

rule. In particular, EPA’s indeterminate statements that biological treatment may not be 

affordable for some units361 could be cited by state permitting agencies as a basis for concluding 

that biological treatment is not affordable for the particular facility in question, despite the fact 

that EPA’s own analysis demonstrates its affordability, as described above. In addition, as 

Kansas Department of Health and the Environment has noted, EPA’s decision not to establish 

BAT for FGD wastewater might make it difficult for the state to justify its decision to establish 

BAT on a case-by-case basis.362 If EPA finalizes Options 3a or 3b—a decision that would 

be contrary to the Clean Water Act and not supported by the record—it must make very clear 

that state permitting authorities have a duty to establish BAT-based limits for arsenic, mercury, 

selenium, and other toxics in FGD wastewater.

359 See, e.g., Arkansas Dept. of Envtl Quality, Response to Comments on NPDES Permit for Flint 

Creek Power Plant, at 14 (stating that the state is obligated to set limits based on the “currently 

effective” ELGs, and that EPA’s 1982 Development Document showed the agency had 

considered toxic metals and deliberately chosen not to regulate them in coal combustion residual 

wastewaters).

360 See Kentucky Waterways Alliance et al. v. Energy & Environment Cabinet, Civil Action No. 

11-CI-1613 (Sept. 10, 2013).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-383

361 78 Fed. Reg. at 34,470.

362 EPA-HQ-OW-2009-0819-3922, at 6 (“[I]f EPA requires states to use BPJ to establish BAT 

criteria for the designated wastestream, it would be likely that if an industry decides to contest 

the state's determination as to what constitutes BAT for the FGD wastewater, the state will end 

up not only having to defend its technical, environmental, and economical determination, but 

will have to justify that decision in light of EPA having not made a similar determination when 

finalizing the proposed rule.”)

Comment Response: 

As discussed in preamble section VIII.C.1, EPA decided not to promulgate BAT limitations that 

would require permitting authorities to establish limitations for FGD wastewater using sitespecific BPJ. See response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 6 in 

Comment Code 6.j.i.

Commenter Name: N. S. Lambert

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-4818-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The EPA has the DUTY to close any power plants that do not meet the standards for reducing 

pollution of our ground and surface waters. No natural resource is more important to human life 

than clean water.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-2265, Excerpt Number 1 in Comment Code 

1.a.i.

Commenter Name: C. Stokes

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5225-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-384

It would also help to have the EPA involved in the confirmation of new facilities to review plants 

that would limit the pollution with the latest technology available at the time prior to the start-up 

and use of the plants.

Comment Response: 

EPA’s New Source Performance Standards (NSPS) and Pretreatment Standards for New Sources 

(PSNS) are designed to set ELGs for new sources that are then incorporated into facility permits 

by the authorized permit authority. The final rule will limit the discharge of pollutants from new 

sources using standards that are based on the best available demonstrated control technologies. 

See preamble section VIII for more information.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-385

27. Coordination with Other EPA Rules 

Commenter Name: Paul Bailey

Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE)

Document Control Number: EPA-HQ-OW-2009-0819-4466-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, EPA has continued its practice of failing to analyze the impact of its regulations 

cumulatively with all of the other power sector regulations the Agency has either already adopted 

or intends to adopt. EPA’s failure to conduct cumulative analysis is directly contrary to the 

requirements of President Clinton’s Executive Order 12,866, which was reiterated in President 

Obama’s Executive Order 13,563, for agencies to “tak[e] into account, among other things, and 

to the extent practicable, the costs of cumulative regulations.”

As of 2012, coal-fueled power plants had invested approximately $110 billion for controls to 

reduce air emissions.4In addition, coal-fueled power plants will spend an estimated $95 billion 

to achieve additional emission reductions under the Mercury and Air Toxics Standards (MATS) 

rule.5 Further investments also may be necessary to comply with some or all of the following:

 Effluent Limitations Guidelines (the subject of these comments);

 Revisions to the NAAQS for PM2.5;

 New source performance standards for carbon dioxide (CO2) emissions;

 CO2 emissions requirements for existing power plants under Section 111(d) of the Clean 

Air Act;

 Regional haze/BART requirements;

 Requirements to further reduce the interstate transport of emissions (the 

replacement for the Cross-State Air Pollution Rule (CSAPR));

 Regulations for coal combustion residuals (CCR rule);

 Requirements under section 316(b) of the Clean Water Act;

 The possibility of a revised NAAQS for ozone;

 The revised NAAQS for nitrogen dioxide; and

 The revised NAAQS for sulfur dioxide.

EPA has not performed any cumulative assessment of these rules, despite the fact that most of 

these rules apply to the same group of coal-fired electric generating units.

EPA’s limited rule-by-rule approach to analyzing regulatory impacts masks the true impacts of 

these rules. For instance, EPA’s MATS Regulatory Impact Analysis (RIA) projected that 4.7 

GW of coal-based capacity would retire by 2015,6 and its CSAPR RIA projected that (without 

considering MATS), 5.0 GW of coal-based capacity would retire by 2014.7 However, over 40 

GW of coal-based capacity have already announced that their retirement is due in whole or in 

part to EPA policies, with more retirements 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-386

possible as EPA continues to unfold new regulatory requirements.8 Clearly, EPA’s 

analyses, including its analysis here, have fail to accurately portray the true effect of its 

regulations. ACCCE urges EPA to provide a true comprehensive analysis of the impact of the 

proposed Effluent Guidelines in light all of the other power sector regulations EPA has adopted 

or intends to adopt.

EPA’s piecemeal approach to power sector regulations also makes it extremely difficult for the 

industry to plan. Utilities must consider all of EPA’s regulations together in making multimillion and multi-billion dollar investment decisions. The three-year MATS compliance window 

(with a possible one-year extension) has already forced utilities to decide which units to retire 

and which must install controls. With more EPA regulations to come, utilities do not know 

whether these investment decisions will result in stranded investment that they could have 

avoided had they understood EPA’s full regulatory program in advance.

4 Energy Ventures Analysis, Coal-Fired Power Investment in Emission Controls, 2012.

5 NERA Economic Consulting, An Economic Impact Analysis of EPA’s Mercury and Air Toxics 

Standards Rule, March 2012.

6 U.S. EPA, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards, 

December 2011, at 3-16.

7 U.S. EPA, Regulatory Impact Analysis for the Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and Ozone in 27 States; Correction of SIP 

Approvals for 22 States, June 2011, at 263.

8 American Coalition for Clean Coal Electricity, Coal Unit Shutdowns, July 25, 2013.

Comment Response: 

EPA disagrees with the commenter's statements that EPA has “fail[ed] to analyze the impact of 

its regulations cumulatively with all of the other power sector regulations the Agency has either 

already adopted or intends to adopt" or that EPA has “fail[ed] to accurately portray the true 

effect of its regulations.” 

To the contrary, EPA’s analysis of the proposal and final steam electric ELGs accounted for the 

potential cumulative impact that multiple environmental regulations may have on the electric 

power industry and is consistent with EPA’s requirements under the Clean Water Act and 

applicable Executive Orders, including Executive Orders (EO) 12866 and 13653.

For the proposed rule analysis, EPA analyzed the impact of the ELGs using the Integrated 

Planning Model (IPM), a comprehensive electricity market optimization model that assesses 

impacts of environmental regulations within the context of regional and national electricity 

markets. The proposal analysis used IPM version v4.10_MATS, which includes the effects of the 

Mercury and Air Toxics Standards (MATS) rule, the Cross-State Air Pollution Rule (CSAPR), 

and various other federal and state programs (see IPM documentation for more details; available 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-387

at http://www.epa.gov/powersectormodeling/). EPA added the ELG impacts on top of the 

impacts modeled in the base case in order to assess the resulting impacts to the industry as a 

whole.

For the final rule analysis, EPA again used IPM to understand the incremental impacts of the 

ELGs on the steam electric industry and the electricity market, accounting for the effects of other 

regulations. The IPM analysis provides insight on the short term and steady-state, postcompliance effects of the final ELGs, including changes in available capacity, generation, 

production costs, etc. EPA used IPM model version 5.13 for the final rule analysis, which is 

updated from the IPM version used at proposal. The analysis base case for IPM version 5.13 

includes the regulations included at proposal, as well as the cooling water intake structure rule 

and the Coal Combustion Residuals (CCR) rule, among others.1 Based on their breadth of effect 

and potential cost, EPA views the regulations contained in the base case as covering the most 

significant other regulations affecting the electric power industry, and steam electric power 

generators in particular. Given the potential magnitude of effects, EPA also conducted an 

analysis that accounts for the effects of the proposed Clean Power Plan (CPP) regulation (as 

proposed in July 2014). Also see section V.A and B. of the preamble to the final rule, the 

Technical Development Document (TDD) and the Regulatory Impact Analysis (RIA) for a 

discussion of the anticipated effects of the final CPP regulation. The model outputs therefore 

reflect the combined effects of all these regulations, and allow consideration of the incremental 

impacts of the ELGs in the context of the various rules and programs affecting the electric power 

sector during the period of analysis.

Furthermore, EPA accounted for the effects of other regulations in the ELG rulemaking in 

several other ways. For the final rule, the Office of Water coordinated the ELG analyses with the 

Office of Air and Radiation and the Office of Resource Conservation and Recovery to identify 

changes potentially affecting the universe of plants to which the ELGs apply (e.g., EPA 

accounted for the predicted installation of air pollution controls and changes in plant operations 

regarding the handling of CCRs due to certain Air rules and the CCR rule). See section V.B. of 

the preamble to the final rule for further information on this.

Finally, EPA analyzed the ELG regulatory options under scenarios that look at various impacts 

of other rules in the baseline (e.g., with and without the CCR rule, with and without the CPP 

rule). For example, see Appendix B and C of the RIA for impacts of alternate baseline 

assumptions on total compliance costs, cost-to-revenue ratios, electricity rates, etc.

Thus, EPA’s analyses of the final ELGs address the commenter’s concerns by explicitly 

accounting for the various requirements applicable to power plants under EPA or other 

programs, and considering the incremental effects of the ELGs in the context of these existing or 

projected requirements. IPM outputs for the policy case reflect the cumulative effects of all 

 

1

IPM also accounts for the compliance response to the following air regulations and programs: the Clean Air 

Interstate Rule (CAIR); the final Mercury and Air Toxics Standards (MATS) rule; Regional Haze Rule; Regulatory 

SO2 emission rates arising from State Implementation Plans (SIP); National and regional SO2 regulations and 

annual SO2 caps from Title IV of the Clean Air Act (CAA) Amendments; CAA Reasonably Available Control 

Technology (RACT) requirements and Title IV unit specific rate limits for NOx; the Regional Greenhouse Gas 

Initiative (RGGI); Renewable Portfolio Standards (RPS); New Source Review Settlements; and several state-level 

regulations affecting emissions of SO2, NOx, and mercury that are expected to come into force by 2017
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-388

requirements, including the ELGs. EPA’s analyses demonstrate that the final rule is 

economically for the steam electric industry as a whole, as it is projected to have minimal 

impacts on the industry in terms of changes in generation capacity. See preamble section 

VIII.C.9 and Chapter 5 of the RIA.

Regarding the difficulty of planning for changes in regulatory requirements, EPA is sensitive to 

the need to provide sufficient time for steam electric power plants to understand, plan for, and 

implement any changes to their operation to meet their environmental responsibilities, and agrees 

with the commenter that transparency of requirements is important for minimizing “stranded 

investments.” The ELG rulemaking process provided significant advance notice to potentially 

affected entities to evaluate the potential impacts of any new requirements on their operations. 

Furthermore, as described in the preamble, the final rule provides time for plant owners or 

operators to implement changes to plant operations in order to meet the final limitations and 

standards, as well as flexibility to permitting authorities in implementing the final rule. The 

Agency specifically considered the timing of requirements of other environmental regulations in 

establishing implementation requirements for the ELGs, in order to provide steam electric power 

plants time to consider and implement their strategy for compliance. See Sections VIII.C.7 and 

XVI.A.1 of the preamble to the final rule for details on the timing of implementation of the final 

rule.

Finally, from an environmental protection/coordination standpoint, with the increased use of flue 

gas desulfurization scrubbers and flue gas mercury controls in response to air pollution-related 

requirements, this rule makes sense from a holistic environmental protection perspective and 

from the perspective of coordinating across rules affecting the same sector. This final ELG 

controls the discharges associated with these particular wastestreams.

Commenter Name: Josie Gaskey

Commenter Affiliation: Pennsylvania Coal Association (PCA)

Document Control Number: EPA-HQ-OW-2009-0819-4515-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should take into consideration the cumulative effect of its recent proposed and 

enacted rules on the electric power industry and provide maximum flexibility regarding

implementation and implementation timelines to mitigate the collective impact of all the various 

rulemakings.

Since June 2010, EPA has proposed and/or published nine major rulemakings including:

o CCRs as a possible hazardous waste under RCRA

o NESHAP rule regarding Hazardous Air Pollutants (HAPs)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-389

o Cooling water withdrawals

o Cross-State Air Pollution Rule (CSAPR)

o Mercury and Air Toxics (MATS)

o NSPS for carbon dioxide emissions

o NAAQS for fine particulate matter

o Pre-permit fine particulate monitoring requirement exemptions

o Greenhouse gas emissions and other climate changes

From a practical standpoint, EPA must consider the cumulative implementation impacts of not 

only the availability of capital to make the required changes, but also the design and engineering 

needs including the ability to find, contract and schedule contractors. Furthermore, this must all 

be done in the most comprehensive, cost-effective, feasible approach encompassing all a 

company’s facilities to allow for continued uninterrupted generation reliability.

Comment Response: 

Regarding the commenter’s statements that “EPA should take into consideration the cumulative 

effect of its recent proposed and enacted rules on the electric power industry” and “provide 

maximum flexibility regarding implementation and implementation timelines,” see response to 

DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9

Regarding the commenter’s statements that EPA must consider “the availability of capital” and 

“the ability to find, contract and schedule contractors,” see response to DCN EPA-HQ-OW2009-0819-4450-A1, Excerpt Number 15.

Regarding the commenter’s statement about the importance of generation reliability, EPA notes 

that the market modeling approach used in IPM provides insight about generation mix and 

available capacity to assess potential impacts on reliability. These analyses show that the final 

ELGs will have very small incremental effects on available generating capacity, or on the cost of 

energy production. At the national level, early retirements equal approximately 0.1 percent of 

total generation capacity. See Chapter 5 and Section 10.6 in RIA, respectively, for details on the 

assessment of the impact of the Final ELGs in the context of national electricity markets and 

implications on energy supply, distribution and use.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-390

In recent years, the electric power industry has been the subject of significant and costly 

rulemakings by EPA. While EPA considers this Proposal singularly, such a view is myopic and 

shortsighted. The cumulative effects of EPA’s rules should be weighed during the promulgation 

of rules (such as ELGs) due to the overall impact that redounds to the industry.

To summarize EPA’s most recent rulemakings and other court rulings that the electric power 

industry is implementing or is in process of anticipating:

o On June 21, 2010, EPA published a rule establishing that CCRs may be regulated as a 

hazardous waste under the Resource Conservation and Recovery Act (“RCRA”). This 

rulemaking is ongoing.

o On March 21, 2011, EPA published a final NESHAP rule imposing new hazardous air 

pollutants (“HAPs”) emission standards for industrial, institutional and commercial 

boilers and process heaters at major source facilities (i.e., facilities that emit or have the 

potential to emit 10 or more tons per year (tpy) of any single HAP or 25 tpy or more of 

any combination of HAPs).

o Existing steam electric generating stations and manufacturing facilities that withdraw 

more than two million gallons per day of water from waters of the United States for 

cooling must also plan for compliance with an anticipated new EPA regulation proposed 

on April 20, 2011, to regulate cooling water intake structures at such facilities. Under a 

settlement agreement, EPA has agreed to promulgate this regulation by June 27, 2013 

and has since received a modification extension to complete appropriate analyses by 

November 4, 2013.

o On July 6, 2011, EPA issued the Cross-State Air Pollution Rule (“Cross- State Rule”), 

which required power plants in 27 states to reduce their emissions of nitrogen oxides 

(NOX) and power plants in 23 states to reduce their emissions of sulfur dioxide 

(SO2). Once the United States Supreme Court rules on this rule and EPA conforms to 

that ruling, compliance will begin. Until then, industry continues to meet the 

requirements of the Clean Air Interstate Rule (“CAIR”).

o On February 16, 2012, EPA published its Mercury and Air Toxics Standards rule 

(“MATS”), which applies to new and existing coal- and oil-fired electric generating units 

that produce more than 25 MW of electricity. Compliance with this final rule is now in 

process.

o On April 13, 2012, EPA proposed NSPS for carbon dioxide (CO2) emissions for new 

fossil fuel-fired power plants.

o On January 4, 2013, the D.C. Circuit remanded EPA’s rules specifying how states are to 

implement the NAAQS for PM2.5. The D.C. Circuit held that the rules had violated the 

Clean Air Act by allowing EPA to evade the requirement that certain moderate 

nonattainment areas be reclassified as serious nonattainment areas, to extend attainment 

deadlines too far into the future, to avoid the mandatory annual 5% pollutant reduction 

applicable to serious nonattainment areas that fail to timely attain the NAAQS, and to 

side-step requirements that existing sources in certain nonattainment areas apply 

reasonably available control measures (“RACM”) or best available control measures 

(“BACM”) by certain specified milestones.

o The D.C. Circuit on January 22, 2013 vacated EPA’s use of significant monitoring 

concentrations (“SMCs”) to exempt many sources from pre- permit PM2.5 monitoring 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-391

requirements and the use of significant impact levels (“SILs”) to exempt many new 

PM2.5 sources from cumulative source modeling to obtain a prevention of significant 

deterioration (“PSD”) permit.

o On June 25, 2013, the President outlined his plan for addressing greenhouse gas (“GHG”) 

emissions and other climate changes. By Presidential Memorandum, the President 

directed EPA to use its power under Sections 111(b) and 111(d) of the Clean Air Act to 

issue "standards, regulations, or guidelines, as appropriate" concerning carbon emissions 

from "modified, reconstructed, and existing power plants" (emphasis added). EPA must 

issue a proposal by June 1, 2014, and the final rule (or guidelines) must be promulgated 

by June 1, 2015. State implementation plans will be due to EPA by June 30, 2016.

EPGA offers these comments because it is necessary for EPA to consider the sheer volume of 

recently enacted or proposed rules impacting upon the power generation industry as well as the 

cumulative costs associated with those rules. Indeed, EPA itself notes that two of the abovecited rulemakings are the most costly in the agency’s history.

On a more practical note, the cumulative impacts must be considered because the availability of 

capital to make required improvements to a generation station may be constrained due to 

compliance with other EPA rulemakings. Additionally, given the scope of retrofits, installation 

of additional controls and other physical improvements, industry may struggle to find, contract 

and schedule contractors to make the appropriate modifications in order to satisfy rule timelines. 

Taken together, the latest suite of EPA rules has further strained an already constrained 

industry. It is for this reason that EPA should provide maximum flexibility and consider, to the 

extent practicable, coordinating implementation and compliance timelines to mitigate the 

collective impact of the various rulemakings.

Comment Response: 

Regarding the commenter’s statements that EPA should consider “the cumulative effects of 

EPA’s rules” for the final ELGs and that “EPA should provide maximum flexibility and consider 

coordinating implementation and compliance timelines to mitigate the collective impact of the 

various rulemakings,” see response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt 

Number 9. 

Regarding the commenter’s concern that “the availability of capital to make required 

improvements to a generation station may be constrained due to compliance with other EPA 

rulemakings,” EPA notes that the final rule specifies that permitting authorities are to consider 

the “time . . . to raise capital” when establishing the date that plants must meet the final BAT 

limitations that are more stringent than previously established BPT regulations (see 40 CFR 

432.11(t)(1)). Moreover, EPA’s analysis, as documented in the RIA for the final rule, indicates 

that the final rule’s financing burden is comparatively modest for virtually all organizations –

both private companies and other entities – expected to incur costs under the final rule (see 

Chapter 4 of the RIA). The resource requirements of the final rule – in terms of estimated capital 

outlay, near-term capacity effects, and ongoing operating costs and effects – are relatively small 

in themselves. As a result, EPA does not anticipate that steam electric power plants will face 

particular challenges in obtaining financial capital to comply with the final rule, even as they 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-392

may also be meeting requirements associated with other environmental regulations at 

approximately the same time. 

Regarding the commenter’s statement that “industry may struggle to find, contract and schedule 

contractors,” the final rule specifies that permitting authorities are to consider the “time . . . to 

design, procure, and install equipment” when establishing a date that plants must meet the final 

BAT limitations that are more stringent than previously established BPT regulations (see 40 CFR 

432.11(t)(1)). Moreover, due to the fact that plants’ NPDES permits will not all be reissued at the 

same time because they are all on different permitting cycles, EPA anticipates this will alleviate 

the potential for many plants to be making upgrades at the same time. 

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Cumulative Impact Of EPA Regulations On Power Sector Reliability

Midwest Gen appreciates that EPA outlined other Clean Air Act, Clean Water Act, and Resource 

Conservation and Recovery Act regulations facing the power sector in the preamble to its ELG 

proposal.4 Midwest Gen supports EPA’s acknowledgement of these concurrent 

requirements. All of the rules affecting the power sector overlap with each other, and all of the 

rules will have some impact on power sector reliability. Midwest Gen encourages EPA to take 

into account the direct effect each rule has on available capital and labor resources, with many of 

the rules individually running into the hundreds of millions of dollars in compliance costs. The 

impact of these multiple regulations is particularly problematic for merchant producers like 

Midwest Gen who cannot finance the compliance costs over the same lengths of time allowed to 

regulated utilities and cannot pass these costs along to rate-payers, as regulated utilities do.

Executive Order 13563 directs EPA to “tailor its regulations to impose the least burden on 

society, consistent with obtaining regulatory objectives, taking into account, among other things, 

and to the extent practicable, the costs of cumulative regulations.”5 As EPA moves forward 

with the ELGs and the other rules affecting the power sector, Midwest Gen encourages EPA to 

perform a cumulative cost-benefit analysis on all of the rules, including reliability standards, 

affecting the electric power industry. By cumulatively evaluating the costs, the timing, and the 

impacts on reliability of implementation of the various rules affecting the power sector, EPA can 

reduce compliance costs where there are synergies, streamline the regulatory process, ensure 

system reliability, and provide greater certainty for the regulated industry.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-393

4 See 78 Fed. Reg. at 34440-41.

5 See 76 Fed. Reg. at 3821.

Comment Response: 

Regarding the commenter’s statement that EPA should take into account the effect of the final 

ELGs on “available capital and labor resources,” see response to DCN EPA-HQ-OW-2009-

0819-4450-A1, Excerpt Number 15.

Regarding the commenter’s statement about “cumulatively evaluating the costs, the timing, and 

the impacts on reliability” of the final rule, see response to DCN EPA-HQ-OW-2009-0819-

4466-A1, Excerpt Number 9. EPA notes that the market modeling approach used in IPM 

provides insight about generation mix and available capacity to assess potential impacts on 

reliability. These analyses show that the final ELGs will have very small incremental effects on 

available generating capacity, or on the cost of energy production. At the national level, early 

retirements equal approximately 0.1 percent of total generation capacity. See Chapter 5 and 

Section 10.6 of the RIA, respectively for details on the assessment of the impact of the final 

ELGs in the context of national electricity markets and implications on energy supply, 

distribution and use.

EPA’s analyses of the final ELGs recognize that some plant owners – such as merchant power 

producers operating in deregulated markets – may not be able to pass through costs to their 

customers to the same extent as regulated entities. Accordingly, the analyses consider potential 

impacts from the perspective of plants and owners using a worst-case scenario where the owners 

are unable to pass through any of their costs (and for analyses of the impacts on consumers, also 

adopt a worst case perspective by assuming that none of the costs are passed through to 

consumers).

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 

(ARIPPA)

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In justifying the new ELGs, EPA identifies in the Preamble a series of regulatory actions that 

have been undertaken that relate to Steam Electric Power Plants. These actions are by different 

EPA Offices (i.e., Office of Air & Radiation (OAR), Office of Solid Waste & Emergency 

Response (OSWER), Office of Water (OW)) are:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-394

1. Proposed Effluent Limitations Guidelines and Standards for the Steam Electric Power 

Generating Point Source Category

2. Mercury and Air Toxics Standards (MATS) (Final but under appeal)

3. Cross-State Air Pollution Rule (CSAPR) (Vacated by Lower Court under appeal to US 

Supreme Court)

4. Greenhouse Gas Emissions for New Electric Utility Generating Units (Finalized and 

under appeal)

5. Announced proposal to new rules for Greenhouse Gas Emissions for Existing Generating 

Units (per Obama Administration and part of a Settlement Document between EPA and a 

Group of 13 known as the “State Petitioners” and 3 Groups known as the “Environmental 

Petitioners”

6. Cooling Water Intake Structures (CWA Section 316(b)) (Proposed)

7. Coal Combustion Residuals (CCR) Proposed Rule (Does not cover the utilization in mine 

land reclamation)

As such, this creates a series of disconnects by not fully characterizing what or how these actions 

would impact the effluent limitation guidelines; especially relating to the management of coal 

combustion residuals.

Comment Response: 

Regarding the commenter’s statement about EPA “not fully characterizing what or how [various 

EPA actions] would impact the final steam electric ELGs, see response to DCN EPA-HQ-OW2009-0819-4466-A1, Excerpt Number 9.

EPA also notes that the Office of Water (OW) coordinated its regulatory efforts with, among 

others, the Office of Resource Conservation and Recovery (ORCR) during the development of 

the final ELGs, in order to ensure that the final ELGs do not establish duplicative or inconsistent 

requirements with the final CCR rule, and so that the ELG requirements could be implemented in 

a manner that is sensitive to other requirements that steam electric power plants may be facing. 

For example, the final ELGs provide the permitting authority with flexibility in establishing a 

date by which certain final BAT limitations must be met, which allows for a consideration of 

plant changes being made or planned in response to other rules. See Sections VIII.C.7 and 

XVI.A.1 of the preamble to the final rule. As another example, the final ELGs do not impose 

best management practices (BMPs), as proposed, because EPA promulgated substantially similar 

BMPs in the CCR rule.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-395

Comment Excerpt: 

This rulemaking is unusual because it is really two rulemakings together—both resulting from 

the byproducts of new FGD technology. Under the Clean Air Act (CAA), FGD is installed at 

coal-fired power plants to reduce mercury from air emissions. It is not the only way to reduce 

mercury from air emissions, but it is widely expected to be the dominant control technology 

installed at hundreds of power plants across the U.S. between 2015 and 2017. The use of FGD, a 

new air pollution control technology is what makes this rulemaking so complex. Most effluent 

guidelines are not this complex. APPA comments addresses CWA- and Resource Conservation 

and Recovery Act (RCRA)-related issues.

Comment Response: 

EPA disagrees that this rulemaking “is really two rulemakings together.” The final ELGs 

address discharges of pollutants to waters of the United States. The rule has a distinct purpose 

and statutory basis from other rules promulgated by the Agency, including the CCR rule and 

rules under the Clean Air Act. EPA addressed issues related to the CCR rule in the context of 

that rulemaking.

EPA disagrees with the commenter that the ELG rulemaking is “complex” due to the use of FGD 

systems at steam electric power plants. EPA has previously established effluent guidelines for 

other industries that control discharges of aqueous waste streams resulting from air pollution 

control systems. In establishing the final limitations and standards in the steam electric ELGs, 

EPA considered the impacts to the steam electric power generating industry of various air and 

solid waste regulations, including the retirement of steam electric generating units and power 

plants, and the conversion of some units and plants to non-coal fuels. See response to DCN EPAHQ-OW-2009-0819-4466-A1, Excerpt Number 9, regarding EPA’s evaluation of the cumulative 

effect of regulations on the electric power sector.

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA also needs to give greater consideration to the cumulative impacts of other environmental 

regulatory changes that impact the steam-electric industry, e.g., the Mercury and Air Toxics 

Standards, Cross State Air Pollution Rule, the Cooling Water Intake Structures Proposal, and 

Coal Combustion Residuals Proposal. In addition, later this year EPA is expected to propose a 

regulation controlling greenhouse gas emissions from utilities. The economic and reliability 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-396

impacts of the proposed ELGs must be evaluated in the context of these other industry-related 

regulatory issues.

Comment Response: 

Regarding the commenter’s statement that EPA “needs to give greater consideration to the 

cumulative impacts of other environmental regulatory changes that impact the steam electric 

industry” and that the “economic and reliability impacts” of the final ELGs must be evaluated in 

the context of these other rules, see responses to DCN EPA-HQ-OW-2009-0819-4466-A1, 

Excerpt Number 9 and EPA-HQ-OW-2009-0819-4515-A2, Excerpt Number 5.

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

With the proposed ELG, new 316(b) requirements, and the Subtitle CorD rule for power plants, 

the operations at existing power plants is going to change significantly. Establishment of 

concurrent timelines and regulatory deadlines will benefit the industry, consumers and the state 

agencies. The Department supports the longer schedule because it allows time for thorough 

environmental oversight of operational changes as well as the flexibility to prevent or minimize 

forced outages while implementing new long-term strategies.

Comment Response: 

Regarding the commenter’s statement that “concurrent timelines and regulatory deadlines” 

among the final ELGs and other EPA rules are beneficial, EPA considered other requirements 

facing the steam electric industry in establishing the timing for implementation of the final rule, 

as explained in preamble sections VIII.C.7 and XVI.A, and the response to DCN EPA-HQ-OW2009-0819-4466-A1, Excerpt Number 9. 

Regarding the commenter’s statement supporting a “longer schedule” for implementation in 

order to “prevent or minimize forced outages,” EPA does not expect any forced outages or plant 

downtime to result from the installation of treatment systems or other equipment to comply with 

the final ELGs. In fact, as discussed in Section VIII.C.7 of the preamble, EPA expects that the 

implementation schedule will enable plants to install equipment during scheduled maintenance 

outages, based on EPA’s record which demonstrates that plants typically have one or two 

planned shut-downs annually and that the length of these shutdowns is more than adequate to 

complete installation of relevant treatment and control technologies.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-397

Commenter Name: F. Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission

Document Control Number: EPA-HQ-OW-2009-0819-5517-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The electric generation industry, including public power or community‐owned utilities, face a 

host of rigorous new requirements including several Clean Air Act (CAA) regulations, the Coal 

Combustion Residuals rule (CCR), and the Clean Water Act (CWA) § 316(b) intake aquatic 

protection fine structure rule (expected by November 2013) and the CO2 regulations for new and 

existing power plants. The Environmental Protection Agency (EPA) needs to evaluate the 

cumulative impact of these regulations as part of its assessment of the proposed effluent 

guidelines rule. The Office of Management and Budget (OMB) guidance and Executive Order 

13563 require EPA to consider the cumulative effects of regulations and seek to reduce 

overlapping and inconsistent requirements.

Comment Response: 

Regarding the commenter’s statement that EPA “needs to evaluate the cumulative impact of” 

various EPA regulations on the final steam electric ELGs, see response to DCN EPA-HQ-OW2009-0819-4466-A1, Excerpt Number 9.

Regarding the commenter’s statement about reducing “overlapping and inconsistent 

requirements,” see response to DCN EPA-HQ-OW-2009-0819-4453-A1, Excerpt Number 5.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 223

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXXVI. Cumulative Impacts Weigh Against EPA’s Expensive BAT Options

The steam electric industry faces a host of rigorous new requirements: several Clean Air Act 

regulations, the CCR rule, and the § 316(b) intake structure rule. EPA needs to evaluate the 

cumulative impact of these regulations as part of its assessment of the proposed effluent
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-398

guidelines rule. OMB guidance and Executive Order 13563 require EPA to consider the 

cumulative effects of regulations and seek to reduce overlapping and inconsistent requirements.

In particular, Executive Order 13563 directs agencies to take into account “to the extent 

practicable, the costs of cumulative 

regulations” (http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_0118

2011.pdf). A memorandum for the heads of executive departments and agencies, issued March 

20, 2012, by the Administrator of the Office of Regulation and Regulatory Affairs, directs that, 

so far as the law allows, “agencies should take active steps to take account of the cumulative 

effects of new and existing rules and to identify opportunities to harmonize and streamline 

multiple rules.” http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/cumulativeeffects-guidance.pdf. Where appropriate and feasible, agencies should consider cumulative 

effects and opportunities for regulatory harmonization as part of their analysis of particular rules, 

and should carefully assess the appropriate content and timing of rules in light of those effects 

and opportunities. Also, the memorandum reminds agencies that they should choose regulatory 

approaches that “maximize net benefits.”

Comment Response: 

Regarding the commenter’s statements that “EPA needs to evaluate the cumulative impact of 

[various EPA] regulations as part of its assessment of the” final steam electric ELGs and 

“carefully assess the appropriate content and timing of rules,” see responses to DCN EPA-HQOW-2009-0819-4466-A1, Excerpt Number 9, and DCN EPA-HQ-OW-2009-0819-4453-A1, 

Excerpt Number 5.

EPA notes that Executive Order 13563 “does not, create any right or benefit, substantive or 

procedural, enforceable at law or in equity by any party against the United States, its 

departments, agencies, or entities, its officers, employees, or agents, or any other person.” 

Moreover, the Order gives certain direction to agencies but only “to the extent permitted by 

law.” Several courts have stated that EPA is not to compare costs against benefits in establishing 

limitations based on BAT. See EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 70-71 (1980) 

(“[I]n assessing BAT[,] total cost is no longer to be considered in comparison to effluent 

reduction benefits.”); Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 818 (9th Cir. 1980) (“The 

conspicuous absence of the comparative language contained in section 304(b)(1)(B) leads us to 

the conclusion that Congress did not intent the Agency or this court to engage in marginal costbenefit comparison.”); Am. Iron & Steel v. EPA, 526 F.2d 1027, 1051-52 (3d Cir. 1975) (“there 

should be no cost-benefit analysis” for BAT). See also Weyerhaeuser Co. v. Costle, 590 F.2d 

1011, 1042 (D.C. Cir. 1978) (“Congress made the deliberate decision to rule out arguments 

based on receiving water capacity.”).

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 20
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-399

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

10. Inter-agency Coordination for Coal Combustion Residuals

Considering the proposed ELG, new 316(b) requirements, the Subtitle CorD rule for power 

plants and potential new Clean Air laws, the operations at existing power plants are inevitably 

going to change significantly. Establishment of concurrent timelines and regulatory deadlines 

will benefit the industry, consumers and the state agencies. The final timeline should provide the 

time necessary to establish groundwater monitoring, construct cooling towers and other closed 

loop methods at the plants. The Department suggests some flexibility be built into the ELG to 

allow the permittees to minimize forced outages while implementing new long-term strategies.

The new 316(b) is expected to have time for a schedule of seven to eight years to be in 

compliance. With the extension till November for the new 316(b) requirements, EPA has the 

opportunity to combine technology compliance schedule so facilities are operating to meet one 

deadline on changing their facilities operations. Along with 316(b) and the proposed ELG, the 

coal fire power plants are also facing regulation under Subtitle CorD in the proposed Coal 

Combustion Rule. If regulated under Subtitle C, the facilities must remove solids and meet land 

disposal regulations or retrofit impoundments with a liner within five years of the effective date 

of the rule. If regulated under SubtitleD, the facilities must remove solids and retrofit with a 

composite liner or cease receiving fly ash within five years of the effective date ofthe rule and 

close the unit.

For the State, modifying twenty permits to reflect the new 316(b) requirements, modifying again 

to reflect the final ELG, and potentially modifying again for CCR regulations for groundwater 

monitoring is a large resource commitment on permits that are already complicated and time 

consuming to renew. Additionally, the state will need to coordinate resources between the waste 

management program and the water programs to ensure all requirements and deadlines are being 

met. Clear communication of deadlines will be necessary, however, flexibility is necessary to 

ensure that the resources are available to handle the changes.

Comment Response: 

Regarding the commenter’s statements that “concurrent timelines and regulatory deadlines” 

among the final steam electric ELGs and certain other EPA rules will be beneficial and that 

“flexibility is necessary to ensure that the resources are available to handle the changes,” EPA 

notes that it considered other requirements facing the steam electric industry in establishing the 

timing for implementation of the final rule, as explained in preamble sections VIII.C.7 and 

XVI.A, and the response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9.

Regarding the commenter’s statement about allowing flexibility in order to “minimize forced 

outages,” see response to DCN EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 15.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-400

Regarding coordination of the requirements of the final steam electric ELGs and the CCR rule, 

see response to DCN EPA-HQ-OW-2009-0819-4453-A1, Excerpt Number 5.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPGA invites EPA to provide for the maximum amount of flexibility in further developing the 

Proposal given the impact that other final and proposed environmental rules are having on the 

electric power generation industry.

Comment Response: 

Regarding the commenter’s statements about “flexibility” and the “impact that other final and 

proposed environmental rules are having on the electric generation industry,” see the responses 

to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9; DCN EPA-HQ-OW-2009-

0819-4453-A1 Excerpt Number 5; and EPA-HQ-OW-2009-0819-4383-A1, Excerpt Number 15.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The timing of final ELG rule requirements must consider other rulemaking challenges

Comment Response: 

The commenter is concerned about the final ELG requirements in light of “other rulemaking 

challenges.” See preamble sections VIII.C.7 and XVI.A for an explanation of how the final 

ELGs account for other rules in the timing of implementation of the final rule’s 

requirements. See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9, 

regarding EPA’s evaluation of the cumulative effect of regulations on the electric power sector, 

including with respect to timing of implementation of the final rule. Also see DCN EPA-HQ-
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-401

OW-2009-0819-4453-A1, Excerpt Number 5, regarding consideration of other rules in this ELG 

rulemaking.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The timing of final ELG rule requirements must consider other rulemaking challenges.

At present, utilities face no less than seven major environmental rulemaking challenges:Utility M

ercury and Air Toxics Standards (MATS),the eventual successor to the Cross State Air Pollution 

Rule (CSAPR), the CCR rule, 316(a), 316(b), New Source Performance Standards (NSPS) for 

CO2 for existing units, and now ELG. EPA must consider the cost and operational impacts that 

this combination of requirements will impose on a utility and its ratepayers.

Comment Response: 

See preamble sections VIII.C.7 and XVI.A regarding timing of the final rule’s requirements. See 

response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9 regarding EPA’s 

evaluation of the cumulative effect of regulations on the electric power sector.

EPA used the Integrated Planning Model to assess the projected impacts of the final ELGs rule 

on generation capacity, production cost and electricity prices in the context of the overall 

electricity market. The analysis cumulates the final ELG impacts with the effects of other 

regulatory requirements noted by the commenter (MATS, CCR rule, 316(b), and CPP). The 

analysis shows the impacts of the final ELGs to be minimal. See RIA Section 5. For more on 

EPA’s assessment of cumulative impacts of various environmental regulations affecting the 

steam electric power generating industry, see DCN EPA-HQ-OW-2009-0819-4183-A2, Excerpt 

Number 22 (comment code 28.j).

Regarding EPA’s assessment of the impacts of the final ELG on ratepayers, see responses to 

comments in Section 28.f (e.g., DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 156; 

EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 1). As detailed in these responses and in 

Chapter 7 of the RIA, the impact of the final ELG on ratepayers is expected to be minimal.

Commenter Name: Betsy Natz

Commenter Affiliation: Institute of Clean Air Companies (ICAC)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-402

Document Control Number: EPA-HQ-OW-2009-0819-4549-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Utilities will need to take a coordinated approach to compliance with air emissions regulations 

(e.g., MATS) and water discharge regulations (ELG). ICAC’s member companies recognize the 

interdependence of these rules. ICAC commends EPA for taking a holistic approach to the fate 

of metals such as arsenic, mercury, and selenium in coal-fired utility boilers.

Comment Response: 

See preamble sections VIII.C.7 and XVI.A regarding timing of implementation of the final rule’s 

requirements. See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9 

regarding EPA’s evaluation of the cumulative effect of regulations on the electric power sector, 

including with respect to timing of implementation of the final rule.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4724-A2

Comment Excerpt Number: 1

External Review Flag: Envr Assess

External Review Incorporated into Response: No

Comment Excerpt: 

The 5.5 billion pounds of pollution that power plants discharge into our rivers, lakes, and streams 

each year places a heavy burden on our drinking water resources.1 Many of the pollutants 

discharged by power plants, including arsenic, mercury, lead, bromide, and nitrogen, have long 

been identified as contaminants that pose serious health risks when present in tap water or which 

complicate drinking water treatment. Nearly 40% of power plants discharge this dangerous 

pollution within 5 miles of an intake for a public water system.2 Eighty-five percent of power 

plants are located within 5 miles of a public well.3

The record for the rulemaking to revise the Effluent Limitation Guidelines and New Source 

Performance Standards for the Steam Electric Power Generating Point Source Category (Steam 

Electric ELGs) demonstrates that power plant discharges contaminate source waters, which 

Public Water Systems are responsible for treating to meet federal Safe Drinking Water Act 

(SDWA) standards. EPA notes that “[a]lthough many of the pollutants (e.g., selenium, mercury, 

arsenic, nitrates) in the evaluated waste streams would likely be reduced to safe levels during 

drinking water treatment, these pollutants could potentially impact the effectiveness of the 

treatment processes, which increase public drinking water treatment costs.”4 Yet EPA doesn’t 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-403

quantify or monetize benefits arising from reduced drinking water treatment costs or better 

health as a result of cleaner source waters.

Integration of Clean Water Act and Safe Drinking Water Act (SDWA) programs has been an 

area of increasing interest and effort inside EPA and among diverse stakeholders during the last 

decade. EPA’s “Drinking Water Strategy,” announced in 2010, includes several initiatives 

intended to strengthen public health protection from contaminants in drinking water.5 The third 

strategy goal is to “Use the authority of multiple statutes to help protect drinking water.”6 The 

Steam Electric ELGs are a perfect example of why the integration of multiple statutes is 

necessary to protect drinking water. This critical Clean Water Act rule will have a direct impact 

on contaminants known to be discharged into sources of drinking water by power 

plants. Finalizing an ELG that maximizes the reduction of public health risk from drinking water 

will directly support Safe Drinking Water Act goals and EPA’s Drinking Water Strategy. In 

addition, Option 5, which will keep over 5 billion pounds of pollution from entering waterways 

every year, is also in keeping with EPA’s FY 2011-2015 Strategic Plan.7In Goal 2, Protecting 

America’s Water, a key strategy supporting “Protecting Public Health” is “Continuing to Protect 

Sources of Drinking Water From Contamination.”8 Finalizing Option 5 provides a significant 

opportunity for EPA to deliver on this goal, and EPA should account for drinking water benefits 

arising from this rulemaking.

Clean, safe drinking water is one of our most important resources. Our Public Water Systems—

and their consumers—bear the burden of cleaning up toxic discharges from power plants. Thus, 

it is critical that EPA more thoroughly consider, both qualitatively and quantitatively, the impact 

of power plant pollution on drinking water, and monetize the health and economic benefits that 

will be gained as a result of Steam Electric ELGs that eliminate or significantly reduce 

discharges of dangerous pollution.

1 U.S. Envtl. Prot. Agency, Environmental Assessment for the Proposed Effluent Limitations 

Guidelines and Standards for the Steam Electric Power Generating Point Source Category (EPA821-R-13-003) 3-13 tbl. 3-2 (Apr. 2013) [hereinafter EA].

2 EA at 3-33 tbl. 3-13.

3 Id.

4 Id. at 3-32 (emphasis added).

5 U.S. Envtl. Prot. Agency, Water: Drinking Water Strategy,

http://water.epa.gov/lawsregs/rulesregs/sdwa/dwstrategy/ (last visited Sept. 19, 2013).

6 Id.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-404

7 See U.S. Envtl. Prot. Agency, FY 2011-2015 EPA Strategic Plan: Achieving Our Vision 

(Sept. 30, 2010), available at 

http://water.epa.gov/resource_performance/planning/index.cfm#2009.

8 Id.

Comment Response: 

EPA agrees with the commenter that there are important potential drinking water impacts 

associated steam electric power plant discharges. EPA looked specifically at impacts to drinking 

water sources in the context of the final ELGs, as discussed in the preamble to the final rule, the 

Environmental Assessment for the Effluent Limitations Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category (EA Report) (DCN SE04527) and the 

Benefits and Cost Analysis for the Effluent Limitations Guidelines and Standards for the Steam 

Electric Power Generating Point Source Category (BCA) (DCN SE05977). However, EPA did 

not quantify and monetize potential benefits from improvement to drinking water source 

water since data were not available to do so, and EPA's initial assessment concluded that current 

drinking water treatment processes eliminate most, if not all, of the steam electric contaminants 

that may get into public drinking water sources. Nonetheless, EPA did note this as a 

potential improvement as a result of the final ELGs and described it qualitatively in its 

assessments.

With respect to proposed Option 5, which the commenter is most interested in understanding 

potential drinking water benefits from (due to Option 5’s inclusion of proposed BAT limitations 

for FGD wastewater discharges based on evaporation technology, which would directly control 

Total Dissolved Solids (TDS)), EPA notes that it did not select proposed Option 5 (Option F for 

the final rule) as the basis for the final BAT limitations or PSES, although it did select Option F 

as the basis for the final new source requirements (NSPS and PSNS). The final rule also 

establishes a voluntary incentives program that incentivizes plants to adopt technologies that 

achieve limitations based on evaporation technology (the Option 5/Option F technology basis for 

control of FGD discharges). See preamble Section VIII.C.13. EPA explained why it did not 

select evaporation as the basis for BAT limitations applicable to discharges of FGD wastewater 

from all existing steam electric power generating units in Section VIII.C.1 of the preamble. In 

light of EPA’s decision not to establish BAT limitations based on evaporation for all existing 

steam electric power generating units, EPA determined it would not be an appropriate use of its 

resources at this time to try to quantify or monetize the benefits associated with requiring BAT 

limitations based on evaporation for all existing units. As is clear from the preamble discussion, 

EPA’s decisions on the final rule are not based on an analysis of benefits. Rather, EPA’s 

decisions are based on the factors specified by Sections 301, 304, and 306 of the Clean Water 

Act. See EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 70-71 (1980); Ass’n of Pac. Fisheries 

v. EPA, 615 F.2d 794, 818 (9th Cir. 1980); Am. Iron & Steel v. EPA, 526 F.2d 1027, 1051-52, 

1053 n.54 (3d Cir. 1975); Nat’l Ass’n of Metal Finishers v. EPA, 719 F.2d 624, 659 (3d Cir. 

1983). EPA conducted an assessment of benefits pursuant to Executive Order, and the benefits 

analysis was not determinative in the options selected by EPA for the final rule. Thus, even if 

EPA had attempted to quantify or monetize the benefits associated specifically with impacts to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-405

drinking water under proposed Option 5, it would not have made a difference to the outcome of 

the rule.

EPA notes that, given more recent data and information on the complications with disinfection 

by-products (DBPs) forming in drinking water as a result of bromides being present during the 

disinfection/purification process (and the source of the bromides being those discharged 

by specific steam electric power plants), EPA is recommending that state permitting authorities 

carefully consider, on a site-specific basis, the need for limits and other controls on the discharge 

of bromides from steam electric power plants, where public drinking water intakes are 

downstream (see the preamble to the final rule). EPA believes this potential issue can best be 

addressed through water quality-based permit limits, on a site-specific basis, since not all steam 

electric power plants have public drinking water intakes downstream.

Finally, EPA notes that it sees great value in coordinating across its various programs, and EPA 

looks for opportunities to secure environmental protections that serve and advance multiple 

programs. Nonetheless, the Clean Water Act lays out distinct statutory factors for consideration 

in establishing ELGs, which in some cases differ from those specified by other statutes, 

including the Safe Drinking Water Act.

Commenter Name: J. M. Ackerman

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3173-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, please upgrade the wastewater treatment plant protocols to eliminate the bacterial and other 

organism pollution of all 3 of the wastewater treatment byproducts in order to preserve the 

country's Public Health!!!

Comment Response: 

EPA notes that this commenter is raising a topic related to treatment by Publicly Owned 

Treatment Works (POTWs), or sewage treatment plants. As such, this comment is outside the 

scope of the final Steam Electric ELGs, which concern discharges of pollutants from the steam 

electric power generating industry.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-406

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

4. Implications of Cumulative Environmental Rules

AEP is concerned that the cumulative impact of the extraordinary number of current rulemakings 

which would govern various emissions and releases from steam electric power generating 

facilities, as well as setting new effluent guidelines standards, controls on cooling water intakes, 

and coal combustion residual (CCR) requirements, will have a significant impact on the 

reliability of the national electric grid and on the economy. AEP supports regulations that 

achieve cost-effective, long-term, environmental benefits, but we remain concerned with 

the accelerated timeframes that EPA plans for implementation of these rules. We believe that the 

agency should give careful consideration to comments from the actual operators of the facilities 

affected by the rule, which have the first-hand knowledge and experience in designing and 

installing environmental retrofits. Our comments regarding the implementation and coordination 

of the schedule for the ELG and CCR rules provide more specific details concerning this issue, 

but additional coordination of implementation timelines should be considered for all of the 

pending regulatory actions that affect these sources.

Comment Response: 

Regarding the commenter’s statement about “coordination of implementation timelines” for the 

final ELGs, see preamble sections VIII.C.7 and XVI.A. See response to DCN EPA-HQ-OW2009-0819-4466-A1, Excerpt Number 9 regarding EPA’s evaluation of the cumulative effect of 

regulations on the electric power sector, including with respect to timing of implementation of 

the final rule.

Regarding the commenter’s statement that the final rule “will have a significant impact on the 

reliability on the national electric grid,” EPA notes that the market modeling approach used in 

IPM provides insight about generation mix and available capacity to assess potential impacts on 

reliability. These analyses show that the final ELGs will have very small incremental effects on 

available generating capacity, or on the cost of energy production. At the national level, early 

retirements equal approximately 0.1 percent of total generation capacity. See Chapter 5 and

Section 10.6 of the RIA, respectively, for details on the assessment of the impact of the final 

ELGs in the context of national electricity markets and implications on energy supply, 

distribution and use.

Regarding the commenter’s statement about that the final rule “will have a significant impact . . 

. on the economy,” as reported in the RIA, the estimated total annual cost of the final rule 

($479.5 million at a 3 percent discount rate) is very small in relation to the total economy – less 

than 0.01 percent of GDP in 2014. EPA determined that the final rule is economically achievable 

for the steam electric industry as a whole. In particular, the final rule is projected to result in a 

net reduction of 843 MW in steam electric generating capacity (0.2 percent of the baseline 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-407

capacity) as of model year 2030, reflecting full compliance by all plants, which corresponds to a 

net effect of two generating unit (partial) closures and one plant (full) closure. EPA assesses that 

these retirements are inconsequential relative to total national and regional generating capacity. 

Furthermore, these retirements are offset by increased capacity for other plants. As a result, the 

final rule will not significantly affect electric supply reliability. EPA also assessed the projected 

impacts of the rule on electricity prices and found them to be minimal. See RIA Sections 5 and 

7. Accordingly, EPA disagrees that the rule will have a significant impact on the economy. 

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Alliant Energy appreciates EPA's consideration of solutions for solving impacts to the nation's 

waterways, but emphasizes that the timing of the ELG requirements must be evaluated 

holistically with other requirements being imposed upon utilities. Consideration must be given 

to the overall impacts on utility costs and operations, the timing of the ELG rule combined with 

other rule requirements, and the overall impact on ratepayers.

Comment Response: 

Regarding the commenter’s statement that “the timing of the ELG requirements must be 

evaluated holistically with other requirements being imposed upon utilities,” see preamble 

sections VIII.C.7 and XVI.A regarding timing of implementation of the final rule’s 

requirements.

Regarding the commenter’s statement that “consideration must be given to the overall impacts 

on utility costs and operations, the timing of the ELG rule combined with other rule 

requirements,” see response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9 

regarding EPA’s evaluation of the cumulative effect of regulations on the electric power sector, 

including with respect to timing of implementation of the final rule.

Regarding the commenter’s statement that EPA must consider “the overall impact on 

ratepayers,” as explained in the RIA, the projected impacts of the final rule on ratepayers is 

expected to be minimal. See RIA Sections 5 and 7. 

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-408

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In this and any other rulemaking related to the U.S. electric power industry, EPA should 

recognize that the electric utility industry is undergoing a transition to a more modern, lower 

emissions fleet, driven in part by a host of new EPA environmental regulations recently put in 

place and currently being put in place. Regulations such as the proposed ELG rule need to be 

crafted carefully so they do not upset this transition, force utilities to make changes whose costs 

exceed benefits, impose changes with high energy penalties that will undermine utility efforts to 

improve plant efficiency, create unworkable implementation time frames, or cause negative

economic and environmental effects.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9 regarding EPA’s 

evaluation of the cumulative effect of regulations on the electric power sector, including with 

respect to the “implementation time frames” of the final ELGs.

Regarding the commenter’s statements that the final rule must consider “energy penalties” and 

“negative environmental effects,” EPA estimated the non-water quality environmental impacts of 

the final ELGs, including energy requirements. EPA estimates that, under the final rule, energy 

consumption increases by less than 0.01 percent of the total electricity generated by all electric 

power plants. See Section XII of the preamble for a summary of the non-water quality 

environmental impacts and Section 12 in the TDD for details.

Regarding the commenter’s statement that the final rule must consider “negative economic . . . 

effects,” EPA’s analyses, as detailed in the RIA, demonstrate that the economic impact of the 

final ELGs is expected to be small across a spectrum of metrics.

Regarding the commenter’s statement about “forc[ing] utilities to make changes whose costs 

exceed benefits,” EPA notes that it did calculate costs and benefits for its final rule pursuant to 

Executive Order. Many benefits could not be quantified and/or monetized, as explained in the 

preamble, Environmental Assessment for the Effluent Limitations Guidelines and Standards for 

the Steam Electric Power Generating Point Source Category (EA Report) (DCN SE04527), and 

Benefit-Cost Analysis. Regarding the role of cost-benefit analysis in EPA’s decisions on the 

final steam electric ELGs, see response to DCN EPA-HQ-2009-0819-4464-A1, Excerpt Number 

3 (in comment code 6.e).

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-409

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 38

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Based on the included case references and other supporting information we feel that the ELG 

rule requires further evaluation and modification to ensure consistency with other related 

regulations and programs. The intent of the ELG rule is based on a sound recognition of the 

industry as well as the specific regional differences and that the local entities be provided the 

flexibility to make regional decisions to effectively support the rulings.

Comment Response: 

See responses to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9, and DCN EPAHQ-OW-2009-0819-4453-A1, Excerpt Number 5 regarding EPA’s coordination of the final 

ELGs with other rulemakings and programs, including to avoid duplication or inconsistency.

Commenter Name: L. Stenerson

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5304-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I am writing in reference to the Department of Interior Bureau of Land Management proposed 

rule on Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands. The proposal appears to 

ignore many recommendations from public health and environmental organizations to better 

protect our public lands, our drinking water resources and our communities from the risks of 

hydraulic fracturing oil and gas activities.

I urge BLM to reconsider its proposal and to strengthen this rule. For example, BLM should:

 Strengthen well construction and testing requirements in order to protect underground 

sources of drinking water.

 Prohibit the use of open pits to store and dispose of wastewater and prohibit use of diesel 

fuels in hydraulic fracturing operations given the well-understood risks to drinking water.

 Require information on chemical use, water withdrawals, well depth and other project 

aspects before drilling occurs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-410

 BLM's proposal narrows the definition of drilling activities covered to "hydraulic 

fracturing," even though other well stimulation activities can be equally risky. BLM 

should restore the broader definition from the previous draft rule.

Oil and gas drilling on our public lands should not threaten our drinking water and contaminate 

our air. Please ensure that the final rule is truly protective of our people and our natural 

resources.

Comment Response: 

EPA notes that this comment is addressing a Department of Interior Bureau of Land 

Management proposed rule on oil and gas production on Federal and Indian lands. BLM’s 

proposed rule on oil and gas production is outside the scope of the final steam electric ELGs, 

which establish effluent limitations and standards applicable to the discharge of pollutants from 

the steam electric power generating point source category.

Commenter Name: A. Jones

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3596-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Nobody should have loopholes (especially not natura; gas extractors). Industry must be required 

to sample groundwater wells before and after their extraction activities and be held responsible 

for their damage.

Comment Response: 

EPA notes that this comment addresses groundwater contamination from hydraulic 

fracturing. This comment is outside the scope of the final Steam Electric ELGs, which establish 

effluent limitations and standards applicable to the discharge of pollutants from the steam 

electric power generating point source category. 

Commenter Name: Melinda L. (surname illegible)

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-4829-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-411

Comment Excerpt: 

I urge the EPA to finalize the guidance on hydraulic fracturing using diesel and to ban this 

practice. Diesel in fracking can lead to contamination of drinking water with toxic chemicals like 

benzene.

Comment Response: 

EPA notes that this comment addresses drinking water contamination from hydraulic 

fracturing. This comment is outside the scope of the final Steam Electric ELGs, which establish 

effluent limitations and standards applicable to the discharge of pollutants from the steam 

electric power generating point source category. 

Commenter Name: D. N. Wilson

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5289-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, look to the new fracking wells in Michigan.

Comment Response: 

EPA notes that this comment addresses hydraulic fracturing. This comment is outside the scope 

of the final Steam Electric ELGs, which establish effluent limitations and standards applicable to 

the discharge of pollutants from the steam electric power generating point source category. 

Commenter Name: T. Dash

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5126-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I urge the EPA to provide legal protection for neighborhoods from companies and lawmakers 

who want to frack in our area. Based upon their actions, it appears they do not care about the 

harmful effects of fracking as it does not affect their families.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-412

Comment Response: 

EPA notes that this comment addresses hydraulic fracturing. This comment is outside the scope 

of the final Steam Electric ELGs, which establish effluent limitations and standards applicable to 

the discharge of pollutants from the steam electric power generating point source category. 

Commenter Name: J. W. Mason

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5430-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I am currently very upset with the current smashing(?) of Regulations and the continued 

weakening of our environmental regulations. I believe the fracking industries should be very 

tightly controlled and inspected.

Also that all chemical compounds use in fracking cocktails must be reviewed and approved 

before being pumped into our ground and very likely our aquifers.

Comment Response: 

EPA notes that this comment addresses hydraulic fracturing. This comment is outside the scope 

of the final Steam Electric ELGs, which establish effluent limitations and standards applicable to 

the discharge of pollutants from the steam electric power generating point source category. 

Commenter Name: R. Zabors

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3647-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition to Coal-fired power plants, please also recognize that the Village of Winnetka IL and 

neighboring municipalities plan to dramatically increase dumping of untreated stormwater -

water that contains metals and other harmful chemicals into the Great Lakes and their tributaries.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-413

The volumes will far exceed most of the industrial outflows in northern Illinois and will certainly 

contribute measurable toxic pollution to neighboring villages, the City of Chicago and beach 

communities in Indiana and Michigan.

Exposure to these toxic substances in untreated stormwater runoff from up to 2,000 acres 

redirected from the Skokie watershed to Lake Michigan - can cause cancer, birth defects, 

developmental problems in children and other health problems. And it would offset some of the 

benefits of any power plant rulemaking around zero liquid discharge.

Make our drinking water healthier, our beaches safe to visit, and our fish safer to eat: Issue the 

strongest possible rules to protect the Great Lakes from untreated and irresponsible dumping of 

stormwater in the same context you would apply to industrial sources.

Comment Response: 

EPA notes that this comment addresses controlling storm water runoff into Lake Michigan. This 

comment is outside the scope of the final Steam Electric ELGs, which establish effluent 

limitations and standards applicable to the discharge of pollutants from the steam electric power 

generating point source category.

Commenter Name: C. Dibbens

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-4552-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Please fulfill your agency's promise to modernize stormwater regulations to keep our waterways 

clean.

Stormwater runoff is consistently the top known pollution source contributing to beach closings 

and swim advisories. Until we have modernized stormwater regulations from the EPA, this 

problem will only worsen.

Your agency promised to draft updated regulations by June 2013 to handle this devastating 

problem but that deadline has passed with no action.

By requiring sites responsible for stormwater runoff to retain the vast majority of the rain that 

falls on them, stormwater will instead naturally filter through grass and other permeable surfaces, 

or it'll be reused on-site or evaporate back to the air. Green infrastructure like green roofs and 

rain gardens are cost-effective strategies to prevent stormwater runoff. Regulations that foster 

these innovations will lower treatment costs and keep our beaches safe and clean.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-414

Please follow through on your promise to modernize these rules update the stormwater runoff 

regulations immediately.

Comment Response: 

EPA notes that this comment addresses controlling storm water runoff. This comment is outside 

the scope of the final Steam Electric ELGs, which establish effluent limitations and standards 

applicable to the discharge of pollutants from the steam electric power generating point source 

category. 

Commenter Name: T. Edwards

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3676-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, as a former golf course superintendent, please do something about the massive amounts of 

pesticides that are being used on turfgrass. I have become sick with neurological damage due to 

applying over 1000 pesticide applications in a 10 year span. My illness is very severe and there 

are and will be more like me in the industry. We were told these chemicals were safe in college 

and by the manufactures, but this is not true. The everyday person has NO IDEA what is going 

on in the golf industry to provide the perfect turf conditions.

Comment Response: 

EPA notes that this comment addresses the use of pesticides on golf courses. This comment is 

outside the scope of the final Steam Electric ELGs, which establish effluent limitations and 

standards applicable to the discharge of pollutants from the steam electric power generating point 

source category. 

Commenter Name: R. Gessner

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-4846-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-415

Please note that what pollutes our lake more than power plants, like the coal burners waters is 

only from the cooling system.

What is much worse and causing Lake Erie to "glow" green is the pesticides that are used for the 

States agriculture.

Comment Response: 

EPA notes that this comment primarily addresses the potential impacts of agricultural pesticides 

on Lake Erie. This comment is outside the scope of the final Steam Electric ELGs, which 

establish effluent limitations and standards applicable to the discharge of pollutants from the 

steam electric power generating point source category.

Commenter Name: G. Parizeau

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5352-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I also hope something can be done about the pollution to bodies of water such as Lake 

Champlain between Vermont and New York, where runoff of fertilizer (plus cow manure) is 

having a destructive effect on this huge lake.

Comment Response: 

EPA notes that this comment addresses controlling runoff of fertilizer into Lake Champlain. This 

comment is outside the scope of the final Steam Electric ELGs, which establish effluent 

limitations and standards applicable to the discharge of pollutants from the steam electric power 

generating point source category. 

Commenter Name: E. Anderson

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5098-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-416

The technology currently operating in many of our power plants is obsolete. These plants have 

been let off the hook for decades. Many in Michigan are even operating under expired licenses,

while dumping toxic mercury, arsenic, lead and other pollutants into everyone's water.

Comment Response: 

The final rule establishes limitations and standards applicable to discharges of pollutants from 

the steam electric power generating industry based on the “Best Available Technology 

Economically Achievable” and the “Best Available Demonstrated Control Technology.” The 

technologies that form the bases for the final limitations and standards are described in section 

VIII of the preamble. The final Steam Electric ELGs will do a more effective job of controlling 

the discharge of toxic pollutants, such as those mentioned by the commenter, than the previously 

established steam electric ELGs did. See section X of the preamble for a discussion of the 

reductions in pollutant loadings projected under the final rule, and see the Environmental 

Assessment for the Effluent Limitations Guidelines and Standards for the Steam Electric Power 

Generating Point Source Category (EA Report) (DCN SE04527) for a discussion of the 

environmental impacts of discharges from steam electric power plants.

Commenter Name: Arthur G. Randol III

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-4497-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

DoE was urged by The Right Climate Stuff (TRCS) Research Team to reconsider its final 

Microwave Rule and to submit the methodologies for computing Social Cost of Carbon (SCC) 

for public comments for the following reasons:

A. DOE Violated the Administrative Procedure Act (APA) and OMB’s Good Guidance 

Practices by Failing To Allow the Public the Opportunity To Comment on its New Values 

on the Social Costs of Carbon

The DOE dubiously inserted the new crucial cost-benefit metric into a rule pertaining to 

microwave oven standards. The new metric does not withstand scrutiny under the APA. It 

appears that DOE inserted its new SCC estimates into the regulation without first publishing 

these estimates allowing for full public comment. Unilaterally establishing wide ranging 

guidance that will be used in all cost-benefit analyses for regulation of greenhouse gases violates 

the fundamental principles of the APA and OMB’s Final Bulletin for Agency Good Guidance 

Practices (Federal Register / Vol. 72, No. 16 / Thursday, January 25, 2007) and would not 

survive judicial scrutiny.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-417

Specific questions, comments and observations regarding the SCC process discussed in the two 

source documents

Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis Under 

Executive Order 12866, February 2010(SCC2010); and

Technical Support Document: Technical Update of the Social Cost of Carbon for Regulatory 

Impact Analysis Under Executive Order 12866, May 2013 (SCC 2013)

requiring submission of the SCC for public comment:

1. The Technical Support Documents for the 2010 and 2013 SCC methodology do not provide 

sufficient detail to determine exactly how global average surface temperatures vs. time are 

calculated for the period of time that SCC are computed. Also, these documents do not provide 

the actual global average surface temperatures vs. time that produced the SCC to allow for 

reasonableness checks on the computed temperature profiles. Such loosely created 

statistical distributions of climate sensitivity to atmospheric CO2 levels need some "sanity 

checks" on the purely mathematical values that result from such un-validated methodologies.

2. Professional Engineering disciplines that base critical design and operational decisions 

affecting public safety on computer models, require that such models be validated by 

demonstrating that they give accurate results for specific experiments providing appropriate 

physical data. Un-validated models are never used for critical decision-making. Such practices 

could lead to liability for damages from unintended consequences resulting from use of 

unvalidated computer models. The SCC calculation methodologies are violating critical norms 

for use of simulation models in critical decision-making in other more well- eveloped 

technical disciplines that deal with public safety issues and significant unintended consequences 

such as in design of airplanes, spacecraft, rockets, bridges, buildings, nuclear power plants, etc.

3. The methodology used for computing global average surface temperatures vs. time has not 

been demonstrated to accurately predict global average surface temperatures over a past period 

of time for which actual physical data are available. For example, if the 2010 and 2013 future 

temperature calculation methodologies are applied to conditions for 1962, and actual 

atmospheric CO2 concentrations from 1962 through 2012 are input into the models, how well do 

the 2010 and 2013 temperature prediction methodologies agree with actual global 

average surface temperatures over the 50 years from 1962 to 2012? Which methodology best 

agrees with actual physical data, the 2010 methodology or the "updated and improved" 2013 

methodology that results in higher projections of SCC?

4. According to the IPCC Fourth Assessment Report (AR4) discussion of Table 8.2, Transient 

Temperature Response (TCR) values are better suited than Equilibrium Climate Sensitivity 

(ECS) values for forecasting actual global average surface temperatures for a period of a 

few hundred years into the future. Table 8.2 of the IPCC AR4 report provides both ECS and 

TCR values computed by more than 20 different (un-validated) climate models. While we 

veterans of our nation’s manned space program have an aversion to use of un- alidated models 

for any practical purposes, our own analysis of actual physical data on atmospheric CO2 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-418

and global average surface temperatures over the last 163 years from 1850 through 2012 

indicates a CO2 climate sensitivity value much closer to the Table 8.2 TCR values than the 

highly unrealistic and hypothetical ECS values used in the Integrated Assessment Models. 

On average, the TCR/ECS ratio for the models studied in Table 8.2 was 0.56. Why did the 

temperature forecasting methodology for 2010 and 2013 SCC calculations not use the 

more appropriate and much smaller TCR values than the hypothetical and unverifiable ECS 

values?

5. Many recent studies published prior to the publication of the 2013 Technical Support 

Document in May 2013 indicate that the IPCC AR4 report's statement of the ECS "likely range" 

of 2 to 4.5 deg. C, on which 2013 ECS statistical distributions were based, indicate the actual 

ECS value (and especially upper range values) are much lower than provided in the IPCC AR4 

report. Why weren't the more recent peer-reviewed publications providing more up-to-date (and 

much lower) estimates for ECS and TCR values used to develop statistical distributions of these 

values for SCC calculations?

6. Our analysis of CO2 and global average temperature data from 1850 to 2012 (without the use 

of un-validated climate simulation models) indicates an Upper Bound for TCR = 1.6 deg. C. and 

a conservatively high median value of 1.135 deg. C. Using the IPCC's Table 8.2 ratio 

of TCR/ECS = 0.56, and a TCR distribution derived from actual physical data, an ECS 

distribution based on actual physical data from 1850 - 2012 would provide a median value of 

1.135/0.56 = 2.03 deg, C and Upper Bound of 1.6/0.56 = 2.86 deg C. This compares with the 

SCC 2013 methodology use of ECS LogNormal distributions with a 10 percent probability 

of ECS > 5.86 deg. and 5 percent probability of ECS > 7.14 deg. C. Such long tails in ECS 

distributions are not supported by any physical data and are therefore totally hypothetical and unsuited for critical decision-making with possibly severe un-intended consequences for 

our nation's economy. Note also that the above proposed ECS distribution derived from our 

proposed TCR distribution, that is based on actual physical data, results in ECS values below 3 

deg. C and therefore would be within the FUND model's range of beneficial global warming 

with negative SCC damages!! Such large disconnects between ECS and TCR values that can be 

supported by actual physical data, and statistical distributions for ECS values used in the 2013 

SCC methodology, require further review to ensure a solid scientific basis for current regulatory 

activity. Moreover, since the current SCC methodology ECS distributions were based 

on unproven conjectural statements in the IPCC AR4 (2007) report regarding likely range 

and uncertainty in ECS values, the scientific justification for use of the SCC ECS distributions 

needs to be reviewed for scientific integrity.

7. Given that the SCC 2013 methodology appears to produce high SCC expected values 

primarily because of global average temperature projections from ECS values sampled from 

"made-up" hypothetical statistical distributions that have a significant probability of ECS 

occurrence greater than the IPCC AR4 report's likely range upper value of 4.5 deg C

a. What physical data were used to perform a "sanity check" on the extremely high global 

average surface temperatures resulting from these hypothetical statistical distributions that 

forecast temperatures high enough to melt significant portions of the Greenland Ice Sheet and 

Antarctica ice sheet?
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-419

b. What physical data were used to support forecasts of such large sea level rise values compared 

to actual sea level rise rates over the last century? Atmospheric CO2 concentration levels have 

increased 41% from 280 ppm to 395 ppm from 1880 through 2012. Global average sea level rise 

rates have remained rather steady at 7 - 8 inches per century over this time period 

of large atmospheric CO2 concentration rise. Only an additional 41.8 percent atmospheric CO2 

concentration rise above the 2012 value of 395 ppm is required to achieve the "doubled" preindustrial 280 ppm level of 560 ppm. Also, the next 41 percent increase in

atmospheric CO2 concentration should not have as much warming effect as the last 41 percent 

increase due to saturation of atmospheric CO2 radiation absorption bands. Based on current 

trends, the doubled atmospheric CO2 concentration level should be achieved prior to 2100.

c. How were actual past and current trends in sea level rise rates used to justify forecasts of much 

larger sea level rise rates over the next 200 years that produced the high expected values of SCC?

B. DOE Disregarded Executive Order 13563 When It Failed To Provide for Notice and 

Comment on the New Data

On January 18, 2011, President Obama issued an executive order requiring that agency 

rulemaking “shall be adopted through a process that involves public participation.” Executive 

Order 13563, Improving Regulation and Regulatory Review (excerpted below):

IMPROVING REGULATION AND REGULATORY REVIEW

By the authority vested in me as President by the Constitution and the laws of the United States 

of America, and in order to improve regulation and regulatory review, it is hereby ordered as 

follows: Section 1. General Principles of Regulation. (a) Our regulatory system must protect 

public health, welfare, safety, and our environment while promoting economic growth, 

innovation, competitiveness, and job creation. It must be based on the best available science. It 

must allow for public participation and an open exchange of ideas. It must 

promote predictability and reduce uncertainty. It must identify and use the best, 

most innovative, and least burdensome tools for achieving regulatory ends. It must take into 

account benefits and costs, both quantitative and qualitative. It must ensure that regulations are 

accessible, consistent, written in plain language, and easy to understand. It must measure, and 

seek to improve, the actual results of regulatory requirements.

(b) This order is supplemental to and reaffirms the principles, structures, and definitions 

governing contemporary regulatory review that were established in Executive Order 12866 

of September 30, 1993.

Sec. 2. Public Participation. (a) Regulations shall be adopted through a process that involves 

public participation. To that end, regulations shall be based, to the extent feasible and 

consistent with law, on the open exchange of information and perspectives among State, local, 

and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector, 

and the public as a whole.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-420

(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and 

other applicable legal requirements, shall endeavor to provide the public with an opportunity 

to participate in the regulatory process. To the extent feasible and permitted by law, each 

agency shall afford the public a meaningful opportunity to comment through the Internet on 

any proposed regulation, with a comment period that should generally be at least 60 days. To 

the extent feasible and permitted by law, each agency shall also provide, for both proposed 

and final rules, timely online access to the rulemaking docket on regulations.gov, including 

relevant scientific and technical findings, in an open format that can be easily searched 

and downloaded. For proposed rules, such access shall include, to the extent feasible and 

permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking 

docket, including relevant scientific and technical findings.

(c) Before issuing a notice of proposed rulemaking, each agency, where feasible and 

appropriate, shall seek the views of those who are likely to be affected, including those who are 

likely to benefit from and those who are potentially subject to such rulemaking.

Sec. 3. Integration and Innovation. Some sectors and industries face a significant number of 

regulatory requirements, some of which may be redundant, inconsistent, or overlapping. 

Greater coordination across agencies could reduce these requirements, thus reducing costs and 

simplifying and harmonizing rules. In developing regulatory actions and identifying 

appropriate approaches, each agency shall attempt to promote such coordination, simplification, 

and harmonization. Each agency shall also seek to identify, as appropriate, means to 

achieve regulatory goals that are designed to promote innovation.

Sec. 4. Flexible Approaches.

Sec. 5. Science. Consistent with the President's Memorandum for the Heads of Executive 

Departments and Agencies, “Scientific Integrity” (March 9, 2009), and its implementing 

guidance, each agency shall ensure the objectivity of any scientific and technological 

information and processes used to support the agency's regulatory actions.

Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing 

significant regulations, agencies shall consider how best to promote retrospective analysis of 

rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, 

streamline, expand, or repeal them in accordance with what has been learned. Such 

retrospective analyses, including supporting data, should be released online whenever possible.

(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office 

of Information and Regulatory Affairs a preliminary plan, consistent with law and its 

resources and regulatory priorities, under which the agency will periodically review its existing 

significant regulations to determine whether any such regulations should be modified, 

streamlined, expanded, or repealed so as to make the agency's regulatory program 

more effective or less burdensome in achieving the regulatory objectives.

Emphasis Added
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-421

C. The Administration must subject the Interagency Working Group’s Technical Support 

Document on the Social Cost of Carbon to peer review as directed by the President 

and mandated by Information Quality Act (IQA) guidelines for peer review.

President Obama has stressed the importance of adhering to established scientific procedures, 

including peer review, when making policy decisions. The DoE has chosen to ignore this 

clear mandate.

In addition to general public comment, peer review of scientific assessments is essential 

including: the models and the formulations of key drivers of the models including emissions, 

CO2 concentrations, temperature response to the CO2 forcings, sea level rise, and the details of 

the “damage function” is required. The federal government should subject the Interagency 

Working Group on Social Cost of Carbon’s SCC-TSD to independent peer review before 

proceeding to use it in this or any other rulemaking. The principles for this process are stipulated 

in the Information Quality Act (signed by President Clinton in 2000) guidelines for peer review 

(see below):

Federal Register / Vol. 70, No. 10 / Friday, January 14, 2005 OFFICE OF MANAGEMENT 

AND BUDGET

Final Information Quality Bulletin for Peer Review AGENCY: Office of Management and 

Budget, Executive Office of the President.

ACTION: Final bulletin.

SUMMARY: On December 16, 2004, the Office of Management and Budget (OMB), in 

consultation with the Office of Science and Technology Policy (OSTP), issued its Final 

Information Quality Bulletin for Peer Review to the heads of departments and 

agencies (available at http:// www.whitehouse.gov/omb/memoranda/ fy2005/m05–03.html). This 

new guidance is designed to realize the benefits of meaningful peer review of the most important 

science disseminated by the Federal Government. It is part of an ongoing effort to improve the 

quality, objectivity, utility, and integrity of information disseminated by the Federal Government 

to the public.

Legal Authority for the Bulletin

This Bulletin is issued under the Information Quality Act and OMB’s general authorities to 

oversee the quality of agency information, analyses, and regulatory actions. In the 

Information Quality Act, Congress directed OMB to issue guidelines to

‘‘provide policy and procedural guidance to Federal agencies for ensuring and maximizing the 

quality, objectivity, utility and integrity of information’’ disseminated by Federal agencies. 

Public Law No. 106–554, § 515(a). The Information Quality Act(IQA) was developed as a 

supplement to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., which requires OMB, 

among other things, to ‘‘develop and oversee the implementation of policies, 

principles, standards, and guidelines to
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-422

** apply to Federal agency dissemination of public information.’’ In addition, Executive Order 

12866, 58 FR 51,735 (Oct. 4, 1993), establishes that OIRA is ‘‘the repository of expertise 

concerning regulatory issues,’’ and it directs OMB to provide guidance to the agencies on 

regulatory planning. E.O. 12866, § 2(b). The Order also requires that ‘‘[e]ach agency shall base 

its decisions on the best reasonably obtainable scientific, technical, economic, or 

other information.’’ E.O. 12866, § 1(b)(7).

Scope of the Review. The ‘‘charge’’ contains the instructions to the peer reviewers regarding the 

objective of the peer review and the specific advice sought. The importance of the information, 

which shapes the goal of the peer review, influences the charge.

Independence. In its narrowest sense, independence in a reviewer means that the reviewer was 

not involved in producing the draft document to be reviewed. However, for peer review of some 

documents, a broader view of independence is necessary to assure credibility of the process. 

Reviewers are generally not employed by the agency or office producing the document. As 

the National Academy of Sciences has stated, ‘‘external experts often can be more open, 

frank, and challenging to the status quo than internal reviewers, who may feel constrained 

by organizational concerns.’’

Adequacy of Prior Peer Review

Publication in a refereed scientific journal may mean that adequate peer review has been 

performed. However, the intensity of peer review is highly variable across journals. 

There will be cases in which an agency determines that a more rigorous or transparent 

review process is necessary. For instance, an agency may determine a particular journal 

review

process did not address questions (e.g., the extent of uncertainty inherent in a finding) that 

the agency determines should be

addressed before disseminating that information. As such, prior peer review and 

publication is not by itself sufficient grounds for determining that no further review is 

necessary.

Section III(4) requires agencies to provide reviewers with sufficient background information, 

including access to key studies, data and models, to perform their role as peer reviewers

Section III: Peer Review of Highly Influential Scientific Assessments

Whereas Section II leaves most of the considerations regarding the form of the peer review to the 

agency’s discretion, Section III requires a more rigorous form of peer review for highly 

influential scientific assessments. The requirements of Section II of this Bulletin apply to Section 

III, but Section III has some additional requirements, which are discussed below. In planning a 

peer typically will have to devote greater resources and attention to the issues discussed in 

Section II, i.e., individual versus panel review; timing; scope of the review; selection of 

reviewers; disclosure and attribution; public participation; and disposition of reviewer comments.

Emphasis Added
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-423

Even though the new versions of the three integrated assessment models (IAM) used by the U.S. 

government to estimate the SCC (DICE, FUND, and PAGE) were published in the “peer 

reviewed literature”, the IQA requires a higher standard of peer review as described above. The 

fact that all of the models have been” peer reviewed” does not mean that any of them have been 

deemed to have any skill for predicting future emissions, temperatures, sea level rise or damages. 

DoE apparently assumed that “new” meant “better”. DoE knows this is not the case in terms of 

the IPCC models. The “appearance” in economics journals is not adequate since the main drivers 

of the impacts are related to science and technology issues, not economics. The competence of 

the journal review should have been questioned by DoE and the requirements of the IQA 

followed.

SCC2013 acknowledged the continued limitations of the approach taken by the interagency 

group in 2010 (documented in the original 2010 TSD).

SCC2013 did not revisit other assumptions with regard to the discount rate, reference case 

socioeconomic and emission scenarios, or equilibrium climate sensitivity. This was 

another major failure of DoE. Many additional peer review papers were available and should 

have been considered in the SCC2013 update. The developers of the models are not acceptable 

arbiters of the adequacy of the peer review for their “updates”.

The issue of public access to documentation and data is also a serious concern. All of the model 

documentation, formulations based on specific papers or interpretations, validation data and 

results, model code and cited papers should be available on public website so that the public can 

examine the material and confirm the calculations of the models. As DoE knows, this is not the 

case.

The IAM models are “calibrated to match the carbon cycle in the Model for the Assessment of 

Greenhouse Gas Induced Climate Change (MAGICC)”. There is no documentation on the input 

variables used for the MAGICC run(s) nor is there data available to confirm the “calibration”, 

much less the data used to validate

MAGICC.

Recent Congressional testimony confirmed that the IPCC climate models central to the SCC2013 

results are unable to reproduce observations:

http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=16e80c55-

9ebf-42e4-852e-1f6e960b0902

Excerpt:

The satellite measurements reveal several significant features which are pertinent to our concern 

over human-induced climate change (all of the following points are also supported by 

the alternative version of the satellite-based temperatures from Remote Sensing Systems [RSS]):
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-424

1) The magnitude of global-average atmospheric warming between 1979 and 2012 is only about 

50% that predicted by the climate models relied upon by the IPCC in their projections of 

global warming.

2) The level of warming in the most recent 15 year period is not significantly different from zero, 

despite this being the period of greatest greenhouse gas concentration. This is in stark contrast 

to claims that warming is “accelerating”.

3) The level of observed tropical atmospheric warming since 1979 is dramatically different from 

that predicted by climate models; it is below all 73 models we have analyzed the output from (see

Fig.2)

Fig.2. Mid-tropospheric (MT) temperature variations for the tropics (20degN to 20degS) in 73 

current (CMIP5) climate models versus measurements from two satellite datasets and four 

weather balloon datasets.

On this last point, the level of disagreement between models and observations in Fig. 2 is quite 

striking. While one might argue that it is for a relatively restricted latitude band (20degN to 

20degS), this is where almost 50% of the solar energy absorbed by the Earth enters the climate 

system. The discrepancy between models and observations is related to the lack of a middle- and 

uppertropospheric “hotspot” in the observations, which the models produce in response to 

surface warming combined with positive water vapor feedback. The observations might be 

telling us that the global warming response to increasing CO2 (and any natural warming 

influence) is not being amplified by water vapor increases, which have their greatest 

temperature impact in the middle and upper troposphere (Spencer & Braswell, 1997).

The lack of statistically significant warming in the last 15 years (shown in Fig. 1 above, even 

more striking in the RSS dataset) is

sometimes glossed over with the claim that the global temperature record has a number of 

examples of no warming (or even cooling)

over fifteen year periods. But this claim is disingenuous, because the IPCC presumed radiative 

forcing of the climate system from

increasing CO2 has been at its supposed maximum value only in the last 15 years. In other 

words, when the climate “stove” has been turned up the most (the last 15 years) is also when 

you least expect a lack of warming.

It is time for scientists to entertain the possibility that there is something wrong with the 

assumptions built into their climate models. The fact that all of the models have been peer 

reviewed does not mean that any of them have been deemed to have any skill for predicting 

future temperatures. In the parlance of the Daubert standard for rules of scientific evidence, 

the models have not been successfully field tested for predicting climate change, and so far 

their error rate should preclude their use for predicting future climate change (Harlow & 

Spencer, 2011).

DoE is fully aware of this major fatal flaw and has had access to the information since the 

publication of the AR4 in 2007.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-425

D. DOE Disregarded New Information Filed as Comments on the National Climate 

Assessment that should have been considered prior to releasing the SCC2013 Report and 

the Rule

TRCS filed comments on the Draft National Climate Assessment in April:

The Right Climate Stuff (TRCS) Research Team submitted the following comments on the 

January 11, 2013 Draft National Climate Assessment (DNCA). Our comments addressed 

significant errors and misstatements in the DNCA Executive Summary, Report Findings, and the 

underlying chapters.

As taxpayers, we expect full transparency by the National Climate Assessment Development and 

Advisory Committee (NCADAC) as the process proceeds including posting of our comments, 

posting of the responses to our comments, and all changes in the DNCA resulting from our 

comments. Also, Congress should require the NCADAC to post every version of the report drafts 

beginning with Version 1 as well as all of the changes together with the names of those 

responsible for revising the report.

For some reason the NCADAC chose to use its own comment system rather than the 

regulations.gov system supported by major agencies, including Commerce (NOAA) and NASA. 

The NCADAC system is neither transparent nor conducive to public participation. It does not 

accept graphics, even though data comments necessarily involve graphics. This constraint 

imposed severe restrictions on commenters.

http://www.therightclimatestuff.com/AGW Science Assess Rpt- 1.pdf

or on our website at:

http://www.therightclimatestuff.com/ and select Anthropogenic Global Warming Science 

Assessment Report

Below is a summary of our comments:

1. Contrary to the DNCA, The science that predicts the extent of Anthropogenic Global 

Warming is not settled science.

2. There is no convincing physical evidence of Catastrophic Anthropogenic Global 

Warming. Most of the alarm regarding AGW results from output of un-validated computer 

models. We understand scientific arguments regarding how doubling CO2 in the atmosphere 

over a hundred years or more (if possible) can have a small direct warming effect, but we 

question the accuracy of feedback simulations in current models computing climate system 

responses that amplify CO2 effects. Efforts to estimate climate sensitivity to CO2 based solely 

on physical data have large uncertainties because many factors affect global temperatures, 

and CO2 levels rise in the atmosphere after the earth warms due to other factors. While 

paleoclimate data clearly show CO2 levels rise and fall in the atmosphere hundreds of years after
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-426

temperature rises and falls due to other causes, the evidence is very weak to support claims of a 

catastrophic rise in global temperatures caused by CO2 emissions related to human activity.

3. Computer models need to be validated before being used in critical decision-making. Our 

manned aerospace backgrounds in dealing with models of complex phenomena have convinced 

us that this rule must be followed to avoid decisions with serious unintended consequences.

4. Because there is no immediate threat of global warming requiring swift corrective 

action, we have time to study global climate changes and improve our prediction accuracy.

While there are many benefits due to some global warming, the major threats appear to be 

associated with a net loss of Greenland and Antarctica ice sheet mass that would contribute to a 

gradual sealevel rise. The history, current trends, and specific causes of ice sheet melting and ice 

accumulation by precipitation must be better understood before determining how best to respond 

to threats of accelerated sea-level rise.

5. Our US government is over-reacting to concerns about Anthropogenic Global Warming. More 

CO2 in the atmosphere would be beneficial for forest and crop growth to support the earth's 

growing population, so control of CO2 emissions is not an obvious best solution to hyped-up 

concerns regarding AGW. Eventually the earth will run out of fossil fuels and alternative

energy sources will be required. Market forces will (and should) play a big role in this transition 

to alternative energy sources.

Government funding of promising research and development objectives for alternative energy 

sources appears to be a better

option at this time than expenditures of enormous resources to limit CO2 emissions. The Right 

Climate Stuff Research Team respectfully requests DOE adhere to the directive of President 

Obama, the mandates of the APA and the requirements of the IQA and the OMB guidelines, and 

subject the Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis 

Under Executive Order 12866, February 2010(SCC2010); and the Technical Support Document: 

Technical Update of the Social Cost

of Carbon for Regulatory Impact Analysis Under Executive Order 12866, May 2013 (SCC 

2013), to public notice and comment to be followed by a fully independent and unbiased peer 

review under IQA guidelines of any Social Cost of Carbon Technical Support Document. EPA 

should not proceed until it has joined DoE in submitting the Social Cost of Carbon for public 

comment and independent peer review before finalizing its STEAM ELECTRIC 

POWER GENERATING POINT SOURCE CATEGORY: EFFLUENT

LIMITATIONS GUIDELINES AND STANDARDS, EPA-HQOW-2009-0819-0068.

Comment Response: 

EPA notes that the majority of this comment deals with the Department of Energy and climate 

change issues. The majority of the commenter’s statements are outside the scope of the final 

Steam Electric ELGs, which establish limitations and standards applicable to the discharge of 

pollutants from the steam electric power generating industry.

EPA disagrees with the commenter that it “should not proceed” with finalizing the Steam 

Electric ELGs “until it has joined DoE in submitting the Social Cost of Carbon for public 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-427

comment and independent peer review.” EPA had not previously revised the steam electric 

ELGs since 1982. As explained in the preamble, there have been significant changes in the last 

30 plus years that warrant revision of the ELGs. After receiving and considering public 

comments, EPA determined that it had sufficient information on which to base revised 

requirements reflecting “Best Available Technology Economically Achievable” and “Best 

Available Demonstrated Control Technology.” The final rule addresses a significant 

environmental problem that would continue unabated in the absence of the rule.

Regarding the comment about the social cost of carbon control, see the response to comment 

to DCN EPA-HQ-OW-2009-0819-4473-A1, Excerpt Number 1 (comment code 29.h).

Commenter Name: Bradley Coyle

Commenter Affiliation: Big Rivers Electric Corporation (BREC)

Document Control Number: EPA-HQ-OW-2009-0819-4664-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BREC urges USEPA to take all appropriate steps to ensure that new and modified rules 

applicable to the power generation industry – specifically including the ELGs – are set within a 

sound level of accepted science and with an understanding of the significant challenges facing 

the power generation industry within the United States. The power generation industry has been 

made subject to an unprecedented number of new and modified environmental rules under the 

Clean Air Act, Clean Water Act, and various waste programs. These new and modified 

environmental regulations present unique challenges to our industry and ultimately to the 

customers that pay their electric bill each month – challenges that we do not believe have been 

considered within the establishment of this proposed rule. The overall cost and operational 

implications that have been set forth are difficult to meet from both a technical feasibility 

standpoint as well as an economic standpoint.

The currently proposed ELGs have a significant potential to impose additional unnecessary costs 

and operational restrictions with little 

or no corresponding benefit to human health and the environment to an industry that has faced va

rying significant additional environmental regulations over the past 5 years.

Comment Response: 

Regarding the commenter’s statement that EPA failed to consider “challenges” posed by “new 

and modified environmental regulations” applicable to the power generating industry, see the

responses to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 9; EPA-HQ-OW-2009-

0819-4383-A1, Excerpt Number 15; and DCN EPA-HQ-OW-2009-0819-4453-A1, Excerpt 

Number 5. Using the Integrated Planning Model, EPA also assessed the projected impacts of the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-428

rule on electricity prices and found them to be minimal – only pennies more per month which 

should not be a challenge to customers. See RIA Sections 5 and 7.

Regarding the commenter’s statement that the “cost and operational implications” of the final 

steam electric ELGs are “difficult to meet from both a technical feasibility standpoint as well as 

economic standpoint,” as described in preamble section VIII, the final rule is based on available 

technologies and is economically achievable for the steam electric industry as a whole.

EPA disagrees with the commenter's assertion that the ELGs will have “little or no 

corresponding benefit to human health and the environment.” To the contrary, EPA's 

Environmental Assessment and Benefit-Cost Analysis show both significant impacts to human 

health and the environment from the uncontrolled discharge of toxic pollutants by the steam 

electric industry (which have been ongoing for decades until now) and major benefits from the 

pollutant discharge reductions that will occur under the final rule. The preamble for the final rule 

summarizes some key environmental improvements and associated benefits expected from the 

rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-429

27.a. Coordination – OAR/Cross-State Air Pollution Rule (CSAPR)

Commenter Name: T. Edwards

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3676-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I visited family in Ashville NC earlier this year and the air pollution from the TVA and Duke 

Plants was terrible. The smell and smog that occur when the wind is going down the valley 

makes for a VERY POLLUTED area. With the Smokey Mountains nearby, this should be a 

protected area.

Comment Response: 

This comment is about the impacts of air pollution generated at the TVA and Duke Plants in 

Ashville, NC. Although these are steam electric power plants, which the final ELGs address, the 

ELGs address water pollution from these plants, not air pollution. Air pollution is outside the 

scope of this ELG rulemaking, which addresses discharges of pollutants to the nation’s 

waterways. Nonetheless, one of the reasons for this final rule is to address discharges of 

wastewater that result from use of certain air pollution control equipment that controls the 

emission of toxic pollutants to air, as explained in the preamble. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-430

27.c. Coordination – OAR/Mercury and Air Toxics Standards (MATS)

Commenter Name: F. Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission

Document Control Number: EPA-HQ-OW-2009-0819-5517-A2

Comment Excerpt Number: 13

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

Finally the proposed rule does not appear to consider the cost to electric consumers for purchase 

of more expensive power during the time that units are not available because of retrofit. This is 

especially concerning due to the fact that this rule is planned to be implemented shortly after 

mandatory retrofits under the Mercury and Air Toxics Standards retrofit which may also boost 

the cost of interim electric power.

Comment Response: 

As explained in Section VIII.C.7 of the final preamble, EPA’s record demonstrates that plants 

typically have one or two planned shut-downs annually (irrespective of the need to comply with 

this rulemaking) and that the length of these shutdowns is more than adequate to complete 

installation of relevant treatment and control technologies to comply with the final rule. In other 

words, EPA does not anticipate any incremental downtime to comply with this rule. As such, to 

the extent that there is increased cost of power, this cost would have been born by the consumer 

in the absence of this rule.

EPA notes that, as explained in Section VIII.C.7 of the final preamble, where BAT limitations in 

this rule are more stringent that previously established BPT limitations, those limitations do not 

apply until a date determined by the permitting authority that is as soon as possible beginning 

November 1, 2018, and that is no later than December 31, 2023. One of the things this allows 

for is consideration of plant changes being made to comply with other Agency rules affecting the 

steam electric industry.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-431

27.d. Coordination – OW/316b

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 114

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We called the Mirant plant that was about a mile from our house the "butcher of the 

Potomac." Now, all plants with open cooling systems, such as the GenOn or the Mirant or the 

NRG plant, kill. They will. Tens to hundreds of millions of fish per year are killed by open 

cycle power plants. Remember the GenOn plant was running for 60 years. The math is 

astounding: 60 years times 100 million comes out to a little bit of -- quite a few fish.

A species of sturgeon, the shortnose sturgeon most probably, has been lost as a direct result of 

the plant's operation.

Comment Response: 

This comment address the adverse environmental impacts of power plant cooling water intakes 

and is outside the scope of this ELG rulemaking, which establishes limitations and standards 

applicable to the discharge of pollutants from the steam electric power generating industry. 

However, on May 19, 2014, EPA finalized standards to protect billions of fish and other aquatic 

life drawn each year into cooling water systems at large power plants and factories. See 79 FR 

48300 (Aug. 15, 2014) for more information.

Commenter Name: Ernest Lehmann

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-3920-A16

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The Butcher of the Potomac: All plants with open cooling systems, such as the GenOn plant, 

kill. Tens to hundreds of millions of fish per year are killed by open cycle power plants. 

Remember, the GenOn plant was running for more than 60 years. The math is astounding! A 

species of sturgeon, the short nosed sturgeon, most probably has been lost as the direct result of 

this plant's operation. (pp. 5, 11, 13). These page numbers refer to the 13 April 2013 letter to the 

EPA.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-432

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 114.

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If, in response to new 316(b) regulations, facilities elect to construct cooling towers and other 

closed loop methods, three years will not provide them the time to go through the regulatory 

requirements of certificate of necessity in Missouri, permit modifications under NPDES, bidding 

and construction of the towers.

Comment Response: 

The commenter states that three years is not enough time for them to comply with the rule. EPA 

disagrees that the rule sets a firm deadline of three years to meet the final limitations and 

standards. As explained in Section VIII.C.7 of the final preamble, where BAT limitations in this 

rule are more stringent than previously established BPT limitations, those limitations do not 

apply until a date determined by the permitting authority that is as soon as possible beginning 

November 1, 2018, and that is no later than December 31, 2023. One of the things this 

implementation period allows for is consideration of time needed to plan, design, procure and 

install equipment to comply with the final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-433

27.e. Coordination – ORCR/CCR

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 64

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

I would also like to make the point that we need both a strong ELG rule and a strong coal ash 

rule, for they work hand in hand to protect people and the environment.

Comment Response: 

EPA agrees that the ELG should “protect people and the environment.” As such, EPA 

coordinated its regulatory efforts during the development of the final ELG and CCR rules.

Commenter Name: Public Hearing Transcript

Commenter Affiliation: Public Hearing Transcript

Document Control Number: EPA-HQ-OW-2009-0819-3920-A1

Comment Excerpt Number: 161

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

It's very important to coordinate this rule with the CCR rule, which other witnesses have 

mentioned. Facilities are going to be subject to the new ELG requirements and in the same 

general time frame a new CCR rule under RCRA. EPA itself has recognized the importance of 

ensuring that the two parallel rulemakings don't impose inconsistent or duplicative requirements, 

and we agree that it makes no sense for a facility to undertake significant design and operational 

changes under ELG rule, only to have those modifications negated by the CCR rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt Number 128 

regarding EPA’s coordination of implementation timing in the ELG versus the final CCR rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-434

Commenter Name: Patricia Schuba

Commenter Affiliation: Labadie Environmental Organization

Document Control Number: EPA-HQ-OW-2009-0819-3920-A30

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In conclusion, LEO and CCC recommend that EPA not rely on limited industry supplied data on 

hydrology at these sites to weaken a strong Subtitle C Coal Ash Rule coupled with a strong ELG 

Rule- to finally protect communities impacted by coal ash waste and waste water risk.

We recommend that EPA require a sampling of site specific information to capture the risks to 

groundwater, alluvial aquifers and river water resources or refer to the Norris and Hutson,2011 

document supplied under the Notice of Data Availability (NODA) on the CCR rule.

Reliance on data in the ICR fails to take into account the heavy use of floodplain aquifers as a 

water source by people and communities today and in the future and could result in the adoption 

of rules that fail to meet EPA's obligation to protect human health and the environment under the 

Clean Water Act and RCRA.

Comment Response: 

The commenter references information used during development of the final CCR rule specific 

to risks to ground water from coal ash. Comments regarding the substance of the CCR rule are 

outside the scope of this rulemaking. EPA addressed comments on the CCR rule in the context 

of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

The ELG's focus is to address point source discharges of wastewater to surface waters from 

steam electric power plants. The ELGs could indirectly result in reduced impacts to ground 

water as well. EPA estimates that the ELG will result in reduced pollutant loadings to surface 

impoundments (for example, through the conversion to dry handling for fly ash). These reduced 

loadings will decrease the potential leaching of pollutants from CCR surface impoundments to 

ground water and will reduce the potential human health impacts associated with exposure to 

contaminated drinking water wells. EPA, however, did not quantify or monetize the possible 

benefits associated with this improvement to ground water quality under the ELG in order not to 

double count the CCR rule’s benefits. Rather, EPA discussed these in qualitative terms. See 

Section 7.8 of the Environmental Assessment for the Effluent Limitations Guidelines and 

Standards for the Steam Electric Power Generating Point Source Category (EA Report) (DCN 

SE04527) for more information on secondary improvements.

Commenter Name: Donald R. Carlson

Commenter Affiliation: Kansas Department of Health and Environment (KDHE)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-435

Document Control Number: EPA-HQ-OW-2009-0819-3922-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposal to Implement BMPs for CCR Surface Impoundments

In the preamble of the proposed rule, EPA notes they are considering establishing Best 

Management Practices (BMPs) for both active and inactive coal combustion residual (CCR) 

impoundments in the final Effluent Limitation Guideline (ELG) Rule using Clean Water Act 

(CWA) authority. The BMPs being considered for the ELG Rule would apply to all CCR 

impoundments, at steam electric generating facilities, regardless of their height and storage 

volume. Examples of BMPs under consideration by EPA include: submission to the permit 

issuing authority plans for the design, construction, and maintenance of both new and existing 

impoundments; plans for closure; requirements for periodic inspections by trained personnel who 

are knowledgeable in impoundment design and safety (a person qualified to recognize specific 

signs of structural instability and other hazardous conditions by visual observations and, if 

applicable, to monitor instrumentation such as piezometers); provide annual certifications by an 

independent registered professional engineer that all construction, operation, and maintenance of 

the impoundment(s) is in accordance with the approved plan; address any problematic stability 

and safety issues in a timely manner; notify the permitting authority immediately of any 

potentially hazardous condition that develops; prepare to evacuate, if necessary, all personnel 

from the property that may be affected by the potentially hazardous condition(s); requiring the 

operator to notify state and local emergency response personnel if conditions warrant so that 

people living in the area down gradient from the surface impoundment can evacuate; and 

maintenance of inspection reports in the facility operating record. EPA indicates they are also 

considering establishing BMPs that would be modeled on the Mine Safety and Health 

Administration (MSHA) regulations in 30 CFR Part 77 that address coal slurry impoundments as 

there are sufficient similarities between coal slurry and CCR impoundments. A third option 

appears to address CCR impoundments under the provisions of the Resource Conservation and 

Recovery Act (RCRA) as originally addressed in a proposed rule published in the Federal 

Register on June 21, 2010 (75 FR 35127- 35264) addressing 40 CFR Parts 257,261,264, et al. 

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule. The June 21, 

2010 proposed CCR Rule addressed options of regulating CCR wastes and CCR impoundments 

by either leaving the Beville regulatory determination in place and regulating disposal under 

Subtitle D of RCRA or reversing the Beville regulatory determination in regard to CCRs and list 

these residuals as special waste subject under Subtitle C of RCRA when they are destined for 

disposal in landfills and surface impoundments. Under either of the RCRA options, EPA is 

proposing to establish dam safety requirements to address the structural integrity of surface 

impoundments to prevent catastrophic releases.

It is important for EPA to understand how KDHE currently regulates CCR disposal via 

wastewater treatment lagoons/impoundments, CCR impoundments, and CCR landfills in 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-436

Kansas. In Kansas, the KDHE Bureau of Water (BOW) issues Kansas Water Pollution Control 

Permits. These wastewater permits may be a state permit for a water pollution control system 

that does not have a direct point source discharge to surface waters i.e., a wastewater lagoon 

system designed to be non-discharging due to evaporation, lagoon systems employing land 

application conducted at agronomic application rates, wastewater systems employing total 

recycle and reuse, etc. The second type of wastewater permit issued by KDHE is a state/federal 

National Pollutant Discharge Elimination System discharge permit. The KDHE Bureau of 

Waste Management (BWM) administers a similar state and state/federal-permitting program 

involving the handling, treatment, and disposal of both solid and hazardous waste in 

Kansas. Any direct point source discharge of wastewater from a wastewater treatment 

lagoon/impoundment, CCR impoundment, or CCR landfill would be issued an NPDES permit by 

KDHE's BOW. Wastewater treatment lagoons/impoundments that receive wastewater, which 

may include CCRs, would be regulated solely by the BOW if the lagoon/impoundment is 

designed and operated solely as a treatment unit where there is no intention for the 

lagoon/impoundment serving as the final disposal repository for either solids or liquids. These 

structures are typically small shallow earthen structures employed to settle suspended solids 

which are routinely cleaned out with the solids being used utilized for beneficial purposes 

approved by the BWM or directed to a landfill permitted by the BWM for ultimate 

disposal. CCR impoundments designed and constructed to be the final repository for CCRs, are 

permitted as a solid waste disposal facility by the BWM. CCR landfills are also permitted as 

solid waste disposal facilities by the BWM.

In a June 21, 2010, Federal Register (75 FR 35127- 35264), EPA published a proposed CCR 

Rule. The proposed rule provides options for regulating CCR wastes and CCR waste 

impoundments by either leaving the Beville regulatory determination in place and regulating 

disposal under Subtitle D of RCRA or reversing the Beville regulatory determination in regard to 

CCRs and list these residuals as special waste subject under Subtitle C of RCRA when they are 

destined for disposal in landfills and surface impoundments. In an August 10, 2010 letter, 

KDHE offered comments and recommendations regarding the proposed rule. EPA has yet 

to take final action regarding the June 21, 2010 proposed CCR Rule. A copy ofKDHE's August 

10, 2010 letter and detailed comments are offered as additional background information for EPA 

in considering the June 7, 2013 proposed Steam Electric Power Generating ELGs.

It is KDHE's position that the regulation (design, construction, operation, and maintenance) of 

wastewater lagoons/impoundments employed in treating wastewater that contains CCRs from 

steam electric power generating plants remain subject to state statutes, regulations, and criteria so 

long as the wastewater lagoon/impoundments will not serve as the final repository for 

CCRs. Direct discharges from wastewater treatment lagoons/impoundments involving CCRs 

would remain subject to NPDES permit requirements. Lagoons/impoundments handling CCRs 

and which become the final repository (landfill disposal cell) for the CCR material, and CCR 

landfills should be regulated as a solid waste under either a state solid waste permit program or a 

state/federal RCRA permitted facility (Subtitle D). Direct discharges would remain subject to 

NPDES permit requirements. When use of a wastewater lagoon/impoundment is no longer 

required, Kansas has rules and regulations in place addressing deactivation, the removal and 

proper disposal of wastewater and wastewater sludge, and closure/abandonment of the 

structure. We believe a wastewater treatment lagoon/impoundment does not present the same 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-437

environmental or public safety concerns that EPA is trying to address in either the 2010 

Proposed CCR Rule or the 2013 Proposed Steam Electric Power Generating ELGs. KDHE does 

not support regulating CCR impoundments (final repository) and landfills under multiple 

environmental regulatory programs as proposed in the 2013 Steam Electric Power Generating 

ELGs. While air emissions and wastewater discharges should remain regulated and permitted by 

the air and water programs respectively, the design, groundwater protection, construction, 

operation, monitoring, closure, and post closure requirements should remain under the oversight 

and administration of the waste management program for consistency and to simplify regulatory 

oversight and compliance for the regulated community. It would appear that many of the EPA 

proposed BMPs for CCR impoundments (final repository) and landfills are similar to 

requirements already being employed by 

state solid waste programs or through state/federal waste permits issued under RCRA 

Subtitle D.

An example of the regulatory confusions that could result is that in the preamble text describing 

various BMPs being considered to address CCR impoundments there is no mention of closure, 

capping, post closure, or financial assurance requirements that are typically considered by the 

waste management program requirements. Was this an oversight, or was it EPA's intent to have 

these requirements addressed via RCRA?

If a steam electric power generating utility employs a CCR impoundment(s) that do not result in 

a point source discharge to a "Water of the US", how does EPA propose to implement the CCR 

impoundment BMPs through a CWA NPDES permit in light of the Decision by the US Court of 

Appeals for the 5 Circuit (National Pork Producers v. EPA 5th Cir., No. 08-

61093, 3/15/11) where the ruling dictated that a Confined Animal Feeding Operation (CAFO) 

is not subject to NPDES permit requirements if there is no discharge or there is no potential for 

a discharge due to its design, construction, or operation (total recycle and reuse)? The 

same question applies to the proposal to address "combustion residual leachate" from CCR 

impoundments via the 

CWA NPDES program if there is no hydrogeologic connection between the impoundmen

t leachate or groundwater and a "Water of the US"?

KDHE recommends EPA clearly define what constitutes a "CCR Impoundment". KDHE 

recommends that the 

definition clearly exclude wastewater treatment lagoons/impoundments used in treating CCR 

waste streams when the design and operation of the structure was never intended to serve 

as or become a final repository for CCR materials i.e., landfill disposal cell. The exclusion of 

the wastewater treatment lagoons/impoundments from the CCR impoundment provisions would 

also enable utilities to recycle and reuse treated wastewater at the facility. Facilities using 

groundwater that are located in arid regions or facilities using 

surface water during drought conditions could utilize the treated wastewater to supplement 

plant water demands.

In the preamble of the proposed rule EPA references three options for possibly regulating CCR 

Impoundments at steam electric power generating utilities i.e., implementation of BMPs

reference in the preamble, utilize BMPs for CCR impoundments similar to those 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-438

promulgated by the Mine Safety and Health Administration, or employ regulatory oversight via 

final action on the proposed 2010 CCR Rule. In the event EPA decides to regulate CCR 

impoundments through the CWA NPDES Permit Program, EPA should provide specific detailed 

requirements and criteria on which both the industry and state regulatory agencies can provide 

comments.

One proposed BMP requires inspections of the CCR impoundment be conducted every 7 days 

and the inspections be conducted by a person qualified to recognize specific signs of structural 

instability and other hazardous conditions. While this requirement is identical to the provision 

in the Mine Safety and Health Administration's regulations addressing slurry 

impoundments and impounding structures, the MSHA 

requirements for the "qualified person" is that they are trained to recognize specific sign

s of structural instability and other hazardous conditions by visual observation and, if 

applicable, to monitor instrumentation. Since the inspection requirement would be an 

enforceable requirement of an NPDES permit, with the inspector generating reports and possibly 

monitoring data, more detailed criteria should be provided as to the specific training 

requirements and/or educational background EPA expects consistent with the new emphasis 

being placed on the agencies Lab Competency Policy requirements expected of states, 

contractors, and the regulated community in generating and using data for compliance 

purposes. The preamble discusses the qualification for the person submitting an annual 

certification by requiring it be submitted by a registered professional engineer, which mirrors the 

MSHA requirements. Requiring inspections be conducted every 7 days could become very 

costly to utilities depending upon inspector qualification requirements.

In the event EPA decides to regulate CCR Impoundments via CWA NPDES Permits, and 

wastewater treatment lagoons/impoundments treating CCR waste streams are not excluded from 

the CCR Impoundment provisions, we request EPA reconsider implementing blanket 

requirements, regardless of the size or volume of the impoundment. As discussed previously, we 

believe wastewater treatment lagoons/impoundments typically employed at the power utilities to 

treat CCR waste streams are much smaller than the CCR Impoundments (final repository) with 

which EPA has concerns.

Is EPA proposing to provide specific detailed design and construction requirements for both 

existing and new CCR impoundments or is EPA proposing to fall back on accepting design and 

construction requirements so long as they are submitted by a "registered professional engineer" 

who certifies the design and construction was completed using "current, prudent engineering 

practices" (MSHA requirement)? The design of large earthen structures for the contaimnent of 

liquids and solids is a specialized field in civil and geotechnical engineering. If review of these 

large structures is not already being required by state statute or regulation by another state 

agency, it is unlikely an NPDES delegated state agency would have that expertise available to 

conduct an independent review of the design.

In the event EPA decides to regulate CCR Impoundments via CWA NPDES Permits, EPA needs 

to stipulate what they expect to be submitted in the closure plans. If EPA is considering 

requirements that will address financial assurance and post closure-care, this will be a significant 

departure from typical NPDES program requirements. As pointed out previously, this type of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-439

activity is more in line with typical waste management program activities i.e., state solid waste 

permits or state/federal RCRA (Subtitle D) solid waste permits.

Comment Response: 

The vast majority of this comment is specific to requirements and definitions in the final CCR 

rule. Comments pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-0640-11970).

EPA notes that the final ELGs do not require BMPs. See response to DCN EPA-HQ-OW-2009-

0819-4379-A1, Excerpt Number 119.

Finally, EPA notes that pollutant discharges to surface waters from rom wastewater treatment 

lagoons/impoundments remain subject to NPDES permit requirements.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Oklahoma Department of Environmental Quality (DEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4181-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In the proposal , EPA notes it is contemplating the establishment of Best Management 

Practices (BMP) as well as voluntary programs for CCR management programs. In 

Oklahoma, CCR ash is regulated by the Land Protection Division which has jurisdiction of the 

RCRA program. These requirements should be addressed under RCRA subtitle D, rather than 

the CWA. Given the limited clatity around overlap with RCRA, and the fact that the 

RCRA regulations are not finalized, we suggest that these CCR BMPs and voluntary 

programs not be included in the final rule. In the event EPA decides to regulate CCR 

impoundments under the CWA, we recommend that in the final rule, EPA provide specific 

detailed requirements and criteria on which the industry and state regulatory agencies can rely.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

EPA did not establish a voluntary incentives program in the final ELGs for CCR management as 

proposed. See responses to comments in comment Code 26.a.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-440

Commenter Name: J. Michael Brown

Commenter Affiliation: Ohio Valley Electric Corporation (OVEC)

Document Control Number: EPA-HQ-OW-2009-0819-4182-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. Coordination of the final Resource Conservation and Recovery Act Coal 

Combustion Residuals (CCR) Rule with ELG Requirements

OVEC not only welcomes EPA’s reference to their plans to coordinate the ELG and CCR rules 

in order to reduce overlapping requirements and potential capital project costs, but we feel the 

EPA has a regulatory obligation to do so. Coordination of these rules is essential to eliminate

redundancy and to provide the electric utility industry with certainty and predictability in 

planning and executing our overall environmental compliance strategies in an efficient and costeffective manner.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: J. Michael Brown

Commenter Affiliation: Ohio Valley Electric Corporation (OVEC)

Document Control Number: EPA-HQ-OW-2009-0819-4182-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices (BMPs) for CCR Surface Impoundments

OVEC has impoundments which are already regulated by state agencies and already require 

frequent monitoring and reporting. Further, the EPA’s proposed CCR rules may also require 

BMPs for these impoundments, and we believe that additional regulations required on the 

activity in this rulemaking would be redundant and unnecessary.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-441

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-0640-11970).

Commenter Name: Patrick O’Loughlin

Commenter Affiliation: Buckeye Power, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4183-A2

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA's Proposed ELG Rules Conflict With the Coal Combustion Residuals Rulemaking

Buckeye Power supports the EPA's stated intention of coordinating the proposed effluent 

limitations guidelines with its proposed CCR rules (published June 21, 2010). Buckeye Power 

also endorses the Agency's recent suggestion that it is inclined to regulate CCRs as non

hazardous wastes under subtitle D of RCRA.

Coordination is imperative in order to facilitate the significant engineering, finance, and 

permitting actions required under these related regulatory programs. As currently drafted, 

tensions exist between the two. For instance, under the proposed ELG rules, fly ash and bottom 

ash sluicing systems may be required to be converted to dry ash handling systems. As a result, 

waste streams will no longer be managed in impoundments. While the proposed ELG rules 

allow for continued holding and discharge of "legacy" wastewaters, the proposed CCR 

regulations require prompt re-lining or full closure of such retired impoundments.

The compliance schedules of the ELG and CCR rules also do not dovetail neatly. The ELG rules 

may require a facility to cease discharging fly ash within three years of its post-2017 NPDES 

permit renewal. However, if issued in final form in 2014, the CCR rules require that all CCR 

ponds be re-lined or closed within five years of the rules' issuance. That would 

require closure/re-lining a year earlier than would be required under the ELG program.

As another example of the related but not coordinated nature of the two rulemakings, the 

proposed ELG establishes Best Management Practices for the structural integrity of active and 

inactive impoundments. Besides the legitimate question of whether the Clean Water Act 

authorizes EPA to set BMPs for impoundments that go beyond practices, inspection, 

recordkeeping, and data collection, certain of the proposed BMPs will address issues at which 

the proposed CCR rule is directed (and which are addressed by various state agencies 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-442

empowered to regulate solid wastes and prevent spills and releases). Such redundancy is 

prohibited under Section 1251 of the Clean Water Act.

EPA must ensure that regulated parties are not subject to redundant and/or conflicting program 

requirements.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See the preamble to the final rule and response to DCN EPA-HQOW-2009-0819-4305-A3, Excerpt Number 128 regarding EPA’s coordination of implementation 

timing in the final ELG rule and the final CCR rule.

Commenter Name: Black Hills Corporation (BHC)

Commenter Affiliation: Black Hills Corporation (BHC)

Document Control Number: EPA-HQ-OW-2009-0819-4184-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs for Surface Impoundments - EPA is considering requiring best management practices 

(BMPs) for surface impoundments that receive coal combustion residuals. The BMPs would 

require routine inspections, plans for designing, constructing, and maintaining existing 

impoundments, plans for closure, periodic inspections, and annual certification that the 

construction, operation, and maintenance follows the approved plan. When stability and safety 

issues are identified, corrective action would be required.

BHC does not agree with EPA’s approach and would also question EPA’s authority to regulate 

coal combustion residual (CCR) impoundments with Best Management Practices under the 

Clean Water Act. CCR impoundments are already regulated under appropriate and applicable 

state regulations (e.g. solid waste permits, etc.), which require routine inspections, plans for 

design, construction, operation and maintenance and closure. CCR impoundment regulations 

should not be regulated under Clean Water Act permits and any future federal regulations for 

CCR impoundments should be addressed in the impending “Coal Ash” rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of BMPs for impoundments in the final ELG rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-443

Commenter Name: Ted Siler

Commenter Affiliation: Holland Board of Public Works

Document Control Number: EPA-HQ-OW-2009-0819-4282-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We are also concerned that the separate rulemaking to regulate coal combustion residuals under 

the Resource Conservation and Recovery Act (RCRA) will have unfortunate consequences taken 

together with the present effluent limitations guidelines rulemaking. We appreciate EPA's desire 

to coordinate the two rulemakings, and we urge EPA not to promulgate a CCR rule that requires 

the closing of ash impoundments (landfills and settling ponds in our particular interest) in 

conflict with the ELG options (such as no exemption based on the source power plant's 

generating capacity).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding the 

coordination between the ELG rule and the final CCR rule.

The substance of the CCR rule is outside the scope of this rulemaking. Each statute has its own 

statutory responsibilities and EPA has implemented its statutory responsibilities under the Clean 

Water Act in this rule.

Commenter Name: Chas Spell

Commenter Affiliation: Arizona Public Service Company

Document Control Number: EPA-HQ-OW-2009-0819-4303-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs For Surface Impoundments Should Be Removed.

EPA should remove the BMP requirements for surface impoundments from the proposed rule as 

there is no justification for additional impoundment regulation under the Clean Water Act. In 

response to the Kingston, Tennessee impoundment collapse, EPA’s engineers inspected virtually 

every utility coal combustion residuals (CCR) surface impoundment in the country and 

determined that not a single impoundment is in an “unsatisfactory” condition, the lowest 

condition rating and, according to EPA, the only rating that “pose[s] immediate safety 

threats.” A minority of units received a “poor” rating, and the record evidence shows that the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-444

vast majority of these “poor” ratings were attributable to the lack of underlying data, rather than 

the actual condition of the impoundment. Moreover, nearly all assessed CCR surface 

impoundments, including the surface impoundments at APS’s Four Corners Power Plant, have 

already completed their action plans to implement the dam integrity contractors’ recommended 

improvements to their operations and maintenance, so any concerns with these impoundments on 

which these ratings were based have been addressed.

In sum, not a single surface impoundment poses immediate safety threats, and nearly all units 

have fully addressed the dam integrity engineers’ recommended changes. Accordingly, BMP 

requirements for surface impoundments are neither appropriate nor necessary.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments specifically 

pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordination with the Coal Combustion Residual (CCR) rule for implementation timing and 

alignment of requirements that intersect with the ELG rule is critical.

Best Management Practices (BMPs) for surface impoundments should remain in the RCRA

program as laid out in the CCR Proposed rule.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the EPA OW and EPA ORCR final rules.

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response 

to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-445

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Duke Energy Supports: EPA’s recognition on the importance of coordinating the ELG proposal 

with the CCR proposal.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

 Coordination with the Coal Combustion Residual (CCR) Rule:

o Coordinating the timing of implementation and aligning the requirements that 

intersect with the ELG rule is critical.

o Duke Energy disagrees with EPA’s approach in their Cost and Benefit Analysis, 

where the benefits (a reduction in cleanup costs). EPA’s flawed methodology 

results in a significant overestimation of avoided costs attributed to the Proposed 

ELG Rule.

 Best Management Practices (BMPs) for Surface Impoundments:

o BMPs should remain in the RCRA program as laid out in the CCR proposed rule 

to avoid duplicative and/or conflicting requirements.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules. EPA is not establishing BMPs for CCR 

impoundments under the final ELG rule. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 regarding the coordination between the ELG rule and the final CCR 

rule including BMPs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-446

See comment codes 28 and 29 regarding the benefit analysis.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 121

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Duke Energy agrees with EPA that it is necessary to effectively coordinate the ELG 

requirements with any final RCRA requirements, in association with the Coal Combustion 

Residual (CCR) rulemaking, “to minimize the overall complexity of these two regulatory 

structures, and facilitate implementation of engineering, financial and permitting activities."106

As part of the proposed ELG rule, EPA is seeking comment on two primary means of integrating 

these two rules:

1. Through coordinating the design of any final substantive CCR regulatory requirements; 

and

2. Through coordination of the timing and implementation of the final rule requirements to 

provide facilities with reasonable deadlines for implementation that allows for 

coordinated planning and protects electricity reliability for consumers.

The following comments are offered to support EPA’s objective “to ensure that the two rules 

work together ... without creating avoidable or unnecessary burdens.”107Duke Energy is also 

submitting similar comments to the RCRA Docket [EPA-HQ-RCRA- 2013-0299] in association 

with the CCR rulemaking proposed on June 21, 2010.

106 Id. at 34441

107 Id.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts and response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt 

Number 128 for a discussion of the timing between the ELG and CCR final rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-447

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 122

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

Integration of ELG and CCR Rules

Both the ELG Proposal and CCR Proposal were developed independently by the Office of Water 

Management and the Office of RCRA respectively, without coordination or consideration in 

regards to the combined economic and regulatory impact on the electric utility industry. EPA has 

a statutory obligation to integrate the provisions of the ELG rule to avoid duplication with the 

appropriate provisions of other federal statutes, including RCRA (the CCR rule). Additionally, 

Executive Order 13563, titled “Improving Regulation and Regulatory Review” signed by the 

President on Jan. 18, 2011 requires EPA to recognize that the electric utility industry faces a 

significant number of regulatory requirements, some of which may be redundant, inconsistent, or 

overlapping. It directs EPA to coordinate the development of any proposed rules to simplify and 

reduce duplicative requirements. It is important that EPA fulfill this directive and minimize any 

overlapping requirements and the overall complexity of the regulatory structure of the respective 

rules under which a facility must operate. These rulemakings are the perfect circumstance for 

coordination where there are two rules regulating the same substances (CCR) in the same 

disposal units (surface impoundments).

Comment Response: 

EPA disagrees that the final ELGs were developed without coordination or consideration of the 

combined economic and regulatory impact on the electric utility industry with the CCR rule. 

EPA carried out the directives of Executive Order 13663 and did in fact coordinate with the 

Office of Solid Waste and Emergency Response on the rule. The final ELGs and the final CCR 

rule do not contain duplicative requirements. In addition, EPA conducted an assessment of 

compliance costs and pollutant loadings for this rule both with and without accounting for the 

final CCR rule, and conducted an economic and regulatory impact analysis that both accounted 

for the costs of the CCR rule and other relevant rulemakings on this industry. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding the coordination 

efforts undertaken by EPA.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 123
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-448

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

A State-Administered CCR Permit Program would be more effective for the coordination 

of permitting, compliance and enforcement requirements between the ELG Proposal and 

the CCR Proposal

In order for there to be effective coordination between the final CCR and ELG rules, the same

regulatory agency must have authority over both regulatory programs for implementation and 

enforcement of the two new sets of rules. The final CCR rule must include a mechanism that 

allows qualified state solid waste regulatory agencies, which have a CCR permit program that 

meets or exceeds the federal standards and criteria, to directly administer the CCR Subtitle D 

regulations. Duke Energy supports state-approved CCR Subtitle D permits and state-approved 

NPDES permits to provide regulatory certainty for compliance.

The self-implementing option, as included in the proposed CCR Rule, can result in different 

interpretations of the CCR rule across the nation and even within individual states. This option 

not only increases the complexity for utilities that operate in multiple states, it can undermine 

any attempt for regulators to coordinate the implementation of the two rules if there is 

discrepancy in the interpretation in sections of the CCR rule. How a particular element of the 

CCR rule should be interpreted is best determined by a single regulatory body whose authority is 

to oversee and establish permit conditions under both sets of rules. Duke Energy believes the 

state regulatory agencies should have authority over both programs because they would be in the 

best position to determine how to coordinate these rules in practice. Duke Energy also believes a 

state regulatory authority would be able to resolve any apparent conflicts in the interpretation of 

the requirements regarding whether a particular impoundment that no longer receives CCR 

should remain in operation to continue to manage legacy CCR transport wastewaters as proposed 

under the ELG Proposal. In contrast, a federal court addressing an individual citizen suit action 

involving an alleged violation under the self- implementing option of the CCR Subtitle D rule is 

not in the same position to interpret compliance with the CCR rule and the ELG rule. In a citizen 

suit action, the court’s jurisdiction is limited to the particular CCR rule and the enforcement 

action must be directed only as it pertains to that CCR rule. Duke Energy believes that 

inspections and compliance monitoring will be enhanced if the same regulatory agency, the 

states, are given the authority to implement and enforce the compliance for utility landfills and 

impoundments.

Duke Energy operates coal-fired power plants in five different states and believes it is important 

for any final CCR rule to include a mechanism for qualified state regulatory programs to 

administer the regulations through a permit program, in lieu of the self-implementing approach 

set forth in the CCR proposal. This approach would more effectively facilitate the 

implementation and enforcement of the CCR and ELG rules by bringing them both within the 

jurisdiction of the same state authorities.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-449

Comments about who implements the CWA NPDES program and any comment about the 

substance of the CCR rule or implementation of the Solid Waste Disposal Act as amended by 

RCRA are outside the scope of the rule. (see Docket EPA-HQ-RCRA-2009-0640-11970).

As the commenter noted, the final steam electric ELGs will be incorporated into NPDES permits 

as are all other ELGs. (Currently 46 states and one territory have NPDES permitting 

authority. EPA issues permits in the remaining states and territories. Regarding federal facilities 

and Indian country, NPDES permitting authority varies.). See response to DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 119 response to DCN EPA-HQ-OW-2009-0819-4652-A1, 

Excerpt Number 12 regarding coordination of the ELG and CCR rules.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 127

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices for Surface Impoundments Should be Covered in the CCR 

Rule not the ELG Rule

The ELG Proposal requests comment on the inclusion of best management practices (“BMPs”) 

in NDPES permits that would establish standards for CCR surface impoundments with regard to 

structural integrity and inspections. These requirements are duplicative of BMP standards in the 

CCR Proposal. All regulatory requirements of CCR surface impoundments belong under the 

CCR Proposal. All structural integrity inspections, record keeping and reporting requirements are 

also already established in the CCR Proposal. Design, construction, and the operation 

requirements of surface impoundments, including fugitive dust control, are also established in 

the CCR Proposal.

Duke Energy believes that EPA should not include any requirement for BMPs in the final ELG 

Rule that would result in duplicative regulation with the final CCR Rule. The ELG Rule should 

remain focused on determining the appropriate technology-based treatment standards for 

regulating effluent from surface impoundments and defer the construction/design standards and 

safe operation of the surface impoundment to the final CCR Rule.

As for regulating CCR surface impoundments, the most effective approach is through a single, 

comprehensive set of regulations issued pursuant to EPA’s RCRA authority. However, if EPA 

elects to finalize the proposed BMPs in the ELG Rule, then revisions are necessary to ensure that 

the relevant aspects of the standards are tailored to circumstances unique to CCR impoundments. 

Furthermore, because the BMPs have the potential to have a significant impact on utility 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-450

operations, Duke Energy requests that EPA provide greater detail about what the BMPs would 

entail, analogous to the proposed regulatory text of the CCR Proposal.

The brief discussion of BMPs in the ELG Proposal does not provide Duke Energy with a clear 

picture of what the Agency is contemplating. The MSHA impoundment requirements, on which 

the BMPs are modeled, are detailed in regulations.108 The proposed CCR surface impoundment 

requirements for siting new impoundments, design criteria, construction requirements, ground 

water protection standards and dam structural integrity standards are detailed in proposed 

regulatory text.109 The ELG Proposal has provided only a broad outline of what BMPs EPA is 

considering for inclusion in the final ELG Rule. EPA also states that final BMPs may deviate 

from the MSHA regulations and CCR Proposal in several material aspects. Duke Energy is 

concerned that these statements will lead to greater uncertainty about what final BMPs may look 

like. Because Duke Energy lacks a full understanding of what EPA is proposing, Duke Energy 

perceives that inadequate notice has been given to effectively formulate a full response.

The ELG Proposal is also unclear whether all BMPs proposed would be mandatory or if permit 

writers would have discretion to incorporate only those BMPs that are appropriate to the 

circumstances. Additionally, it is unclear if all impoundments would be subject to the same 

structural integrity requirements. The MSHA coal slurry impoundment regulations and CCR 

Proposal tailor the structural integrity and monitoring requirements to apply only to those 

structures that pose a potential threat to human health and the environment. Duke Energy 

contends there is no basis to impose the proposed inspection and structural integrity obligations 

on small or remote impoundments that, in the unlikely event of a catastrophic failure, would 

present little or no risk of causing significant environmental or human health damage. If EPA 

requires BMPs in the ELG Proposal, they should be carefully coordinated with the requirements 

in the CCR Proposal. Therefore, these concerns would be best addressed by the issuance of a 

supplemental proposal discussing the BMP requirements in greater detail and providing 

proposed regulatory text.

However, Duke Energy reiterates that the proposed BMPs should be abandoned from the ELG 

Proposal and that any surface impoundment BMPs imposed be covered by a RCRA program as 

laid out in the CCR Proposal.

108 See 30 C.F.R. Part 77

109 See 75 Fed. Reg. at 35244–46 (proposed to be codified at 40 C.F.R. §§ 257.77–257.84)

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-451

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 128

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordinate the Implementation Timing of Both Proposals

In addition to coordination on substantive issues, EPA also requested comment on how to best 

coordinate “the timing and implementation of the final rule requirements to provide facilities 

with a reasonable timeline for implementation that allows for coordinated planning and protects 

electricity reliability for consumers.”110 EPA’s goal is consistent with its statutory requirements. 

The implementation dates for each rule should not require facilities to make decisions without 

understanding the implications that such decisions would have for meeting any requirements for 

the other rule. The Agency must also consider the time a facility needs to determine whether any 

changes to its operations are needed to comply with the ELG Proposal, and if so, what those 

modifications might be before the facility would be required to close or retrofit a surface 

impoundment pursuant to the CCR proposal.

 Adequate Time is Necessary to Effectively Evaluate the Compliance Obligations

Duke Energy will need time to effectively evaluate the requirements in both the ELG Final Rule 

and the CCR Final Rule and then determine what modifications are required to operate the 

surface impoundments used to manage CCR for each site. Duke Energy contends that it will take 

more than 12 months to develop a comprehensive plan to comply with both the CCR Final Rule 

and the ELG Final Rule requirements. Compliance with these final rules also needs to be 

coordinated with the plan to comply with the Mercury and Air Toxic Standards that begin in 

2015. Allowing for a step-wise approach to implementing a coordinated compliance plan for the 

both proposals is fully consistent with the requirement under RCRA Section 1006(b) to integrate 

the regulatory provisions of RCRA, CWA and CAA. This approach will not only avoid 

duplicative and potentially conflicting requirements, but is also in accordance with the E.O. 

13563 directive to federal agencies to promote coordination and simplification of new federal 

regulations. It is imperative that Duke Energy know with certainty what the regulatory 

requirements will be under these rules before investments of significant capital resources are 

required to comply with these three regulatory programs.

 EPA Needs to Publish the Final ELG Rule and the Final CCR Rule at the Same 

Time

Duke Energy recommends that EPA carefully coordinate the release of both the final CCR and 

final ELG Rules. These rules should be released at the same time to effectively facilitate the 

development of comprehensive compliance plans to address the requirements of both regulatory 

programs.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-452

 Adequate Time is Needed to Implement Compliance Plans

It is important for EPA to appreciate the time that is necessary once a utility determines that 

closure or modification of a CCR impoundment is warranted and the time needed to design and 

implement an alternative treatment system. In evaluating this issue in the CCR Proposal, EOP 

determined, using electric utility industry data, that CCR impoundments closure would take at 

least 8 to 10 years to site, design, permit, construct, and begin operation of dry ash collection 

systems. New waste management units and construction of alternative wastewater treatment 

capacity to replace the storage and treatment functions provided by the CCR impoundment that 

was forced to close would also be necessitated. The ELG Proposal contemplates only a 5-year 

conversion time frame for a facility to cease the use of impoundments for certain CCR transport 

waters and to site, design, permit and construct an alternative landfill for the management of the 

displaced CCR. The implementation time period to convert to dry ash handling, accounting for 

all of the project items that would need to be implemented, cannot be achieved in a cost-effective 

manner within five (5) years. Therefore, any compliance obligation under the final ELG Rule 

that requires a plant to convert from wet to dry handling for flyash or bottom ash must provide at 

least 8 to 10 years to retrofit the entire new handling system, including installing the actual dry 

conversion technology, closing surface impoundment(s), if required, and constructing a new 

landfill.

110 78 Fed. Reg. at 34441

Comment Response: 

See EPA response to DCN EPA-HQ-OW-2009-0819-4379-A1 Excerpt Number 119.

While EPA considered the existence of the CCR rule in issuing this ELG rule, the substance of 

the CCR rule is outside the scope of this rulemaking.

Regarding the comment about timing of implementation of the ELG rule, EPA considered the 

magnitude and complexity of process changes and new equipment installations that would be 

required at facilities to meet the requirements of the rule, as well as to coordinate approaches 

associated with the final CCR rule and other Agency rules affecting the steam electric 

industry. See Section VIII and Section XVI of the preamble to the final ELGs. In fact, EPA 

developed the implementation timeframes for this ELG rule so that affected plants would have 

the information on regulatory requirements in order to inform one decision regarding the 

operational status of their facility (where requirements could affect similar units). As described 

in greater detail in the preamble, where the BAT limitations in the ELGs are more stringent than 

previously established BPT limitations, those limitations do not apply until a date determined by 

the permitting authority that is as soon as possible beginning November 1, 2018 (approximately 

three years following promulgation of the final rule), and that is no later than December 31, 2023 

(approximately eight years from the promulgation of this rule). One of the factors the permitting 

authority must consider in determining what date is “as soon as possible” is coordination with 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-453

plant changes being made to comply with regulations for the disposal of coal combustions 

residuals under RCRA. 

Regarding closure of impoundments, the ELG does not require the closure of CCR 

impoundments. The commenter should review the discussion in Unit VI of the CCR rule 

preamble regarding the closure requirements for CCR surface impoundments and CCR landfills 

covered by the final CCR rule (80 FR 21302). It should also be noted that the Comment 

Response Document and the preamble discuss only the technical criteria for this rule and 

consider technical criteria required for the CCR rule outside the scope of this rule.

EPA disagrees with the commenter’s recommendation that the final CCR rule and the final ELGs 

should be released at the same time to effectively facilitate the development of comprehensive 

compliance plans to address the requirements of both regulatory programs. Both rulemakings 

were governed by court-ordered schedules.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 138

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordination with the Coal Combustion Residual (CCR) rule for implementation timing and 

alignment of requirements that intersect with the ELG rule is critical.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rule’s 

requirements.

Commenter Name: Cari Boyce

Commenter Affiliation: Duke Energy

Document Control Number: EPA-HQ-OW-2009-0819-4305-A3

Comment Excerpt Number: 139

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-454

Best Management Practices (BMPs) for surface impoundments should remain in the RCRA 

program as laid out in the CCR Proposed rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1) From an applicability perspective, SIPC believes that EPA has made significant errors and has 

acted arbitrarily and capriciously in the establishment of effluent guidelines relating to the 

management of coal combustion byproducts/residuals, a rule that has yet to be proposed by 

EPA. As defined, EPA makes no distinction between Coal Combustion Residuals, when, in fact, 

there are broad differences between coal residuals from different coals and boilers.

Comment Response: 

It is unclear to EPA what this commenter is referring to when they say "effluent guidelines 

relating to the management of coal combustion byproducts/residuals, a rule that has yet to be 

proposed by EPA." The effluent guidelines were proposed on June 7, 2013 and that action is 

what solicited these comments. In addition, the CCR rule was proposed June 21, 2010 and 

finalized December 19, 2014. Regardless, EPA disagrees with this commenter's allegation that 

the Agency “made significant errors and ... acted arbitrarily and capriciously in the 

establishment of effluent guidelines.” The effluent guidelines apply to wastewater discharges 

resulting from the operation of a steam electric power plant generating unit, and are not specific 

to the “management of coal combustion byproducts/residuals.” To the extent that the ELG 

intersects with EPA’s CCR rule (80 FR 21302 (April 17, 2015)), EPA took that into 

consideration while developing the final ELG and CCR rules. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts 

between the ELG and CCR final rules.

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-455

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

6) SIPC supports the use of Coal Combustion Byproducts for mine reclamation purposes.

Comment Response: 

The use of coal combustion byproducts for mine reclamation purposes is outside the scope of the 

ELG rule. Comments specifically pertaining to EPA’s CCR rule are outside the scope of this 

rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking (see 

Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

9) Any requirements regarding the structural integrity of CCR surface impoundments are 

properly the province of RCRA; therefore, EPA should continue to develop these requirements 

in the context of the final RCRA CCR rule rather than include the proposed BMPs in the final 

ELG rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Leonard F. Hopkins

Commenter Affiliation: Southern Illinois Power Cooperative (SIPC)

Document Control Number: EPA-HQ-OW-2009-0819-4309-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-456

10) The ELG proposed rule clearly contemplates surface impoundments remaining operational to 

receive specified wastewaters, such as legacy wastes, low volume wastewaters or stormwater, 

even if they cease receiving bottom ash or fly ash transport water. SIPC agrees, and the D Prime 

Option will assure that occurs.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NPPD supports the close coordination of the ELG and CCR rules because both rules regulate 

similar processes or waste stream s at affected facilities. The CCR rule was proposed in 2010 

and has not yet been finalized. EPA has stated that it would provide the requirement s of both 

programs to facilities before they make compliance decisions. It is very important that EPA 

closely coordinate the ELG and CCR rules, as changes to facilitate compliance undertaken for 

each rule separately could have serious operational and financial repercussions for a facility.

In addition, it is crucial that EPA allow for coordination of the compliance deadlines of the ELG 

and CCR rules in order to assist facilities in reaching compliance in the most cost and time 

effective manner possible. Affected facilities will be faced with important economic decisions 

regarding the method of compliance and must be able to make such decisions with full 

information of the regulations that will affect them. Full information regarding all regulations 

must be available before a decision is made to close or retrofit a CCR facility.

In order to have all such information available, EPA may be required to delay compliance with 

the ELG rule if the CCR rule is not issued in a timely manner. If that is the case, EPA should 

refrain from enforcing the ELG rule until such time as both rules are ready, as coordination of 

the rules is a major issue for many EGUs.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding EPA’s coordination of 

implementation timing and requirements in the ELG and the final CCR rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-457

Commenter Name: Joe L. Citta

Commenter Affiliation: Nebraska Public Power District (NPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4310-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must uphold its commitment to coordinate the ELG and CCR rules in order to allow 

regulated sources to make compliance decisions based on complete information.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordination with Coal Combustion Residual (CCR) Rulemaking - The ELG and CCR 

rulemakings should be coordinated to insure requirements are not duplicated or in conflict with 

one another.

EPA requests input on how to align the CCR and ELG rulemakings and offers additional 

recommendations for comments such as BMP (Best Management Practice) guidelines for 

impoundments that remain in service. The discussion of the structural integrity and specific 

operating procedures for the impoundments is better suited for the CCR rulemaking.

Furthermore, any reference to the closure of a surface impoundment must also be left to the CCR 

rule which is the more appropriate venue for discussing land based requirements. Inclusion of 

any reference to impoundment management or closure within the ELG will create duplicate 

rulemaking on the same structures and may create conflicting and contradictory permit 

requirements.

Inclusion of any reference to impoundment management or closure within the ELG will create 

duplicate rulemaking on the same structures and may create conflicting and contradictory permit 

requirements.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-458

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Lisa C. Messinger

Commenter Affiliation: Vectren Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4317-A1

Comment Excerpt Number: 27

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The ELG should be devcloped in coordination with CCR rulemaking to avoid conflicting and 

contradictory requirements that affect the same structures.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

Commenter Name: P. J. Becker

Commenter Affiliation: City Water, Light and Power (CWLP)

Document Control Number: EPA-HQ-OW-2009-0819-4349-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

But CWLP especially agrees with APPA in supporting USEPA’s coordination of the ELG rule 

with the Coal Combustion Residual (CCR) rule, and urging USEPA not to promulgate a separate 

CCR, given the overlap and difficulty in planning compliance with the ELG rule, without 

knowing the CCR rule will require.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-459

Comments pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-0640-11970).

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Southern agrees that the ELG Rule and the CCR Rule must be aligned to minimize the potential 

for overlapping or contradictory requirements and to facilitate efficient implementation of the 

rules.

Southern further endorses EPA’s goal of ensuring that the implementation deadlines for the ELG 

and CCR rules are coordinated so that facilities do not have to make compliance decisions 

without understanding the implications of those decisions for both rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 118

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Southern Company Supports EPA’s Intent to Align the CCR and ELG Rules

In the ELG Rule, EPA states that it seeks to “effectively coordinate any final CCR Rule 

requirements with the ELG requirements, to minimize the overall complexity of these two 

regulatory structures, and facilitate implementation of engineering, financial and permitting 

activities.” 78 Fed. Reg. at 34,441.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-460

In 2010, EPA proposed to regulate the management and disposal of CCRs under the Resource 

Conservation and Recovery Act (RCRA). 43 In its comments on the proposed CCR Rule, 

Southern supported EPA’s Subtitle D “prime” option, with some modifications. Southern 

supports this option because it would ensure the development of fully protective controls for 

CCRs in an effective and practical manner. Under the Subtitle D prime option, unlined surface 

impoundments could continue to operate for the remainder of their useful life. 75 Fed. Reg. at 

35,210 col. 2.

A modified Subtitle D Prime approach44 properly developed with additional state regulatory 

oversight provisions would be fully protective of human health and the environment, with the 

least duplication or preclusion of ongoing state and private efforts to manage CCRs. All CCR 

facilities would be subject to groundwater monitoring, and new CCR facilities and certain 

expansions would be subject to Subtitle D standards comparable to those that apply to Subtitle D 

facilities today. Existing facilities would be required to demonstrate that they are performing 

safely and effectively through a combination of measures, including groundwater monitoring. In 

comparison to both the Subtitle D and Subtitle C proposal, a modified Subtitle D Prime approach 

would allow for more flexible, practical, and effective management of CCR surface 

impoundments (including alternative corrective action, closure, and post-closure care 

options) for the remainder of their useful lives. Subtitle D Prime has the additional benefit of 

being the most compatible with the ELG Rule.

Because Subtitle D prime allows surface impoundments to continue operating for the remainder 

of their useful life, it is the most compatible option for harmonizing with the ELG Rule, for the 

reasons set forth in the following sections.

Under the ELG Rule, EPA proposes to regulate several wastewater discharges associated with 

CCRs, such as fly ash transport water, bottom ash transport water, and FGD wastewater. EPA is 

considering eight potential regulatory options, but has four “preferred” options: 3a, 3b, 3, and 

4a.45 All of the preferred options propose requiring dry fly ash handling, and one of the 

“preferred” options (4a) includes dry bottom ash handling for those units >400MW. For FGD 

wastewater, the preferred options range from “best professional judgment” decisions for 

individual facilities to industry-wide chemical precipitation plus biological treatment. EPA is 

also considering further regulation of combustion residual leachate.

EPA estimates that 66% of the industry has dry fly ash handling capability, 15% have a 

combination of wet and dry fly ash handling capability, and 19% have only wet fly ash handling 

capability.46 EPA states that dry handling of bottom ash is less prevalent in the industry, and has 

noted that approximately 30% of the industry operates systems that eliminate the use of transport 

water, approximately 5% have a combination of wet and dry bottom ash handling capability, and 

over 65% have only wet bottom ash handling capability. As recognized by EPA, any regulation 

of fly ash transport water, bottom ash transport water, FGD wastewater, combustion residual 

leachate, or the ponds and landfills that receive CCRs will be relevant to the CCR Rule and 

deserves close coordination.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-461

Southern operates multiple facilities47 that will be affected by the final CCR and ELG Rules, and 

it is critical for EPA to integrate the requirements and timelines of the final rules so that industry 

will be able to make appropriate operational decisions to comply with the final rules.

43 See 75 Fed. Reg. 35,128 (June 21, 2010).

44 The Subtitle “D Prime” Option contains the same elements of the primary “Subtitle D” Option 

with the exception that Subtitle “D Prime” “would not require the closure or installation of 

composite liners in existing surface impoundments; rather, these impoundments could continue 

to operate for the remainder of their useful life.” 75 Fed. Reg. at 35,210 col. 2

45 78 Fed. Reg. at 34,469.

46 Id.

47 All Southern Company facilities potentially affected by the mentioned proposed rules are 

owned and operated by the four previously-named operating companies and Southern Power. 

Any reference in these comments to operations or facilities of Southern Company are for 

convenience only and do not reflect the parent entity’s assets or operational functions.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Comments specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. 

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-0640-11970).

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 119

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Southern agrees with EPA that the two rules must be coordinated to “minimize the potential for 

overlapping requirements to avoid imposing any unnecessary burdens on regulated entities and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-462

to facilitate implementation and minimize the overall complexity of the regulatory structure....” 

78 Fed. Reg. at 34,441 col. 3.

EPA says it intends to explore two primary means of coordinating the two rules:

1. through coordinating the design of any final substantive CCR ... regulatory requirements, 

and

2. through coordination of the timing and implementation of final rule requirements to 

provide facilities with a reasonable timeline for implementation that allows for 

coordinated planning and protects electricity reliability for consumers.

Id.

Southern supports EPA’s suggested means of coordinating the rules. But those means may not be 

sufficient to address many important overlapping concerns between the two rules. Since the ELG 

Rule appears to be on course to be finalized before the CCR Rule, resolving any coordination 

issues between the two rules through “coordinating the design of any final substantive CCR 

regulatory requirement” may not be adequate. +

For instance, EPA appears to allow fly ash from Venturi scrubbers to be classified as “low 

volume waste” in the ELG Rule. See 2013 TDD at 4-19 to -21, and the proposed definition of 

“low volume waste.” This fly ash, however, would be classified as a CCR under the CCR Rule. 

If EPA prohibits the placement of CCRs in surface impoundments in the CCR Rule, then 

facilities sluicing Venturi scrubber fly ash would face conflicting regulatory provisions and 

would be uncertain how to comply. Under the ELG Rule, the wastewater could continue being 

sluiced to a surface impoundment only to be disallowed by the CCR Rule. This one example 

illustrates how changes to definitions and requirements under one rule can result in regulatory 

confusion and unnecessary uncertainty regarding compliance. This is a particular challenge for 

the ELG and CCR Rules. The challenge for EPA is to ensure that the rules align and are 

compatible in all respects. This requires detailed review and careful revisions by EPA, but 

meeting this challenge is imperative to the regulated industry and will help protect electricity 

reliability for consumers.

In short, Southern urges EPA to work through all related issues of these rules before finalizing 

either rule. Otherwise, it is likely that whatever rule is finalized first will have to be amended 

once the second rule is finalized. Resolving any inconsistencies through changes in the second 

rule alone is unlikely to be completely effective.

Legal Basis for Coordinating the Rules

1. Statutory Obligation Under RCRA Section 1006(b) to Integrate Final Rules

Southern agrees with EPA that it is legally obligated to integrate all RCRA provisions with other 

Acts of Congress that grant regulatory authority to the EPA Administrator. According to RCRA 

§ 1006(b)(1), “[t]he Administrator shall integrate all provisions of this Act for purposes of 

administration and enforcement and shall avoid duplication, to the maximum extent 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-463

practicable...” In this case, it is prudent for EPA to consider the requirements proposed in the 

ELG Rule and align the requirements with the final CCR Rule to avoid any duplication or 

inconsistencies. EPA must implement complementary final rules that allow for a step-wise 

approach for the regulated industry to make proper compliance decisions.

2. Executive Order 13563 Requires Coordination of the Rules

EPA must also comply with Presidential Executive Order 13563 (76 Fed. Reg. 3821 (Jan. 21, 

2011)) by coordinating the requirements of the two rules so as to reduce any unnecessary burden

and costs on the regulated entity. E.O. 13563 states that some industries face “redundant, 

inconsistent, and overlapping”48 requirements and that the Order seeks to promote “coordination, 

simplification, and harmonization”49 of regulatory actions. Because both rules seek to regulate 

the management and disposal of various types of CCRs, the rules are so intertwined that EPA 

must be especially diligent in ensuring that the rules are coordinated and consistent.

B. Coordination of Substantive Requirements

EPA seeks comments on integrating the two final rules through coordinating the design of any 

final substantive CCR regulatory requirements. As described below, Southern emphasizes 

several specific areas of concern that will require coordination between the two rules.

1. ELG Legacy Wastewaters Provision May be Inconsistent with the Proposed CCR 

Requirement for Mandatory Closure of All Surface Impoundments

In the ELG Rule, EPA proposes that the BAT and Pretreatment Standards for Existing Sources 

(PSES) would apply to discharges of FGD wastewater, fly ash transport water, bottom ash 

transport water, flue gas mercury control water, combustion residual leachate, and gasification 

wastewaters “generated on or after the date established by the permitting authority that is as soon 

as possible... after July 1, 2017.” 78 Fed. Reg. at 34,522. Any wastewater generated prior to that 

date would be “legacy” wastewater and would be subject to current limitations only. Id. Also, 

facilities would be able to continue to discharge low volume wastewaters to ponds or surface 

impoundments.

Southern supports EPA’s plan to designate wastewaters generated before the compliance date set 

by the permitting authority as legacy wastewater subject only to existing limitations. But this 

provision must be viewed in the context of the proposed CCR Rule. As already discussed, 

Southern supports the Subtitle D prime option with the same modifications for the CCR Rule. 

But the CCR Rule contains two other options: the Subtitle D and Subtitle C options. Neither of 

those options is a good fit with the proposed ELG Rule. Under the Subtitle D option, EPA 

proposed that unlined ponds must be retrofitted with a liner or cease receiving CCRs and close 

within five years of the effective date of the final rule. All ponds would essentially be closed 

within seven years of the effective date of a Subtitle C regulatory option.

Under either option, however, the ability to continue discharging legacy wastewaters until such 

time as the NPDES permitting authority mandates compliance is in jeopardy. Once EPA finalizes 

the ELG Rule, permit writers will begin setting compliance dates that could be as early as July 2, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-464

2017, or extend five or more years after that, depending on the permit cycle and the specifics of 

compliance. Under the ELG Rule, an existing pond could continue to receive CCRs until, for 

example, a compliance deadline set in 2022. But if the CCR Rule were to be finalized in late 

2014, and under a non-hazardous regulatory program, any unlined ponds receiving CCRs on the 

effective date of the rule would be required to retrofit or cease receiving CCRs and close within 

five years (i.e., 2020). Under this example, a company planning for ELG compliance in 2022 

would instead be faced with a new compliance deadline of 2020 under the CCR Rule, even 

though its NPDES permitting authority had judged that the “as soon as possible” compliance 

deadline would fall in 2022.

This is the type of inconsistency between the two rules that EPA should seek to avoid, because it 

will lead to inefficiencies and uncertainty.

2. A Hazardous CCR Regulatory Program Would Eliminate Potential Options Under the 

ELGs

If EPA were to promulgate a Subtitle C CCR final rule instead of a Subtitle D or D prime rule, 

then power plants would be required to eliminate all wet surface impoundments within seven 

years of the state adoption of the final rule because of application of Universal Treatment 

Standards (UTS).50 This requirement would make it impossible for facilities to continue 

discharging legacy wastewaters – or even to continue storing legacy wastewaters that have 

already been sent to a surface impoundment. It also would make it impossible to continue 

sending low volume wastewaters to surface impoundments. For these reasons, a Subtitle C CCR 

Rule would be wholly incompatible with the ELG Rule.

48 76 Fed. Reg. 3822.

49 Id.

50 40 C.F.R. § 268.48.

Comment Response: 

EPA considered the effects of multiple rules affecting the electric power industry in 

promulgating this rule. This Clean Water rule regulating pollutant discharge does not conflict 

with or duplicate the RCRA CCR rule or the rules promulgated under the Clean Air Act.

The EPA provides sufficient time for affected entities to understand, plan for, and implement any 

changes to their operation to meet the effluent limitations guidelines and standards required by 

this rule. In the final ELG rule, EPA provided considerable time for facility owners to 

implement any changes to such operations to meet the revised ELGs. See the preamble to the

final rule for details on the timing and response to DCN EPA-HQ-OW-2009-0819-4503-A3, 

Excerpt Number 128.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-465

The Clean Water Act effluent limitations guidelines and standards (ELGs) are technology-based 

rules that control the discharges from steam electric power plants at the appropriate level of 

control as specified in the Act (Best available technology economically achievable (“BATEA” 

for existing sources)/best available demonstrated control technology (“BADCT” for new 

sources)). Key components of the ELG rule are directed toward protecting our nation’s waters. 

The final CCR rule under the Solid Water Disposal Act, as amended by the Resource 

Conservation and Recovery Act (“RCRA”) promulgated December 19, 2014, establishes a 

comprehensive set of requirements for the disposal of coal combustion residuals (CCRs or coal 

ash) in landfills and surface impoundments. Key components of the CCR rule are directed 

toward the risk of catastrophic failure and protecting groundwater.

The CCR rule requires a number of structural integrity requirements, including for example, 

periodic structural stability assessment by a qualified professional engineer and periodic safety 

factor assessments. There are certain requirements to protect groundwater, including monitoring 

and corrective action. Under the CCR rule, closure of a CCR unit is triggered in one of three 

ways: (1) When a unit fails to meet technical criteria; (2) When a CCR unit receives the known 

final waste shipment or when the operator removes the known final volume of CCRs from the 

unit for the purposes of beneficial use; or (3) For “idled units” – the rule establishes a 

presumption that the owner or operator must initiate closure of the CCR unit no later than two 

years after the most recent receipt of CCRs or any non CCR waste stream or no later than two 

years after the most recent date that CCRs were removed from the unit for the purpose of 

beneficial use, whichever is later. The CCR rule provides procedures for an owner or operator to 

rebut this presumption and obtain additional time, provided the owner or operator can make the 

required demonstration.

The ELG does not contain any of the requirements specified in the CCR rule. It does not contain 

any requirements specific to structural integrity or any requirements to protect groundwater, nor 

does it require closure of any surface impoundments. The ELG establishes more restrictive 

discharge requirements for pollutants in certain wastestreams some of which have been 

historically managed in surface impoundments. There are other wastestreams such as low 

volume wastes that have also historically been managed in surface impoundments for which 

EPA did not establish new, more restrictive requirements in the final ELGs.

Regarding alleged overlap between the CCR rule and the BMPs proposed in the CWA rule, 

Some commenters have argued that “Besides the legitimate question of whether the Clean Water 

Act authorizes EPA to set BMPs for impoundments that go beyond practices, inspection, 

recordkeeping, and data collection, certain of the proposed BMPs will address issues at which 

the proposed CCR rule is directed (and which are addressed by various state agencies 

empowered to regulate solid wastes and prevent spills and releases). Such redundancy is 

prohibited under Section 1251 of the Clean Water Act.” EPA notes that this rule does not 

require BMPs in the ELGs. EPA has authority for such requirements, as section 402(a)(2) of the 

CWA provides that the Administrator shall prescribe conditions for such permits to assure 

compliance with the effluent limitations and section 304(e) of the CWA authorizes the 

application of BMPs in effluent limitations guidelines. Nevertheless, EPA has not promulgated 

BMPs in this rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-466

Although there are different objectives in the two statutes governing the two rules, and different 

timeframes, the ELG’s requirements and timeframes are reasonable. One commenter assert, 

“While the proposed ELG rules allow for continued holding and discharge of "legacy" 

wastewaters, the proposed CCR regulations require prompt re-lining or full closure of such 

retired impoundments.” EPA notes that the assumptions made by this commenter are 

incorrect. For example, if a power plant elects to convert to dry handling to comply with the new 

zero pollutant discharge ELG requirements and the surface impoundment continues to receive 

other wastes, then this approach does not trigger closure requirements in the CCR rule. In any 

case, while the assumption of what the CCR rule would require in final form may not be correct, 

it is not a conflict for the Clean Water Rule to continue to allow discharges from impoundments 

even if the CCR rule requires closures in certain circumstances. EPA’s rationales for the options 

selected in the CWA ELGs are described in the preamble to the rule. For example, the final rule 

establishes BAT is equal to BPT for legacy wastewater. This means that legacy wastewater may 

continue to be discharged (although water quality based limits under CWA section 301(b)(1)(C) 

may also be applicable and require further restriction under the Clean Water Act where necessary 

to meet applicable water quality standards). Although the technology-based decisions in the 

ELGs did result in the rule requiring zero discharge of legacy wastewater, where, for example, 

legacy wastewater is causing a groundwater problem, it is not inconsistent for the CCR rule in 

applying the provisions of RCRA, to require closure or for the CCR to require that inactive 

ponds must be closed within certain timeframes under the statute that was applied in that 

rule. Nor does the CCR rule make EPA’s technology-based decision for controls unreasonable 

decision under the technology-based provisions of the CWA. Another example comment stated, 

“The compliance schedules of the ELG and CCR rules also do not dovetail neatly. The ELG 

rules may require a facility to cease discharging fly ash within three years of its post-2017 

NPDES permit renewal. However, if issued in final form in 2014, the CCR rules require that all 

CCR ponds be re-lined or closed within five years of the rules' issuance. That would 

require closure/re-lining a year earlier than would be required under the ELG program.” While 

this comment does not reflect the substance of either the Clean Water Act rule or the RCRA 

CCR Rule accurately, even if it were true that a discharge would have to meet the ELGs for fly 

ash later than the CCR rule would require closure of an ash pond, for example because a pond is 

contaminating groundwater in excess of the groundwater protection standard, the CWA rule is 

still reasonable because it reflects the appropriate level of technology-based control under the 

CWA and does not itself cause a conflict in what the dischargers would be required to do. A 

third type of comment says, for example, “Thus, a prohibition on the discharge of fly ash/bottom 

ash transport water would have the unintended consequence of compelling the closure of 

impoundments under the proposed CCR rule, while under the proposed ELG rule, that particular 

impoundment may continue to be operated for some period of time until the legacy wastewaters 

have been discharged.” This comment appears to suggest that outcome of whether a facility 

keeps open an ash pond must be the same under both rules for the rules to be consistent. This 

ignores the different statutory purposes of the two statutes. While it may be that coal ash ponds 

are less useful after the ELGs are implemented, and idled units must close under the CCR rule, 

the fact that the ELG rule did not make the ash pond close does not make the ELGs an 

unreasonable application of best available technology economically achievable. The ELGs are 

designed to control discharges at the required level of control, for example “best available 

technology economically achievable” for existing sources. If as a result of the Clean Water Act 

controls, there is an idle pond, the CCR rule under the authority of RCRA and the legal standards 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-467

that apply under RCRA have set forth what is necessary to reduce the risk of catastrophic failure 

and to protect groundwater.

EPA also notes that the ELGs for this point source category were last updated in 1982. The 

Clean Water Act calls for their revision periodically. This point source category is one of if not 

the greatest source of discharges of toxic pollutants to the nation’s waters. Thus, further delay 

would not be reasonable under the Clean Water Act. See the preamble for the purposes of the 

rule.

EPA’s analysis of the final rule also accounted for the potential cumulative impact that multiple 

environmental regulations may have on the electric power industry and is consistent with EPA’s 

requirements under the CWA authority and applicable Executive Orders, including EO 13653, to 

evaluate the cumulative effects of regulations. For the proposed rule analysis, EPA analyzed the 

impact of the ELG using the Integrated Planning Model (IPM), a comprehensive electricity 

market optimization model that assesses impacts of environmental regulations within the context 

of regional and national electricity markets. The proposal analysis used IPM version 

v4.10_MATS, which includes the effects of the Mercury and Air Toxics Standards (MATS) rule, 

the Cross-State Air Pollution Rule (CSAPR), and various other federal and state programs (see 

IPM documentation for more details; available at http://www.epa.gov/powersectormodeling/). 

EPA added the ELG impacts on top of the impacts modeled in the base case. For the final rule 

analysis, EPA again used IPM to understand the incremental impacts of the ELGs on the 

electricity market, accounting for the effects of other regulations. EPA used IPM model version 

5.13 for the final rule analysis. The analysis base case includes the regulations included at 

proposal, plus the cooling water intake structure rule and the Coal Combustion Residuals (CCR) 

rule. EPA also conducted an analysis that accounts for the effects of the Clean Power Plan (CPP) 

regulation. See the preamble for the final rule for additional information. The model outputs 

therefore reflect the combined effects of all these regulations, and allow consideration of the 

incremental impacts of the ELGs in the context of the various rules and programs affecting the 

power sector during the period of analysis. 

Further, EPA accounted for the effects of other regulations in the ELG rulemaking in several 

other ways. For the final rule, EPA coordinated the ELG analysis with the Air Office and Office 

of Resource Conservation and Recovery to identify changes potentially affecting the universe of 

plants to which the ELGs apply (for example, EPA accounted for changes in plant handling of 

CCR waste due to the CCR rule in conducting its analysis for the final ELGs). See the preamble 

for additional details.

Finally, EPA analyzed the ELG regulatory options under scenarios that look at various impacts 

of other rules in the baseline (for example, with and without the CCR rule, without and without 

the CPP). For example, see Appendix B and C in the RIA for impacts of alternate baseline 

assumptions on total compliance costs, cost-to-revenue ratios, electricity rates, etc. As discussed 

in the preamble and detailed in the RIA, the results demonstrate that the ELGs are economically 

achievable. The final rule will have small incremental impacts across the range of metrics EPA 

analyzed. These finding hold across the various scenarios the Agency analyzed with respect to 

the effects of other environmental regulations included in the baseline. For example, results of 

the electricity market model analysis show a decline in total capacity of 843 MW within the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-468

group of steam electric power plants to which the ELGs apply, or approximately 0.2 percent of 

the 359,982 MW baseline capacity for these plants, corresponding to a net closure of two units 

and one plant (see Section 5 of the RIA for details). EPA assesses that these very small 

retirements are inconsequential relative to total national and regional generating capacity. 

Further, these retirements are offset by increased capacity for other plants. As a result, the final 

rule will not significantly affect electric supply reliability – either nationally or by NERC region.

Finally, many of these comments relate to requirements in the final CCR rule. Comments 

specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-0640-11970).

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 122

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs Are Unnecessary, as Shown by the Record in the CCR Rulemaking

In its 2010 proposed rules for CCRs, EPA included structural integrity requirements for CCR 

surface impoundments. 75 Fed. Reg. at 35,175-76, 35,214; 76 Fed. Reg. 63,252 (Oct. 12, 2011) 

(NODA). EPA said that the “impoundment collapse at [Kingston, Tennessee]... illustrated that 

structural failures of large CCR impoundments can lead to catastrophic environmental releases 

and large cleanup costs” (75 Fed. Reg. at 35,214 col. 1).

USWAG supported structural integrity requirements in a federal nonhazardous regulatory 

program for CCR, though not the ones proposed by EPA. See Comments of The Utility Solid 

Waste Activities Group on “Hazardous Waste Management System; Identification and Listing of 

Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, 

75 Fed. Reg. 35,128 (June 21, 2010)” (Nov. 19, 2010), EPA-HQ-RCRA-2009-0640-10483 

(USWAG 2010 Comments); Comments of USWAG, et al., on “Hazardous and Solid Waste 

Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals From Electric Utilities, Notice of Data Availability and Request for Comment, 76 Fed. 

Reg. 63,252 (Oct. 12, 2011),” Doc. ID No. EPA-HQ-RCRA-2011-0392-0211 (Nov. 14, 2011) 

(USWAG 2011 Comments).

But USWAG also pointed out that EPA’s own analysis of the structural integrity of CCR 

management units across the country indicates that they do not pose immediate safety threats. 

Rather, CCR surface impoundments are safely and responsibly operated and maintained. EPA 

made available the utility survey responses to EPA’s information request letter on CCR 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-469

management units as well as its follow-up CCR impoundment structural integrity assessment 

reports. 76 Fed. Reg. at 63,256.

Based on the USWAG comments in the CCR rulemaking, there is little or no justification for 

additional regulation of CCR impoundments under RCRA. And there is no justification for 

imposing BMPs for impoundments under the Clean Water Act, as discussed below.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number.

Comments specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. 

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-0640-11970).

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 124

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA Already is Addressing Structural Integrity in the CCR Rulemaking

As a part of EPA’s proposed rule for regulating CCRs under the two waste programs of RCRA, 

EPA proposed structural integrity BMPs as a main component of the rule. EPA, for the CCR 

rulemaking, sought comment regarding the use of Mine Safety and Health Administration 

(MSHA) regulations as a basis for ensuring structural integrity at surface impoundments. The 

standards proposed would be established under RCRA, where EPA requested comment on the 

appropriateness of (1) covering all impoundments, regardless of height or storage volume; (2) 

covering those meeting the cut-offs in the MSHA regulations; or (3) whether other regulations, 

approaches, or size cut-offs should be used. MSHA regulations apply to impoundments (a) that 

can present a hazard and (b) that impound water, sediment, or slurry to an elevation of more than 

five (5) feet and have a storage volume of 20 acre-feet or more, and those that impound water, 

sediment, or slurry to an elevation of 20 feet or more.

EPA acknowledges that the proposed BMPs for structural integrity in the ELGs are very similar 

to the proposed structural integrity and corrective action requirements proposed in the CCR 

rulemaking. 78 Fed. Reg. at 34,466 col. 3. It is inappropriate for EPA to propose the BMPs under 

the CWA provisions to assure structural integrity, and further inappropriate when EPA has 

proposed the same requirements in an ongoing rulemaking for the management of CCRs. It is 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-470

more suitable for EPA to regulate the aspects of CCR management under RCRA, and therefore 

establish the structural stability standards under the CCR final rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.

Comments specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. 

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-0640-11970).

Commenter Name: Chris M. Hobson

Commenter Affiliation: Southern Company

Document Control Number: EPA-HQ-OW-2009-0819-4379-A1

Comment Excerpt Number: 125

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If EPA Nonetheless Retains the BMPs in the ELG Rule, they Must Be Clarified

MSHA Standards are Inappropriate for Our Industry

In EPA’s effort to address structural integrity, EPA proposes to establish BMPs for surface 

impoundments similar to those promulgated for coal slurry impoundments regulated by the 

MSHA at 30 C.F.R. § 77.216. MSHA regulations address coal slurry impoundments at coal 

mines and not impoundments containing coal combustion byproducts at coal-fired power plants. 

In most cases, MSHA regulations apply where there are mine workings beneath or near a refuse 

embankment or impoundment where it may be appropriate to consider instabilities and failure 

occurrences of the impoundments.

The construction of coal storage dikes requires more conservative inspection and storm routing 

requirements because the dikes are usually raised many times throughout their life, with portions 

of the current dike resting on previous dikes and impounded slurry. Dikes at surface 

impoundments within the Southern Company have traditional embankment dams and are much 

more robust in their construction than coal refuse dikes.

EPA Should Clarify Qualifications and “Independence” Requirements for Annual 

Certifications

EPA has failed to provide any definition or clarification regarding the “independence” of a 

registered professional engineer for the purposes of the annual certification for ensuring 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-471

structural integrity of surface impoundments. Furthermore, EPA has chosen, without reason, to 

add this dimension to the registered professional engineer criteria from that in the current MSHA 

regulations for certification of an impoundment. 30 C.F.R. § 77.216-2(17). Any federal standard

establishing an “independence” requirement should be clarified to indicate the person is 

sufficiently “independent” for purposes of the annual certification if the person is not an 

employee of the owner or operator of the surface impoundment. For example, the dam safety 

experts at Southern Company, who would serve in this “independent registered professional 

engineer” role, are employed by Southern Company Services (SCS) Hydro Services, and are 

“independent” of Alabama Power, Georgia Power, Gulf Power, and Mississippi Power.

Each of the employees serving in this role, who currently perform annual inspections according 

to the formalized Southern Company Generation Safety Procedure for Dams and Dikes, are 

registered professional engineers with at least 10 years of experience and have expertise in dam 

design and construction, and in the investigation of the safety of existing dams. Southern 

Company believes this arrangement, having SCS experts conduct annual inspections and 

certifying the results at a facility without being subject to the supervision of the management 

executives of the company that owns and operates the facility in question, should meet the 

requirement of an “independent” registered professional engineer. Accordingly, SCS Hydro 

Services should be considered “independent” for the purposes of the annual certification of the 

surface impoundments. EPA should make this clarification in the final CCR Rule and eliminate 

the regulation of structural integrity from the ELG rule.

Integration of ELG and CCR Rules on Compliance Timing and Implementation

EPA also seeks comment on integrating the two final rules “through coordination of the timing 

and implementation of final rule requirements to provide facilities with a reasonable timeline for 

implementation that allows for coordinated planning and protects electricity reliability for 

consumers.”56 For companies like Southern that rely on surface impoundments authorized 

through NPDES permits to manage their CCRs, a methodical decision-making process must 

occur when considering the options for compliance with a final rule. In addition, this decisionmaking process must occur well in advance of any action being taken. Ideally, EPA would 

promulgate CCR and ELG Rules that are very compatible and do not impose any conflicting 

requirements or unnecessary burdens.

If EPA were to promulgate the CCR Rule several years after the ELG Rule, many companies 

may have already decided to continue use of certain ponds by the time the final CCR 

requirements are known. For example, under EPA’s preferred Option 4a, a facility may continue 

sluicing bottom ash for units with a capacity less than 400 MW. In this instance, a company 

operating a fully compliant ELG pond would be prohibited, due to the final CCR Rule, from 

using the pond within five years of the effective date of the CCR Rule (assuming a Subtitle D 

approach). In this case, the owner or operator will have to go through a second decision-making 

process and either build a new lined bottom ash pond or convert to dry bottom ash handling 

altogether. At the very least, EPA will need to include special exemptions in the CCR rule for all 

scenarios that are ELG compliant.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-472

In addition, in response to the ELG Rule, some companies may decide to cease sending CCRs to 

certain ponds, but will continue to send low volume wastewaters to the ponds and continue to 

discharge the legacy wastewater and other acceptable wastewaters according to the permitted 

compliance limits. But if EPA subsequently issues a final Subtitle D CCR Rule that requires the 

closure of all unlined ponds (or retrofitting with a composite liner), the company then must close 

a large number of unlined pond within five years after the effective date of the final rule. In cases 

of ponds with a majority of their capacity remaining, the date for closure of the pond according 

to the CCR final requirements will be certain (i.e., five years), yet there is no current provision 

for discharging the large volume of water from the pond through the existing discharge point, 

and no current incentive to recycle the wastewaters (i.e., legacy wastewaters) in another part of 

the plant process for reuse (such as for use as scrubber makeup water). Again, alternatively, EPA 

will need to provide exemptions in the CCR rule to extend all appropriate deadlines in the CCR 

rule to allow facilities compliant with ELG requirements to exhaust their compliance options 

authorized under their NPDES permits.

Southern agrees with EPA’s goal that “the implementation dates for each rule would not require 

facilities to make decisions without understanding the implications that such decisions would 

have for meeting any requirements of each rule.” 78 Fed. Reg. at 34,442 col. 2. The compliance 

deadlines for the rules must allow adequate time for understanding how the two rules will be 

implemented and for taking the actions necessary for compliance with both rules. Because of the 

number of systems potentially affected (surface impoundments, landfills, water treatment 

systems, etc.), some facilities will need to sequence their compliance activities. The best way to 

ensure adequate time to comply is to leave it in the hands of the permit writer to decide the “as 

soon as possible” date for compliance, as EPA has proposed in the ELG Rule.

As already discussed, the best way of harmonizing the ELG and CCR Rules is to promulgate the 

Subtitle D prime option.

56 78 Fed. Reg. at 34,441 col. 3.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of BMPs and 

coordination of requirements of the final ELG and final CCR rule.

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the final ELGs and the final CCR rule. EPA

Comments specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. 

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-0640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-473

Commenter Name: Paul Nazaryk

Commenter Affiliation: BHP Navajo Coal Company (BNCC) and San Juan Coal Company 

(SJCC)

Document Control Number: EPA-HQ-OW-2009-0819-4380-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We are encouraged that EPA will be considering the combined implications of the ELG 

proposed rule together with the CCR proposal in its final risk assessment for the CCR rule. 

Based upon "lessons learned" from the 2008 release from the Tennessee Valley Authority (TVA) 

Kingston facility, the primary and most significant risk associated with the management of CCR 

material is that posed by the "wet handling" of the material and the potential of a catastrophic 

release as a result of a dam failure. See Public Health Assessment, Final 

Release, Tennessee Valley Authority (TVA) Kingston Fossil Plant, Coal Ash Release, 

Tennessee Department of Health, Prepared under a Cooperative Agreement with the U.S. 

Department of Health and Human Services (September 7, 2010).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of the coordination between the two rules. See DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules.

Comments pertaining to the final risk assessment for the CCR rule are outside the scope of the 

ELG rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Paul Nazaryk

Commenter Affiliation: BHP Navajo Coal Company (BNCC) and San Juan Coal Company 

(SJCC)

Document Control Number: EPA-HQ-OW-2009-0819-4380-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BNCC and SJCC support establishing required best management practices (BMPsl applicable to 

surface impoundments at power plants that manage CCR material.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-474

As EPA states, the agency is considering establishing best management practices (BMPs) under 

40 CFR § 122.44(k) for active and inactive surface impoundments that manage CCR 

material. These proposed requirements would be similar to U.S. Mine Safety and Health Administration (MSHA) 

requirements applicable to water, sediment, and coal slurry impoundments at coal mines.

According to EPA, the BMPs would apply to operators of the impoundments and would require:

Submittal of plans describing the design, construction, and maintenance of dams and impoundments,

Submittal of closure plans for the impoundments,

Periodic inspections by trained personnel knowledgeable in dam and impoundment design and 

safety,

Provide an annual certification by an independent professional engineer, and

Require that all problematic stability and safety issues be addressed in a timely manner.

BNCC and SJCC support establishing BMPs applicable to active and inactive surface 

impoundments at power plants that manage CCRs. In our view, such an approach would focus 

on the primary and most significant risk associated with the generation and management of CCR 

material.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG because it 

established structural integrity requirements in the final CCR rule. EPA addressed comments on 

the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: J. Madras

Commenter Affiliation: Missouri Department of Natural Resources

Document Control Number: EPA-HQ-OW-2009-0819-4383-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If facilities elect to construct utility waste landfills for disposal, the three year deadline does not 

provide enough time to complete the detailed site investigations and groundwater monitoring 

necessary to obtain a solid waste permit in the State of Missouri. Many of Missouri's power 

plants are located within flood plains which places additional constraints upon any landfill 

construction and operation on-site. The process for obtaining the appropriate solid waste permits 

may require up to five years.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-475

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 11.

Commenter Name: Mark Thoma

Commenter Affiliation: Otter Trail Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4446-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Additionally, Otter Tail disagrees with EPA’s proposal to impose BMPs on all internal holding 

ponds containing CCRs for direct dischargers (78 Fed. Reg. at 34,466 col. 2), regardless of 

whether or not effluent is discharged from those ponds. As highlighted in EEI’s comments, 

regulating CCR impoundments under the Clean Water Act would be inappropriate and 

duplicative. Furthermore, no perceivable benefit would be achieved in regulating nondischarging holding ponds at our facilities. Otter Tail realizes that EPA is concerned with 

impoundment failures as occurred at TVA’s Kingston facility. However, impoundments should 

not be subject to “one-size-fits-all” BMPs. Otter Tail’s much smaller impoundments that are not 

used for permanent disposal are factors which would make regulating them the same as large, 

permanent slurry impoundments illogical and unnecessary.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. As such, comments related to 

BMPS are outside the scope of the ELG rule, EPA addressed comments on the CCR rule in the 

context of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The substantive and timing requirements of the final ELG rule must be aligned with the CCR 

rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-476

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of the timing and 

substantive requirements between the ELG and CCR final rules.

Commenter Name: Ron Shipman

Commenter Affiliation: Georgia Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4447-A1

Comment Excerpt Number: 39

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Georgia Power Supports EPA's Recognition Of The Necessity To Align The Substantive And 

Timing Requirements That Be Will Imposed By The Final ELG And CCR Rules.

Georgia Power agrees with EPA's position that the ELG and CCR final rules must be 

coordinated to "minimize the potential for overlapping requirements to avoid imposing any 

unnecessary burdens on regulated entities and to facilitate implementation and minimize the 

overall complexity of the regulatory structure." 78 Fed. Reg. at 34,441. Because of the size of 

Georgia Power's operations, the substantial change in these operations that the ELG and the CCR 

rules may impose, and the number and size of Georgia Power's facilities that may be impacted, 

the alignment of these two rules is of utmost importance to Georgia Power.

Georgia Power supports EPA's proposal under the ELG Rule to designate wastewaters generated 

before the compliance date set by the permitting authority as "legacy wastewater", subject only 

to existing limitations. Coupling that designation with the limits for closure under the CCR 

Subtitle D or C option (closure within five years of the final rule or within seven years of 

effective regulatory date, respectively), has the result of substantially limiting and ultimately 

eliminating the legacy wastewater designation. In addition, the Subtitle C option under the CCR 

rule has no legal or technical support and has the effect of substantially undercutting the ELG 

Rule by effectively disallowing the discharge of legacy wastewaters, the storage of legacy 

wastewaters, and the ability to continue to send low volume wastewaters to surface 

impoundments. Allowing the continued use of significant assets for operations under the ELG 

Rule while simultaneously requiring those assets to be closed under the CCR rule makes no 

regulatory sense. Instead, the D Prime option under the CCR rule is the option that aligns with 

the legacy wastewater designation and the continued ability to send low volume wastewater, and 

potentially to send ash transport water, to surface impoundments under the ELG Rule.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-477

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of the timing and 

substantive requirements between the ELG and CCR final rules..

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. Intersection Between the Proposed ELG and CCR Rules

EPA is seeking to coordinate any final RCRA Coal Combustion Residuals (CCR) rule with the 

ELG requirements to minimize the overall complexity of these two regulatory structures and 

facilitate implementation of engineering, financial and permitting activities (78 FR at 

34441). AEP not only agrees that EPA should coordinate the two rulemakings, but that it has a 

statutory obligation to do so under RCRA Section 1006(b) to avoid duplication with the 

appropriate provisions of other federal statues, including the ELG rule.

EPA anticipates that a possible consequence of the proposed ELG requirements is that a number 

of facilities will choose to convert their fly ash or bottom ash sluicing operations to dry ashhandling systems and will no longer send such waste to surface impoundments (Id.). It is also 

likely that some facilities will be retired and closed, leaving “legacy” wastewaters in the 

impoundments. The ELG proposal contemplates the continued operation of the impoundments 

and the discharge of the legacy transport water (i.e. ash transport water already in the pond), yet 

the proposed CCR rule requires the relining or closure of these same ponds. A prohibition on 

the discharge of pollutants from fly ash sluice water as proposed under EPA options 3, 3a, 3b, 

4a, 4, and 5, and from bottom ash transport water, as proposed under EPA Option 4a, 4, and 

5, would mean that many surface impoundments would no longer receive CCRs. This would 

trigger the proposed CCR rule requirement that closure activities begin within 30 days of the last 

receipt of CCR materials and be completed within 180 days of the date of closure (75 FR at 

35128, 35252). Thus, a prohibition on the discharge of fly ash/bottom ash transport water would 

have the unintended consequence of compelling the closure of impoundments under the 

proposed CCR rule, while under the proposed ELG rule, that particular impoundment may 

continue to be operated for some period of time until the legacy wastewaters have been 

discharged.

The compliance timelines of the proposed ELG and CCR rules overlap, making it difficult to 

conduct long-range planning. The implementation dates of one rule could require that decisions 

be made regarding a facility without knowing how those decisions would affect compliance 

under the other rule. For example, the ELG rule proposes under all options that compliance with 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-478

the rule be achieved as soon as possible with the first NPDES permit renewal after July 1, 2017. 

Assuming adoption of ELG Option 4a, a steam-electric facility operating a wet fly ash system 

with an NPDES permit renewal date of July 31, 2017, must discontinue discharging fly ash 

transport water by that date. However, the agency makes reference to a compliance period that 

may be allowed by states.2 Assuming a 3-year compliance period, this same facility would have 

until July 31, 2020, to comply with the new ELG requirements. However, the CCR rule requires 

that all CCR ponds be relined or closed within five years of the regulation’s adoption. Assuming 

a CCR rule adoption year of 2014, the ash pond in question would have to be closed five years 

later in 2019, on a date occurring before that allowed by the proposed ELG rule. These 

inconsistencies need to be corrected and the timelines for the two rules need to be coordinated 

and reconciled.

AEP reemphasizes the comments that were submitted in the CCR rulemaking record that 

demonstrate that the time periods proposed for closure of existing impoundments are impractical 

and infeasible for larger impoundments. In addition, the requirements to eliminate discharges 

from bottom ash impoundments in the ELG proposed rule are not cost-effective, and should not 

be retained in the final rule. This is particularly true when one considers the additional costs 

associated with reengineering and developing new alternatives for handling other low volume 

wastewaters from existing facilities, which are commonly co-managed with bottom ash sluice 

water. AEP urges EPA to allow existing facilities to retain the option of handling bottom ash 

and other low volumes wastes in existing impoundments.

2 EPA Regulatory Impact Analysis for the Proposed Effluent Guidelines and Standards for the 

Steam Electric Power Generation Point Source Category. EPA-821-R-13-005, [hereinafter EPA 

Regulatory Impact Analysis], April 2013.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 regarding EPA’s coordination of implementation timing in the ELG versus 

the final CCR rule, and closure requirements.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 34
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-479

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

d. State requirements may necessitate the accelerated closure of fly ash ponds that are 

no longer used for CCR disposal.

Following the cessation of fly ash sluicing at facilities that convert to “dry” systems, there would 

be no further use for the ponds. As a result, the proposed CCR rules will take regulatory 

precedence and under these rules, closure of the unused ponds must begin within 30 days from 

the last known receipt of CCR material and be completed within 180 days of the start of closure 

activities (75 FR at 35252-35253), an unrealistic expectation, but not addressed by the ELG rule 

proposal. This accelerated schedule will incur additional costs for the affected companies that 

have not been accounted for by EPA.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules, and the response to DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 119 for a discussion of how legacy wastestreams are 

handled under the ELG.

Commenter Name: John McManus

Commenter Affiliation: American Electric Power System (AEP)

Document Control Number: EPA-HQ-OW-2009-0819-4448-A1

Comment Excerpt Number: 64

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Moreover, some of the very BMPs that EPA has proposed will address the same or similar 

requirements to which the proposed CCR rule is aimed and which are addressed by the various 

state regulatory agencies authorized with the command of waste material and prevention of 

catastrophic releases. As EPA is aware and has stated as much, two scenarios for regulation of 

CCR material have been proposed and are pending finalization. The first scenario regulates 

CCR material as a special waste under Subtitle C of RCRA, the second as a non-hazardous waste 

under Subtitle D (75 FR at 35240 – 35263). Under either proposed scenario EPA has set out in 

detail in another rulemaking, the technical requirements including location, design, and 

operating criteria and closure requirements that will apply to CCR surface impoundments. 41

Proposing and publishing regulations that so closely and similarly target the identical activity 

and risk is clearly an act of redundancy by EPA. So, if EPA were to issue these proposed BMPs, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-480

not only will they will be acting outside the scope of the CWA but EPA will be acting in 

violation of 33 U.S.C. § 1251 which specifically prohibits actions of redundancy. 42 EPA can best 

use its time and efforts by addressing the coordination of the ELG deadlines and implementation 

of the CCR rule and abandon the currently proposed BMPs that address the identical risks and 

structures that are currently regulated by the States and proposed for regulation by EPA under 

RCRA. Finally, we would like to point out that EPA’s Office of Resource Conservation and 

Recovery recently sent letters to all owners of coal ash impoundments drawing conclusion to 

their multi-year program of structural integrity assessments of over 500 impoundments. The 

results of those assessments resulted in no impoundments receiving an unsatisfactory rating. The 

letter stated that,

“agencies within your State have an important role in the ongoing monitoring and oversight of 

these units. We are therefore providing all of the information that you have sent to EPA to the 

appropriate State agency for their use in their routine monitoring and oversight of these units and 

expect that they will be the primary point of contact with respect to the continued oversight of 

these units. (Emphasis added.)”

We agree with the position of that EPA Office that the State dam safety control agencies are the 

appropriate entities to deal with this issue.

41 EPA claimed its regulatory authority for CCR waste disposal structures such as surface 

impoundments under either RCRA § 3004 (x) or § 4004. See 75 FR 35135-35136.

42 33 U.S.C. § 1251 states “It is the national policy that to the maximum extent possible the 

procedures utilized for implementing this chapter shall encourage the drastic minimization of 

paperwork and interagency decision procedures, and the best use of available manpower and 

funds, so as to prevent needless duplication and unnecessary delays at all levels of government.” 

Executive Order 12174 Federal Paperwork Reduction also addresses EPA’s proposed duplicative 

efforts.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-481

Comment Excerpt: 

TREATMENT OF COAL COMBUSTION RESIDUALS

The Proposal includes provisions to regulate wastewater streams from coal combustion residuals 

(“CCRs”). EPA also has an active rulemaking on CCRs which is currently under 

consideration. See Docket No. EPA-HQ-RCRA-2013-0209. Both the current Proposal and the 

CCR rulemaking seek to manage the same unit and/or activity i.e., the management of CCRs in 

surface impoundments. It is essential that these two regulations do not conflict with or contradict 

each other.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules and the 

requirements of this rule.

Commenter Name: Jacob G. Smeltz

Commenter Affiliation: Electric Power Generation Association (EPGA)

Document Control Number: EPA-HQ-OW-2009-0819-4450-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should not include the proposed best management practices (“BMPs”) in the final Proposal, 

but rather should continue to develop these requirements in the context of the final RCRA CCR 

rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-482

Comment Excerpt: 

Coordination of ELG and Coal Combustion Residual (CCR) Rulemaking 

Consumers Energy commends EPA for its proactive initiative to coordinate this ELG rulemaking 

with the concurrent CCR rulemaking. As we noted in our recent (September 3, 2013) comments 

on the CCR Notice of Data Availability (Environmental Protection Agency Docket No. EPAHQ-RCRA-2012-0028), we believe that the CCR rules and their associated risk assessment 

“would benefit substantially from inclusion of the data gathered by the EPA’s Office of Water 

from its 2010 ELG ICR.” We further noted that, “These data substantially inform the ELG 

proposed rule and ELG risk assessment and support a Subtitle D treatment of CCR facilities.”

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. Comments related to the CCR rule are outside the scope of the 

ELG rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Gary A. Dawson

Commenter Affiliation: Consumers Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4452-A2

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs for Surface Impoundments

Consumers Energy does not support the inclusion of “best management practices” (BMPs) in 

this rule. It is Consumers Energy’s opinion that any elements of surface impoundment 

engineering, design, operation, and closure necessary to address impoundment structural 

integrity would be better addressed in the CCR rules being developed under Resource 

Conservation and Recovery Act (RCRA). The EPA “information collection request” (ICR) on 

surface impoundments conducted after the Tennessee Valley Authority’s Kingston plant

impoundment failure in December 2008, and subsequent inspections by EPA’s expert contractors 

relative to impoundment structural integrity and Potential Failure Modes Analysis (PFMA) failed 

to find a single surface impoundment of 374 impoundments that posed an immediate safety 

threat. Consumers Energy sees no need for surface impoundment BMPs in these rules.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-483

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 

(ARIPPA)

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA is soliciting comments on whether they should establish Best Management Practices related 

to impoundments. EPA may establish BMPs that would require to be implemented.

An impoundment to be designed and constructed using MSHA design criteria; require weekly 

inspection report on the impoundment and if a problem were determine to exists remediation 

actions would be taken immediately.

Another area of comment relates to EPA indicating it plans to develop Best Management 

Practices related to impoundments, including but not limited to, using MSHA design criteria or 

storing 20-acre foot of water, an inspection program requiring periodic site inspections 

(minimum weekly) with requirements to initiate correction actions if problems are determine to 

be present.

1. The BMPs being considered by EPA in this rulemaking would require, first, that 

inspections be conducted every seven days by a person qualified to recognize specific 

signs of structural instability and other hazardous conditions by visual observation and, if 

applicable, to monitor instrumentation such as piezometers.

2. Second, to address the integrity of surface impoundments, EPA would establish BMPs 

for CCR surface impoundments similar to those promulgated for coal slurry 

impoundments regulated by the Mine Safety and Health Administration (MSHA) at 30 

CFR 77.216.

The MSHA regulations to be used as a model for the BMP requirements being considered for the 

ELG rule. Facilities using CCR impoundments would need to (1) submit to EPA or the 

authorized state plans for the design, construction, and maintenance of existing impoundments, 

(2) submit to EPA or the authorized state plans for closure, (3) conduct periodic inspections by 

trained personnel who are knowledgeable in impoundment design and safety, and (4) provide an 

annual certification by an independent registered professional engineer that all construction, 

operation, and maintenance of impoundments is in accordance with the approved plan.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-484

EPA needs to recognize that the MSHA Standards are applicable to certain design criteria. These 

include but are limited to the following:

 the height of a dam/impoundment

 the storage capacity of the impoundment (acre feet)

 the drainage area discharging into the impoundment

As a result, certain impoundments may not meet the criteria established above for MSHA 

Action. However, OSMRE did develop basic criteria to cover impoundments that were not 

covered by MSHA using USDA Soil Conservation Service Guideline.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments related to the CCR 

rule are outside the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in 

the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Jeffrey A. McNelly

Commenter Affiliation: Anthracite Region Independent Power Producers Association 

(ARIPPA)

Document Control Number: EPA-HQ-OW-2009-0819-4453-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA needs to recognize that MSHA’s requirements are applicable to certain sized 

impoundments, but are not applicable to smaller impoundments or dams.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments related to the CCR 

rule are outside the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in 

the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Nysa Hogue

Commenter Affiliation: Indianapolis Power & Light Company (IPL)

Document Control Number: EPA-HQ-OW-2009-0819-4454-A2

Comment Excerpt Number: 14
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-485

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

IPL believes that the SI BMPs being considered by EPA are best addressed through the Coal 

Combustion Residual (CCR) rulemaking, as this is the appropriate underlying authority for such 

type of regulation, and including such practices as part of this rulemaking is duplicative to both 

the CCR proposed rule and NPDES permit storm water non-numeric effluent limitations.

Please clarify if closed SIs will be subject to the SI BMPs if such BMPs are included in the final 

rulemaking.

Per page 9-19 of the TDD, EPA states that the additional inspections and associated remedial 

actions associated with the SI BMPs being considered, will cost approximately $13,000 

annually. IPL believes that the costs developed by EPA are underestimated based on current IPL 

facilities' SI inspections and associated remedial actions annual costs. Based on the costs 

incurred at IPL over the last 4 years associated with SI inspections and associated remedial 

actions, IPL estimates that the appropriate cost is $130,000 annually.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. All comments 

related to EPA’s consideration of such BMPs in the ELGs are moot. See response to DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments related to the CCR rule are 

outside the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in the 

context of that rulemaking (see Docket EPA-HQ-RCRA-2009-0640-11970).

Commenter Name: Jerry Purvis

Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC)

Document Control Number: EPA-HQ-OW-2009-0819-4455-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EKPC supports EPA's findings regarding the necessity of providing ample time for existing 

facilities subject to new BAT requirements to evaluate, engineer, design, procure, construct, and 

debug any necessary treatment systems to comply with the final BAT standards. As EPA noted, 

the ELG requirements cannot be reviewed in isolation, as EPA's upcoming coal combustion 

residual disposal rule will also influence facility decisions on how best to comply with the final 

ELG. 78 Fed. Reg. at 34441-34442. In many cases, substantial modifications and/or changes in 

use of existing surface impoundments and treatment systems at existing facilities will need to be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-486

made in order to comply. Some of these changes may need to be made during plant shutdowns of 

facilities in order not to disrupt current operations or risk noncompliance with current NPDES 

Permits. Based upon its own evaluations of treatment system upgrades, EKPC believes that any 

compliance schedule shorter than three years would be potentially unattainable and would 

certainly not provide adequate time for proper evaluation, engineering, and design of systems, 

especially given the uncertainty associated with the final CCR disposal rule.

Comment Response: 

See the preamble for the final rule and response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules.

Commenter Name: Jessica Wicha

Commenter Affiliation: Gypsum Association

Document Control Number: EPA-HQ-OW-2009-0819-4456-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In the preamble to the Proposed ELG Rule, EPA recognizes the interrelationship between that 

draft rule and the Proposed CCR Rule and states that it will proceed with the two rules in a 

coordinated and integrated fashion. The Agency also indicates that it will continue to regulate 

CCRs as non-hazardous waste under Subtitle D of RCRA. Insofar as the Agency advances with 

both rules, the Gypsum Association encourages the continued concurrent review. The Gypsum 

Association believes that the Proposed ELG Rule correctly characterizes CCRs as non-hazardous 

waste that should continue to be regulated under Subtitle D. However, to avoid the negative 

impacts anticipated by the Proposed CCR Rule, as summarized below and discussed in detail in 

our comments on the Proposed CCR Rule, the Gypsum Association continues to maintain that 

clarifying language specifically excluding FGD gypsum, which is a manufactured product and 

not a waste, from the scope of any final CCR Rule is justified and appropriate

Comment Response: 

EPA notes that the final ELG does not characterize CCR as either hazardous or non-hazardous. 

See also the response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts between the final CCR Rule and the final ELG Rule.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-487

Commenter Name: Jessica Wicha

Commenter Affiliation: Gypsum Association

Document Control Number: EPA-HQ-OW-2009-0819-4456-A1

Comment Excerpt Number: 3

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

III.THE GYPSUM ASSOCIATION SUPPORTS EPA'S INTENTION TO 

CONCURRENTLY REVIEW THE PROPOSED ELG RULE AND PROPOSED CCR 

RULE

EPA acknowledges that there is an interrelationship between the Proposed ELG Rule and the 

Proposed CCR Rule and the Gypsum Association supports the Agency's stated intent to conduct 

a coordinated review of the two rules. See 78 Fed. Reg. at 34441. In particular, EPA states that it 

intends to "minimize the overall complexity of [ELG and CCR regulations] and facilitate 

implementation of engineering, financial and permitting activities," consistent with Executive 

Order 13536, Improving Regulation and Regulatory Review. Id. It is EPA's goal to "ensure that 

the two rules work together to effectively address the discharge of pollutants from steam electric 

generating facilities and the human health and environmental risks associated with the disposal 

of CCRs, without creating avoidable or unnecessary burdens." Id. To that end, EPA indicates 

that it will be focused on coordinating the substantive requirements, timing and implementation 

of the two proposed rules. Id.

The Gypsum Association supports this regulatory approach. EPA correctly acknowledges that 

while the scope of the two rules differs, there are certain consequences of the Proposed ELG 

Rule, such as facilities choosing to convert sluicing operations to dry ash- handling systems and 

no longer sending such wastes to surface impoundments that could directly impact technical 

requirements in the Proposed CCR Rule. 78 Fed. Reg. at 34441-42. In addition, new data has 

been generated in connection with development of the Proposed ELG Rule that could impact the 

risk assessment for the Proposed CCR Rule. 78 Fed. Reg. at 34442. Given these important 

overlaps, it is appropriate for the Agency to see both of these rulemakings to the end before 

finalizing either proposal in order to ensure there are no unintended consequences, even if such 

action results in delaying finalization of the rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules. 

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-488

Commenter Name: Chad Miller

Commenter Affiliation: Montana-Dakota Utilities Co.

Document Control Number: EPA-HQ-OW-2009-0819-4457-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ELG Rule Harmonization with CCR Rule.

Montana-Dakota appreciates the EPA's consideration of how the proposed ELG regulations will 

correlate to the proposed CCR regulation. Montana-Dakota believes that it is very important that 

EPA align these two rules to eliminate contradiction between the rules and alleviate industry and 

regulating agency confusion. Because the proposed ELG rule will continue to allow the 

operation of a CCR surface impoundment, Montana-Dakota believes that the Subtitle D Prime 

option of the final CCR rule provides the best alignment of the two regulations.

Premature lmpoundment Closing Requirement.

It is also important, to the alignment of the rules, that the proposed CCR Rule language which 

may require an impoundment to begin closure within 30 days of the last receipt of CCR be 

eliminated. The proposed ELG rule allows the continued operation of these impoundments even 

after the last receipt of CCR waste is placed in the impoundment (i.e. legacy waters) and 

Montana-Dakota agrees with this approach. Also to this point, facilities may choose to maintain 

these impoundments for other operational needs thereafter. The requirement of closing these 

impoundments would not be justified as they can be operated post CCR receipt in a manner that 

still meets the objective to protect human health and the environment.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules. 

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).

Commenter Name: Chad Miller

Commenter Affiliation: Montana-Dakota Utilities Co.

Document Control Number: EPA-HQ-OW-2009-0819-4457-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-489

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Montana-Dakota also appreciates the EPA's thoughtfulness in harmonizing the proposed ELG 

rule with the proposed CCR rule. However, through the harmonization process it is important 

that EPA modify or eliminate specific language in the proposed CCR regulation. It is also 

important for the EPA to select the Subtitle D Prime option for regulating CCR since this 

regulation provides the best alignment of the two proposed rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules. 

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

0640-11970).

Commenter Name: Lisa Carty

Commenter Affiliation: Xcel Energy

Document Control Number: EPA-HQ-OW-2009-0819-4458-A1

Comment Excerpt Number: 32

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordination Between the ELG Rulemaking and CCR Rulemaking

1. Best Management Practices for Surface Impoundments should be addressed in the CCR 

Rulemaking, not ELG Rulemaking

In the proposal, EPA requests comments on establishing best management practices (BMPs) for 

surface impoundments (FR 78, No. 110, p. 34466). BMPs for surface impoundments should be 

included in the CCR Rulemaking and not within the ELGs to avoid duplicative regulation and to 

remain within the statutory authority of RCRA.

Section 304 of the Clean Water Act states that EPA may establish supplemental regulations “to 

control plant site runoff, spillage or leaks, sludge or waste disposal, and drainage” when those 

events may contribute significant amounts of pollutants. The events identified are clearly more 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-490

commonplace in their occurrence and therefore predictably contribute significant pollutants to a 

point source discharge. A catastrophic release, such as happened at Kingston, is not 

commonplace as has been pointed out by USWAG in their comments in this rulemaking and the 

CCR rulemaking and is therefore outside the scope envisioned by the Clean Water Act.

The proposed ELGs must be clear only CCR surface impoundments that directly discharge to 

water of the U.S are required to comply with these requirements. This is the only approach that is 

consistent with the Clean Water Act and case law.

Comments on appropriate BMPs have been provided by EEI and USWAG in the current docket 

and previously associated with the propose rule comment process in November 2010, of which 

Xcel Energy endorses. In addition, EPA needs to incorporate the comments on appropriate 

BMPs described in our response filed in November 2010, ‘Comments of Xcel Energy on 

Hazardous and Solid Waste Management Systems; Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule”. In general the 

comments related to conduct of annual inspections limited to ‘high or significant’ hazard 

potential impoundments and limiting applicability to a size criteria, following MSHA standards.

2. The compliance timelines identified in both rulemakings (CCR and ELGs) should be 

consistent to ensure proper coordination of activities involved in modification or conversion of 

systems to comply with both requirements.

The timing of the CCR and ELG proposals must recognize the interrelated nature of surface 

impoundments and the process water management systems at power generating stations. As with 

the CCR proposal, the proposed ELGs will require significant plant modifications that create 

ripple effects in other plant systems. To include: disentangling specific process water streams; 

engineering new wastewater treatment system(s); evaluating the impacts to other plant systems; 

engineering impacted plant systems to operate efficiently with the process water changes; 

procuring the required materials and equipment; constructing the changes; and, optimizing the 

systems will take considerable time. The currently proposed 5 year compliance timeline 

identified in the ELG proposal (2017 – 2022) is inadequate for the scope of changes necessary to 

achieve compliance.

The process to engineer, plan, execute, and optimize changes required by the ELGs could require 

as much as ten (10) years to complete. As previously mentioned, power generating facilities are a 

complex tapestry of systems that are carefully balanced to achieve the highest efficiency 

possible. Changes to one system impact all the others and it takes considerable time to evaluate 

and engineer the changes contemplated in the ELG proposal. Xcel Energy recommends that EPA 

allow at least ten (10) years for facilities to achieve compliance and that the specific timing for 

each facility be decided by the permitting authority with a federal compliance deadline of no 

more than ten (10) years after rule promulgation. Additionally, timing of surface impoundment 

closure will require extra time for potentially sighting and constructing new landfill capacity 

which is largely controlled by local units of government and will introduce other significant 

issues. In light of this the EPA should ensure that the CCR rulemaking efforts allows for these 

local variables to control the final compliance on a site specific basis.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-491

To ensure that the CCR and ELG rulemaking efforts are properly coordinated, the CCR rule 

should not require closure of surface impoundments before the associated process waste streams 

can be modified to meet the ELG requirements.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments related to the CCR 

rule are outside the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in 

the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the EPA ELG and EPA CCR final rules. Also, EPA disagrees that the 

timing of the applicability of the ELGs in the final rule is inadequate as stated by this 

commenter. EPA also disagrees that the changes required by the ELGs will take up to 10 years 

to complete. EPA notes that the commenter provided no data to support its assertion whereas 

EPA’s record contains information on actual timeframes for such changes. See Section XIII and 

XVI of preamble. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 126 regarding implementation timing.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

AER agrees with EPA's goal of evaluating "how a final RCRA [CCR] rule might be aligned with 

and structured to account for any final requirements adopted under the ELGs for the Steam 

Electric Power Generating point source category." (Federal Register, June 7, 2013, Page 34441). 

We support EPA's evaluation of two primary means of integrating the proposed rules: (1) 

through coordinating the design of any final substantive CCR regulatory requirements with the 

final ELG rule, and (2) through coordination of the timing and implementation of final rule 

requirements "to provide facilities with a reasonable timeline for implementation that allows for 

coordinated planning and protects electricity reliability for consumers."

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-492

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We support a step-wise approach for implementation of both rules. It is important that the 

regulated community know with certainty what the regulatory requirements will be under both 

sets of rules before it invests significant resources and begins to undertake major capital 

modifications that likely will be required to comply with these inter-related regulations. Any 

implementation and corresponding compliance obligations for surface impoundment 

modifications and/or closure under the CCR rule should not be triggered until a reasonable 

period of time after the applicable ELG requirements are clearly established for a particular 

facility in its revised NPDES permit incorporating the new ELG rule requirements.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We agree that surface impoundment integrity and inspection requirements modeled on the 

standards for coal slurry impoundments regulated by MSHA is a good starting point for 

developing comparable standards for CCR impoundments. However, these standards should be 

developed as part of a single, comprehensive regulatory program under RCRA as proposed in the 

CCR rulemaking rather than through conditions in NPDES permits. We believe that between the 

two proposed ELG and CCR rules, that these issues are more appropriately addressed in the CCR 

rule under the authority of RCRA. The inclusion of BMPs in NPDES permits is a limited way 

for regulating the structural integrity of surface impoundments. Regulating the structural 

integrity of CCR surface impoundments under RCRA would allow all CCR impoundment 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-493

design, operation, monitoring, structural integrity, and closure requirements to be covered by the 

same program. We request that the proposed BMPs not be included in the final ELG rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: John C. Pozzo

Commenter Affiliation: Ameren Energy Resources Company

Document Control Number: EPA-HQ-OW-2009-0819-4459-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The final ELGs must not create regulatory or implementation conflicts with any final substantive 

CCR requirements and the timing and implementation requirements of both final rules must 

allow reasonable timeline for coordinated implementation.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of the timing and requirements 

of the final ELG and CCR rules.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

PowerSouth believes the record supports the following best available technology options:

BMPs for Ash Ponds – Regulate under RCRA.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-494

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 59

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Conversion to Closed-Loop Systems Is Premature in Light of the Proposed Coal Combustion 

Residue (“CCR”) Regulations.

If EPA’s finalized ash pond regulations prohibit or significantly limit the continued operation of 

ash ponds, some of those facilities could provide natural, cost-effective locations for dewatering 

equipment and structures associated with certain closed-loop, bottom ash handling technologies. 

Until the CCR rule is finalized, however, any cost/benefit analysis conducted to determine 

whether such closed-loop systems may be appropriate for a particular plant are necessarily 

premature. Therefore, EPA should not mandate closed-loop bottom ash handling until the CCR 

rulemaking is complete.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the implementation timing between the ELG and CCR final rules and DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 119 for a discussion of the coordination between the two 

rules. As explained in the reference response, the preamble and the RIA, EPA considered how 

steam electric power plants would apply the requirements of the CCR rule when considering the 

costs associated with the ELG and assessing the benefits associated with the rule. See Section 

VIII of the preamble for EPA’s discussion of the regulatory option for the final ELGs.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 72

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-495

Regulating Landfill Leachate under Part 423 Will Conflict or Overlap with the Coal Combustion 

Residuals Rule.

Contaminated leachate collected on a site for treatment or disposal should be considered a low 

volume waste. Yet, all signs point to EPA regulating collection systems of this kind for landfills 

pursuant to the upcoming CCR rule. See 75 Fed. Reg. 35,239 (June 21, 2010). PowerSouth 

therefore believes that regulation of this waste stream is best left for that rulemaking to avoid the 

possibility of duplicative or inconsistent regulation.

Comment Response: 

Under the Final ELGs, EPA is establishing effluent limitations and standards for combustion 

residual leachate from existing sources equal to the previously promulgated BPT limitation on 

TSS for low volume waste sources. However, for new sources, EPA is establishing standards on 

mercury and arsenic in discharges of combustion residual leachate, based on chemical 

precipitation. See the preamble section VIII for more discussion including EPA’s rationale.

EPA disagrees that “regulation of this waste stream is best left” for the CCR rule “to avoid the 

possibility of duplicative or inconsistent regulation” because the CCR rule does not control the 

discharge of wastewater pollutants to surface waters on a technology basis as is called for under 

the Clean Water Act such as landfill leachate that is collected from the bottom of a surface 

impoundment or a landfill and subsequently discharged to a waters of the U.S.. Therefore, the 

regulations established in the final ELG are not duplicative or inconsistent.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1

Comment Excerpt Number: 73

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs for Ash Ponds.

In the Draft Rule, EPA has proposed to establish best management practices (“BMPs”) through 

the NPDES program applicable to surface impoundments that receive coal combustion residuals. 

According to EPA, BMPs of this kind are needed to prevent catastrophic releases like those at 

Martins Creek, Pennsylvania, and Kingston, Tennessee. Specifically, the BMPs would regulate 

the construction, operation, and maintenance of both active and inactive surface impoundments 

to minimize the risk of uncontrolled discharges by requiring plant operators to conduct periodic 

inspections and take timely corrective actions where warranted. Inspections would be required 

every seven days and would be conducted by a person qualified to recognize specific signs of 

structural instability and other hazardous conditions by visual observation and, if applicable, to 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-496

monitor instrumentation such as piezometers. Should any potentially hazardous condition 

develop, the owner or operator of the facility would be required to: (1) take action immediately 

to eliminate the potentially hazardous condition; (2) notify the Regional Administrator or the 

authorized State Director; (3) notify and prepare to evacuate, if necessary, all personnel from the 

property that may be affected by the potentially hazardous condition(s); and (4) notify state and 

local emergency response personnel if conditions warrant so that people living in the area down 

gradient from the surface impoundment can evacuate.

EPA is also considering the inclusion of BMPs in the final rule to address the integrity of surface 

impoundments. These BMPs would be modeled after those applicable to coal slurry 

impoundments regulated by the Mine Safety and Health Administration (“MSHA”). Facilities 

using CCR impoundments would need to (1) submit to EPA or the applicable state authority 

plans for the design, construction, and maintenance of existing impoundments; (2) submit plans 

for closure to the appropriate authority; (3) conduct periodic inspections by trained personnel 

who are knowledgeable in impoundment design and safety; and (4) provide an annual 

certification by an independent registered professional engineer that all construction, operation, 

and maintenance of impoundments is in accordance with the approved plan. Owners and 

operators would be required to address any problematic stability and safety issues in a timely 

manner. The BMPs being considered for CCR impoundments at power plants would apply to all 

structures regardless of height and storage volume; although, EPA is contemplating possible 

variations on the BMPs it requires based on distinctive criteria that reasonably permit such 

differentiations, including but not limited to different inspection frequencies or limitations on the 

applicability of BMPs.

PowerSouth has a number of concerns with EPA’s proposed BMPs for surface impoundments. 

Specifically, PowerSouth questions whether EPA possesses adequate legal authority to regulate 

these structures pursuant to the CWA. That the agency ostensibly possesses sufficient authority 

to do so pursuant to RCRA further calls into question why EPA would attempt to establish 

standards in this rulemaking – much less create duplicative or overlapping regulations in both 

this and the CCR rules. PowerSouth is also troubled by the scant information regarding the 

proposed BMPs provided in the Draft Rule. EPA must publish for notice and comment the 

precise BMPs it intends to adopt to allow the regulated community to meaningfully comment on 

the proposed standards. Lastly, the materials at the agency’s disposal in connection with its CCR 

rulemaking effort adequately demonstrate that regulatory standards of this kind are unnecessary. 

PowerSouth offers the following discussion for each of these significant concerns.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Tom DeLawrence

Commenter Affiliation: PowerSouth Energy Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4460-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-497

Comment Excerpt Number: 76

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s Own Analysis Confirms that BMPs for Surface Impoundments are Not Needed and 

Certainly Do Not Need to be Promulgated Under Two Distinct Regulatory Rulemakings.

EPA proposed substantially similar structural integrity requirements for CCR surface 

impoundments in its 2010 proposed CCR rulemaking. See 75 Fed. Reg. 35,128, 35,175-76, 

35,214 (June 21, 2010); 76 Fed. Reg. 63,252 (Oct. 12, 2011) (NODA). As support for these 

proposed standards, EPA released responses it received to its utility survey regarding CCR 

management and structural integrity of surface impoundments and its subsequent assessment 

reports evaluating same. 76 Fed. Reg. at 63, 256. This information was not supportive of EPA’s 

proposed regulatory initiative, however. Instead, it revealed that regulating the structural 

integrity of CCR surface impoundments may not be necessary because these structures do not 

pose an immediate safety threat.

Relying largely upon comments submitted by USWAG to EPA’s CCR rule, UWAG thoroughly 

evaluates the results of the agency’s utility survey in its comments to the Draft Rule and 

reasonably concludes that the promulgation of BMPs is also unnecessary as a part of this 

rulemaking. See UWAG Comments at Section XVI, B & E. PowerSouth supports UWAG’s 

comments on this issue and incorporates same as if fully set out herein. Specifically, UWAG 

notes that EPA’s own experts in the area of dam integrity concluded none of the 676 surface 

impoundments (or equivalents) were found to pose an immediate safety threat. These same 

contractors conducted condition assessments at the majority of these structures, as well, and 

similarly determined none posed immediate safety threats. A small subset of surface 

impoundments evaluated did receive a “fair” or “poor” rating. However, upon further evaluation, 

these ratings were primarily assigned due to the lack of availability of detailed design or 

construction data for the structure, or because of fairly minor maintenance or monitoring gaps in 

general operations at the facilities.13 Furthermore, each of these facilities addressed the alleged 

deficiencies in a response to EPA and committed to an action plan to timely rectify the 

deficiencies.

Collectively, this information reveals that EPA has not and cannot justify imposing additional 

regulation on CCR surface impoundments under RCRA or the CWA. Moreover, even if BMPs 

were justified, there is no benefit or rational basis for imposing these regulations twice—under 

separate and distinct regulatory rulemakings. Doing so could result in the promulgation of 

conflicting or inconsistent BMPs that leave regulated facilities with the potentially impossible 

task of trying to comply with each. Instead, if EPA erroneously continues down this path (despite 

the aforementioned data and analysis adequately demonstrating that such regulation is 

unnecessary), coordination is imperative between the CCR Rule and this Draft Rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-498

13 See EPA, Coal Combustion Residuals Impoundment Assessment Reports, 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/index.htm (posting final 

reports and company response/action plans).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs so comments 

related to BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: John T. Graves

Commenter Affiliation: Minnkota Power Company, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4462-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should not regulate the integrity of surface impoundments under the proposed BMP's, but 

rather under the Coal Combustion Residue rule where it should be properly addressed.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-499

Comment Excerpt: 

Midwest Gen supports EPA’s efforts to align the requirements of the CCR rule with the 

proposed ELGs. Midwest Gen encourages EPA to continue its regulatory coordination 

efforts. With careful planning, EPA can reduce the cost and complexity of complying with 

related and overlapping regulations. Midwest Gen also encourages EPA to focus its surface 

impoundment BMP efforts on those surface impoundments that pose the greatest risk.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

MIDWEST GEN SUPPORTS ALIGNING THE ELG WITH THE CCR RULE TO AVOID 

COMPLIANCE IMPLEMENTATION ISSUES.

Midwest Gen applauds EPA’s intention to better align the requirements of the proposed ELGs 

and the CCR rules. As Midwest Gen noted in its comments in response to EPA’s request for 

comment on “Improving EPA Regulations,”37 EPA should tailor its regulations to focus on the 

areas of primary concern, while coordinating overlapping rule requirements to prevent 

unnecessary duplication. Midwest Gen references and incorporates its prior comments on CCR 

treatment and handling, filed in dockets EPA–HQ–RCRA–2009–0640, EPA–HQ–RCRA–2011–

0392, and EPA–HQ–OA–2011–0158 et al. Midwest Gen will file a copy of these comments on 

the Proposed ELGs in the new RCRA docket EPA has established for this rulemaking.

In particular, EPA has requested comments on the potential for establishing BMPs for CCR 

Surface Impoundments, such as periodic inspections. As an initial matter, Midwest Gen notes 

that EPA has not provided enough detail on potential BMPs to provide meaningful comment, but 

Midwest Gen provides the following general principles that Midwest Gen believes should guide 

EPA’s approach on CCR requirements. As Midwest Gen has previously noted, EPA should tailor 

these BMPs only to those facilities that have the potential to cause the damage that EPA is 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-500

attempting to prevent. In the preamble to the Proposed Rule, EPA cites the Mine Safety and 

Health Administration (MSHA) as an example for BMPs, and Midwest Gen respectfully requests 

that EPA follow MSHA’s lead in tailoring impoundment regulations to those impoundments that 

may pose the risks EPA is seeking to avoid. MSHA’s impoundment regulations for coal mines 

were established in response to a dam failure at Buffalo Creek, West Virginia.38 EPA notes that 

MSHA has limited those regulations to impoundments of a certain size (i.e. those over five feet 

in elevation that are larger than 20 acre feet in volume, or those that are over 20 feet in elevation) 

although it does not propose to adopt such limitations.39 As cited in the preamble to the 

Proposed Rule, the most damaging incidents result from critical structural failure of large, 

permanent impoundments, like the Kingston, Tennessee and Buffalo Creek incidents. Midwest 

Gen encourages EPA to limit its CCR requirements to facilities of a certain size, following the 

lead of MSHA, which, as EPA notes, has nearly 40 years of experience in similar regulations, 

and based on the substantial body of evidence decided to limit its regulations to impoundments 

of a certain size. Midwest Gen strongly encourages EPA to coordinate its rulemakings on CCRs 

between the RCRA and CWA dockets and avoid any overlapping or inconsistent requirements.

37 See 76 Fed. Reg. 9988 (February 23, 2011).

38 See 78 Fed. Reg. at 34467.

39 See id.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Basil G. Constantelos

Commenter Affiliation: Midwest Generation, LLC.

Document Control Number: EPA-HQ-OW-2009-0819-4464-A1

Comment Excerpt Number: 33

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Midwest Gen respectfully requests that EPA:
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-501

• align the requirements of the CCR rule with the proposed ELGs and focus its surface 

impoundment BMP efforts on those surface impoundments that pose the greatest risk.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Paul Bailey

Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE)

Document Control Number: EPA-HQ-OW-2009-0819-4466-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should make sure that this rule and the Coal Combustion Residuals rule are coordinated. 

While EPA says it is doing so, it has failed to demonstrate that both the substantive requirements 

of the two rules and their timing will be coordinated.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: Paul Bailey

Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE)

Document Control Number: EPA-HQ-OW-2009-0819-4466-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should ensure the proposed ELG rule and the CCR rule are coordinated.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-502

Although EPA has recognized the need to coordinate its Effluent Guidelines with the CCR rule,

the fact is it has not done so.9In fact, EPA specifically requests comments on the best way to 

coordinate the CCR rulemaking with the proposed Effluent Guidelines rulemaking to minimize 

overlap and contradictory provisions and to ensure efficient implementation.10

As a threshold matter, there are instances in the proposed rule where EPA blurs the lines of 

statutory authority for regulating surface impoundments that receive CCRs. Congress’s 1980 

amendments to the Resource Conservation and Recovery Act (RCRA) gave EPA authority to 

regulate the management of CCRs.11 However, in this proposed rule, EPA asserts that the CWA 

gives the agency legal authority to promulgate best management practices (BMPs) for surface 

impoundments that address the structural integrity of such facilities.12

ACCCE acknowledges that EPA has authority to regulate wastewater discharges from surface 

impoundments that are permitted under the NPDES permitting program. However, ACCCE does 

not agree that the CWA gives EPA the broad authority it believes it has to impose BMPs for 

surface impoundments. ACCCE believes ash pond structural 

integrity issues should be addressed by the CCR rule under RCRA, and ash pond 

wastewater discharges should continue to be addressed in the Effluent Guidelines under the 

CWA.

With respect to coordinating the proposed Effluent Guidelines with the CCR rule, EPA states 

that its approach will involve the following two components:

1. coordinating the design of any final substantive CCR regulatory requirements, and

2. coordinating the timing and implementation of final rule requirements to provide 

facilities with a reasonable timeline for implementation that allows for coordinated 

planning and protects electricity reliability for consumers.13

An example of the substantive coordination needed is the issue of landfill capacity. In the 

Effluent Guidelines, EPA is proposing dry fly ash handling and FGD wastewater treatment in all 

four of the Agency’s preferred options, as well as proposing dry or closed-loop bottom ash 

handling in one of its preferred options. The resultant increase in coal combustion residuals 

could dramatically exceed the available capacity of existing landfills. Constructing new landfills 

takes significant time for design, procurement of land, obtaining local and state permits, 

construction, etc. In addition, communities often oppose the siting of landfills, which could 

further delay the construction timeline. EPA has not fully vetted the complications of limited 

landfill capacity in the context of this proposal.

The second component relates to the coordination of compliance and implementation deadlines. 

ACCCE urges EPA to set clear and consistent compliance and implementation timelines to 

ensure sound decision making on the part of the regulated community, especially when 

compliance strategies pursuant to one rule could affect compliance with the other. EPA has 

already acknowledged that the implementation dates for each rule should not require facilities to 

make decisions without understanding the implications that such decisions would have for 

meeting each rule’s requirements.14 Proper coordination of the rules would minimize the risks to
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-503

industry of having to change compliance strategies and would also minimize the risks to EPA of 

subsequent rule amendments.

9

78 Fed. Reg. at 34, 441.

10 See id. at 34,441.

11 42 U.S.C. 82, § 3001(b)(3)(A)(i-iii).

12 78 Fed. Reg. at 34,466 (citing CWA §§ 306, 304(e), 402(a)(2) and 40 C.F.R. §§ 122.44(k) and 

122.41(e)).

13 Id. at 34,441 col. 3.

14 See id. at 34,442 col. 2.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

In assessing the costs associated with the ELG, EPA accounted for the cost to dispose of ash and 

FGD treatment solids either on- or off-site, through expansion of existing on-site landfills, or 

transport to off-site landfills. As discussed in the CCR comment response document (Volume 3), 

EPA has learned of the practice of using inactive or closed CCR landfills, and dewatered CCR 

surface impoundments, as the base for constructing new CCR landfills. The subsequent new 

CCR landfill is typically referred to as an “overfill.” Overfills are an alternative to siting a new 

landfill and provide an opportunity to develop additional disposal capacity without creating a 

new CCR disposal footprint. See the discussion, regarding Overfills, in Section VI.J.1 of the 

CCR Rule preamble, 80 FR 21302 (April 17, 2015). When these overfills are constructed and 

operated in accordance with the requirements for new CCR landfills (i.e., with composite liners 

or alternative liners meeting the hydraulic conductivity standard, leachate collection and removal 

systems, groundwater monitoring systems, corrective action, record keeping, and the closure, and 

post closure care requirements), they are as protective as any other new CCR landfill meeting the 

requirements of this rule.

In addition, steam electric power plants may dispose of ash or FGD treatment solids in off-site 

landfills, including municipal landfills, as non-hazardous waste. EPA is aware that permitting 

and constructing an on-site landfill can be time consuming; however, an on-site landfill is not 

necessary to operate a dry fly handling system, a dry bottom ash handling system, or a closedloop bottom ash system because the ash can be disposed in an off-site landfill. As discussed in 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-504

the response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128, EPA considered 

the magnitude and complexity of process changes and new equipment installations, including 

landfill expansions, that may be needed at facilities to meet the requirements of the rule, as well 

as to coordinate approaches associated with the final CCR rule.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Raven Power supports EPA’s recognition of the importance of coordinating rule makings, 

specifically the Effluent Limitations Guidelines (ELG) proposal with the Coal Combustion 

Residual (CCR) proposal.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

Commenter Name: Raven Power Holdings, LLC

Commenter Affiliation: Raven Power Holdings, LLC

Document Control Number: EPA-HQ-OW-2009-0819-4467-A1

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordinating the overlapping requirements and implementation schedules of the CCR and ELG 

rules is critical in avoiding contradicting solutions.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-505

Commenter Name: JoAnne Rau

Commenter Affiliation: Dayton Power & Light Company (DP&L)

Document Control Number: EPA-HQ-OW-2009-0819-4470-A1

Comment Excerpt Number: 29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

USEPA is considering BMPs for plant operators to conduct periodic inspections of active and 

inactive surface impoundments that receive coal combustion residuals. As discussed in the 

preamble, the BMPs would require inspections every seven days, plans for designing, 

constructing, and maintaining existing impoundments , plans for closure, and annual certification 

that the construction, operation, and maintenance follows the approved plan. When stability and 

safety issues are identified, corrective action would be required. While the agency generally 

discusses this potential requirement in the preamble to the proposed revisions to the ELG for the 

steam electric industry, there is no specific proposed regulatory language pertaining to this 

concept in the actual proposed revisions to 40 CFR Part 423. DP&L cannot provide any cogent 

comments on these requirements lacking any proposed regulatory language.

However, DP&L does have several general comments on the concept:

 If the agency were to make BMPs part of any final rule, it would first have to publish a 

Notice of Data Availability (NODA) or supplemental rulemaking notice, inform the 

public what requirements are being considered, and take comments;

 BMPs are unnecessary, as shown by the record in the CCR rulemaking. USEPA stated 

that the "impoundment collapse at [Kingston, Tennessee] illustrated that structural 

failures of large CCR impoundments can lead to catastrophic environmental releases and 

large cleanup costs" (75 Fed. Reg. at 35,214 col. 1). However as USWAG pointed out, 

USEPA's own analysis of the structural integrity of CCR management units across the 

country indicates that they do not pose immediate safety threats. Rather, CCR surface 

impoundments are safely and responsibly operated and maintained. The agency's own 

contractors, "who are experts in the area of dam integrity" assessed the structural integrity 

of CCR surface impoundments across the county and not one impoundment was rated 

''unsatisfactory," which would be the rating if an impoundment posed an immediate 

safety threat;

 The proposed Clean Water Act BMPs may duplicate or conflict with the RCRA CCR 

rule. If the agency moves ahead with a final coal combustion residual rulemaking 

pursuant to RCRA that imposes best management practices, it would make no sense to 

impose them separately under the Clean Water Act. Clearly this would be a wasteful 

duplication and could impose potential regulatory conflicts. USEPA does not explain 

why Clean Water Act BMPS are needed in addition to RCRA BMPs and there does not 

seem to be any shortage of statutory authority under RCRA;
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-506

 The proposed Clean Water Act BMPs may duplicate or conflict with state dam safety 

programs. In Ohio, the Ohio Department of Natural Resources (ODNR) implements a 

dam safety program under which impoundments (including coal combustion residual 

surface impoundments) are regulated. The ODNR regulations require impoundment 

inspections as well as other aspects relating to dam safety and integrity.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Michalene Reilly

Commenter Affiliation: Hoosier Energy Rural Electric Cooperative

Document Control Number: EPA-HQ-OW-2009-0819-4471-A1

Comment Excerpt Number: 21

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regulation of CCR impoundment unit integrity through RCRA and the CCR rule. Any 

requirements regarding the structural integrity of CCR surface impoundments are properly the 

province of RCRA; therefore, EPA should continue to develop these requirements in the context 

of the final RCRA CCR rule rather than include the proposed BMPs in the final ELG rule. (See 

UWAG comments Section XX -BMPs for Ash Ponds and USWAG comments Section III -

Surface Impoundment Monitoring and Integrity is More Appropriately Regulated through the 

Pending RCRA Proposal Than Through BMPs in NPDES Permits.)

Harmonizing the final ELC rule with the Subtitle D Prime Option described in the CCR 

Proposal. The ELG proposed rule clearly contemplates surface impoundments remaining 

operational to receive specified wastewaters, such as legacy wastes, low volume wastewaters or 

stormwater, even if they cease receiving bottom ash or fly ash transport water. We agree, and 

the D Prime Option will assure that occurs. (See USWAG comments section II. EPA Should 

Harmonize the ELG Proposal with the Subtitle D Prime Option in the CCR Proposal and UWAG 

comments Section XIII - The Rule Needs to Allow for the Continued Treatment of "Legacy 

Wastes".)

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-507

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding the 

final ELG rule requirements for legacy wastewaters.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 22

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The scope of applicable surface impoundments subject to Best Management Practices 

should be limited to only those directly receiving bulk coal combustion residuals. EPA is 

considering establishing Best Management Practices (“BMPs”) for surface impoundments that 

receive, store, dispose of, or are otherwise used to manage coal combustion residuals. This wide 

scope would require BMPs even for surface impoundments which incidentally receive small 

quantities of CCRs. We suggest that EPA narrow the scope to include only surface 

impoundments that directly receive, store, dispose of, or are otherwise used to manage bulk coal 

combustion residuals, with special exclusions for impoundments which incidentally receive 

CCRs (e.g., storm water retention ponds, impoundments receiving equipment or facility washdown water). Additionally, we believe the scope of applicable surface impoundments should 

specifically exempt facilities operating a dry fly ash handling system and not directly sluicing 

wet bottom ash during the operation of the impoundment. Finally, impoundments meeting 

applicable state requirements for engineered liners designed to protect ground water quality 

should also be excluded.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-508

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices should be required for surface impoundments based on hazard 

potential.

EPA intends to require BMPs for all CCR surface impoundments regardless of height and 

storage volume. Due to EPA’s broad definition of “surface impoundments,” even the small, 

below grade wastewater treatment settling ponds at We Energies facilities (used to treat 

commingled low volume wastewater, bottom ash transport water, and landfill leachate) may be 

required to implement the BMPs. These settling ponds are very different from the 

impoundments used for disposing CCRs subject to the EPA Office of Resource Conservation 

and Recovery jurisdiction. These ponds comply with the design standards, material 

specifications, and performance criteria established in NR 213, Wisconsin Administrative 

Code. We believe a common-sense approach should be used instead. BMPs should be tailored 

to apply only to those structures that pose a potential threat to human health and the 

environment.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 73

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-509

EPA Should Consider Limiting the Scope of Applicable Surface Impoundments Subject to 

BMPs as Only Those Impoundments Directly Receiving Bulk Coal Combustion Residuals.

EPA is inconsistent in the Preamble when discussing BMPs for surface impoundments. It is 

unclear whether the proposed BMPs are intended to be applied to all surface impoundments 

receiving any coal combustion residuals (“CCR”) or ponds which receive only bulk coal 

combustion residuals. According to the Preamble (emphasis added):

EPA is considering establishing best management practices (BMP) requirements that would 

apply to surface impoundments containing coal combustion residuals (e.g. ash ponds, FGD 

ponds). 78 Fed. Reg. at 34,435 col. 3.

EPA is considering establishing BMPs that would apply to surface impoundments (i.e., ponds) 

that receive, store, dispose of, or are otherwise used to manage coal combustion residuals 

including FGD wastes, fly ash, bottom ash (which includes boiler slag), leachate, and other 

residuals associated with the combustion of coal to prevent uncontrolled discharges from these 

impoundments. Id. at 34,458 col.1.

BMPs for CCR Surface Impoundments. EPA is considering establishing BMPs for plant 

operators to conduct periodic inspections of active and inactive surface impoundments and to 

take corrective actions where warranted. This requirement would apply to direct dischargers. 

Id. at 34,466 col. 2.

The BMPs being considered today for the ELG rule would apply to all CCR impoundments at 

steam electric power generating facilities, regardless of height and storage volume. Id. at 

34,467 col. 2.

We believe EPA should narrow the broad scope of applicable CCR surface impoundments 

subject to BMPs. As currently written in the Preamble, wastewater treatment settling ponds that 

incidentally receive small quantities of CCRs, such as wash-down water or storm water runoff, 

would be subject to the BMPs.

For example, Pleasant Prairie Power Plant, which operates a dry fly ash handling system, still 

occasionally washes the air preheaters and boilers to remove built up fly ash. The wastewater is 

routed to the metal cleaning waste basin (equalization pond/surface impoundment) prior to 

treatment in a physical-chemical wastewater treatment system. Additionally, PPPP uses low 

pressure service water to wash down equipment and floors within the powerhouse and the fly ash 

loading area. Wastewater from the equipment is routed to the low volume waste basin which 

may receive treatment at the physical-chemical wastewater treatment system to meet total 

suspended solids limits.

Another example of incidental CCR storage in surface impoundments is at our Oak Creek Power 

Plant and Elm Road Generating Station site. We store limestone, the reagent used in our wet 

FGD systems, and gypsum, the coal combustion residual produced in the FGD system, in a 

designated area outside. A storm water retention pond is onsite to collect storm water runoff 

from the limestone and gypsum area. This runoff, which contains small amounts of limestone 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-510

and gypsum fines, is usually routed to a “wastewater collection/reuse basin” to be used as 

makeup water to the wet FGD system, for dry fly ash conditioning, and/or for dust suppression 

on the areas where there is outdoor storage of coal, limestone, and gypsum.

It is recommended that the scope of BMPs for CCR Surface Impoundments be clarified to ensure 

that surface impoundments only incidentally receiving small quantities of CCRs with equipment 

wash-down water and storm and process water drains be excluded. In order to avoid future 

confusion or debate on what is a CCR surface impoundment required to implement BMPs, it is 

recommended that EPA amend the scope to state that it includes only those “surface 

impoundments (i.e., ponds) that directly receive, store, dispose of, or are otherwise used to 

manage bulk coal combustion residuals including FGD wastewater, discharges from wet fly ash 

handling systems, discharges from wet bottom ash (which includes boiler slag) handling 

systems, leachate, and other residuals associated with the combustion of coal to prevent 

uncontrolled discharges from these impoundments.” We suggest that the scope of CCR Surface 

Impoundments intended to be managed with BMPs exclude those facilities where:

1. A dry fly ash handling system has been in operation during operation of the 

pond/impoundment; and

2. Wet bottom ash has not been directly sluiced to the pond/impoundment during its 

operation; and

3. The impoundment meets applicable state requirements for engineered liners designed to 

protect ground water quality26.

This narrowing of scope would ensure that plant operators would conduct periodic inspections of 

ash ponds (receiving fly ash or bottom ash transport water) and FGD ponds and take corrective 

actions when warranted. Yet it would exclude stormwater retention ponds that receive small 

quantities of CCRs (e.g., stormwater impacted with FGD gypsum), or ponds that receive 

washdown water (e.g., washdown from dry fly ash handling truck loading areas).

26 In Wisconsin, such impoundments are required to comply with NR 213 – Lining of Industrial 

Lagoons and Design of Storage Structures.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-511

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 74

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA Should Consider Requiring BMPs for Surface Impoundments Based on Hazard 

Potential, Not ALL Surface Impoundments Regardless of Height and Storage Volume.

EPA intends to require BMPs for all CCR surface impoundments regardless of height and 

storage volume. We believe BMPs should be tailored to apply only to those structures that pose 

a potential threat to human health and the environment. Wastewater treatment settling ponds, 

low volume waste ponds with limited CCR volumes, and storm water ponds are very different 

from the impoundments used for disposing CCRs subject to the EPA Office of Resource 

Conservation and Recovery (“ORCR”) jurisdiction. These ponds are often very small 

(approximately one or two acres) and have typically very low elevations or are below grade. 

Even in the unlikely event of a catastrophic failure, these ponds present little or no risk of 

causing significant environmental or human health damage. Thus, these impoundments pose 

significantly lower risks than the bulk of impoundments subject to ORCR jurisdiction.

We Energies believes a common-sense approach should be used to determine which CCR 

surface impoundments are subject to BMPs. It would be prudent to assess all clearly defined 

CCR disposal surface impoundments in terms of hazard potential (as per The Hazard Potential 

Classification System for Dams – high hazard, significant hazard, low hazard, and less than low 

hazard). Based on such an assessment, CCR surface impoundments meeting high and significant 

hazard definitions should be monitored in terms of structural integrity more frequently than low 

and less than low hazard CCR impoundments. Under the FEMA dam safety classification 

system, a “low hazard potential classification” means that failure or mis-operation of the 

impoundment “results in no probable loss of human life and low economic and/or environmental 

losses. Losses are principally limited to owner’s property.” See “Federal Guidelines for Dam 

Safety: Hazard Potential Classification for Dams,” Federal Emergency Management Agency 

(“FEMA”) (reprinted Jan. 2004) at 5. Thus, small, below grade wastewater treatment settling 

ponds, which would ideally be exempt and most likely characterized as less than low hazard, 

would not be subject to the overly stringent BMPs.

CCR impoundment structural integrity and monitoring BMPs should be tailored to apply only to 

those structures that pose a potential threat to human health and the environment. We Energies 

urges EPA to consider requiring BMPs for surface impoundments based on hazard potential 

rather than requiring BMPs for all surface impoundments regardless of height and storage 

volume.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-512

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 92

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The scope of applicable surface impoundments subject to BMPs should be limited to only those 

impoundments directly receiving bulk coal combustion residuals.

 Surface impoundments which incidentally receive small quantities of CCRs (e.g., storm 

water retention ponds, impoundments receiving equipment or facility wash-down water) 

should be excluded.

 The scope of applicable CCR surface impoundments subject to the BMPs should 

explicitly exempt facilities operating a dry fly ash handling system, not directly sluicing 

wet bottom ash to the impoundment, and meeting applicable state requirements for 

engineered liners designed to protect ground water quality.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Bruce W. Ramme

Commenter Affiliation: We Energies

Document Control Number: EPA-HQ-OW-2009-0819-4475-A1

Comment Excerpt Number: 93
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-513

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Instead of requiring BMPs for all CCR surface impoundments regardless of height and storage 

volume, BMPs should be required for surface impoundments based on hazard potential.

 Small, below grade wastewater treatment settling ponds do not pose the same risk as the 

impoundments used for disposing CCRs subject to the EPA Office of Resource 

Conservation and Recovery jurisdiction.

 BMPs should be tailored to apply only to those structures that pose a potential threat to 

human health and the environment.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordination of the ELG and CCR Rules

Santee Cooper agrees with EPA's desire to avoid conflicts between the ELG rulemaking and the 

CCR rulemaking. Of particular note, both the proposed CCR and these proposed regulations will 

regulate surface impoundments. This of course will lead to conflicting and overlapping 

regulations,and will likely have unintended consequences.

In this proposal, EPA recognizes that certain "legacy" CCR transport waters will continue to be 

managed in impoundments, subject to present BPT limits.30 EPA acknowledges that 

impoundments may be necessary to treat both "legacy" wastes already in the impoundments, and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-514

to treat other waste streams (like combustion residual leachate or low volume waste) that will not 

require dry handling.

This requires crafting the CCR rule so as not to require utilities to begin closing ponds within 30 

days of last receiving CCRs31 and not to require dredging and lining them within five years. 

Promulgating the "Subtitle D Prime" option in the CCR rulemaking is necessary to accomplish 

this.

The ELGs must be coordinated with the CCR rule because both involve the same waste streams 

(fly ash, bottom ash, and FGD wastes) . Coordinated requirements are essential to assure 

compliance in the most efficient and cost-effective manner. Only after both rules are finalized 

can a utility determine and begin to plan what plant changes are needed to comply with both 

rules. Careful coordination of the various implementation dates of both regulations will be 

crucial.

One suggestion that would help with the coordination concerns would involve separating the 

scope of the two regulations. Regulating disposal under the CCR rule and limiting the ELGs to 

treatment of the waste streams, which would include the regulation of surface impoundments, 

would leave only the timing issues to be coordinated.

30 78 FR 34461-62.

31 75 FR 35252.

Comment Response: 

See DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 and EPA-HQ-OW-2009-

0819-4305-A3, Excerpt Number 128 regarding the coordination and timing between the ELG 

and the final CCR rule.

Commenter Name: Jay Hudson

Commenter Affiliation: Santee Cooper

Document Control Number: EPA-HQ-OW-2009-0819-4476-A1

Comment Excerpt Number: 27

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices (BMPs) for CCR Surface Impoundments

EPA proposes BMPs to prevent catastrophic failures of impoundments of coal combustion 

residuals. This issue is also being addressed by the Coal Combustion Residual (CCR) rulemaking 

under the Resource Conservation and Recovery Act (RCRA). Regulating the same thing under 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-515

the ELG rules could duplicate or even conflict with the CCR rule. Santee Cooper agrees with 

EPA's goal to avoid conflicts between the ELG and the CCR rulemaking.

EPA proposes BMPs for CCR Surface Impoundments for plant operators to conduct periodic 

inspections of active and inactive surface impoundments. In general periodic inspections are a 

well-established dam safety practice and important to assess the condition and safety of the 

impoundments being inspected. However, in proposing weekly inspections for all impoundments 

EPA fails to adopt the sound inspection practices of the dam safety industry. The frequency of a 

routine periodic inspection should be specific to the impoundment, for instance, MSHA 

guidelines for high hazard impoundments require quarterly inspections; significant hazard 

impoundments associated with surface mines require an inspection once every six 

months. Inactive impoundments could be inspected less frequently.

EPA proposes annual certifications by an independent registered professional engineer that all 

construction, operation, and maintenance of impoundments is in accordance with an approved 

plan. This frequency is unnecessarily in excess of standard industry practices which require a 

quinquennial (5-year) inspection by an independent licensed professional engineer that has at 

least 10 years of experience and expertise in dam design and construction and in the 

investigation of the safety of existing dams. These inspections are required for dams more than 

10 meters high, dams which impound more than 2,000 acre-feet, or which have a high hazard 

potential.

EPA sponsored an intensive nationwide inspection program following the 2008 TVA 

impoundment failure. EPA's letter to utilities dated August 18, 2013 acknowledges they have 

ceased active involvement in integrity inspections and have rightly turned over responsibility for 

the impoundment safety program to the states. Based upon a review the inspection reports, the 

deference is likely due to the fact that the risk for a structural failure is low.

EPA also proposes emergency response plans as a BMP for all surface impoundments. In the 

dam safety industry, Emergency Action Plans (EAPs) are required for dams with a high hazard 

rating, i.e. where a failure could cause a loss of life. An EAP is an extensive and well 

documented plan used to activate the public safety agencies responsible for public safety. 

Requiring an EAP for every single impoundment would degrade the fundamental importance of 

this process as it is used for high hazard facilities.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-516

Commenter Name: Vicki Card

Commenter Affiliation: Colorado Springs Utilities

Document Control Number: EPA-HQ-OW-2009-0819-4483-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

OVERLAP WITH EXISTING SOLID WASTE AND DAM REGULATIONS

The EPA states in the discussion of the Proposed Rule (pages 34466 and 34467) that the EPA is 

considering establishing best management practices (BMP) requirements for waste 

impoundments in the final ELG rule using CWA authority. These requirements, however, are not 

included in the proposed rule itself. If EPA desires to include impoundment BMPs in the final 

ELG rule, the proposed rule should be revised to include such BMPs and be re-opened for public 

comment.

Colorado Springs Utilities is of the opinion however, that it is unnecessary for EPA to establish 

BMPs for solid waste impoundments containing coal combustion residuals under the proposed 

ELG rule. Other states, in addition to Colorado already have adequate regulations in place for 

these impoundments under their solid waste and dam safety programs. The Colorado Department 

of Public Health and Environment’s solid waste regulations, for example, contain requirements 

for impoundment construction, operations, maintenance, inspections, and environmental 

monitoring that provide for adequate protection of human health and the environment2. The 

Colorado Department of Natural Resources’ - Dam Safety Branch of the Office of the State 

Engineer within the Division of Water Resources - regulates and conducts periodic inspections 

of dams associated with impoundments to assess structural integrity3. Imposing additional 

requirements on solid waste impoundments under the ELG rule would create a situation where 

the impoundment is being regulated under the RCRA, Dam Safety and Clean Water Act 

programs. Triple-regulation of these impoundments by the dam, waste, and water programs 

would create unnecessary duplication of requirements and create confusion over conflicting or 

differing requirements.

The EPA stated in their 1995 Interpretation of the Industrial Wastewater Discharge Exclusion 

from the Definition of Solid Waste4that wastewater in storage in an impoundment before 

discharge to surface water or to a POTW is considered to be solid waste subject to RCRA 

requirements. The discharge itself is subject to the Clean Water Act – but not to RCRA. Leaving 

the regulation of waste impoundments to the RCRA program would be consistent with this 

interpretation.

2Colorado Department of Public Health and Environment, 2013. Regulations Pertaining to Solid 

Waste Sites and Facilities 6 CCR 1007-2, Part 1. Effective 04/14/2013.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-517

3State of Colorado Dept. of Natural Resources Division of Water Resources Office of the State 

Engineer Dam Safety Branch, 2007. Rules and Regulations for Dam Safety and Dam 

Construction. 2-CCR-402-1 Effective January 1, 2007.

4U.S. EPA, 1995. Memo from Michael Shapiro/Director Office of Solid Waste to Waste 

Management Division Directors. Subject: Interpretation of Industrial Wastewater 

Discharge Exclusion from the Definition of Solid Waste. February 17, 1995.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

ELG and CCR Rules, Complementary Regulation. MP also supports EPA’s intention to 

develop the final ELG rule and the pending CCR rules so they complement one- another and 

enhance the efficiency of the final regulations (FR page 34441).

For example:

1. The ELG and CCR final rules should be consistent, allowing for the ongoing use of 

impoundments for bottom ash management under either the BPT outcome or the closed 

loop outcome of the proposed ELG regulation.

2. The ELG and CCR rules should be consistent, allowing for the ongoing use of 

impoundments for FGD wastewaters under any proposed ELG outcome.

3. The ELG and CCR rules should be consistent by affirming permit writer discretion for 

imposing complimentary and site condition appropriate effective dates for regulation as 

well as the timing and closure requirements for impoundments.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination of the requirements of the two 

rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-518

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, MP advocates that the final ELG and CCR regulations provide the permit writer with 

authority to designate consistent and compatible requirements for the installation of leachate 

collection systems.

Comment Response: 

The final ELGs do not control installation of leachate collection systems. The final ELGs 

establish pollutant discharge restrictions from discharges of leachate to waters of the U.S. As 

such, this comment is outside the scope of the ELG rulemaking. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of the coordination of the 

requirements of the two rules. 

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Impoundment inspection and maintenance. EPA notes that Best Management Practices 

(BMPs) for impoundment inspections and maintenance may be included in the final ELG (FR 

page 34466). MP opposes the inclusion of BMPs in the final ELG, since Minnesota state 

regulations already administer a number of programs which ensure impoundment structural 

integrity.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-519

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

MP also comments that the permit writer should be authorized to provide for flexibility for 

complementary/reinforcing timing of impoundment closure under the ELG regulations and 

prospective impoundment closure under the final CCR regulation.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 regarding EPA’s 

coordination of implementation timing in the ELG and the CCR final rule.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (MP)

Document Control Number: EPA-HQ-OW-2009-0819-4484-A1

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Legacy wastewater. Minnesota Power supports USWAGs work which discusses the need to 

harmonize the proposed ELG and CCR rules given impoundment requirements and future uses, 

especially for legacy wastewaters.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts including legacy wastewaters.

Commenter Name: Joseph G. Eutizi

Commenter Affiliation: San Miguel Electric Cooperative, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4485-A1

Comment Excerpt Number: 3
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-520

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Coordinating CCR & ELG and Timing

San Miguel supports the efforts of the EPA in coordinating the design, compliance and 

implementation deadlines for two rulemakings - Disposal of Coal Combustion Residuals from 

Electric Utilities rules (CCR) and the Effluent Limitations Guidelines and Standards for the 

Steam Electric Generating Point Source (ELG) - assuming the time frame allowed for 

compliance/implementation provides the needed time for generating entities to design and 

construct the needed additions/modifications.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts 

and timing of the ELG and CCR final rules.

Commenter Name: Joseph G. Eutizi

Commenter Affiliation: San Miguel Electric Cooperative, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4485-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs for CCR Surface Impoundments

Structural integrity of surface impoundments is being addressed in the CCR rulemaking. 

Additional rulemaking under ELG could be duplicative or in conflict with the CCR 

rulemaking. In order to avoid conflicts San Miguel urges EPA to allow the rulemaking 

concerning surface impoundments to be handled under the CCR rulemaking.

As stated above, San Miguel’s facility includes a lignite mine that provides 100% of the primary 

fuel for the generating unit. In our mine there are several surface impoundments that are 

regulated by MSHA, so we are familiar with the MSHA regulations 

on impoundments. If EPA decides to include BMPs for CCR surface impoundments in the ELG f

inal rule, San Miguel suggests the following changes to the BMP’s outlined in the proposed rule:

1. The proposed rule states, “Inspections be conducted every seven days by a person 

qualified ....”. This language should be modified to conform to the MSHA rules that 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-521

require the seven day inspection by a qualified person for the first year of operation, and 

after the first year of operation on a once per month basis.

2. BMPs proposed under the ELG rule would apply to all CCR impoundments regardless of 

storage volume or dam height at a steam electric generating facility. San Miguel suggests 

that MSHA’s impoundment size should be followed for CCR impoundments at a steam 

electric generating facility.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CCR and Surface Impoundment Management Requirements

It is difficult to make detailed comments on CCR and surface impoundment management 

requirements in this proposed regulation because they largely reference the proposed CCR 

regulation that awaits finalization. It is difficult to comment on the coordination and 

interdependency of this portion of 40 CFR Part 423 requirements if CCR regulations are not 

finalized for reference. CIBO members are concerned about the possibility of being covered 

under all of 40 CR Part 423 if a facility would otherwise only have operations subject to the CCR 

requirements in proposed Part 423.

Our review of the proposed CCR and surface impoundment management provisions suggests 

that the regulation does not account for the significant role that surface impoundments have at a 

power plant. Their functionality is not limited to managing coal ash. Surface impoundments are 

used to manage flows of other wastewater streams and to provide mutual treatment benefits that 

can come from mixing (i.e., comingling), such as thermal treatment and pH adjustment. They 

are also critical for providing water balance for a utility. Furthermore, many power plants that 

operate ZLD systems use surface impoundments to manage water flows into and out of the steam 

generation system.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-522

Water and wastewater flows that can be managed by surface water impoundments include plant 

washwaters, bottom ash sluicing, stormwater, water treatment system rejects, leachate, FGD 

blowdown, cooling tower blowdown, boiler blowdown, non-chemical metal cleaning 

wastewaters, and chemical metal cleaning wastewaters. Multiple surface impoundments are 

often used to manage these flows and control stormwater run-off from coal piles on other parts of 

the plants. These ponds are often utilized as make-up water for various plant processes. EPA has 

not made clear its intentions regarding impoundments that handle or manage some CCR 

wastewater, in spite of the multiple significant regulatory concerns that naturally arise under 

those circumstances.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. In developing the final ELGs, 

EPA recognizes that plants currently use surface impoundments to manage various wastewaters 

and that they often commingle these wastestreams. The ELG establishes more restrictive 

discharge requirements for pollutants in certain wastestreams some of which have been 

historically managed in surface impoundments. There are other wastestreams such as low 

volume wastes that have also historically been managed in surface impoundments for which 

EPA did not establish new, more restrictive requirements in the final ELGs. 

Commenter Name: Lisa M. Jaeger

Commenter Affiliation: Council of Industrial Boiler Owners (CIBO)

Document Control Number: EPA-HQ-OW-2009-0819-4486-A2

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Do not regulate surface impoundments and CCR management until the CCR rule is promulgated.

Comment Response: 

The final ELGs do not regulate surface impoundments but rather the discharges of pollutants in 

certain wastestreams (some of which are historically managed in surface impoundments). See 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 5
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-523

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Also, EPA should not set best-management practice (BMP) requirements for coal-combustion 

residual impoundments, which are separately regulated.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 29

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, EPA should leave regulation of surface impoundments to the CCR rule. At a 

minimum, EPA must sufficiently describe and provide an opportunity for meaningful comment 

on any BMPs for surface impoundment requirements, as well as sufficiently consider landfill 

construction implications of the proposed limits.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

With respect to the comment on landfill construction, EPA has considered the costs of disposal 

and availability of disposal of material that is dry handled, not reused and that will be 

disposed. See the preamble to the final rule, the TDD (DCN SE05904), and the RIA(DCN 

SE05976). See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 

119. Also see response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 11.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 58
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-524

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EEI believes that any changes in the combustion residual leachate category contrary to EPA’s 

proposed options and these clarifications will not help the environment. Moreover, regulating 

leachate from CCR impoundments under the ELG rules threatens to duplicate or conflict with 

regulatory requirements that will be set under the coming CCR rule.

Comment Response: 

See the preamble to the final rule and response to DCN EPA-HQ-OW-2009-0819-4460-A1, 

Excerpt Number 72.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 87

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed BMP Requirements

EPA is considering requiring best management practices (BMPs) for surface impoundments that 

receive coal combustion residuals. The BMPs would require inspections every seven days, plans 

for designing, constructing, and maintaining existing impoundments, plans for closure, periodic 

inspections, and annual certification that the construction, operation, and maintenance follow the 

approved plan. When stability and safety issues are identified, corrective action would be 

required.

EPA’s BMPs proposal is insufficiently described to allow for meaningful comment at this stage 

and reflects additional flawed assumptions, already pervasive throughout this proposed 

rulemaking, as well as again insufficient necessary underlying data and analysis (e.g., of 

associated costs). Also, such BMPs are likely to duplicate and potentially conflict with existing 

federal and state regulation of such impoundments. EPA should examine the need for the BMPs, 

and whether they are appropriate to set under the CWA, if the agency does intend to pursue the 

concept.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-525

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 89

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Proposed BMPs are Inappropriate in Concept and Require Cumulative Impacts 

Coordination.

Despite the impossibility of commenting on BMPs that have not been disclosed, EEI 

incorporates by reference UWAG Comments on the conceptual ash pond BMPs as EPA has 

described them in its proposal. As demonstrated in the UWAG comments, and as shown by the 

record in the CCR rulemaking, the proposed BMPs are unnecessary. The proposed CWA BMPs 

also may duplicate or conflict with the proposed CCR Rule, as well as some state 

requirements. EPA should leave regulation of surface impoundments to the proposed CCR rule.

The steam electric industry faces major regulatory challenges from multiple air regulations, the 

proposed CCR Rule, and the 316(b) intake structure rule. EPA needs to evaluate the cumulative 

impact of these regulations as part of its assessment of this proposed rule. OMB guidance and 

Executive Order 13563 require EPA to consider the cumulative effects of regulations and seek to 

reduce overlapping and inconsistent requirements. In particular, EPA’s proposal of BMPs for 

CCR impoundments demonstrates how important it is for EPA to coordinate the CCR 

rulemaking under the Resource Conservation and Recovery Act (RCRA) and the ELG 

rulemaking under the CWA so as to avoid wasteful duplication of effort and conflicts between 

the two rules.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

EPA has considered the cumulative impacts of the rule. See the preamble, the TDD and the 

Economic Analysis for the rule and response to DCN EPA-HQ-OW-2009-0819-4379-A1, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-526

Excerpt Number 119. Also, see the RIA, the preamble, and other responses to comment code 27 

regarding EPA’s evaluation of the cumulative effect of regulations on the electric power sector. 

Commenter Name: Quinlan J. Shea III

Commenter Affiliation: Edison Electric Institute (EEI)

Document Control Number: EPA-HQ-OW-2009-0819-4487-A1

Comment Excerpt Number: 122

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, EPA should leave structural regulation of surface impoundments to the CCR 

rule. At a minimum, EPA must sufficiently describe and provide a meaningful opportunity for 

comment on any BMPs for surface impoundment requirements, as well as sufficiently consider 

landfill construction implications of the proposed steam electric ELG limits.

Comment Response: 

See response to DCN-EPA-HQ-OW-2009-0819-4487-A1, Excerpt Number 29.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. Conversion to Closed-Loop Systems is Premature in Light of the Proposed Coal 

Combustion Residuals (“CCR”) Rule

If EPA mandates the use of closed-loop, bottom ash handling technologies, the determination of 

which technology is best suited for a particular plant will depend on whether EPA’s finalized ash 

pond regulations prohibit or significantly limit the continued operation of ash ponds for their 

current uses. If they do, some ash ponds would provide natural, cost- effective locations for 

dewatering equipment and other structures associated with certain closed- loop, bottom ash 

handling technologies. Therefore, until the CCR rule is finalized, a cost/benefit analysis to 

determine which closed-loop system is most appropriate for a particular plant will be premature. 

EPA should not mandate closed-loop bottom ash handling until the CCR rulemaking is complete.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-527

Comment Response: 

EPA finalized the CCR rule in advance of the final ELG in December 2014. The final ELGs are 

not in conflict with the final CCR rule. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119, DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 and 

DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 59.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Alabama Power also urges EPA to avoid regulating landfill leachate under these ELG rules in a 

manner that will likely conflict or overlap with the pending CCR Rule, as drafted by EPA 

pursuant to RCRA.

Comment Response:

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 72.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 30

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

E. Regulating Landfill Leachate Under Part 423 Will Conflict or Overlap with the Coal 

Combustion Residuals Rule

While contaminated leachate collected on a site for treatment or disposal at ash ponds should be 

considered a low volume waste, EPA appears certain to regulate such collection systems as 

landfills pursuant to the upcoming CCR rule. See 75 Fed. Reg. 35,239 (June 21, 2010). Alabama 

Power believes that the agency should avoid the possibility of duplicative or inconsistent 

regulation and leave the regulation of this waste stream for that rulemaking.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-528

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 72. 

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 56

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VIII. Best Management Practices for Ash Ponds

The Proposed Rule includes an EPA proposal to establish best management practices (“BMPs”) 

for surface impoundments that receive coal combustion residuals through the NPDES program. 

EPA contends that such BMPs are necessary to prevent catastrophic releases similar to those at 

Martins Creek, Pennsylvania, and Kingston, Tennessee. The proposed BMPs would specifically 

regulate the construction, operation, and maintenance of surface impoundments— both active 

and inactive—to minimize the risk of uncontrolled discharges by requiring plant operators to 

conduct periodic inspections and take timely corrective actions where warranted. The proposal 

mandates inspections every seven days, conducted by a person qualified to recognize specific 

signs of structural instability and other hazardous conditions by visual observation and, if 

applicable, to monitor instrumentation such as piezometers. If potentially hazardous conditions 

develop, the proposal requires the owner or operator of the facility to: (1) take action 

immediately to eliminate the potentially hazardous condition; (2) notify the Regional 

Administrator or the authorized State Director; (3) notify and prepare to evacuate, if necessary, 

all personnel from the property that may be affected by the potentially hazardous condition(s); 

and (4) notify state and local emergency response personnel if conditions warrant so that people 

living in the area down gradient from the surface impoundment can evacuate.

EPA is also considering BMPs that would address the integrity of surface impoundments. These 

would be modeled after BMPs applicable to coal slurry impoundments regulated by the Mine 

Safety and Health Administration (“MSHA”). They would require facilities using CCR 

impoundments to: (1) submit to EPA or the applicable state authority plans for the design, 

construction, and maintenance of existing impoundments; (2) submit plans for closure to the 

appropriate authority; (3) conduct periodic inspections by trained personnel who are 

knowledgeable in impoundment design and safety; and (4) provide an annual certification by an 

independent registered professional engineer that all construction, operation, and maintenance of 

impoundments is in accordance with the approved plan. Further, the proposed BMPs would 

require owners and operators to address any problematic stability and safety issues in a timely 

manner. While the BMPs under consideration for CCR impoundments at power plants would 

apply to all structures regardless of height and storage volume, EPA is contemplating possible 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-529

variations on the BMPs based on distinctive criteria that reasonably permit such differentiations, 

including but not limited to different inspection frequencies or limitations on the applicability of 

BMPs.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs.. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 57

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

As legal authority for implementing this regulatory initiative at new sources and existing sources, 

EPA cites Sections 306 and 304(e) of the CWA (respectively), as well as CWA Section 

402(a)(2) and 40 C.F.R. §§ 122.44(k) and 122.41(e). Notably, CWA Section 304(e) provides that 

EPA may publish BMP regulations for any specific toxic or hazardous pollutant to control 

runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage if they 

may contribute significant amounts of such pollutants to navigable waters. It is questionable 

whether surface impoundment dam safety standards fall within the aforementioned sources of 

authority. Structural failures of surface impoundments would not be akin to “runoff,” “spillage,” 

or “leaks,” as described in Section 304. Moreover, standards of this kind clearly do not amount 

to any sort of measurable “effluent reduction” within the scope of Section 306.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-530

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 58

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

A. EPA Must Issue the Proposed BMP Requirements for Public Notice and Comment

Before promulgating specific BMPs as mandatory regulatory requirements applicable to steam 

electric power generating facilities, EPA must publish the explicit BMP language it is proposing. 

Thus far, EPA has included only abstract ideas and/or contemplated generalities about the BMPs 

it is considering. As such, the regulated community cannot fully evaluate, and effectively 

comment on, these standards. Therefore, EPA’s proposal is insufficient.

Additionally, EPA must promulgate the proposed BMP language in order to demonstrate 

compliance with the mandatory factors that the agency must take into account in making BPT or 

BAT limitations, pretreatment standards, or NSPSs. One such factor is the cost of achieving the 

effluent reduction. Currently, the record is devoid of any such cost analysis—both in terms of the 

cost to implement and/or maintain the contemplated BMPs and the monetized benefits expected 

as a result of these BMP requirements.

In short, the dearth of specific information on the precise BMPs contemplated by EPA in the 

Proposed Rule precludes Alabama Power from effectively commenting on EPA’s proposal.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Alabama Power Company

Document Control Number: EPA-HQ-OW-2009-0819-4489-A1

Comment Excerpt Number: 59

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. EPA’s Own Analysis Confirms that BMPs for Surface Impoundments are Not Needed 

and Certainly do Not Need to be Promulgated Under Two Distinct Regulatory 

Rulemakings
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-531

The proposed structural integrity requirements for CCR surface impoundments in EPA’s 2010 

proposed CCR rulemaking are substantially similar. See 75 Fed. Reg. 35,128, 35,175-76, 35,214 

(June 21, 2010); 76 Fed. Reg. 63,252 (Oct. 12, 2011) (NODA). To support these proposed 

standards, EPA released responses to, and its assessment of, a utility survey it conducted 

regarding CCR management and structural integrity of surface impoundments. 76 Fed. Reg. at 

63, 256. Despite EPA’s conclusions, the responses and assessments revealed that the structural 

integrity regulations may not be necessary because these structures do not pose an immediate 

safety threat.

Relying primarily upon comments to EPA’s CCR rule submitted by USWAG, UWAG 

thoroughly evaluates the results of the agency’s utility survey in its comments to the Proposed 

Rule and draws the reasonable conclusion that the promulgation of BMPs is unnecessary as a 

part of this rulemaking. See UWAG Comments at Section XVI, B & E. Alabama Power endorses 

the comments of UWAG and USWAG on this issue. Among other things, UWAG’s comments 

show that EPA’s own experts in the area of dam integrity concluded that none of the 676 surface 

impoundments (or equivalents) were found to pose an immediate safety threat. These same 

contractors also conducted condition assessments at the majority of these structures, similarly 

determining that that none posed immediate safety threats. While a small subset of surface 

impoundments evaluated did receive a “fair” or “poor” rating, further evaluation showed that 

these ratings were primarily assigned due to the lack of availability of detailed design or 

construction data for the structure, or because of fairly minor maintenance or monitoring gaps in 

general operations at the facilities. Moreover, each facility addressed the alleged deficiencies in 

response to EPA and committed to an action plan to timely rectify the deficiencies.

Taken as a whole, this information demonstrates that EPA has not and cannot justify imposing 

additional regulation on CCR surface impoundments under RCRA or the CWA. Further, even if 

BMPs were justified, there is no benefit or rational basis for imposing these regulations twice—

under separate and distinct regulatory rulemakings. Doing so could result in the promulgation of 

conflicting or inconsistent BMPs that leave regulated facilities with the potentially impossible 

task of simultaneously complying with both. If EPA ignores the aforementioned data and 

analysis adequately demonstrating that such regulation is unnecessary and erroneously continues 

down this path, it must ensure that the CCR and Proposed Rules are properly coordinated.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-532

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 28

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The final ELG rule should not address seepage or leakage from a surface impoundment to 

groundwater; instead, such issues should be addressed in the CCR rulemaking and by applicable 

state regulation.

Comment Response: 

The final ELG establishes effluent limitations guidelines and standards for pollutant discharges 

to surface waters and has regulated leachate for the reasons specified in the preamble to the final 

rule. Leachate containing a pollutant or any other source discharging a pollutant that goes 

through groundwater with a direct hydrological connection to a surface water is a discharge of a 

pollutant under the Clean Water Act.

Commenter Name: Dean Ellis

Commenter Affiliation: Dynegy Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4491-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

COORDINATION WITH THE CCR PROPOSED RULE

Best Management Practices for CCR Surface Impoundments

EPA is considering establishing in the ELG rule “best management practices” (BMPs) for plant 

operators to conduct periodic inspections of active and inactive CCR surface impoundments and 

to take corrective actions where warranted. As this issue is currently part of EPA’s CCR 

rulemaking under RCRA, attempting to regulate the same issue under the ELG rule would be 

duplicative and inevitably lead to conflict and/or inconsistencies with the ELG rule. Dynegy 

strongly supports EPA’s intent, 78 Fed. Reg. at 34,441, to avoid conflicts and overlap between the ELG rulemaking 

and the CCR rulemaking. Such conflicts and overlap will only increase regulatory complexity, administrative 

burdens and costs -- with no benefit. To that end, Dynegy believes the simplest and best way to ensure avoiding any 

such overlaps and conflicts is for EPA to address BMPs solely in the CCR rulemaking and not in the ELG rule.

Timing of Implementation
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-533

It is critically important for EPA to coordinate the timing and implementation of the final rule 

ELG requirements with the final rule CCR requirements to provide generating plants a 

reasonable and certain timeline for implementation that allows for coordinated planning, as well 

as consideration of potential electric reliability concerns. Given the overlap of the ELG and CCR 

proposed rules in terms of requiring significant environmental compliance investment decisions 

at generating plants and the long lead times involved in implementing such major plant 

modifications, it is imperative that (i) generating plants are not forced to make compliance 

planning decisions based on one rule without understanding the implications of the other rule on 

those decisions, and (ii) adequate time is allowed to make and implement those compliance 

planning decisions.

Dynegy supports USWAG’s comments on the need to harmonize the ELG and CCR proposals, 

as submitted on the limited reopening of the docket in the CCR rulemaking.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the final ELGs and CCR rule.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 34

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Alignment of CCR and ELG rules

The substantive requirements of both the CCR and ELG rules must be coordinated. EPA’s 

evaluation of how to harmonize the substantive requirements in the two rules focuses on 

coordinating requirements for surface impoundments because these units will be regulated under 

both rules.24

24 Id. at 34441.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-534

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 35

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should align the proposed ELG rule with Subtitle D Prime of the proposed CCR rule.

The modeled risks from the CCR assessment are overestimated. EPA acknowledges in the 

proposed ELG25 the preliminary conclusions in the draft CCR rule risk assessment are not 

accurate, based on the more comprehensive surface impoundment management data gathered by 

EPA in the response to the Steam Electric Power Generating Sector Effluent Guidelines 

Information Collection Request. EPA further acknowledges that incorporation of these new data 

into the CCR rule risk assessment model “have the potential to lower the CCR rule risk 

assessment results by as much as an order of magnitude,” and that the revised risks “provide 

strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would 

be adequate.”26 MidAmerican believes modifying the final CCR rule requirements for surface 

impoundments will achieve the EPA’s goal of coordinating “any final RCRA requirements with 

the ELG requirements, to minimize the complexity of these two regulatory structures, and 

facilitate implementation of engineering, financial, and permitting activities,”27 and that EPA 

will find that Subtitle D Prime is the only justifiable option for regulating CCR management 

units.

25 Id. at 34442.

26 Id.

27 Id. at 34441.

Comment Response: 

See response DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of 

the coordination between the two rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-535

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 39

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regulatory requirements of a final CCR rule should take effect after applicable ELG

requirements have been incorporated into revised NDPES permits.

In addition to coordination on substantive issues, EPA requests comment on how best to 

coordinate “the timing and implementation of final rule requirements to provide facilities with 

a reasonable timeline for implementation that allows for coordinated planning and protects 

electricity reliability for consumers.”32

MidAmerican supports a step-wise approach for implementation of the ELG rule and the CCR 

rule. It is absolutely critical that the regulated community know with certainty what the 

regulatory requirements will be under both rules before it invests significant resources to comply 

with either rule and begins to undertake major capital modifications that likely will be required 

to comply with these inter-related regulations. In this respect, MidAmerican agrees with EPA's 

goal of enabling a facility to first determine whether any changes to its operations are needed to 

comply with the ELG – and if so, what those might be – before requiring the facility to decide 

what strategic options to employ with respect to the continued operation of a CCR impoundment 

under the final rule.33 Given this objective, any implementation and corresponding compliance 

obligations for surface impoundment modifications and/or closure under the CCR rule should not 

be triggered until a reasonable time after the applicable ELG requirements are clearly established 

and incorporated into a revised NPDES permit for the facility.

32 78 Fed. Reg. at 34441.

33 Id. at 34442.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules. Comments on the substance of the CCR 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-536

rule are outside the scope of this rulemaking. Also see response DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 119.

Commenter Name: Cathy S. Woollums

Commenter Affiliation: MidAmerican Energy Holdings Company

Document Control Number: EPA-HQ-OW-2009-0819-4495-A1

Comment Excerpt Number: 42

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Surface impoundment structural integrity should not be regulated through Best Management 

Practices in the ELG rule, but rather through requirements in the CCR rule.

EPA requests comments on the concept of establishing best management practices (“BMPs”) 

related to surface impoundment structural integrity that would be incorporated into NPDES 

permits. In the proposed ELGs, EPA generally explained that the BMPs would serve two 

functions: 1) permittees would be required to conduct weekly inspections of their surface 

impoundments to identify any signs of structural instability or other hazardous condition; and 

2) a set of mandatory structural integrity BMPs would be implemented based on Mine Safety and 

Health Administration (“MSHA”) coal slurry impoundment regulations.37

MidAmerican agrees that surface impoundment inspections modeled after MSHA are a good 

starting point for developing comparable standards for CCR impoundments, and has taken steps 

outside of any regulatory requirement to verify the integrity and safety of its CCR 

impoundments. However, MidAmerican believes the implementation of BMPs through the ELG 

rule is not the appropriate regulatory vehicle for the oversight of CCR impoundments. Surface 

impoundment structural integrity standards should be developed as part of a single 

comprehensive regulatory program under RCRA as in the proposed CCR rulemaking, rather than 

through conditions in NPDES permits.

EPA states that “[t]he BMPs under consideration in this rulemaking are similar to the structural 

integrity inspection and corrective action requirements proposed in the CCR rulemaking, but do 

not include closure requirements that were proposed as part of the CCR rulemaking.”38 The 

inclusion of BMPs for CCR impoundments in the proposed ELG rule and the forthcoming CCR 

rule presents an unnecessarily confusing regulatory framework for facilities affected by these 

rules. It is unclear whether EPA views the BMPs in the proposed ELG rule to be a substitute for 

similar provisions in the pending CCR rule or whether the BMPs will be imposed concurrently 

with overlapping provisions in the CCR rule. Neither situation is ideal

The proposed BMPs should not be included in the final ELG rule because they are redundant to 

structural integrity requirements in the proposed CCR rule. MidAmerican is concerned that 

having overlapping regulatory schemes overseen by potentially different agencies will present an 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-537

unnecessary source of potential conflict and confusion. EPA should remove any surface 

impoundment structural integrity BMPs from its ELG rule. Structural integrity requirements for 

surface impoundments should be implemented through the RCRA Subtitle D Prime rule.

37 Mine Safety and Health Administration coal slurry impoundment structural integrity 

requirements can be found at 30 CFR §77.216.

38 78 Fed. Reg. at 34436.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Appalachian Voices

Commenter Affiliation: Appalachian Voices

Document Control Number: EPA-HQ-OW-2009-0819-4501-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Similarly, the BMPs proposed by EPA are better than nothing but do not address the basic reality 

that unpermitted seepage into surface water and leaching into groundwater are inevitable results 

of storing massive amounts of contaminants in earthen impoundments that, in most cases, are 

inadequately lined or entirely unlined. Eventual closure of all CCW impoundments is a practical 

necessity to achieve EPA's stated goal to "adequately address the toxic pollutants discharged 

from the electric power industry."

Comment Response: 

The final ELG establishes effluent limitations guidelines and standards for pollutant discharges 

to surface waters. See response DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 

119. The final rule regulates leachate for the reasons discussed in the preamble. Any discharge 

from a point source through groundwater with a direct hydrological connection is a discharge of 

a pollutant under the CWA.

While the CCR rule is the major controlling action for pollutant releases to ground water, by 

either requiring the closure of unlined CCR impoundments, or their retrofitting, the ELGs could 

indirectly result in reduced impacts to ground water as well. EPA estimates that the ELG will 

result in reduced pollutant loadings to surface impoundments (for example, through the 

conversion to dry handling for fly ash). These reduced loadings will decrease the potential 

leaching of pollutants from CCR surface impoundments to ground water and will reduce the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-538

potential human health impacts associated with exposure to contaminated drinking water 

wells. See the benefits analysis for the final rule.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Stephen M. Frank

Commenter Affiliation: NRG Energy, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4510-A2

Comment Excerpt Number: 41

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

BMPs for CCR Surface Impoundments

EPA is considering establishing BMPs for plant operators to periodically inspect active and 

inactive surface impoundments and to take corrective actions where warranted. EPA is also 

considering requirements to address impoundment construction, operation, and maintenance. 

NRG requests that EPA provide greater detail about what the BMPs would entail because this 

proposed ELG does not provide sufficient detail to provide specific comments.

NRG believes that these requirements are unnecessary and duplicate existing state requirements. 

EPA should consider that many states already have regulations requiring these same activities. 

For example, in Pennsylvania larger impoundments must comply with 25 Pa Code Chapter 105 

(Dam Safety and Waterways Management) and 25 Pa Code Chapters 287 (Residual Waste 

Management); 289 (Residual Waste Disposal Impoundments; 290 (Beneficial Use of Coal Ash); 

and 299 (Storage and Transportation of Residual Waste). These existing rules are already 

protective of human health and the environment.

In addition, these standards should be developed as part of a single, comprehensive regulatory 

program under RCRA as proposed in the CCR rulemaking rather than through conditions in 

NPDES permits. It is unclear why EPA would propose to regulate a class of solid waste 

management units under its CWA authority through NPDES permits when clear regulatory 

authority (not to mention a pending CCR Proposal) exists under RCRA for taking similar action. 

The inclusion of BMPs in NPDES permits is a limited and awkward vehicle for regulating the 

structural integrity of surface impoundments. Regulating the structural integrity of CCR surface 

impoundments under RCRA is clearly the better option because it would allow all CCR 

impoundment design, operation, monitoring, structural integrity, and closure requirements to be 

covered by the same program. Regulated industry will benefit from the simplicity and certainty 

of having all surface impoundment monitoring and structural integrity regulations fall within one 

comprehensive regulatory program. Accordingly, we request that the proposed BMPs not be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-539

included in the final ELG rule. However, if included in the final ELGs, the requirements should 

be based on the capacity of the impoundment and potential risk to human health and the 

environment.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final. See response to DCN 

EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Josie Gaskey

Commenter Affiliation: Pennsylvania Coal Association (PCA)

Document Control Number: EPA-HQ-OW-2009-0819-4515-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA should ensure that the provisions of this proposed rulemaking do not conflict with or 

contradict EPA’s active rulemaking on coal combustion residuals (CCRs) under EPA’s 

RCRA docket. (See Docket No. EPA-HQ-RCRA-2012-0028 for comments submitted by PCA 

as well as the National Mining Association. See also Docket No. EPA-HQ-RCRA-2009-0640 for 

our original comments regarding regulation of CCRs.) It appears that both EPA-HQ-OW-2009-

0819 and EPA-HQ-RCRA-2012-0028 attempt to manage CCRs in surface impoundments. 

Conflicting and or contradicting regulations will cause confusion and time delays in 

implementation of final rules.

Comment Response: 

The final ELGs do not manage CCRs in surface impoundments. Rather, they establish 

restrictions on pollutant discharges in wastestreams that are discharged to surface waters. See 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 4
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-540

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed surface impoundment inspection program is redundant with practices that are 

already in place.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The proposed surface impoundment inspection program is redundant with practices that are 

already in place.

As a result of the TVA Kingston plant ash release, EPA performed inspections of coal 

combustion surface impoundment (pond) systems across the United States. In response to this, 

EPA required facilities to develop pond inspection programs. As part of such programs, facilities 

are required to perform inspections and complete corrective actions to ensure the integrity of the 

pond system. Alliant Energy has developed and implemented an internal operational and 

maintenance (O&M) program that incorporates applicable sections of Federal Emergency 

Management Agency (FEMA), U.S. Army Corps of Engineers (USCOE) , Mine Safety and 

Health Administration (MSHA) , and appropriate State Agency guidance. This O&M program 

has been in place for several years at Alliant Energy and is an effective tool to ensure continued 

safe operations at Alliant Energy's surface impoundments. Alliant Energy questions the need for 

additional, redundant inspection programs. Moreover, a similar inspection program was included 

in EPA's proposed Coal Combustion Residual (CCR) rule. Alliant Energy requests that EPA 

fully evaluate the current pond inspection program requirements as it believes that these 

practices sufficiently address the need to ensure pond system integrity. However, if EPA feels 

that additional requirements are warranted, Alliant Energy requests that EPA develop one 

inspection program - either in the ELG rule or CCR rule.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-541

EPA is not establishing BMPs for CCR impoundments under the final. See response to DCN 

EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Steve Jackson

Commenter Affiliation: Alliant Energy Corporate Services, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4516-A2

Comment Excerpt Number: 19

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Moreover, there is a linkage with every new environmental requirement. This is not to say that 

utilities cannot adapt and be responsive. On the contrary, utilities face these challenges and find 

effective and efficient solutions to ensure the best cost to their customer while continuing to 

provide reliable service. In this case, the proposed ELG rule is inextricably linked to the 

proposed CCR rule. EPA must ensure that the timing of one rule does not result in stranded 

assets or force a utility to re-work one solution, incurring unnecessary expense to comply with 

another rule down the road. For example, a facility that is less than or equal to 400 MW may redesign its bottom ash transport system pond to comply with the ELG requirement's July 1, 2017 

compliance date and then be forced to close the pond a few years later because of the CCR rule 

requirements. Alliant Energy requests that EPA fully examine the scenarios which may arise 

through separate but linked rule changes, capturing or excluding this information in the ELG cost 

and impact analysis.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: Dennis Leonard

Commenter Affiliation: DTE Energy Company

Document Control Number: EPA-HQ-OW-2009-0819-4517-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-542

Comment Excerpt: 

The cumulative impact of the final ELG and RCRA rulemakings could be enormous and 

unjustified. DTE urges EPA to coordinate these two rulemakings and to focus on practical 

technologies and relevant pollution problems.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. Coordination of the ELG and CCR rules.

OPPD supports the close coordination of the ELG and Coal Combustion Rule (CCR) rules 

because both rules regulate the same waste streams. While OPPD does not prefer the pending 

CCR rulemaking over the recently House-passed coal ash legislation, the two issues must be 

dealt with in concert to avoid overlapping regulations. The CCR rule was proposed in 2010 and 

has not yet been finalized. Both the ELG and CCR rules have been in development for a number 

of years and regulate the same or similar processes at affected facilities. EPA has stated that it 

would provide the requirements of both programs to facilities before they make compliance 

decisions. It is very important that EPA move forward with this approach, as changes to 

facilitate compliance should be undertaken in a holistic manner at each source, and will require 

significant economic decisions.

In addition, it is crucial that EPA allow for coordination of both the substantive requirements and 

the compliance deadlines of the ELG and CCR rules in order to assist facilities in reaching 

compliance in the most cost and time effective manner possible. Affected facilities will be faced 

with important economic decisions regarding the method of compliance and must be able to 

make such decisions with full information of the regulations that will affect them. For example, 

determining whether to close or retrofit a surface impoundment will have serious operational and 

financial repercussions for a facility. Full information regarding all regulations must be available 

before such a decision is made.

In order to have all such information available, EPA may be required to delay compliance with 

the ELG rule if the CCR rule is not issued in a timely manner. EPA noted in the proposed ELG 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-543

rule that it received significant new data regarding CCR from the 2010 ICR, and that this 

information may lower the risk assessment for the CCR rule. Because the Agency needs to 

assess this new information, the timing may be delayed. If that is the case, EPA should 

refrain from enforcing the ELG rule until such time as both rules are ready, as coordination of 

the rules is a paramount issue for many regulated facilities.

Comment Response: 

EPA disagrees with the commenter's contention that both the CCR and ELG rules “regulate the 

same waste streams”. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 119 for a discussion of EPA’s coordination efforts. See response to DCN EPA-HQ-OW2009-0819-4305-A3, Excerpt Number 128 for a discussion of the timing between the ELG and 

CCR final rules.

Commenter Name: Patrick Finigan

Commenter Affiliation: Omaha Public Power District (OPPD)

Document Control Number: EPA-HQ-OW-2009-0819-4529-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must uphold its commitment to coordinate the ELG and CCR rules in order to allow 

regulated sources to make compliance decisions based on complete information.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, 

Excerpt Number 128 for a discussion of the timing of the ELG and CCR final rules.

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-544

Treatment of Fly Ash intersects with residual waste handling requirements for Coal Combustion 

Residuals (CCR) under the Resource Conservation and Recovery Act (RCRA). As stated by the 

Association of State and Territorial Solid Waste Management Officials ASTSWMO),5states 

strongly support the Subtitle D option for regulation of CCR in accordance with RCRA. ACWA 

agrees that the use of a Dry Handling standard in the proposed ELG would compel fly ash to be 

dry everywhere, creating a uniform standard that is protective of the environment under the 

CWA, and which provides support to continued regulation of CCR in accordance with RCRA 

under subtitle D in lieu of subtitle C.

5 Comments from Assoc. of State & Territorial Solid Waste Mgmt. Officials (ASTSWMO) to 

EPA, on EPA’s Notice of Data Availability for the proposed rulemaking for Hazardous and 

Solid Waste Management System: Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals from Electric Utilities (Docket ID # EPA–HQ–RCRA–2011–0392), at 16 

(Nov. 14, 2011), available at http://www.astswmo.org/Files/Announcements/2011.11-

NODA_Comments-ASTSWMO_Only.pdf.

Comment Response: 

In the final ELG rule, EPA established zero discharge effluent limitations and standards for 

pollutants in fly ash transport water based on use of a dry-handling system, and zero discharge 

effluent limitations and standards for pollutants in bottom ash transport water based on one of 

two technologies: a dry-handling system or a closed-loop system for ash transport 

wastewaters. See Section VIII of the preamble to the final rule and response to DCN EPA-HQOW-2009-0819-4305-A3, Excerpt Number 128. Comments related to the CCR rule are outside 

the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in the context of 

that rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

Commenter Name: Shellie Chard-McClary

Commenter Affiliation: Association of Clean Water Administrators (ACWA)

Document Control Number: EPA-HQ-OW-2009-0819-4535-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In the proposed rule, EPA notes it is contemplating the establishment of Best Management 

Practices (BMP) as well as voluntary programs for CCR management programs. In some states, 

CCR ash is handled by the waste management program as a “residual waste.” Although ACWA 

supports the use of BMPs and voluntary programs to manage CCR waste, this should be 

addressed under RCRA subtitle D, rather than the CWA. Given the limited clarity around 

overlap with RCRA, and the fact that the RCRA regulations are not finalized, ACWA suggests 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-545

that these CCR BMPs and voluntary programs not be included in the final rule. In the event 

EPA decides to regulate CCR impoundments under the CWA, ACWA recommends that in the 

final rule EPA provide specific detailed requirements and criteria on which the industry and state 

regulatory agencies can rely.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Cecile M. Conroy

Commenter Affiliation: International Brotherhood of Boilermakers (IBB)

Document Control Number: EPA-HQ-OW-2009-0819-4557-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

IBB supports the close coordination of the ELG and CCR rules. Such coordination is justified 

because both rules regulate the same wastestreams and would require the implementation of 

similar control measures and technologies for meeting the applicable compliance obligations.

IBB agrees with EPA's assessment that one important way to coordinate the two rules is by 

matching, to the maximum extent practicable, the compliance deadlines of the ELG and CCR 

requirements. Such coordination of the two rules' compliance deadlines will enable owners or 

operators of affected facilities to understand fully the requirements applicable to facilities under 

both programs before they make compliance decisions. It is very important that EPA move 

forward with this approach, as changes to facilitate compliance should be undertaken in a holistic 

manner at each source, and will require significant economic decisions. By contrast, the failure 

to provide such coordination of the compliance deadlines could unnecessarily increase the 

combined compliance costs of both programs with no incremental environmental gains. 

Furthermore, such lack of coordination could increase the risks of stranded investments at 

affected facilities.

It is crucial that EPA allow for coordination of both the substantive requirements and the 

compliance deadlines of the ELG and CCR rules in order to assist facilities in reaching 

compliance in the most cost and time effective manner possible. Affected facilities will be faced 

with important economic decisions regarding the method of compliance and must be able to 

make such decisions with full information of the regulations that will affect them. For example, 

determining whether to close or retrofit a surface impoundment will have serious operational and 

financial repercussions for a facility. Full information regarding all regulations must be available 

before such a decision is made.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-546

In order to have all such information available, EPA may be required to delay compliance with 

the ELG rule if the CCR rule is not issued in a timely manner. EPA noted in the proposed ELG 

rule that it received significant new data regarding CCRs from the 2010 Information Collection 

Request, and that this information may lower the risk assessment for the CCR rule. Because the 

Agency needs to assess this new information, the timing may be delayed. If that is the case, EPA 

should delay the implementation of the ELG rule until such time as both rules are ready, as 

coordination of the rules is a paramount issue for many regulated facilities.

Comment Response: 

EPA disagrees with the commenter's contention that both the CCR and ELG rules “regulate the 

same waste streams”.

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Cecile M. Conroy

Commenter Affiliation: International Brotherhood of Boilermakers (IBB)

Document Control Number: EPA-HQ-OW-2009-0819-4557-A1

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

IBB urges EPA to take appropriate measures to ensure the close coordination of the ELG and 

CCR rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the EPA OW and EPA ORCR final rules. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts.

Commenter Name: Dennis Lane

Commenter Affiliation: Kansas City Board of Public Utilities

Document Control Number: EPA-HQ-OW-2009-0819-4564-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-547

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

While BPU commends EPA for recognizing the interaction between the instant ELG rules and 

the rules for CCR before setting rules in either case, there still exists a concern that actions taken 

in this case will, for all practical purposes, dictate what the result will be in the CCR case. See 78 

FR at 34441-42 (“EPA is considering how these predictions [about ELG] might affect any 

specific technical requirements under RCRA that could be applicable to CCR surface 

impoundments”). Another concern is the apparent blurring of the lines as to what and how data 

can be used in each of the two proceedings. See 78 FR at 34442 (discussing how new data in the 

CCR rule might affect the risk assessment in that proceeding). Even though it appears that the 

results of this intermingling “could provide strong support for a conclusion that regulation of 

CCR disposal under RCRA Subtitle D would be adequate,” id., a conclusion that BPU supported 

in its CCR comments, each proceeding ultimately must stand on its own merits.

To this end, care should be taken to avoid pre-ordaining a result in one proceeding by what 

action is taken in the other proceeding. For example, leachate requirements established by the 

ELG proceeding may dictate that only a certain type of liner could be used for landfills under the 

CCR rules regardless of what CCR comments say about the efficacy (or lack thereof) of using 

that type of liner solely in the context of the statutory and regulatory context of the CCR 

rulemaking. Likewise, EPA’s anticipated resolution of certain matters in the CCR proceeding 

should not be determinative of the rules applied to related ELG matters. In short, EPA should not 

reach a conclusion in the one proceeding that indirectly and inexorably leads to a result that EPA 

would otherwise be unable to effectuate in the other proceeding. BPU urges the Agency to keep 

that principle in the forefront of its thinking about how ELG and CCR regulations interact with 

each other.

Comment Response: 

EPA’s work on the ELG has not “preordained” the resulting final CCR rule and both rules are 

implement requirements of their respective statutes, are supported by their own regulatory 

analysis and the records for each rulemaking. However, EPA has closely coordinated efforts 

between these two regulatory actions as discussed in the response to DCN EPA-HQ-OW-2009-

0819-4379-A1, Excerpt Number 119. In addition, EPA notes that requirements under this ELG 

final rule for combustion residual leachate do not contain any requirement regarding liners and 

collection systems. As made clear in the definition of combustion residual leachate, this is 

wastewater that is discharged to a water of the U.S and therefore is appropriately covered under 

the ELG.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-548

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

NRECA also recommends:

-Regulating CCR impoundment unit integrity through RCRA and the CCR rule.

-Harmonizing the final ELG rule with the Subtitle D Prime Option described in the CCR 

Proposal.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules. See response to DCN EPA-HQ-OW-2009-

0819-4379-A1, Excerpt Number 119 for a discussion of the coordination of the two rules 

including BMPs.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Regulating CCR impoundment unit integrity through RCRA and the CCR rule. Any 

requirements regarding the structural integrity of CCR surface impoundments are properly the 

province of RCRA; therefore, EPA should continue to develop these requirements in the context 

of the final RCRA CCR rule rather than include the proposed BMPs in the final ELG rule.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-549

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Dorothy Kellogg and Michael Leitman

Commenter Affiliation: National Rural Electric Cooperative Association (NRECA)

Document Control Number: EPA-HQ-OW-2009-0819-4565-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Harmonizing the final ELG rule with the Subtitle D Prime Option described in the CCR 

Proposal. The ELG proposed rule clearly contemplates surface impoundments remaining

operational to receive specified wastewaters (e.g., legacy wastes, low volume wastewaters or 

stormwater) even if they cease receiving bottom ash or fly ash transport water. We agree, and the 

D Prime Option will assure that occurs. We also agree with EPA’s current approach which 

would “enable a facility to determine whether any changes to its operations are needed to comply 

with the Steam Electric ELG—and if so, what those might be—before the facility would be 

required, for example, to decide whether to close or retrofit any surface impoundments pursuant 

to any CCR rule.”

Comment Response: 

See response to comment for DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for 

a discussion of the coordination between the two rules. See response to DCN EPA-HQ-OW2009-0819-4305-A3, Excerpt Number 128 for a discussion of the timing between the ELG and 

CCR final rules.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Erik Silvola

Commenter Affiliation: Great River Energy (GRE)

Document Control Number: EPA-HQ-OW-2009-0819-4572-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-550

Alignment of the CCR rule with the Proposed Effluent Limitation Guidelines

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. 

Comment Response: 

See response to comment for DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for 

a discussion of the coordination between the two rules. See response to DCN EPA-HQ-OW2009-0819-4305-A3, Excerpt Number 128 for a discussion of the timing between the ELG and 

CCR final rules.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Erik Silvola

Commenter Affiliation: Great River Energy (GRE)

Document Control Number: EPA-HQ-OW-2009-0819-4572-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices for Impoundments

GRE believes that proposing BMPs for impoundments under the ELG rulemaking is 

inappropriate and would be ineffective. This should be addressed under the CCR rulemaking 

effort so that duplicative or conflicting requirements are not promulgated. Also the assessment 

information collected during the CCR efforts does not support the record for requiring BMPs and 

EPA has not proposed specifically the nature or type of BMPs that would be required.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to such BMPs in the final ELGs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-551

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 23

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

LPPC supports the close coordination of the ELG and CCR rules because both rules regulate the 

same waste streams. While LPPC does not prefer the pending CCR rulemaking over the recently 

House‐passed coal ash legislation, the two issues must be dealt with in concert to avoid 

overlapping regulations. The CCR rule was proposed in 2010 and has not yet been finalized. 

Both the ELG and CCR rules have been in development for a number of years and regulate the 

same or similar processes at affected facilities. EPA has stated that it would provide the 

requirements of both programs to facilities before they make compliance decisions. It is very 

important that EPA move forward with this approach, as changes to facilitate compliance should 

be undertaken in a holistic manner at each source, and will require significant economic 

decisions.

In addition, it is crucial that EPA allow for coordination of both the substantive requirements and 

the compliance deadlines of the ELG and CCR rules in order to assist facilities in reaching 

compliance in the most cost and time effective manner possible. Affected facilities will be faced 

with important economic decisions regarding the method of compliance and must be able to 

make such decisions with full information of the regulations that will affect them. For example, 

determining whether to close or retrofit a surface impoundment will have serious operational and 

financial repercussions for a facility. Full information regarding all regulations must be available 

before such a decision is made.

In order to have all such information available, EPA may be required to delay compliance with 

the ELG rule if the CCR rule is not issued in a timely manner. EPA noted in the proposed ELG 

rule that it received significant new data regarding CCR from the 2010 ICR, and that this 

information may lower the risk assessment for the CCR rule. Because the Agency needs to assess 

this new information, the timing may be delayed. If that is the case, EPA should refrain from 

enforcing the ELG rule until such time as both rules are ready, as coordination of the rules is a 

paramount issue for many regulated facilities.

Comment Response: 

EPA disagrees with the commenters claim that both the CCR rule and the ELG rule regulate the 

same wastestreams. In summary, the ELG regulates discharges of pollutants to waters of the US 

and the CCR rule regulates the disposal and storage of coal combustion residuals. For more 

detail of what is regulated by each rule see response to DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119 for a discussion of EPA’s coordination efforts on these two rules. See 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-552

response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion of 

the timing between the ELG and CCR final rules.

Commenter Name: Erin Bartlett

Commenter Affiliation: The Large Public Power Council (LPPC)

Document Control Number: EPA-HQ-OW-2009-0819-4573-A1

Comment Excerpt Number: 26

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA must uphold its commitment to coordinate the ELG and CCR rules in order to allow 

regulated sources to make compliance decisions based on complete information.

Comment Response: 

See response to comment for DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for 

a discussion of the coordination between the two rules. See response to DCN EPA-HQ-OW2009-0819-4305-A3, Excerpt Number 128 for a discussion of the timing between the ELG and 

CCR final rules.

Commenter Name: Floyd Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission (MJMEUC)

Document Control Number: EPA-HQ-OW-2009-0819-4576-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

4. We are particularly concerned that the separate rulemaking to regulate coal combustion 

residuals under the Resource Conservation and Recovery Act (RCRA) will have unfortunate 

consequences taken together with the present effluent limitations guidelines rulemaking. We 

appreciate EPA’s desire to coordinate the two rulemakings, and we urge EPA not to promulgate 

a CCR rule that requires the closing of ash impoundments at almost the same time that the ELG 

rule may require ash impoundments to stay in service. We will not be able to plan how to comply 

with the ELG rule until we know what the CCR rule will require

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-553

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: H. Morriss Barney IV

Commenter Affiliation: Texas Municipal Power Agency (TMPA)

Document Control Number: EPA-HQ-OW-2009-0819-4584-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We are particularly concerned that the separate rulemaking to regulate coal combustion residuals 

under the Resource Conservation and Recovery Act (RCRA) will have unfortunate consequences 

when taken together with the present effluent limitations guidelines rulemaking. We appreciate 

EPA’s desire to coordinate the two rulemakings, and we urge EPA not to promulgate a CCR rule 

that requires the closing of ash impoundments at almost the same time that the ELG rule may 

require ash impoundments to stay in service. We will not be able to plan how to comply with the 

ELG rule until we know what the CCR rule will require.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: H. Morriss Barney IV

Commenter Affiliation: Texas Municipal Power Agency (TMPA)

Document Control Number: EPA-HQ-OW-2009-0819-4584-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA’s ELG proposal recognizes that certain “legacy” CCR transport waters, such as fly ash, 

bottom ash, and flue gas mercury control legacy waters, will continue to be managed in 

impoundments, subject to present BPT limits. As EPA recognizes, impoundments may be 

necessary both to treat “legacy” wastes already in the impoundments and to treat other 

wastestreams (like combustion residual leachate or low volume waste) that do not require dry 

handling.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-554

EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires 

crafting the CCR rule so as not to require operators to commence closing ponds within 30 days 

of last receiving CCRs (75 Fed. Reg. at 35,252) and not to require dredging and lining them 

within five years. Promulgating the “Subtitle D Prime” option in the CCR rulemaking is 

necessary to accomplish this.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding the 

final ELG rule requirements for legacy wastewaters. See the final CCR rule at 80 FR 21302 

(April 17, 2015) for a discussion of the rule’s regulatory approach for CCR impoundment 

closures.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Jeff Udd

Commenter Affiliation: Minnesota Pollution Control Agency (MPCA)

Document Control Number: EPA-HQ-OW-2009-0819-4606-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The MPCA requests that the Best Management Practices (BMPs)for operation of impoundments 

containing coal combustion residues 

(CCRs) be eliminated from the proposed regulations.The proposed BMPs do not affect the level

of pollutant control attained through use of impoundments; therefore they should not be 

incorporated into the effluent limitation guidelines proposed in these regulations.The use of 

BMPs to maintain assurance against structural failure is better suited for regulation under the 

Resources Conservation and Recovery Act, and therefore such practices should be addressed in 

the proposed regulations for management of CCRs.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-555

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 34

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

VII. Coordination with Coal Combustion Residue (CCR) Rule Scheduling is Crucial

TVA commends EPA’s Office of Water on recognition of the need to align the ELG and CCR 

rules and their efforts with the Office of Solid Waste and Emergency Response on coordinating 

these rulemakings.

Further, TVA supports EPA’s adoption of the RCRA Subtitle D option that would regulate 

CCRs only at the point of disposal when placed in impoundments or landfills. This is the 

preferred option of industry, most states, and many Congressional members.

TVA believes close coordination of timetables between the two rules is necessary, recognizing 

that certain impoundments may need to remain open for cost effective wastewater treatment, 

even if, or after, they cease to receive CCRs.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: John W. Myers

Commenter Affiliation: Tennessee Valley Authority (TVA)

Document Control Number: EPA-HQ-OW-2009-0819-4607-A1

Comment Excerpt Number: 36

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

IX. Impoundment BMP Requirements Should Be Regulated under the Resource 

Conservation and Recovery Act (RCRA), not the Clean Water Act (CWA)
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-556

If the upcoming CCR rule will address impoundment stability, TVA believes that the BMP 

requirements should be regulated under RCRA, not under the CWA in NPDES permits. 

Expertise for reviewing inspection results and enforcement expertise is more likely to be found 

in solid waste regulatory framework. Having separate inspection programs could lead to 

competing requirements and lapses in enforcement.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Pamela F. Faggert

Commenter Affiliation: Dominion Resources, Inc.

Document Control Number: EPA-HQ-OW-2009-0819-4631-A1

Comment Excerpt Number: 25

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We appreciate that EPA recognizes the potential regulatory complications that may arise as EPA 

regulates the placement of coal combustion residuals in surface impoundments through both the 

effluent guidelines for the steam electric industry under the Clean Water Act and coal 

combustion residuals rulemaking ("CCR Rule") under the Resource Conservation and Recovery 

Act ("RCRA"). We support EPA's goal to integrate and coordinate these two rulemakings, but 

we are unable to support the proposed best management practices (BMPs) for surface 

impoundments mentioned in the preamble of the EPA proposal.

The inclusion of the BMPs in the ELG proposal seems unnecessary in light of the structural 

integrity and location restrictions already contained in the CCR Rule. EPA acknowledges this 

when the preamble states that the proposed BMPs "are similar to the structural integrity 

inspection and corrective action requirements in the proposed CCR rulemaking" and that 

"structural integrity requirements ...could, alternatively, be established using RCRA 

authority." 78 Fed. Reg. at 34466, col. 3. For several reasons, it is more appropriate to include 

structural integrity requirements under the RCRA program in the CCR Rule rather than in the 

ELG Rule. Some of these reasons are legal, as it is unknown whether Sections 304(e) and 306 of 

the Clean Water Act provide EPA with the authority to regulate structural performance 

standards. These elements are authorized under RCRA and are included in the CCR Rule. Other 

reasons are more practical, such as the CCR Rule is far more comprehensive in scope and 

protectiveness of surface impoundments. The CCR rule includes design criteria, location 

restrictions, groundwater monitoring, fugitive dust control, and other performance standards that 

go far above what the ELG Rule proposes. With these other requirements in mind, it would be 

confusing and duplicative to have additional requirements under the ELG Rule. We believe that 

EPA has not included sufficient detail and information to allow for meaningful evaluation and 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-557

comment upon the BMPs. We urge EPA to conduct a separate rulemaking that includes specific 

details, sufficient data, and cost analyses.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Pamela Ritger

Commenter Affiliation: Clean Wisconsin

Document Control Number: EPA-HQ-OW-2009-0819-4632-A1

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Clean Wisconsin urges the EPA to take further action to adequately protect our water from the 

damaging effects of steam electric power plant effluent. Those actions include establishing best 

management practice (BMP) requirements that would apply to surface impoundments containing 

coal combustion residuals, making the proposed dewatering program for steam electric power 

plants mandatory rather than voluntary, and regulate coal ash as a hazardous waste under the 

Resource Conservation and Recovery Act (RCRA).

Comment Response: 

In the final ELG, EPA is taking numerous actions that will help protect the Nation's waters from 

the impacts of steam electric power plant discharges. However, EPA is not establishing BMPs 

for CCR impoundments under the final ELG. See response to DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 119

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 51

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-558

Comment Excerpt: 

D. Conversion to Closed-Loop Systems Is Premature in Light of the Proposed Coal 

Combustion Residue (“CCR”) Regulations

If EPA’s finalized ash pond regulations prohibit or significantly limit the continued operation of 

ash ponds, some of those facilities could provide natural, cost-effective locations for dewatering 

equipment and structures associated with certain closed-loop, bottom ash handling technologies. 

Until the CCR rule is finalized, however, any cost/benefit analysis conducted to determine 

whether such closed-loop systems may be appropriate for a particular plant are necessarily 

premature. Therefore, EPA should not mandate closed-loop bottom ash handling until the CCR 

rulemaking is complete.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 59.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 53

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

that regulating landfill leachate under these ELG rules will likely conflict or overlap with the 

pending CCR rule, drafted by EPA pursuant to the Resource Conservation and Recovery Act 

(“RCRA”).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 72 and DCN EPAHQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 57

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-559

Comment Excerpt: 

Contaminated leachate collected on a site for treatment or disposal should be considered a low 

volume waste. Yet, all signs point to EPA regulating collection systems of this kind for landfills 

pursuant to the upcoming CCR rule. See 75 Fed. Reg. 35,239 (June 21, 2010). PSNH therefore 

believes that regulation of this waste stream is best left for that rulemaking to avoid the 

possibility of duplicative or inconsistent regulation.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4460-A1, Excerpt Number 72.

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire (PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 58

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In the Proposed Rule, EPA has proposed to establish best management practices (“BMPs”) 

through the NPDES program applicable to surface impoundments that receive coal combustion 

residuals.24 According to EPA, BMPs of this kind are needed to prevent catastrophic releases like 

those at Martins Creek, Pennsylvania, and Kingston, Tennessee. Specifically, the BMPs would 

regulate the construction, operation, and maintenance of both active and inactive surface 

impoundments to minimize the risk of uncontrolled discharges by requiring plant operators to 

conduct periodic inspections and take timely corrective actions where warranted. Inspections 

would be required every seven days and would be conducted by a person qualified to recognize 

specific signs of structural instability and other hazardous conditions by visual observation and, 

if applicable, to monitor instrumentation such as piezometers. Should any potentially hazardous 

condition develop, the owner or operator of the facility would be required to: (1) take action 

immediately to eliminate the potentially hazardous condition; (2) notify the Regional 

Administrator or the authorized State Director; (3) notify and prepare to evacuate, if necessary, 

all personnel from the property that may be affected by the potentially hazardous condition(s); 

and (4) notify state and local emergency response personnel if conditions warrant so that people 

living in the area down gradient from the surface impoundment can evacuate.

EPA is also considering the inclusion of BMPs in the final rule to address the integrity of surface 

impoundments. These BMPs would be modeled after those applicable to coal slurry 

impoundments regulated by the Mine Safety and Health Administration (“MSHA”). Facilities 

using CCR impoundments would need to (1) submit to EPA or the applicable state authority 

plans for the design, construction, and maintenance of existing impoundments; (2) submit plans 

for closure to the appropriate authority; (3) conduct periodic inspections by trained personnel 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-560

who are knowledgeable in impoundment design and safety; and (4) provide an annual 

certification by an independent registered professional engineer that all construction, operation, 

and maintenance of impoundments is in accordance with the approved plan. Owners and 

operators would be required to address any problematic stability and safety issues in a timely 

manner. The BMPs being considered for CCR impoundments at power plants would apply to all 

structures regardless of height and storage volume; although, EPA is contemplating possible 

variations on the BMPs it requires based on distinctive criteria that reasonably permit such 

differentiations, including but not limited to different inspection frequencies or limitations on the 

applicability of BMPs.

PSNH has a number of concerns with EPA’s proposed BMPs for surface impoundments. 

Specifically, PSNH questions whether EPA possesses adequate legal authority to regulate these 

structures pursuant to the CWA. That the agency ostensibly possesses sufficient authority to do 

so pursuant to RCRA further calls into question why EPA would attempt to establish standards 

in this rulemaking – much less create duplicative or overlapping regulations in both this and the 

CCR rules. PSNH is also troubled by the scant information regarding the proposed BMPs 

provided in the Proposed Rule. EPA must publish for notice and comment the precise BMPs it 

intends to adopt to allow the regulated community to meaningfully comment on the proposed 

standards. Lastly, the materials at the agency’s disposal in connection with its CCR rulemaking 

effort adequately demonstrate that regulatory standards of this kind are unnecessary. PSNH 

offers the following discussion for each of these significant concerns.

24 Notably, the proposed definitions of “impoundment” and “surface impoundment” differ 

slightly in the CCR Rule and Proposed Rule, respectively. Specifically, the CCR Rule definition 

references structures “designed to hold an accumulation of CCRs containing free liquids”; 

whereas, the Proposed Rule refers to structures “designed to hold an accumulation of liquid 

process wastes or process wastes containing free liquids.” Both definitions are vague. Moreover, 

the aforementioned difference may be intentional. However, the slight discrepancies seemingly 

could result in some structures falling within the regulatory definition set out in one rule but not 

the other. As discussed herein, PSNH believes management practices of this kind are best 

addressed in the CCR Rule. Yet, if EPA is inclined to promulgate such standards as a part of this 

rulemaking, PSNH respectfully requests that the agency establish a singular definition in the two 

rules to provide clarity to the industry. Any such definition should make clear that: (1) conduits, 

conveyance structures, temporary holding areas, and the like are not subject to this regulatory 

initiative; and (2) only structures designed to hold, and actually holding, coal combustion 

residuals for an extended period of time should be subject to such regulation.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-561

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 60

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA has included no more than abstract ideas or contemplated generalities about the BMPs it is 

considering promulgating as mandatory regulatory requirements applicable to steam electric 

power generating facilities. While the MSHA impoundment regulations upon which the BMPs 

are purportedly based are promulgated at 30 C.F.R. Part 77, EPA has provided that the BMPs 

may materially differ from the MSHA regulations, as well as the ones set out in the draft CCR 

rule. In short, EPA has provided few details as to what may be required by its contemplated 

BMPs. If such BMPs are to be a part of this rulemaking, EPA must publish the explicit BMP 

language it is proposing prior to including these standards in any final rule. Only then may the 

regulated community fully evaluate, and effectively comment on, these standards.

Promulgation of the proposed BMP language is also mandatory for EPA to demonstrate 

compliance with the mandatory factors the agency must take into account in making BPT or 

BAT limitations, pretreatment standards, or NSPSs. Cost of achieving the effluent reduction is 

one such factor EPA is obligated to consider. The record is currently devoid of any such cost 

analysis—be it the cost to implement and/or maintain the contemplated BMPs, or the monetized 

benefits expected as a result of these BMP requirements.

As stated above, PSNH cannot effectively comment on the precise BMPs contemplated by EPA 

because insufficient information is put forth in the Proposed Rule. Despite this fact, PSNH offers 

the following general comments.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-562

Commenter Name: Tom DeLawrence

Commenter Affiliation: Public Service Company of New Hampshire(PSNH)

Document Control Number: EPA-HQ-OW-2009-0819-4633-A1

Comment Excerpt Number: 61

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposed substantially similar structural integrity requirements for CCR surface 

impoundments in its 2010 proposed CCR rulemaking. See 75 Fed. Reg. 35,128, 35,175-76, 

35,214 (June 21, 2010); 76 Fed. Reg. 63,252 (Oct. 12, 2011) (NODA). As support for these 

proposed standards, EPA released responses it received to its utility survey regarding CCR 

management and structural integrity of surface impoundments and its subsequent assessment 

reports evaluating same. 76 Fed. Reg. at 63, 256. Yet, this information revealed that the 

structural integrity of CCR surface impoundments may not be necessary because these structures 

do not pose an immediate safety threat.

Relying largely upon comments submitted by the Utility Solid Waste Activities Group to EPA’s 

CCR rule, UWAG thoroughly evaluates the results of the agency’s utility survey in its comments 

to the Proposed Rule and reasonably concludes that the promulgation of BMPs is also 

unnecessary as a part of this rulemaking. See UWAG Comments at Section XVI, B & E. PSNH 

supports UWAG’s comments on this issue and incorporates same as if fully set out herein. 

Specifically, UWAG notes that EPA’s own experts in the area of dam integrity concluded none 

of the 676 surface impoundments (or equivalents) were found to pose an immediate safety threat. 

These same contractors conducted condition assessments at the majority of these structures, as 

well, and similarly determined none posed immediate safety threats. A small subset of surface 

impoundments evaluated did receive a “fair” or “poor” rating. However, upon further evaluation, 

these ratings were primarily assigned due to the lack of availability of detailed design or 

construction data for the structure, or because of fairly minor maintenance or monitoring gaps in 

general operations at the facilities.25 Furthermore, each of these facilities addressed the alleged 

deficiencies in a response to EPA and committed to an action plan to timely rectify the 

deficiencies.

Collectively, this information reveals that EPA has not and cannot justify imposing additional 

regulation on CCR surface impoundments under RCRA or the CWA. Moreover, even if BMPs 

were justified, there is no benefit or rational basis for imposing these regulations twice—under 

separate and distinct regulatory rulemakings. Doing so could result in the promulgation of 

conflicting or inconsistent BMPs that leave regulated facilities with the potentially impossible 

task of trying to comply with each. Instead, if EPA erroneously continues down this path 

(despite the aforementioned data and analysis adequately demonstrating that such regulation is 

unnecessary), coordination is imperative between the CCR Rule and this Proposed Rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-563

25 See EPA, Coal Combustion Residuals Impoundment Assessment Reports, 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/surveys2/index.htm (posting final 

reports and company response/action plans).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Glen Porter

Commenter Affiliation: Prairie State Generating Company, LLC (PSGC)

Document Control Number: EPA-HQ-OW-2009-0819-4651-A2

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

PSGC appreciates that EPA acknowledged in this proposed rule that the information gathered 

from the Information Collection Request (ICR) conducted for the development of the ELG has 

the potential to significantly reduce the nature and extent of the risks associated with CCR 

disposal, such that EPA's current thinking is that regulation of CCR under RCRA Subtitle D 

would be adequate.

Comment Response: 

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-564

Ensuring that any CCR rule implementation and corresponding compliance obligations for 

surface impoundment modifications and/or closure not be triggered until a reasonable period of 

time after the applicable ELG requirements are clearly established for a particular facility in its 

revised NDPES permit; and

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 regarding EPA’s 

coordination of implementation timing in the ELG versus the CCR final rule. See also EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119. EPA notes that the timing of the issuance of 

the ELG was required by court order. 

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, the ELG Proposal requests comment on the inclusion of best management practices 

(“BMPs”) in NDPES permits that would establish standards for CCR surface impoundment 

structural integrity which are duplicative of standards in the CCR Proposal. As discussed in 

Section III below, any requirements regarding the structural integrity of CCR surface 

impoundments are properly the province of RCRA; therefore, USWAG believes that EPA should 

not include the proposed BMPs in the final ELG rule, but rather should continue to develop these 

requirements in the context of the final RCRA CCR rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-565

II. EPA SHOULD HARMONIZE THE ELG PROPOSAL WITH THE SUBTITLE D 

PRIME OPTION IN THE CCR PROPOSAL

USWAG appreciates EPA opening the CCR rulemaking docket for the express purpose of 

seeking comment on “how any final CCR rule might be aligned and structured to account for any 

final requirements adopted under the ELGs for the Steam Electric Power Generating point source 

category.” 78 Fed. Reg. at 34442. USWAG fully agrees with EPA’s goal of evaluating “how a 

final RCRA [CCR] rule might be aligned with and structured to account for any final 

requirements adopted under the ELGs for the Steam Electric Power Generating point source 

category.” Id. at 34441. Indeed, EPA has a statutory obligation to harmonize the two rules, 

as required by RCRA Section 1006(b), which directs the Agency to “integrate all provisions of 

[RCRA] for purposes of administration and enforcement and shall avoid duplication, to the 

maximum extent practicable, with the appropriate provisions of . . . the Federal Water Pollution 

Control Act.” 42 U.S.C § 6905(b).

While EPA must perform such integration consistent with the goal and directives expressed in 

RCRA and the Clean Water Act (“CWA”), because both rules will be regulating the same 

activity—i.e., the placement of CCR in surface impoundments—EPA must take steps, consistent 

with RCRA Section 1006(b), to ensure the integration and coordination in the development and 

implementation of the rules. EPA also correctly points out that integration of the two rules is 

directed by Executive Order (“EO”) 13563, Improving Regulation and Regulatory Review (Jan. 

18, 2011), which states that some “sectors and industries face a significant number of regulatory 

requirements, some of which may be redundant, inconsistent, or overlapping,” and thus directs 

federal agencies to promote “coordination, simplification, and harmonization.” 78 Fed. Reg. at 

34441.

There are few industrial sectors that are coming under as much regulatory scrutiny and control as 

the electric power industry, especially with respect to coal-related activities including the 

generation and management of CCR. Therefore, USWAG is fully supportive of EPA’s 

exploration of two primary means of integrating the proposed rules: (1) through coordinating the 

design of any final substantive CCR regulatory requirements with the final ELG rule, and (2) 

through coordination of the timing and implementation of final rule requirements “to provide 

facilities with a reasonable timeline for implementation that allows for coordinated planning and 

protects electricity reliability for consumers.” Id.

We discuss below how EPA can best achieve these objectives.

Comment Response: 

EPA disagrees that “both rules regulate the same activity – i.e., the placement of CCR in surface 

impoundments. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 

for a discussion of EPA’s coordination efforts including an overview of what each rule 

regulates. See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a 

discussion of the timing between the ELG and CCR final rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-566

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 10

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. Elimination of the Requirement that CCR Units Automatically Commence Closure Upon the 

Cessation of Receipt of CCR

Another important modification to the CCR Proposal necessary to ensure coordination between 

the final CCR and ELG rules is the elimination of the requirement in the CCR 

Proposal compelling an impoundment to commence closure within 30 days of the last receipt of 

CCR. See 75 Fed. Reg. at 35252 (proposed to be codified at 40 C.F.R. § 257.100(j)). 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. However, consistent 

with the points made above, this requirement would force the premature closure of 

impoundments that are otherwise serving critical treatment functions for specified wastewaters 

under the ELG rule.

For example, assuming that the final ELG rule contains a no-discharge requirement for fly ash 

transport water, a facility may be compelled to cease the delivery of fly ash transport water to its 

surface impoundment. If this were to occur and the impoundment did not receive any other type 

of CCR, the cessation of the receipt of fly ash transport water into the impoundment would 

automatically trigger the above-mentioned CCR Proposal requirement for the impoundment to 

immediately begin closure because it had received “the known final receipt of CCR.” Id. This 

would be the case even if the impoundment was otherwise capable of continuing to operate in an 

environmentally sound manner.

As discussed above, however, the ELG Proposal expressly contemplates that certain legacy CCR 

transport waters will continue to be managed in impoundments and remain subject to existing 

BPT effluent limits, see 78 Fed. Reg. at 34461, 34462, & 34464, and that impoundments that no 

longer receive certain CCR transport waters will continue to serve a critical component of the 

treatment system for other regulated effluents (including, for example, combustion residual 

leachate, and bottom ash transport water). Id. at 34458. Thus, it is important that an ELG 

requirement that causes a particular impoundment to cease receiving CCR not automatically trip 

the unrelated requirement in the CCR rule that the impoundment immediately begin 

closure. Again, this is because the ELG rule plainly contemplates that such an impoundment 

will continue to serve an important treatment function for other regulated wastewaters 

notwithstanding that it is no longer receiving CCR transport waters.

In fact, in the recent CCR NODA, the Agency specifically requested comment on the time frame 

for CCR units to initiate closure when they temporarily are idle, recognizing that there are 

legitimate circumstances in which disposal units will not receive CCR for extended periods of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-567

time, even though the facility intends to continue use the unit. See 78 Fed. Reg. 46940, 46944 

(Aug. 2, 2013). In response to this issue, and consistent with the points above, USWAG 

explained that, even in circumstances where a CCR surface impoundment ceases the receipt of 

CCR altogether, there are compelling reasons to keep the impoundment open in order to continue 

manage other regulated wastestreams, including wastestreams expressly contemplated for 

impoundment management under the ELG proposal. Therefore, we advocated that, so long as 

the impoundments are continuing to accept any wastestreams for which they are permitted, 

utilities should be able to continue operating them irrespective of whether they continue to accept 

CCR. See USWAG comments on CCR NODA at 36–39 (Docket No. EPA- HQ-RCRA-2012-

0028).

We also explained in our CCR NODA comments that 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 wastestreams should be able to continue operating so 

long as they are providing a necessary function at the facility. From a RCRA perspective, the 

units would remain subject to continued groundwater monitoring and applicable corrective 

action requirements so that any potential groundwater issues will be addressed during the 

continued operation of the unit for purposes of managing wastewater under the ELG rule.

This approach will ensure that such units are operated in a manner that is protective of human 

health and the environment, while continuing to serve a critical management function under the 

ELG rule.

B. Coordination on Timing of Implementation

In addition to coordination on substantive issues, EPA requests comment on how to best 

coordinate “the timing and implementation of final rule requirements to provide facilities with a 

reasonable timeline for implementation that allows for coordinated planning and protects 

electricity reliability for consumers.” 78 Fed. Reg. at 34441. EPA’s “goal is that, 

consistent with its statutory requirements, the implementation dates for each rule would not 

require facilities to make decisions without understanding the implications that such decisions 

would have for meeting any requirements of each rule.” Id. at 34442. The Agency’s “current 

approach is to enable a facility to determine whether any changes to its operations are needed to 

comply with the Steam Electric ELG—and if so, what those might be—before the facility would 

be required, for example, to decide whether to close or retrofit any surface impoundments 

pursuant to any CCR rule.” Id. As an example, EPA describes a facility that uses CCR surface

impoundments for the management of plant wastewater and states that its “current approach 

would enable the facility—prior to the deadline by which the facility would need to decide 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-568

whether to retrofit or close those surface impoundments to comply with any CCR rule—to 

effectively evaluate whether it makes business sense to continue to operate those ponds (with or 

without any modifications) in light of the requirements of both rules, or whether other changes to 

facility operations would be more cost-effective.” Id.

USWAG fully supports this step-wise approach for implementation of the rules. It is fully 

consistent with the requirement under RCRA Section 1006(b) to integrate the regulatory 

provisions of RCRA and CWA to avoid duplication and is in accord with the E.O. 13563 

directive to federal agencies to promote “coordination, simplification, and harmonization.” As a 

threshold matter, it is absolutely imperative that the regulated community know with certainty 

what the regulatory requirements will be under both sets of rules before it invests significant 

resources and begins to undertake major capital modifications that likely will be required to 

comply with these inter-related regulations. Then, and only then, will facility owners/operators 

be in a position to evaluate their regulatory compliance options, including future regulatory 

strategies for their CCR surface impoundments. In this respect, USWAG fully agrees with the 

Agency’s stated goal of enabling a facility to first determine whether any changes to its 

operations are needed to comply with the ELG—and if so, what those might be—before

requiring the facility to decide what strategic options to employ with respect to the continued 

operation of a CCR impoundment under the final CCR rule. Id. at 34442. Given this objective, 

any implementation and corresponding compliance obligations for surface impoundment 

modifications and/or closure under the CCR rule should not be triggered until a reasonable 

period of time after the applicable ELG requirements are clearly established for a particular 

facility in its revised NDPES permit incorporating the new ELG rule requirements.

Finally, it is important for EPA to appreciate the time schedule that will be necessary if, for 

purposes of either rule, a facility owner/operator determines that closure of an CCR 

impoundment is warranted and that an alternative dry management system will be employed for 

the CCR. In evaluating this issue in the CCR Proposal, USWAG determined that, if CCR 

impoundments were compelled to close under that rule, it would take the power industry at least 

8 to 10 years to site, design, permit, construct, and render operational alternative dry 

management systems, including constructing new wastewater treatment capacity to replace the 

ancillary wastewater treatment function that was provided by the CCR 

impoundment. See USWAG CCR Comments, EPA-HQ-RCRA-2009-0640-10483, App. 19 

(Report of EOP entitled “Cost Estimates for the Mandatory Closure of Surface Impoundments 

Used for the Management of Coal Combustion Byproducts at Coal-Fired Electric Utilities (Nov. 

11, 2010)). USWAG raises this issue because the ELG Proposal contemplates only a 5-year 

conversion time frame for a facility to cease the use of impoundments for certain CCR transport 

waters and to site, design, permit and construct an alternative landfill for the management of the 

displaced CCR. 78 Fed. Reg. at 34496. A five-year implementation time period for wet to dry 

conversion simply will not be achievable in the vast majority of cases due to all the variables 

associated with designing, siting, and permitting a replacement unit. For example, as the Agency 

is well aware, opposition to draft permits and appeals of final permit approvals for new CCR 

landfills from opposition groups can significantly delay the ability of new landfills to actually 

commence operation, notwithstanding that the applicant may have received final approval from 

all necessary regulatory authorities. Therefore, any compliance obligation under the final ELG 

rule that requires a facility to undertake a wet to dry conversion of CCR management should be 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-569

not be triggered before at least 8 to 10 years after the revised NPDES permit incorporating the 

new ELG requirements is issued to the facility.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule. EPA disagrees that the timing of the applicability of the ELGs in the final rule is 

inadequate as stated by this commenter. EPA also disagrees that the changes required by the 

ELGs will take up to 10 years to complete. EPA notes that the commenter provided no data to 

support its assertion whereas EPA’s record contains information on actual timeframes for such 

changes. See Section XIII and XVI of preamble and the TDD.

See the final CCR rule at 80 FR 21302 (April 17, 2015) for information on the requirements 

relating to the cessation of receipt of CCR into existing surface impoundments.

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 regarding 

impoundment closure implementation timing and the response to DCN EPA-HQ-OW-2009-

0819-4466-A1, Excerpt Number 11 regarding landfill capacity.

Comments related to the CCR rule are outside the scope of the ELG rulemaking.

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 12

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

C. Creating a State-Administered CCR Permit Program Would Facilitate

Coordination Between Federal and State Authorities and Between the CCR Rule and the 

ELG Rule

In order for there to be effective coordination and harmonization between the final CCR and 

ELG rules, it is imperative that the implementation and enforcement of the two set of new rules 

be in the hands of the same regulatory agency. For this to occur, however, it is necessary, as 

USWAG pointed out in its original comments on the CCR proposal, that the final CCR Subtitle 

D rule include a mechanism for qualified state programs that meet or exceed the federal controls 

to step in and directly administer the Subtitle D regulations. As currently proposed, however, the 

Subtitle D rule would be self-implementing, with enforcement of the regulations achieved 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-570

through RCRA citizen suits. This means, as a practical matter, that whether a particular facility 

is complying with the final Subtitle D rule will be an issue primarily evaluated by citizen groups 

and the ultimate question of compliance – i.e., how the regulations should be interpreted –

determined by a federal court in each particular enforcement action. This will result not only in 

patchwork interpretations of the CCR rule across the nation, but also will greatly undermine any 

attempt for regulators to attempt to coordinate and harmonize the implementation of the final 

CCR rule with the final ELG rule.

How a particular element of the CCR rule can and should be harmonized with the final ELG rule 

is best determined by a single regulatory body with authority to oversee and establish permit 

conditions under both sets of rules. An agency with authority over both programs would be in 

the best position to determine how to coordinate and harmonize the rules in practice. For 

example, a single regulatory authority would be able to resolve any apparent conflicts between 

the CCR and ELG requirements regarding whether a particular impoundment that no longer 

receives CCR should remain in operation to continue to manage legacy CCR transport 

water under the ELG rule.3In contrast, a federal court addressing an individual citizen suit 

action involving an alleged violation under the self-implementing option of the Subtitle D CCR 

rule is not in the same position to harmonize its interpretation of the CCR rule with the ELG 

rule. In a citizen suit action, the court’s jurisdiction is necessarily limited to the particular CCR 

rule enforcement action before the court.

Moreover, as a practical matter, inspection and compliance monitoring will be enhanced if the 

same state agency resources that are devoted to monitoring compliance with the ELG 

requirements for utility landfills and impoundments also are responsible for ensuring those 

units' compliance with the CCR rule. State implementation of the Subtitle D rule also will avoid 

the scenario of three possible regulatory regimes applying to the CCR impoundment – the selfimplementing Subtitle D rules, separate state Subtitle D controls, and the new ELG rules. To 

avoid this possibility and allow for a coordinated, harmonized approach to regulation, it is 

important for any final Subtitle D CCR rule to include a mechanism for qualified state programs 

to administer the rules in lieu of the self-implementing approach set forth in the proposal.

As USWAG suggested earlier, EPA could readily do this by developing a process for evaluating 

state CCR controls and determining whether state controls are no less stringent than the final 

Subtitle D controls (much like EPA does now in the case of municipal solid waste landfills under 

40 C.F.R. Part 258). In those states that have qualifying controls equivalent to the Subtitle D 

CCR rule, EPA would allow the states to administer the controls to avoid the duplication of 

regulatory programs, with appropriate EPA oversight to ensure coordination in the 

implementation of the CCR and ELG rules. If EPA determines that a state is not fully 

implementing the rules, the rules would be self-implementing until such time as the state 

remedies the identified shortfalls (much like EPA did under the Part 258 rules for 

MSWLFs). Indeed, EPA identified such a possible approach under its proposed Subtitle C option 

for CCR, and therefore EPA could readily adopt a similar approach under the Subtitle D 

option. See 75 Fed. Reg. at 35220-21 (in lieu of regulating CCR under Subtitle C, the suggested 

alternative would allow states to demonstrate to EPA that they have enforceable Subtitle D 

regulations that meet the minimum federal Subtitle D CCR controls).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-571

We believe the states also would be supportive of this approach. In this way, many of the selfimplementing procedures in the Subtitle D approach, as well as the BMPs in the ELG Proposal, 

could be eliminated as there would be a qualified state regulatory body with responsibility for 

ensuring compliance with the applicable requirements. This approach would facilitate the 

implementation and enforcement of the CCR and ELG rules by bringing them both within the 

jurisdiction of the same state authorities.

3 This conflict is discussed in detail in Section II.A.1.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule.

Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 14

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

III. SURFACE IMPOUNDMENT MONITORING AND INTEGRITY IS 

MORE APPROPRIATELY REGULATED THROUGH THE PENDING RCRA 

PROPOSAL THAN THROUGH BMPS IN NPDES PERMITS

EPA requests comments on the concept of establishing a set of best management practices 

(BMPs) related to surface impoundment structural integrity that would be incorporated into 

NPDES permits. EPA did not propose regulatory text detailing how these BMPs will operate, 

but it explained generally that the Agency is considering BMPs to serve two functions. First, 

permitees would be required to conduct inspections of their surface impoundments at least every 

seven days to ascertain whether any signs of structural instability or other hazardous conditions 

had manifested. Appropriate response actions, including action to eliminate the hazards and 

notify appropriate authorities, are proposed. Second, EPA proposed mandating a set of structural 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-572

integrity BMPs modeled on the Mine Safety and Health Administration (MSHA) coal slurry 

impoundment regulations at 30 C.F.R. § 77.216. USWAG concurs that surface impoundment 

integrity and inspection requirements modeled largely on the standards for coal slurry 

impoundments regulated by MSHA are a good starting point for developing comparable 

standards for CCR impoundments. However, these standards should be developed as part of a 

single, comprehensive regulatory program under RCRA as proposed in the CCR rulemaking 

rather than through conditions in NPDES permits.

EPA acknowledged that its proposed BMPs “are similar to the structural integrity inspection and 

corrective action requirements in the proposed CCR rulemaking” and states that “[s]tructural 

integrity requirements . . . could, alternatively, be established using RCRA authority.” 78 Fed. 

Reg. at 34466. Between the two proposed ELG and CCR rules, we believe these issues are more 

appropriately addressed in the CCR rule under the authority of RCRA. Accordingly, we request 

that the proposed BMPs not be included in the final ELG rule. If the proposed BMPs are 

included in the final ELG rule, however, several revisions to the proposal are necessary to bring 

them more in line with the CCR Proposal and important elements of the MSHA regulations on 

which they are modeled.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 15

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

A. Surface Impoundments Should be Subject to a Single Comprehensive Regulatory 

Program under RCRA

In the pending CCR Proposal, EPA is proposing to create a comprehensive federal program for 

the regulation of CCR management units, including surface impoundments, under the Agency’s 

RCRA authority. In contrast, BMPs for the monitoring and structural integrity of surface 

impoundments are proposed as being merely “supplemental” to the ELGs in the present rule 

making. 78 Fed. Reg. at 34466. This presents a classic small handle problem; it is unclear why 

EPA would propose to regulate a class of solid waste management units under its CWA authority 

through NPDES permits when clear regulatory authority (not to mention a pending CCR 

Proposal) exists under RCRA for taking similar action. The inclusion of BMPs in NPDES 

permits is a limited and awkward vehicle for regulating the structural integrity of surface 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-573

impoundments. Regulating the structural integrity of CCR surface impoundments under RCRA 

is clearly the better option because it would allow all CCR impoundment design, operation, 

monitoring, structural integrity, and closure requirements to be covered by the same program.

The proposal also does not clarify whether EPA views BMPs as being a substitute for similar 

provisions proposed in the pending CCR rulemaking or whether the BMPs will be imposed 

concurrently with overlapping provisions of the forthcoming CCR rule. Neither situation is 

ideal. USWAG believes regulators and regulated industry will benefit from the simplicity and 

certainty of having all surface impoundment monitoring and structural integrity regulations fall 

within one comprehensive regulatory program.

There are legal and pragmatic reasons why the proposed BMPs should be abandoned in favor of 

the pending CCR Proposal. As a jurisdictional matter, USWAG does not believe that the 

proposed BMPs are the type of measures contemplated by the statutory authorities cited by EPA 

as justification for the BMP proposal. For existing sources, EPA states that the source of 

its authority to impose the proposed BMPs is Section 304(e) of the CWA. Id. at 

34466. This section provides, in relevant part, that EPA “may publish regulations” that are 

“supplemental” to ELGs “to control plant site runoff, spillage or leaks, sludge or waste disposal, 

and drainage from raw material storage . . . associated with or ancillary to the industrial 

manufacturing or treatment process.” 33 U.S.C. § 1314(e). The proposed BMPs are not 

consistent with this grant of statutory authority. The stated purpose of the BMPs in the proposal 

is to “prevent catastrophic releases” caused by dam failures. 78 Fed. Reg. at 34466. A 

catastrophic dam failure is not in the nature of “runoff,” “spillage,” or “leaks.” It is highly 

doubtful that Congress intended the “supplemental” authority in Section 304(e) to be so broad as 

to permit EPA to shoehorn a set of impoundment dam safety standards into the NPDES 

permitting program. Cf. Nat. Res. Def. Council v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988) 

(cautioning Agency against using CWA or NEPA to “transmogrify its obligation to regulate 

discharges into a mandate to regulate the plants or facilities themselves”).

Similarly, EPA cites CWA Section 306 as the source of its authority to include BMPs as 

“standards of performance” for new sources, id., but this term means a “standard for the control 

of the discharge of pollutants which reflects the greatest degree of effluent reduction . . . 

achievable.” 33 U.S.C. § 1316(a)(1). Again, it is a dubious proposition that Congress 

contemplated impoundment dam safety as a type of “effluent reduction.” Accordingly, USWAG 

questions whether Sections 304(e) and 306 provide the legal authority EPA attributes to them in 

this proposal. EPA does not cite any authority in the CWA that would authorize such measures 

to be incorporated into NPDES permits for hazards that are only loosely related to a potential 

discharge. The purported authority EPA is proposing to exercise under the CWA theoretically 

would allow the Agency to use NPDES permits to pervasively regulate any industrial 

process that potentially could contribute to a discharge—which means practically every process 

at most facilities. This clearly was not the intent of Section 402. Moreover, there is no need to 

rely on uncertain sources of statutory authority in the CWA to achieve EPA’s goals for CCR 

surface impoundment safety because the authority to regulate solid waste management structures 

such as CCR surface impoundments unambiguously resides in RCRA.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-574

As a legal matter, it is more appropriate to regulate CCR impoundments as solid waste units 

under RCRA as was proposed in the CCR rulemaking. CCR surface impoundments are solid 

waste management units subject to the RCRA Subtitle D provisions for solid waste facility and 

practices found in 40 C.F.R. Part 257, Subpart A. Similarly, at the state level CCR surface 

impoundments typically are regulated by solid waste management authorities. 75 Fed. Reg. at 

35142. NPDES outfalls are only incidental to operation of the units, and not every impoundment 

has an outfall. Furthermore, unless and until CCRs are discharged through a permitted 

outfall, 42 U.S.C. § 6903(27), CCRs (and any associated wastewater or transport water) that 

have been disposed of in an impoundment are subject to RCRA jurisdiction.

There are practical reasons for EPA to address CCR impoundments under its RCRA 

jurisdiction. The CCR Proposal is more comprehensive than the BMPs being proposed in the 

ELG rule because it relies on a broader source of applicable statutory authority. The CCR 

Proposal presents a comprehensive regulatory regime for CCR impoundments. There is no 

provision in the CWA BMPs to address the location or design requirements of new 

impoundments, whereas the CCR Proposal sets forth location, liner, leachate collection, 

and other design requirements for impoundments. 75 Fed. Reg. at 35241–45 (proposed to be 

codified at 40 C.F.R. §§ 257.60–.64, 257.70–.72). The CCR Proposal also includes provisions to 

address potential sources of pollution that are beyond the scope of the CWA, including fugitive 

dust emissions management practices and groundwater monitoring and corrective action. Id. 

at 35245–46 (proposed to be codified at 40 C.F.R. §§ 257.80, 257.90). Lastly, the CCR Proposal 

addresses closure and post-closure care, which also is beyond the scope of the proposed BMPs. 

Id. at 35252–53 (proposed to be codified at 40 C.F.R. §§ 257.100–.101).

EPA’s authority to prescribe corrective action measures in the event a hazardous structural 

integrity condition is identified also is much clearer and broader under RCRA. In the proposed 

BMPs, EPA outlines steps that an impoundment operator would be obligated to take, including 

eliminating the hazard, evacuating personnel, and notifying authorities, if a hazard were 

identified. 78 Fed. Reg. at 34466. EPA does not identify a source of authority under the CWA 

to mandate RCRA-style corrective action under CWA. In comparison, all material aspects of a 

CCR impoundment are subject to regulation under RCRA and, therefore, are subject to EPA’s 

broad monitoring, compliance, and enforcement authority under that statute. See e.g., 42 U.S.C. 

§§ 6928(a), 6973(a). Moreover, the proposed BMPs are only reactive to potential hazards, but 

unlike the CCR Proposal they do little to prevent them. The CCR Proposal would avoid the 

manifestation of potentially hazardous conditions in the first instance by compelling noncompliant units in unstable areas to close. 75 Fed. Reg. at 35243 (proposed to be codified at 40 

C.F.R. § 257.65).

The proposed BMPs are less comprehensive than the CCR Proposal for another significant 

reason: they would not apply to the entire universe of CCR surface impoundments. A surface 

impoundment would be subject to BMPs only if it is discharging wastewater and therefore 

requires a NPDES permit. As the ELG Proposal notes, approximately 11% of coal- and

petroleum coke-fired utilities manage CCRs in evaporation ponds that do not have a regulated 

outfall. 78 Fed. Reg. 34448. These facilities accept CCR wastewater and are designed so that 

the rate of evaporation is equal to or greater than the rate of wastewater entering 

the impoundment. These facilities can present the same potential hazards as other CCR surface 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-575

impoundments. At least two evaporation ponds appear on EPA’s list of CCR surface 

impoundments with high hazard potential ratings.4 Regulating surface integrity and monitoring 

through BMPs would result in a gap for this class of impoundments, however, unless the 

regulatory objectives EPA intends to achieve through BMPs are mirrored in provisions of the 

CCR rule.

The proposed BMPs are superfluous and should not be included in the final ELG rule. BMPs 

cannot be a substitute for the CCR impoundment regulations in the CCR Proposal because EPA 

lacks sufficient authority under the CWA to address many of the issues (e.g., closure) and 

impoundments (e.g., evaporation ponds) covered by the CCR Proposal. BMPs also would not 

complement the CCR Proposal because they do not impose any requirements that are not already 

incorporated into the CCR Proposal. USWAG is concerned that having overlapping regulatory 

schemes potentially overseen by different agencies (or different personnel within the same 

agency) will present an unnecessary source of potential conflict and confusion. Because 

EPA can accomplish the intent of the proposed BMPs through the CCR rulemaking, we request 

that the Agency refrain from including BMPs in the final ELG rule.

4 EPA, Coal Combustion Residuals – Surface Impoundments with High Hazard Potential 

Ratings, http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccrs-fs/ (last viewed 

September 12, 2013). It is important to note that a high hazard potential “rating is not an 

indication of the structural integrity of the unit or the possibility that a failure will occur in the 

future; it merely allows dam safety and other officials to determine where significant damage or 

loss of life may occur if there is a structural failure of the unit.” Id.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG for the reasons 

discussed in the preamble to the final rule. See response to DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 119.

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. If the Proposed BMPs Are to Be Included in the ELG Rule, They Should Be

Revised and Proposed Separately
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-576

As described above, the most beneficial approach to regulating CCR surface impoundments is 

through a single, comprehensive set of regulations issued pursuant to EPA’s RCRA 

authority. However, if EPA elects to finalize the proposed BMPs in the ELG, revision are 

necessary to bring them in line with relevant aspects of the MSHA standards they are patterned 

on and also to tailor them to circumstances unique to this class of impoundments. Furthermore, 

because the BMPs have the potential to have a significant impact on utility operations, USWAG 

requests that EPA provide greater detail about what the BMPs would entail through proposed 

regulatory text.

As an initial matter, EPA’s brief discussion of BMPs in the ELG Proposal does not provide the 

regulated community with a clear picture of what the Agency is contemplating and therefore 

does not provide appropriate notice and an opportunity to comment on proposed regulations as 

required under the Administrative Procedure Act. 5 U.S.C. § 553. The MSHA impoundment 

regulations on which the BMPs are modeled are detailed in regulations. See 30 C.F.R. Part 

77. Likewise, the proposed CCR surface impoundment requirements for monitoring and 

structural integrity are clearly set forth in proposed regulatory text. See 75 Fed. Reg. at 35244–

46 (proposed to be codified at 40 C.F.R. §§ 257.77–257.84). In contrast, EPA has provided only 

a broad outline of what BMPs it is considering for inclusion in the final ELG rule. See 78 Fed. 

Reg. 34466–67. Moreover, the proposal states that final BMPs may deviate from the MSHA 

regulations and CCR Proposal in several material aspects, which leads to greater uncertainty 

about what final BMPs may look like. Because we lack a full understanding of what EPA is 

proposing, we have concerns that adequate notice has not been given and we are limited in our 

ability to formulate a full response.

A number of key issues are left unaddressed by the constrained BMP proposal. First, it is not 

clear whether the proposed BMPs are intended to complement or replace (in whole or in part) the 

proposed monitoring and structural integrity provisions in the CCR Proposal.5 Second, EPA 

identifies several provisions of the MSHA regulations and CCR Proposal that it may deviate 

from for the BMPs, but it does not clarify whether other key elements of those programs will be 

adopted or disregarded. Third, it does not clarify whether all proposed BMPs would be 

mandatory or whether permit-writers would have discretion to incorporate only those BMPs 

that are appropriate to the circumstances. These and other outstanding questions would be best 

addressed by the issuance of a supplemental proposal discussing BMPs in greater detail and 

providing proposed regulatory text.

If EPA nevertheless proceeds with incorporating BMPs into the final ELG rule, EPA should 

reconsider several key aspects of its proposal. First, CCR impoundment structural integrity and 

monitoring BMPs should be tailored to apply only to those structures that pose a potential threat 

to human health and the environment. The MSHA coal slurry impoundment regulations 

incorporate threshold criteria for structural integrity and monitoring. Namely, the requirements 

are triggered for impoundments that meet any of the following criteria:

(1) “Impound water, sediment, or slurry to an elevation of five feet or more above the upstream 

toe of the structure and can have a storage volume of 20 acre-feet or more;” (2) “Impound water, 

sediment, or slurry to an elevation of 20 feet or more above the upstream toe of the structure;” 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-577

or (3) “present a hazard to coal miners.” 30 C.F.R. § 77.216 (design, construction, and 

maintenance plans); see also id. § 77.216-3 (inspections).

Although EPA is modeling the proposed BMPs on MSHA’s regulations due to MSHA’s “40 

years of experience writing regulations and inspecting dams,” 78 Fed. Reg. at 34467, EPA is 

proposing to disregard the reasoned decision of MSHA to exclude small and low-hazard 

impoundments from the scope of its regulations. EPA provides no explanation for why the 

“BMPs being considered . . . for the ELG rule would apply to all CCR impoundments at steam 

generating facilities, regardless of height and storage volume.” 78 Fed. Reg. at 34467 (emphasis 

added). USWAG contends there is no basis to impose the proposed inspection and structural 

integrity obligations on small impoundments that— even in the unlikely event of a catastrophic 

failure—present little or no risk of causing significant environmental or human health 

damage. Accordingly, any adopted BMPs should not apply to impoundments that have a storage 

volume less than 20 acre-feet and/or impoundments that have an elevation less than 20 feet.

For the same reasons, USWAG recommends that the proposed BMPs not apply to CCR 

impoundments that have been classified by the appropriate state regulatory body or by an 

independent third-party professional engineer as having a “low hazard potential classification” 

pursuant to the federal guidelines for dam safety. See “Federal Guidelines for Dam Safety: 

Hazard Potential Classification for Dams,” Federal Emergency Management Agency (“FEMA”) 

(reprinted Jan. 2004). Under the FEMA dam safety classification system, a “low 

hazard potential classification” means that failure or mis-operation of the impoundment “results 

in no probable loss of human life and low economic and/or environmental losses. Losses are 

principally limited to owner’s property.” Id. at 5. Given that a failure of a CCR impoundment 

with a “low hazard potential classification” poses only a low risk for on-site economic or 

environmental losses, USWAG believes that impoundments with this classification should not be 

subject to the proposed BMPs. Despite the fact that any such risks are low, facilities will have 

ample incentives to prevent economic or environmental losses to on-site operations, 

and therefore it is not necessary to subject these low-risk facilities to any additional 

regulatory requirements through mandatory BMPs.

Moreover, excluding CCR impoundments with a “low hazard potential classification” from the 

CCR structural integrity requirements would be consistent with many state dam regulatory 

programs that apply dam integrity standards only to impoundments with a “high” or “significant” 

potential hazard classification, and therefore will promote consistency with existing state 

controls. See e.g., New Mexico Rules and Regulations Governing Dam Design, Construction 

and Dam Safety (e.g., requiring dam site security, an instrumentation plan for monitoring and 

evaluating dam performance, and an operation and maintenance manual and emergency action 

plan only for dams with a high or significant hazard potential); see also NMAC §§ 

19.25.12.11(G)-(J).

In addition, USWAG believes that the requirement to monitor instrumentation once every seven 

days under proposed BMPs is excessive. A weekly instrumentation inspection obligation is 

clearly unwarranted for all dams. Even the FEMA Federal Guidelines for Dam Safety do not 

contemplate a monitoring frequency of this magnitude, suggesting that the frequency of 

instrumentation monitoring “may be reduced after the project has been in operation for an 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-578

extended time and performance observation data indicates that readings have stabilized.” Section 

III(D)2c(2) of the FEMA Dam Safety Guidelines regarding the frequency of instrument 

monitoring provide, in relevant part:

The frequency of instrument readings should be established at the time the instrumentation 

system is designed in order to give a timely warning of possible adverse conditions. Whenever 

necessary, more frequent readings, sometimes as often as hourly, should be taken to monitor a 

suspected rapidly changing adverse condition. The frequency or number of readings may be 

reduced after the project has been in operation for an extended time and performance observation 

data indicates that readings have stabilized.

The FEMA guidelines appropriately recognize that there is not a one-size-fits-all monitoring 

frequency for instrumentation, but rather that such an obligation should be tailored to reflect the 

stage of the dam (e.g., construction, first filling, long-term), its function, and its 

hazard rating. Therefore, USWAG recommends that EPA amend this condition to require 

equipment inspections once a month for dams with a dam hazard potential rating of “high” and 

quarterly for impoundments with a dam hazard potential rating of “significant.”

Finally, USWAG believes that it is extremely important from the perspective of safety and 

security that any information regarding an impoundment’s design, construction, and maintenance 

that must be submitted to a federal or state authority under proposed BMPs not be subject to 

public disclosure. Such information can be extremely sensitive and may contain information that 

could be used in planning an attack on a dam structure (e.g., engineering information on the 

structure’s foundation, detailed information on physical and engineering properties, the basis for 

the structure hazard classification, slope stability information, etc.). USWAG does not oppose 

the disclosure of this information to appropriate authorities or other third parties with legitimate 

interests in reviewing the information provided appropriate safeguards are in place. EPA does 

not specify whether this information would be publicly available if collected through BMPs, but 

we note that the CCR Proposal indicated that this information would be posted to the 

internet. As USWAG elaborated in its comments on the CCR rule, and reiterates here, safety 

and security considerations necessitate that dam design, construction, and maintenance 

information be carefully protected.

We reiterate that the proposed BMPs should be abandoned and that CCR surface impoundment 

monitoring and integrity be covered by the CCR Proposal. However, if EPA elects to proceed 

with the proposed BMPs, it is important that they are no more onerous than necessary. First, 

EPA should provide greater details on the proposed BMPs through a supplemental proposal that 

includes draft regulatory language. Second, the BMPs should not be applicable to small 

impoundments and impoundments that are designated as low hazard potential. Third, the 

monitoring frequency should be adjusted to a more reasonable level, especially for lower hazard 

impoundments. Lastly, EPA should clarify that sensitive CCR impoundment information will 

not be made widely publically available.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-579

5 The proposal suggests that EPA may view the proposed BMPs as a substitute for the similar 

provisions in the CCR Proposal. See 78 Fed. Reg. at 34466 (“Structural integrity requirements 

that seek to reduce the potential for catastrophic releases from surface impoundments could, 

alternatively, be established using RCRA authority.”).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: James R. Roewer

Commenter Affiliation: Utility Solid Waste Activities Group (USWAG)

Document Control Number: EPA-HQ-OW-2009-0819-4652-A1

Comment Excerpt Number: 24

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

USWAG fully supports EPA’s goal of harmonizing and integrating the final CCR and ELG rules 

to avoid duplication and regulatory inconsistencies and to ensure the practicable implementation 

of both rules.

USWAG also believes that the development of regulations for surface impoundment monitoring 

and structural integrity should proceed through the pending RCRA CCR rulemaking, rather than 

through the development of BMP incorporated into NPDES permits. Apart from the legal 

uncertainties of attempting to include such standards through the BMP approach under the Clean 

Water Act, the RCRA program offers a more natural and effective mechanism for establishing 

monitoring and structural integrity controls for CCR surface impoundments.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG for the reasons 

discussed in the preamble to the final rule. See response to DCN EPA-HQ-OW-2009-0819-

4379-A1, Excerpt Number 119.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-580

Comment Excerpt Number: 20

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposes “best management practices” to prevent catastrophic failures of impoundments of 

coal combustion residuals. This issue is already being regulated by the CCR rulemaking under 

RCRA; regulating the same thing under the ELG rules threatens either to duplicate or to conflict 

with the CCR rule. UWAG agrees with EPA’s desire to avoid conflicts between the ELG 

rulemaking and the CCR rulemaking. In addition, with respect to BMPs for impoundments, the 

proposed federal rules may conflict with or duplicate state programs that regulate the integrity of 

impoundments.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams

Commenter Affiliation: UWAG

Document Control Number: EPA-HQ-OW-2009-0819-4655

Comment Excerpt Number: 189

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XXI. BMPs for Ash Ponds

EPA is considering “best management practices” (BMPs) for surface impoundments that receive 

coal combustion residuals. The asserted legal authority would be § 306 for new sources and 

§ 304(e) for existing sources. EPA also cites § 402(a)(2) and 40 C.F.R. §§ 122.44(k) and 

122.41(e). EPA says BMPs are “critical” to preventing catastrophic releases like those at 

Martins Creek, Pennsylvania, and Kingston, Tennessee.

Clean Water Act § 304(e) provides that EPA may publish BMP regulations for any specific toxic 

or hazardous pollutant to control runoff, spillage or leaks, sludge or waste disposal, and drainage 

from raw material storage if they may contribute significant amounts of such pollutants to 

navigable waters.

The BMPs would require inspections every seven days, plans for designing, constructing, and 

maintaining existing impoundments, plans for closure, periodic inspections, and annual 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-581

certification that the construction, operation, and maintenance follows the approved plan. When 

stability and safety issues are identified, corrective action would be required.

B. BMPs Are Unnecessary, as Shown by the Record in the CCR Rulemaking

In its 2010 proposed rules for CCRs, EPA included structural integrity requirements for CCR 

surface impoundments. 75 Fed. Reg. at 35,175-76, 35,214; 76 Fed. Reg. 63,252 (Oct. 12, 2011) 

(NODA). EPA said that the “impoundment collapse at [Kingston, Tennessee] illustrated that 

structural failures of large CCR impoundments can lead to catastrophic environmental releases 

and large cleanup costs” (75 Fed. Reg. at 35,214 col. 1).

Our comments here are drawn from the comments of the Utility Solid Waste Activities Group on 

the CCR rule. See, for example, Comments of The Utility Solid Waste Activities Group 

(USWAG) on “Hazardous Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. 

Reg. 35,128 (June 21, 2010)” (Nov. 19, 2010), EPA-HQ-RCRA-2009-0640-10483; Comments 

of USWAG, et al., on “Hazardous and Solid Waste Management System; Identification and 

Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, 

Notice of Data Availability and Request for Comment, 76 Fed. Reg. 63,252 (Oct. 12, 2011),” 

Doc. ID No. EPA-HQ-RCRA-2011-0392-0211 (Nov. 14, 2011).

USWAG supported structural integrity requirements in a federal nonhazardous regulatory 

program for CCR, though not exactly the ones proposed by EPA. But USWAG also pointed out 

that EPA’s own analysis of the structural integrity of CCR management units across the country 

indicates that they do not pose immediate safety threats. Rather, CCR surface impoundments are 

safely and responsibly operated and maintained. EPA made available the utility survey 

responses to EPA’s information request letter on CCR management units as well as its follow-up 

CCR impoundment structural integrity assessment reports. 76 Fed. Reg. at 63,256.

After the Kingston spill, EPA sent information request letters to 240 utility facilities covering 

676 “surface impoundments and similar management units.” EPA compiled the 

responses. See EPA, Summary Table for Impoundment Reports, July 19, 2013, 

http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2. Of the 676 impoundments, 

483 were designed by a professional engineer.

After EPA compiled the electric utility companies’ responses to the information request, EPA 

hired contractors “who are experts in the area of dam integrity” to assess the structural integrity 

of CCR surface impoundments. Not one impoundment was rated “unsatisfactory,” which would 

be the rating if an impoundment posed an immediate safety threat.

Forty-seven impoundments had a “high” hazard potential, but this is based on the probable 

consequence of a dam failure and says nothing about the likelihood of a failure. Twelve 

thousand dams across the country have a “high hazard potential” based on the potential 

consequences of a failure.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-582

EPA’s contractors also provided a condition assessment of surface impoundments and similar 

management units, including all the impoundments that had a significant or high hazard 

potential. In all, 374 units were assessed by EPA contractors and assigned a condition rating of 

satisfactory, fair, poor, or unsatisfactory. Only units rated “unsatisfactory” posed immediate 

safety threats. Units may be structurally sound even if they receive a “fair” or “poor” rating 

based on things like a lack of detailed design or construction data.

Of the 374 units, not a single CCR surface impoundment was rated “unsatisfactory,” meaning 

that not a single inspected unit poses an immediate safety threat. Moreover, of the 47 

impoundments that had a “high” potential hazard rating, only nine units at six facilities were 

rated “poor.” Apparently these units were rated “poor” due mainly to their lack of design and 

construction data and fairly minor maintenance or monitoring gaps (e.g., vegetation and animal 

control at the impoundment) in their general operations. Each of these facilities submitted a 

response to EPA on how they will address the gaps and committed to an action plan for remedial 

activities and resolution of the deficiencies. EPA is monitoring these follow-up activities.

The October 2011 NODA in the CCR rulemaking identified two reports prepared by 

environmental groups that, taken together, allege that 70 CCR sites are “damage cases.” The 

first of these (Out of Control: Mounting Damages From Coal Ash Wastes Sites by 

Environmental Integrity Project and Earthjustice) presents 31 alleged CCR damage 

cases. 76 Fed. Reg. at 63,256 col. 3. The other (In Harm’s Way: Lack of Federal Coal Ash 

Regulations Endangers Americans And Their Environment by Environmental Integrity Project, 

Earthjustice, and Sierra Club) presents 39 more alleged CCR damage cases.

USWAG engaged Kelron Environmental to do a technical assessment of the 70 alleged damage 

cases identified in the two reports. See Kelron Environmental, Evaluation of Alleged CCR 

Damage Cases in the October 2011 NODA, 76 Fed. Reg. 63,252 (Oct. 12, 2011), dated 

November 14, 2011 (Attachment A to USWAG 2011 Comments). The vast majority of the 

alleged damage cases do not, even on their face, implicate potential adverse impacts to human 

health or the environment. Of the 70 alleged damage cases, only six had allegations that could 

be viewed as meeting EPA’s “test of proof” criteria for potentially characterizing a site as a 

proven damage case. The six cases are sites that are no longer active and where the alleged 

damages have been fully remediated (in one case, to a quality better than other, non-impacted 

areas) or are sites where the alleged damages are undergoing remediation with federal or state 

oversight or both.

UWAG appreciates EPA’s commitment to harmonizing and coordinating the ELG and CCR 

rules. RCRA is the more appropriate program for addressing the structural integrity of surface 

impoundments and landfills managing CCR. Implementing CWA BMPs on top of RCRA design 

and operation requirements would not only be redundant, but potentially confusing to both the 

regulated community and regulators.

C. The Proposed Clean Water Act BMPs May Duplicate or Conflict with the RCRA CCR 

Rule
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-583

Even if BMPs were justified, it would make no sense to impose them twice, once under RCRA 

and once under the Clean Water Act. For one thing, the two sets of BMPs might conflict or be 

inconsistent. The issue of BMPs for CCR impoundments shows how important it is for EPA to 

coordinate the CCR rulemaking under RCRA and the ELG rulemaking under the Clean Water 

Act so as to avoid wasteful duplication of effort and conflicts between the two rules.

In particular, the idea of BMPs for surface impoundments should be abandoned in the ELG 

rulemaking and handled in the CCR rulemaking under RCRA. In the CCR proposal, EPA 

proposes to regulate CCR management units, including impoundments, under RCRA.

EPA does not explain why Clean Water Act BMPS are needed in addition to RCRA 

BMPs. There does not seem to be any shortage of statutory authority under RCRA. The Clean 

Water Act must be interpreted in light of its policy to “prevent needless duplication” (33 U.S.C. 

§ 1251(f)). And the authority for BMPs under the Clean Water Act is, in contrast, dubious.

The purpose of the BMPs is to prevent “catastrophic releases” from dam failures. 78 Fed. Reg. 

at 34,466. The supposed authority for preventing these in the Clean Water Act is § 304(e), 

which authorizes for any “specific pollutant” to control “plant site runoff, spillage or leaks, 

sludge or waste disposal, and drainage from raw material storage....” It is unlikely Congress 

intended “spillage or leaks” to include catastrophic impoundment failures.

EPA also cites Clean Water Act § 306 on “new source performance standards” for “effluent 

reduction.” Again, this language, fairly read, does not include preventing catastrophic dam 

failures. And it would not, in any case, authorize BMPs for existing, as opposed to new, 

impoundments.

Moreover, though EPA has some authority to prevent spills, for example, before they 

happen,82 this authority is constrained by the principle that EPA may regulate only actual 

discharges not potential ones. See Nat’l Pork Producers Council v. EPA, 635 F.3d 738, 751 

(5th Cir. 2011); Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504-05 (2d Cir. 2005); Alt v. 

EPA, 2013 U.S. Dist. LEXIS 65093 (N.D. W. Va. April 22, 2013).

There is no need to twist the words of Congress to accomplish requirements for avoiding 

impoundment failure, and EPA is doing just that in the CCR rulemaking. With no pressing need 

to invoke the Clean Water Act for this purpose, and without apparent Clean Water Act authority 

for doing it, EPA should leave BMPs to the CCR rulemaking.

D. The Proposed Clean Water Act BMPs May Duplicate or Conflict With State Dam 

Safety Programs

Moreover, the federal BMPs may be unnecessary and duplicative because some states require 

such measures. For example, a UWAG member that operates in Texas reports that its ash 

collection system is constructed in accordance with state guidelines, certified by a professional 

engineer, tested for structural integrity, and inspected regularly. Likewise, the Departments of 

Natural Resources of Ohio and Indiana have dam safety programs, and power companies’ 

surface impoundments participate in these programs. If EPA were to impose new federal 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-584

requirements for inspections and maintenance, the federal requirements would almost certainly 

differ from state requirements.

82 Section 311 of the Act provides specific authority for Spill Prevention Control and 

Countermeasure Plans.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG so comments related 

to BMPs are moot. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 

119.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Jerry Schwartz

Commenter Affiliation: American Forest & Paper Association (AF&PA)

Document Control Number: EPA-HQ-OW-2009-0819-4656-A2

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Finally, while the agency states that it wants to avoid duplication or conflicts between any final 

rule based on the Proposal and the ongoing CCR rulemaking, the Proposal includes best 

management practices that address potential failures of CCR impoundments—one of the main 

goals of the CCR rulemaking.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Lauren P. Alterman

Commenter Affiliation: CertainTeed Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4660-A2

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-585

Comment Excerpt: 

CertainTeed Corporation previously commented on the Proposed CCR Rule, advocating for the 

continued regulation of CCRs under Subtitle D of the Resource Conservation and Recovery Act 

("RCRA"), 42 U.S.C. §§ 6901 et seq., coupled with evidence that wallboard grade synthetic 

gypsum (“Wallboard Gypsum”) is not a CCR, and in the alternative, an explicit regulatory 

exemption for Wallboard Gypsum to avoid the irreparable impacts to the gypsum industry that 

are expected from CCR regulation.

In the preamble to the Proposed ELG Rule, EPA recognized the interrelationship between that 

draft rule and the Proposed CCR Rule and stated that it will proceed with the two rules in a 

coordinated and integrated fashion. The Agency also indicated that it will continue to regulate 

CCRs as non-hazardous waste under Subtitle D of RCRA. CertainTeed encourages the 

continued concurrent review and believes that the Proposed ELG Rule correctly characterizes 

CCRs as non-hazardous waste that should continue to be regulated under Subtitle D.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4456-A1, Excerpt Number 2.

Comments on the substance of the CCR rule are outside the scope of this rulemaking. EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-640-11970).

Commenter Name: Lauren P. Alterman

Commenter Affiliation: CertainTeed Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4660-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA acknowledges that there is an interrelationship between the Proposed ELG Rule and the 

Proposed CCR Rule and therefore, CertainTeed supports the Agency intent to conduct a 

coordinated review of the two rules. See 78 Fed. Reg. at 34441. It is EPA's goal to "ensure that 

the two rules work together to effectively address the discharge of pollutants from steam electric 

generating facilities and the human health and environmental risks associated with the disposal 

of CCRs, without creating avoidable or unnecessary burdens." Id.

EPA acknowledges that while the scope of the two rules differs, there are certain consequences 

of the Proposed ELG Rule, such as facilities choosing to convert sluicing operations to dry ashhandling systems and no longer sending such wastes to surface impoundments that could directly 

impact technical requirements in the Proposed CCR Rule. 78 Fed. Reg. at 34441-42. In addition, 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-586

new data has been generated in connection with development of the Proposed ELG Rule that 

could impact the risk assessment for the Proposed CCR Rule. 78 Fed. Reg. at 34442. Given these 

overlaps, it is appropriate for the Agency to see both of these rulemakings to the end before 

finalizing either proposal in order to ensure there are no unintended consequences, even if it 

results in delaying finalization of the rules.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Lauren P. Alterman

Commenter Affiliation: CertainTeed Corporation

Document Control Number: EPA-HQ-OW-2009-0819-4660-A2

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

CertainTeed believes the Agency is appropriately conducting this rulemaking in tandem with the 

Proposed CCR Rule.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule.

Commenter Name: Bradley Coyle

Commenter Affiliation: Big Rivers Electric Corporation (BREC)

Document Control Number: EPA-HQ-OW-2009-0819-4664-A2

Comment Excerpt Number: 3

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-587

Comment Excerpt: 

ELGs should avoid duplicative regulatory involvement with the Coal Combustion 

Residuals (CCR) rule.

In the ultimate adoption of final ELGs, we request that EPA avoid duplicative requirements 

across both the water and waste realms contained within these two directives.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule.

Commenter Name: Julia M. Blankenship

Commenter Affiliation: American Municipal Power, Inc. (AMP)

Document Control Number: EPA-HQ-OW-2009-0819-4670-A2

Comment Excerpt Number: 9

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Second, the proposed best management practices (BMPs) under the proposed rule would treat 

landfills – from which there is little evidence of danger to the public – in the same manner as wet 

or slurry impoundments. This treatment is exceedingly harsh and unnecessary given the low risks 

presented by landfills. AMP specifically objects to the proposed seven-day required inspection 

frequency under the proposed BMPs, as well as the imposition of Mine Safety and Health 

Administration (MSHA)-level regulations (which are designed to address the risks associated 

with slurry impoundments) on such landfills.

Comment Response: 

EPA is not establishing BMPs for CCR landfills under the final ELGs. See response to DCN 

EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Raymond L. Evans

Commenter Affiliation: FirstEnergy Corp.

Document Control Number: EPA-HQ-OW-2009-0819-4677-A2

Comment Excerpt Number: 9
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-588

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA's proposed best management practices (BMPs) requirements for surface impoundments that 

receive coal combustion residuals (CCR) are inappropriate and should not be included in the 

final ELG Rule. Additional BMP requirements for CCR impoundments, if necessary at all, 

should be addressed in the RCRA CCR rules currently being developed by EPA. Two sets of 

rules for BMPs will only lead to potential conflict and confusion.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Kevin D. Frizzell

Commenter Affiliation: Owensboro Municipal Utilities (OMU) Elmer Smith Station (ESS)

Document Control Number: EPA-HQ-OW-2009-0819-4683-A2

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

5. Avoid duplication and overlap with the CCR Rule:

We urge the EPA not to promulgate a CCR rule that requires the closing of ash impoundments at 

almost the same time that the ELG rule may require ash impoundments to stay in service. We 

will not be able to plan how to comply with the ELG rule until we know what the CCR rule will 

require. The issue of best management practices (BMPs) should be regulated by the Coal 

Combustion Residual Rule (CCR) to avoid conflicts between the future CCR and ELG 

rulemakings.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG and the final 

CCR rule.

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-589

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices (“BMPs”) for Construction, Operation and Maintenance of 

Coal Ash Surface Impoundments Must Establish Timely and Enforceable Minimum 

Standards. EPA is considering establishing BMPs that would apply to surface impoundments to 

prevent uncontrolled discharges from impoundment failures. Specific standards for design, 

inspection and corrective action are set forth in both the Mine Safety and Health Administration 

regulations and in EPA’s proposed coal combustion residuals rule modeled after those 

regulations. EPA should establish BMPs that require adherence to these specific standards, and 

these standards should be made enforceable in permits, with detailed inspection and corrective 

action requirements, to ensure consistent and effective controls on all coal ash impoundments 

nationwide. If EPA fails to require specific BMPs in permits, with clear reporting and corrective 

action requirements, then states will continue to write permits without enforceable structural 

integrity standards.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 18

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA Should Establish Specific and Enforceable BMPs for Closure of Coal Ash 

Impoundments. The billions of tons of coal combustion waste currently disposed in surface 

impoundments have the potential to significantly harm both surface water and groundwater with 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-590

hydrogeological connections to surface water. It is essential that EPA establish BMPs to ensure 

coal ash impoundments are safely closed to minimize pollutant discharge to such waters. In order 

to ensure that coal ash impoundments nationwide are subject to adequate and consistent 

conditions for safe closure, EPA must require specific design, maintenance and remediation 

criteria similar to the closure requirements for coal ash surface impoundments proposed under 

the Resource Conservation and Recovery Act (“RCRA”). Where coal ash is left in place, EPA 

must require closure plans with minimum safeguards including provisions for major slope 

stability, groundwater monitoring, cap-and-cover requirements, provisions to preclude the 

probability of future impoundment of water, and post-closure care.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs as these 

requirements are more appropriately dealt with in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119 which also summarizes the requirements of each 

of both the final ELGs and final CCR rule.

Comments on the CCR rule are outside the scope of this rule. EPA addressed comments on the 

CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 125

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

534 EPA defines leachate broadly under the ELG rule. See 78 Fed. Reg. at 34,533. We note that 

the untreated and treated leachate data collected by industry for purposes of regulating surface

water discharges must not be used to replace data acquired by the scientific method to 

specifically characterize the compositional variability and diversity of environmental releases 

from CCR disposal units to assess health and environmental risks pursuant 

to RCRA. Specifically, there is a critical distinction between pore water (which was not collected 

or analyzed for the ELG rulemaking) and leachate. See discussion infra re: CCR-Risk 

Assessment-ELG Chemical Data.

Comment Response: 

This comment is specific to leachate characterization under RCRA and is outside the scope of 

the final ELG rule. EPA addressed comments on the CCR rule in the context of that rulemaking 

(see Docket EPA-HQ-RCRA-2009-640-11970). EPA has done the best job it could with the 

information in the record to characterize the discharges from impoundments be they discharges 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-591

from the impoundment under an NPDES permit, discharges of leachate as defined in the ELG or 

discharges to surface waters from surface impoundments through groundwater with a direct 

hydrological connection. The reasons for the options selected are in the final rule. While not 

necessary for a determination of BAT or BADCT, EPA did an environmental assessment and a 

benefits-costs analysis which characterized these discharges to the extent it could based on the 

information in the record.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 160

External Review Flag: Legal

External Review Incorporated into Response: No

Comment Excerpt: 

EPA is considering establishing BMPs that would apply to CCR surface impoundments that 

receive, store, dispose of, or are otherwise used to manage coal combustion residuals 

including FGD wastes, fly ash, bottom ash (which includes boiler slag), leachate, and other 

residuals associated with the combustion of coal to prevent uncontrolled discharges from these 

impoundments.708

We find that the Clean Water Act authorizes EPA to establish specific and enforceable BMPs to 

ensure both dam stability and safe closure of surface impoundments that discharge, may 

discharge or are hydrologically connected to surface water.709 For new sources, CWA 

Section 306 authorizes the promulgation of performance standards.710 For existing coal 

combustion residual (CCR) surface impoundments, CWA section 304(e) authorizes BMPs 

supplemental to any effluent limitations to control toxic or hazardous pollutants in runoff, 

spillage or leaks, and sludge or waste disposal that the Administrator determines are associated 

with or ancillary to the industrial process and may contribute significant amounts of pollutants to 

the nation’s waters.711 Furthermore, CWA section 304(e) requires controls established under this 

subsection to be included “as a requirement ... in any permit issued to a point source pursuant to 

section 1342 of this title.”712 CWA section 402(a)(2) authorizes the imposition of conditions in 

NPDES permits, which include BMPs and monitoring requirements, necessary to ensure 

compliance with all other applicable requirements.713 Lastly, CWA’s implementing regulations 

allow the permitting authority to modify existing permits during the existing permit terms.714

EPA's NPDES permit regulations reflect the EPA's longstanding interpretation of the CWA to 

authorize BMPs that address toxic or hazardous pollutant discharges from waste units similar to 

CCR surface impoundments. 40 C.F.R. §122.44(k), entitled “Establishing limitations, standards, 

and other permit conditions (applicable to State NPDES programs ...),” provides that permits 

may include BMPs to control or abate the discharge of pollutants when: (1) “[a]uthorized under 

section 304(e) of the CWA for the control of toxic pollutants and hazardous substances 

from ancillary industrial activities”; (2) “[a]uthorized under section 402(p) of the CWA for the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-592

control of storm water discharges”; (3) “[n]umeric effluent limitations are infeasible”; or (4) 

“[t]he practices are reasonably necessary to achieve effluent limitations and standards or to carry 

out the purposes and intent of the CWA.”715 EPA has employed BMPs to address releases at 

concentrated animal feeding operations716 and for storm water discharges.717 To adequately 

address the pollutant discharges from CCR surface impoundments, BMPs must include the 

specific requirements discussed below, and these conditions must be imposed in NPDES permits 

that are timely modified.

708 78 Fed. Reg. at 34,458.

709 For a discussion on EPA’s authority to regulate units hydrologically connected to surface 

water, see Section VI.H. of these comments, supra.

710 See 33 U.S.C. § 1316.

711 See id. § 1314(e).

712 Id.

713 33 U.S.C. § 1342(a)(2).

714 See 40 C.F.R. § 122.62.

715 40 C.F.R. § 122.44(k). See also Citizens Coal Council v. U.S. E.P.A., 447 F.3d 879, 896 (6th 

Cir. 2006).

716 See 40 C.F.R. § 122.23.

717 See id. §§ 122.30-37.

Comment Response: 

EPA agrees with the commenter that it has the authority under the CWA to specify BMPs as part 

of an ELG rule. However, EPA is not establishing BMPs for CCR impoundments under the final 

ELGs because it established structural integrity requirements in the CCR rule. IN this sense, 

EPA is recognizing section 101(f )’s direction to the Agency to avoid the duplication of 

requirements in establishing requirements under the CWA. See response to DCN EPA-HQ-OW2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-593

Comment Excerpt Number: 161

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. THE BMPS FOR CCR SURFACE IMPOUNDMENTS MUST INCORPORATE ALL 

THE REQUIREMENTS SET FORTH IN THE REGULATIONS PROMULGATED FOR 

COAL SLURRY IMPOUNDMENTS BY THE MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) AT 30 C.F.R. § 77.216.

In EPA’s 2010 proposed CCR rule, EPA proposed incorporation of the MSHA standards for coal 

slurry impoundments set forth in 30 C.F.R. § 77.216.718 After finding these design 

and inspection requirements necessary to protect human health and the environment from actual 

and potential releases occurring at CCR surface impoundments, EPA incorporated all MSHA 

requirements governing reporting,719 design plans and design standards,720 and inspection and 

corrective action requirements721 applicable to coal slurry impoundments. In the preamble to the 

ELG rule, EPA similarly found that “MSHA’s regulations are comprehensive and directly 

applicable to the dams used in surface impoundments at coal-burning utilities to manage 

CCRs.”722 Accordingly, BMPs for CCR surface impoundments must incorporate, at minimum, 

all of the requirements set forth in the proposed CCR rule at 40 C.F.R. §§ 1302-4. Certain 

additional requirements, described below, must also be included.

718 See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of 

Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, 75 Fed. Reg. 

35,128 (June 21, 2010), 35,259-61.

719 See 40 C.F.R. § 1302.

720 See id. § 1303.

721 See id. § 1304.

722 See 78 Fed. Reg. at 34,667.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs because it 

established structural integrity requirements in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.

Comments on the substance of the CCR rule are outside the scope of this rule. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-594

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 162

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

C. EPA MUST INCLUDE ADDITIONAL REQUIREMENTS IN THE BMPS FOR CCR 

SURFACE IMPOUNDMENTS.

The MSHA regulations are a useful template for impoundment BMP requirements, but they must 

be strengthened by requiring: (1) daily or weekly inspections by trained personnel; (2) specific 

elements to be included in each inspection; (3) reporting and corrective action requirements for 

specific structural integrity warning signs like increases in seepage; and (4) annual engineering 

inspections and reports with no exceptions.

First, although the MSHA regulations establish a baseline inspection frequency of once 

per week, they allow for less frequent inspections at the discretion of the Director, where 

justified by an operator.723 This clause is open-ended and could be used to justify monthly or 

even annual inspections. The contents of an inspection are also left open-ended. By contrast, 

recent NPDES permits for the Tennessee Valley Authority (TVA) coal plants in Tennessee 

require daily inspections with specific elements. The NPDES permit for the Gallatin Fossil Plant, 

for example, states that

Daily inspections shall, at a minimum, include observations of dams, dikes and toe areas for 

obvious changes in erosion, cracks or bulges, subsidence, seepage, wet or soft soil, changes in 

geometry, the depth and elevation of the impounded water, sediment or slurry, freeboard, 

changes in vegetation such as overly lush, obstructive vegetation and trees, outlet controls, drains 

and any other changes which may indicate a potential compromise to impoundment integrity.724

The permit also requires that these inspections be carried out by personnel with dam safety 

training.725

Secondly, the MSHA regulations begin with an annual engineering inspection requirement, but 

then allow it to be reduced to a five-year interval when an operator certifies that there have been 

no changes.726 Annual inspections, however, should be a required baseline. In fact, the Gallatin 

NPDES permit requires such annual engineering inspections,727 The BMPs should require 

engineering inspections on an annual basis for the lifetime of the impoundment.

Finally, although the MSHA regulations require reporting of “potentially hazardous 

condition[s],”728 the BMP should specify the form and scope of the required report, a time period 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-595

in which it must be made, the appropriate personnel who must receive this report, and required 

follow-up. The Gallatin NPDES permit requires that

Within 24 hours of discovering a change in the impoundment that indicates a potential 

compromise to the structural integrity of the dike (e.g., significant changes in seeps, boils, 

bulges, or cracks), the permittee must make contact with division personnel describing the 

findings of the inspection, corrective measures taken or proposed (if known), and expected 

outcomes. TVA must keep current a list of division personnel complete with after-hours contact 

information and must speak directly to someone on this list within the 24 hour period. Failure to 

notify the division within 24 hours will be a violation of this permit. In addition, the permittee 

must submit a follow-up report within 5 days summarizing the incident, corrective actions taken 

and outcomes. Additional reports pertaining to the event may be required by the Director.729

In order to prevent coal ash impoundment failures, EPA must build on the MSHA example to 

include: (1) daily or weekly inspections by trained personnel; (2) specific elements to be 

included in each inspection; (3) reporting and corrective action requirements for specific 

structural integrity warning signs like increases in seepage; and (4) annual engineering 

inspections and reports with no exceptions.

723 See 30 C.F.R. § 77.216-3(a).

724 Tennessee Department of Environmental Conservation (TDEC), NPDES permit No. 

TN0005428 for the Gallatin Fossil Plant, Part II, Section B (2012).

725 Id.

726 See 30 C.F.R. § 77.216-4.

727 Id.

728 30 C.F.R. § 77.216-3(b).

729 TDEC, NPDES permit No. TN0005428 for the Gallatin Fossil Plant, Part II, Section B 

(2012).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs because it 

established structural integrity requirements in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.

Comments on the substance of the CCR rule are outside the scope of this rule. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-596

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 163

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

If EPA fails to require specific BMPs in NPDES permits, with clear reporting and corrective 

action requirements, then the states will continue to write NPDES permits without enforceable 

structural integrity standards. Specific standards for design, inspection and corrective action are 

set forth in both the MSHA regulations and in the CCR proposed rules modeled after those 

regulations. The BMPs should require adherence to these specific standards, and these standards 

should be incorporated into NPDES permits to ensure consistent and effective controls on 

all coal ash impoundments nationwide.

The current (administratively extended) permits for three TVA plants in Alabama and Kentucky 

serve as useful examples of the failure of the status quo; all of these permits effectively ignore 

structural integrity and lack conditions that would ensure against significant releases of toxic 

pollutants to surface waters. The two Alabama permits include identical—and wholly 

ineffective—language purporting to address structural integrity under the heading “Best 

Management Practices (BMP) Plan Requirements.”730 The language is deficient in at least three 

general ways. First, there is no indication that this language is intended to require BMPs for 

structural integrity; it appears to be boilerplate meant to address small, miscellaneous waste 

streams. Second, since the permits only require BMP plans to be completed after the permits 

become effective, there is no opportunity for public participation. Third, because the specific 

requirements of the BMP plans are not themselves conditions of the permit, these requirements 

are difficult to enforce. Most glaringly, the permits require BMP plans, but not BMPs. And 

although the Alabama Department of Environmental Management (ADEM) reserves the right to 

review and correct the BMP plans, it does not require TVA to submit the plans to ADEM, 

instead requiring that the BMP plans be reviewed by the permittee within six months of the 

permit effective date. The two Kentucky permits for TVA plants use different boilerplate 

language, but otherwise suffer from the same deficiencies outlined above for the Alabama 

permits.731

NPDES permits like these, devoid of clear requirements for BMP implementation, reporting, and 

corrective action, clearly provide no safeguards to prevent structural failures and associated 

releases of pollutants to waters of the United States. EPA must fill this regulatory gap with clear 

prescriptions for permit language adequate to detect and respond to early warnings of 

compromised dike stability.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-597

730 Alabama Department of Environmental Management (ADEM), NPDES permit No. 

AL0003867 for the Colbert Fossil Plant, Part IV.B (2005); ADEM, NPDES permit No. 

AL0003875 for the Widows Creek Fossil Plant, Part IV.B (2005).

731 Kentucky Department for the Environment (KDEP), KPDES permit No. KY0004201 for the 

Paradise Fossil Plant (2004); KDEP, KPDES permit No. KY0004219 for the Shawnee Fossil 

Plant (2005).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs because it 

established structural integrity requirements in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 165

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

1. Imminent threats at high and significant CCR surface impoundments were revealed in the 

EPA’s dam assessment reports.

As described in detail in comments submitted by Earthjustice and others in response to EPA’s 

Notice of Data Availability,736 EPA’s assessments of CCR dams documented a substantial 

number of structural integrity problems at the dams, including insufficient factors of safety,737

absence of geotechnical engineering analyses to determine structural stability, inadequate 

inspection procedures, seeps, sloughing, and the absence of emergency action 

plans.738 Furthermore, we pointed out that the more in-depth geotechnical analyses conducted by 

TVA of their own dams following the Kingston dam disaster revealed even greater problems 

with structural stability, resulting in 12 or the 24 dams undergoing needed repairs and a 

substantial change in the inspection and maintenance procedures carried out by TVA.739 It is 

likely that if additional dams were subject to a complete geotechnical analysis, additional 

deficiencies relating to the structural integrity of the dams would have been uncovered. This is 

because, for a great many of the dams, the analyses necessary to determine structural stability 

simply had not been done.740 The engineers who examined the high and significant coal ash 

impoundments often recommended further stability analyses of the structures because there was 

little information on the materials and construction methods used on most of the dams.741
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-598

736 Comments of Earthjustice et al. to U.S. EPA, Office of Resource Conservation and Recovery, 

Notice of Data Availability and Request for Comment (Coal Ash NODA), 78 Fed. Reg. 46,940 

(Aug. 2, 2013) (comments filed Sept. 3, 2013) (Document ID No. EPA-HQ-RCRA-2012-0028-

0111).

737 See, for example, Duke Energy, W.C. Beckjord Station, New Richmond, Ohio: Significanthazard ash Pond C determined to be "marginally stable;" and Indianapolis Power & Light 

Company, Eagle Valley Generating Station, Martinsville, Indiana: High and significant-hazard 

Ponds D and E, respectively, had factors of safety less than 1.0, and both dams experienced 

failures in 2007 and 2008.

738 See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.

739 See Comments of Earthjustice et al. to U.S. EPA, Office of Resource Conservation and 

Recovery, Notice of Data Availability and Request for Comment (Coal Ash NODA), 78 Fed. 

Reg. 46,940 (Aug. 2, 2013) (comments filed Sept. 3, 2013) (Document ID No. EPA-HQ-RCRA2012-0028-0111).

740 See http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.

741 Id. See also comments of Jack Spadaro, submitted by Commenters as an exhibit to this letter.

Comment Response: 

EPA did not establish BMPs in the final rule for the reasons discussed in the preamble and other 

comment responses. Comments on the substance of the CCR rule are outside the scope of the 

final ELG rulemaking. See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s 

regulations regarding CCR impoundments and closure requirements. EPA addressed comments 

on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-640-

11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 166

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

2. The uncertain current status of the high and significant hazard dams found in poor 

condition by EPA argues for immediate action to establish enforceable requirements for safe 

design and adequate inspections.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-599

As a result of EPA-contracted assessments of coal ash impoundments by dam safety experts 

from 2009 to 2013, EPA found 144 coal ash impoundments in poor condition (28 percent of the 

total number of dams inspected).742 The majority of coal ash impoundments found by EPA to be 

in poor condition have a high or significant hazard rating (80 of 144 impoundments).743 In fact, 

EPA found one out of five high hazard dams in poor condition (20 percent).744 Of 

239 significant hazard dams, EPA found 28 percent in poor condition.

These comments focus on the actions taken by EPA and dam owners to resolve the problems 

discovered at the nation’s most dangerous coal ash dams. In total, EPA found 16 high hazard 

impoundments in poor condition. These dams have the highest likelihood of causing severe 

damage if they fail. Such dams are rated “high” hazard because their failure is likely to cause 

loss of life. Because no federal regulations have ever held these dams to basic design and 

construction standards, existing coal ash dams must be closely watched. Professional 

engineers designed only three of the dams.745 Their average age is 45 years-- five years over the 

estimated 40-year lifespan of a coal ash surface impoundment.746

The high hazard impoundments rated in poor condition received this rating because they were 

found to have structural stability below federal dam standards, lacked critical technical 

documentation pertaining to structural integrity, and because of observed physical problems.

The observed problems most often involved erosion or the threat of future erosion due to 

uncontrolled vegetation, animal burrows, seepage, and sloughing. Additional problems included 

inadequate inspection programs, lack of emergency action plans, and failure to perform hydraulic 

and stability analyses. The Table entitled “Problems Identified by EPA at Sites with HighHazard, Poor-Rated Dam(s)” summarizes the problems found at the 16 dams.747

The large number of coal ash surface impoundments found by EPA in “poor” condition should 

have precipitated a very rigorous effort on the part of EPA to ensure that serious problems were 

remediated as soon as possible. The record shows, however, that nothing of the kind 

occurred. In the absence of enforceable federal requirements or permit conditions, EPA took 

only informal action to urge dam owners to take remedial steps. Instead of notices of violation, 

EPA wrote owners letters describing the deficiencies. Instead of enforceable administrative 

consent orders, the dam owners responded to EPA’s findings solely with letters estimating dates 

when critical problems would be addressed.748 Often these industry letters, however, registered

disagreement with EPA’s findings or provided only vague assurances that work would be 

completed by a certain date.749

After the passage of several years, only half of the plant owners of the 16 dams have submitted 

to EPA any documentation pertaining to the problems identified at their dams.750 This is not 

surprising because EPA did not require owners to submit documentation of completion of 

remedial activities.751 For the four owners who did submit documents, EPA has no records 

indicating that they reviewed the materials for sufficiency, even though the documents address 

issues central to structural stability. Lastly, EPA has never re-inspected any of the dams to 

determine whether all problems have been resolved. Essentially, there is no evidence that EPA

has done anything to re-assess dam conditions at these high hazard dams after the initial 

inspection. The only follow-up with dam owners occurred in mid-August 2013. At that time EPA 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-600

sent a set of form letters to owners of dams inspected by EPA, informing them that is the 

company’s responsibility to ensure that their dams are structurally sound.752 The letters were 

completely silent regarding the sufficiency of repairs or the need for any further action on 

the part of the company to resolve the deficiencies that were identified by EPA’s dam safety 

experts. EPA did not ask the companies for documentation of any voluntary actions completed, 

despite the fact that in many cases the Agency had no such confirmation.753

There has been no citizen involvement, because in the absence of federal regulations and permit 

conditions, those threatened by these dams have no legal role to play in ensuring the safety of 

their communities. The establishment of specific and enforceable BMPs is thus needed to 

facilitate effective oversight and enforcement, guarantee transparency and public participation, 

and ensure compliance with critical safety standards.

742 See U.S. Envt’l Prot. Agency, Coal Combustion Residuals Impoundment Assessment 

Reports: Summary Table for Impoundment Reports, (July 19, 2013), available 

at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/.

743 See U.S. Envt’l Prot. Agency, Coal Combustion Residuals Impoundment Assessment 

Reports: Summary Table for Impoundment Reports, (July 19, 2013), available 

at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/.

744 Id.

745 See EPA, Information Response from Electric Utilities,

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.

746 Age data was available for 15 of the 16 high hazard dams 

at ttp://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.

747 Submitted by Commenters as an exhibit to this letter.

748 See Company Response/Action plans, available 

at http://www.epa.gov/osw/nonhaz/industrial/sSpecial/fossil/surveys2/.

749 See, e.g, Company Response/Action Plan for Progress Energy Carolinas, Cape Fear Power 

Station, available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/pec_capefear_response.pdf.

750 See EPA Table, “List of Action Plan Follow Up Reports/Materials,” received in response to 

Earthjustice Freedom of Information Act Request, dated April 2013, submitted to EPA from Lisa 

Evans, Attorney, Earthjustice, submitted by Commenters as an exhibit to this letter.

751 Of 516 impoundments inspected, EPA, to date, has received information for approximately 

127 impoundments, about one-fourth of all dams inspected. Id. The response rate remains low 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-601

even for structural deficiencies identified at high and significant hazard dams. For those 80 high 

and significant hazard dams that received “poor” condition ratings, only 24 companies submitted 

any follow-up documentation to EPA.

752 See, e.g., Barnes Johnson, Letter to Fred Holt, Progress Energy Carolinas, Aug. 13, 2013, 

available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/finlet/pec_finlet.pdf.

753 Id.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. Rather, it 

established structural integrity requirements in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119. Comments on the substance of the CCR rule are 

outside the scope of this rulemaking. EPA addressed comments on the CCR rule in the context 

of that rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 167

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. The absence of emergency action plans for CCR impoundments demonstrates the need to 

establish enforceable requirements for safe operating practices as soon as possible.

Emergency action plans (EAPs) exist to prevent or minimize any potential loss of life and 

damage to property from dam failures, and having an EAP in place is fundamental to effective 

emergency action planning. Without an EAP, dam personnel may not be able to identify a 

potential emergency condition and respond accordingly. In addition, dam personnel may not be 

able to properly notify downstream authorities, appropriate first-responders or communities 

about an emergency.

Of the 61 plants found by EPA to be maintaining high or significant-hazard dams in poor 

condition, only 38 plants were examined for the presence of an EAP. Of these 38 plants with 

dams rated as in poor condition, less than 40 percent had emergency action plans. Over 60 

percent of these high and significant hazard dams, where serious deficiencies were found, had no 

EAPs whatsoever. In any other context, federal government officials would find this situation 

extremely alarming.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-602

In fact, a recent report by the Office of the Inspector General (OIG) of the U.S. Department of 

the Interior (DOI), entitled “Bureau of Land Management, National Park Service, and Office of 

Surface Mining Reclamation and Enforcement's Safety of Dams: Emergency Preparedness,” 

evaluated this very issue.754 In this December 2012 report, the OIG examined the emergency 

preparedness of three government agencies within the DOI that operate high hazard 

dams. Together, the Bureau of Land Management’s (BLM), National Park Service’s (NPS) and 

Office of Surface Mining Reclamation and Enforcement’s (OSM) manage 584 dams that are 

classified as either high or significant hazard. The OIG measured the agencies’ emergency 

preparedness against the DOI requirement that a bureau’s dam safety program include an EAP 

for all of its high and significant hazard dams.755

The OIG’s findings included recommendations for immediate management changes. The OIG 

found that each of the three agencies failed to have all required EAPs in place and that not every 

EAP had been properly prepared, exercised, reviewed, and updated to ensure an effective 

response to incidents. According to a U.S. Bureau of Reclamation official, an average of four 

dam incidents occur annually756 at these dams. The OIG concluded that because these 

dam incidents put the public and property at risk, it is important for BLM, NPS, and OSM to 

have EAPs in place. The OIG provided detailed recommendations for each Agency to ensure that 

adequate EAPs were timely completed.757 In contrast, EPA failed to quantify the industry-wide 

absence of effective EAPs or to take action to ensure that missing EAPs at high and significant 

hazard CCR impoundments were completed in a timely and satisfactory manner.

754 Office of the Inspector General of the U.S. Department of the Interior, Bureau of Land 

Management, National Park Service, and Office of Surface Mining Reclamation and 

Enforcement's Safety of Dams: Emergency Preparedness (Report No. WR-EV -MOA-0015-

2011).

755 Id. at 1.

756 The DOI annual average number of four dam incidents is for the years 1995 through 2009. 

This annual average number is probably higher because there is no required uniform method of 

reporting dam incidents within DOI. As such, DOI does not have a comprehensive list of dam 

incidents.

757 Office of the Inspector General of the U.S. Department of the Interior, Bureau of Land 

Management, National Park Service, and Office of Surface Mining Reclamation and 

Enforcement's Safety of Dams: Emergency Preparedness (Report No. WR-EV -MOA-0015-

2011).

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. Rather, it 

established structural integrity requirements in the CCR rule. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.EPA also considered section 101(f)’s direction 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-603

to avoid duplication at all levels of government. Comments on the substance of the CCR rule are 

outside the scope of this rule. EPA addressed comments on the CCR rule in the context of that 

rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 168

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

F. IF EPA DOES NOT REQUIRE TIMELY IMPLEMENTATION OF BMPS FOR 

DESIGN AND INSPECTION OF CCR IMPOUNDMENTS, EPA MUST REQUIRE 

COMPLIANCE WITH REQUIREMENTS UNDER RCRA.

The inclusion of dam safety requirements in BMPs is an urgent matter, as described above. If 

EPA is unable or unwilling to require compliance with the BMPs no later than three years from 

the effective date of the final rule, EPA should proceed with establishing identical requirements 

under RCRA authority.

Comment Response: 

EPA has decided not to establish BMPs for CCR impoundments under the final ELG. See 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 169

External Review Flag: No External Review

External Review Incorporated into Response: No
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-604

Comment Excerpt: 

G. EPA MUST ESTABLISH BMPS FOR ALL CCR SURFACE IMPOUNDMENTS 

WHERE RELEASES WOULD DISCHARGE TO SURFACE WATER AND WHERE 

GROUNDWATER IS HYDROLOGICALLY CONNECTED TO SURFACE WATER.

EPA has proposed to establish BMPs only for those CCR surface impoundments that are “direct 

dischargers.”758 This is clearly unacceptable because such a narrow exercise of EPA’s authority 

under the CWA leaves much of the universe of large and life-threatening CCR impoundments 

unaddressed. According to question D3-3 of the ELG questionnaire, only 457 of the 1504 

impoundments that industry self-reported are direct dischargers.759 Furthermore, only 104 of 

the 309 high and significant hazard CCR impoundments admit to being in this category.760 A list 

of those CCR impoundments is attached as Exhibit X. The graph below illustrates the 

distribution and demonstrates that if EPA restricts the BMPs to direct dischargers, the majority 

of impoundments will escape these essential safety requirements.761

EPA must apply the BMPs to all CCR surface impoundments under the jurisdiction of the Clean 

Water Act. First, EPA must apply BMPs to all CCR impoundments that, in the event of a breach 

or failure, would discharge pollutants to surface water. The fact that such impoundments 

may not currently be discharging directly to surface waters is irrelevant to the purpose of the 

BMPs. If the releases that the BMPs are intended to prevent would result in the discharge of 

pollutants to surface water, these impoundments must be permitted and the conditions of their 

permits must include the BMPs. Second, EPA must also include CCR impoundments that 

discharge leachate to groundwater with a hydrological connection to surface water. The CWA 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-605

prohibits such discharges without a permit.762 Leaks in a pollution containment system, like CCR 

impoundments, are point sources that require a NPDES permit.763 Consequently, NPDES permits 

for these CCR impoundments must contain the proposed BMPs.

758 78 Fed. Reg. 34,466.

759 See Responses to Steam Electric Questionnaire, Part D, Pond/Impoundment Systems, 

Question D3-3.

760 Id.

761 See Responses to Steam Electric Questionnaire, Part D, Pond/Impoundment Systems, 

Question D3-3.

762 See Section IX.H, supra.

763 33 U.S.C. § 1362(14) (defining “point source” broadly and specifically including “container” 

in the definition); See, e.g., United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir.) 

(noting that “[w]hen a [closed circulating system] fails because of flaws in the construction or 

inadequate size to handle the fluids utilized, with resulting discharge, whether from a fissure in 

the dirt berm or overflow of a wall, the escape of liquid from the confined system is a point 

source”).

Comment Response: 

While EPA agrees with the commenter that the Clean Water Act prohibits the discharge of 

pollutants to surface waters, including where the discharge through groundwater has a direct 

hydrological connection to surface waters, EPA disagrees that it was required to promulgate 

BMPs in this ELG rulemaking. This is because protecting structural integrity at surface 

impoundments are in general addressed by the CCR rule. EPA also considered section 101(f) 

that directs EPA to implement the Act in a manner that avoids duplication at all levels of 

government. Outside of this rulemaking, in the Clean Water Act permitting context, permitting 

authorities EPA may require monitoring and conditions to assure compliance with any effluent 

limitation (either technology based or water quality based) that may be required in a 

permit. CWA section 402(a)(2). EPA also has broad authority under section 308of the CWA to 

require information from point sources for many purposes, including but not limited to, 

developing effluent limitations, determining if someone is in violation of an effluent limitation 

(including the limitation that prohibits unauthorized discharge by any person (CWA section 

301(a)), and in furtherance of its imminent and substantial endangerment authority (under 

section 504). All of these authorities are supported by NPDES permitting regulations. Those 

authorities, however, do not justify across the board, national BMPs to ensure structural integrity 

where the CCR addresses those issues. At an individual site where there is a particular problem, 

it may be that the CWA authorities mentioned above will enable the permitting authority to 

require something in addition to these national rules, but that is appropriately addressed in a 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-606

particular permitting proceeding. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119.Dealing with the risks of contamination of ground water is primarily the 

role of the CCR rule. The ELG's main focus was to address impacts associated with pollutant 

discharges in wastewater to surface waters from steam electric power plants. While the CCR 

rule is the major controlling action for pollutant releases to ground water, by either requiring the 

closure of unlined CCR impoundments, or their retrofitting, the ELGs could indirectly result in 

reduced impacts to ground water as well. EPA estimates that the ELG will result in reduced 

pollutant loadings to surface impoundments (e.g., through the conversion to dry handling for fly 

ash). These reduced loadings will decrease the potential leaching of pollutants from CCR surface 

impoundments to ground water and will reduce the potential human health impacts associated 

with exposure to contaminated drinking water wells. Also see response to DCN EPA-HQ-OW2009-0819-4460-A1, Excerpt Number 72.

Comments on the substance of the CCR rule are outside the scope of this rule. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 170

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

H. APPLICATION OF BMPS TO CCR SURFACE IMPOUNDMENTS MUST BE NO 

LESS STRINGENT THAN THE APPLICABILITY REQUIREMENTS FOR COAL SLURRY 

IMPOUNDMENTS UNDER MSHA.

If EPA establishes BMPs for dam safety, the applicability requirements concerning size, height 

and volume of waste material impounded must be no less stringent than the requirements 

applicable to coal slurry impoundments under MSHA regulations at 33 C.F.R. § 77.216.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final. See response to DCN 

EPA-HQ-OW-2009-0819-4684-A1

Excerpt Number 169. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-607

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 171

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XI. EPA SHOULD ESTABLISH SPECIFIC AND ENFORCEABLE BMPS FOR 

CLOSURE OF CCR SURFACE IMPOUNDMENTS.

The billions of tons of waste currently disposed in CCR surface impoundments have the potential 

to significantly harm both surface water and groundwater with hydrogeological connections to 

surface water. Consequently it is essential that EPA establish BMPs to ensure CCR 

impoundments are safely closed to minimize pollutant discharge to such waters. According to 

industry responses to EPA’s Office of Solid Waste Information Request in 2009, the storage 

capacity for 637 coal ash surface impoundments is approximately 283 billion gallons of coal ash 

waste.764 This total underestimates the total amount of storage capacity because it does not 

include over 400 CCR impoundments, later identified by industry in the 2010 ELG IC.765 These 

reservoirs of toxic pollutants, both active and inactive, pose grave threats to water quality of 

surface water and groundwater. The failure to include BMPs for surface impoundment 

closure in a final ELG rule would be arbitrary and capricious and without rational basis in law.

In fact, NPDES permits for TVA plants in Tennessee now require that TVA submit CCR 

impoundment closure plans.766 This is an important step in the right direction, but it does not go 

far enough. These closure plans are not required until after the permits’ effective dates, and there 

is no avenue for public participation. Furthermore, although the Tennessee TVA permits require 

closure plans, they do not require specific closure BMPs. In order to ensure that CCR 

impoundments nationwide are subject to adequate and consistent conditions for safe 

closure, EPA must require specific design, maintenance and remediation criteria similar to the 

closure requirements for CCR surface impoundments proposed under RCRA. Where CCR is left 

in place, EPA must require closure plans with minimum safeguards including provisions for 

major slope stability, groundwater monitoring, cap-and-cover requirements, provisions to 

preclude the probability of future impoundment of water, and post-closure care.

764 See EPA, Information Request Responses from Electric Utilities, available 

at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.

765 The ELG ICR data were not used to estimate present volume of waste or storage capacity of 

CCR impoundments because of the lack of data for both active and inactive units due to CBI 

claims.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-608

766 See, e.g., TDEC, NPDES permit No. TN0005428 for the Gallatin Fossil Plant 

(2012). Permits for the Bull Run, John Sevier, Johnsonville and Kingston Fossil Plants include 

the same requirement.

Comment Response: 

EPA did not establish surface impoundment management requirements (including closure) See

response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 169.

See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

impoundment closure. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 119 for a summary of the requirements of the two rules.

See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 169 regarding 

groundwater contamination.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 187

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

XV. EPA’S INTEGRATION OF THE ELG AND CCR RULES MUST CONSIDER THE 

NATURE AND SCOPE OF THE RISKS POSED BY COAL COMBUSTION 

RESIDUALS TO HUMAN HEALTH AND THE ENVIRONMENT.

EPA’s efforts to “align” the proposed ELG and CCR rules make consider the distinct and 

significant risks posed by each pollution source. Use of data from the 2010 ELG surveys can 

enhance understanding of the risks posed by coal ash, but there is also a danger that the data will 

be misused. In fact, EPA’s proposed use of several data sets is likely to underestimate 

significantly the risk to human health and the environment from improperly managed coal ash. 

Further, EPA appears in this proposed rule and in the coal ash Notice of Availability that 

preceded it, to be ignoring ELG survey data that show distinctly increased risk from coal 

ash. The desired “alignment” of the rules must not take precedence over the goal of protecting 

health and the environment from all risks posed by power plant wastes.

Comment Response: 

EPA’s ELGs are technology-based and not based on risk. See the preamble to the proposed and 

final rule for a general description of the factors for each level of technology-based control and 

the final rule preamble for EPA’s rationale for the final rule.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-609

Comments related to the CCR risk assessment is outside the scope of the final ELGs.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 188

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

A. FOREMOST EPA MUST ENSURE THAT THE ELG AND CCR RULES FULFILL THE 

MANDATES OF THE CLEAN WATER ACT AND THE RESOURCE CONSERVATION 

AND RECOVERY ACT.

In the preamble to the proposed ELG rule, EPA acknowledged the intersection between the CCR 

and ELG rules and expressed the need to “align and structure” the CCR rule to account for any 

final requirements adopted under the ELG rule.851 According to EPA, the Agency’s goal in the 

dual rulemaking process is “to ensure that the two rules work together to effectively address the 

discharge of pollutants from steam electric generating facilities and the human health and 

environmental risks associated with the disposal of CCRs, without creating avoidable 

or unnecessary burdens.”852 First and foremost, EPA emphasized, the agency must fulfill its 

statutory mandate to restore and maintain water quality under the CWA and to protect human 

health and the environment under RCRA.”853

To that end, EPA proposed two primary means of integrating the ELG and CCR rules:

(1) through coordinating the design of any final substantive CCR[sic] regulatory requirements 

[with ELG requirements], and (2) through coordination of the timing and implementation of final 

rule requirements to provide facilities with a reasonable timeline for implementation that allows 

for coordinated planning and protects electricity reliability for consumers.854

Thus the first method of integration involves the design and substance of the requirements, and 

the second involves coordinating their timing. Under both means of “alignment,” EPA must 

consider the risks specific to CCR and fulfill its duty to protect health and the environment under 

RCRA.

In implementing this two-tiered approach, however, EPA strayed from its statutory mandate. 

First, the Agency suggested that data gathered for the ELG rulemaking may necessitate 

significant revision of the draft CCR risk assessment and risk screening analysis for fugitive 

dust.855 However, as explained below, EPA’s proposed arbitrary use of data collected for the 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-610

ELG rule would result in the gross underestimation of risk from CCRs. Second, in the guise of 

promoting coordinated timing and implementation, EPA failed to properly consider the risks 

posed by CCRs and the need to require timely compliance at high risk facilities.

851 78 Fed. Reg. at 34,441.

852 Id.

853 Id.

854 78 Fed. Reg. at 34,442.

855 Id.

Comment Response: 

EPA evaluated the regulatory factors under the CWA for establishment of these technologybased rules. Unlike RSRA regulations, these rules are not based on risk. This comment 

excerpt relates to the CCR risk assessment and are outside the scope of the final ELGs.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 200

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

1. Federal regulations are necessary because state laws fail to require safe closure and 

post-closure of CCR impoundments.

Almost universally, state laws are grossly deficient and cannot ensure the safety of retired coal 

ash impoundments. We reviewed the adequacy of closure regulations for coal 

ash impoundments in 37 states, which together comprise over 98 percent of all the coal ash 

generated nationally.896 State closure regulations were evaluated against four basic closure 

requirements that EPA proposed in its 2010 CCR rule.897 These included:(1) submission of a 

closure plan to the state prior to closure; (2) elimination of free liquids by removing liquid wastes 

or solidifying the remaining wastes; (3) stabilization of remaining wastes to a bearing capacity 

sufficient to support the final cover; and (4) construction of final cover that has a 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; and (5) conducting 30 years of 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-611

post-closure groundwater monitoring. Table 1 of Exhibit XII-9, State Closure Requirements for 

Coal Ash Surface Impoundments,” contains the results of the 37-state review.898

None of the 37 states reviewed impose all five of the basic CCR impoundment closure 

requirements that EPA outlined in the proposed CCR rules. Only three states, Michigan, 

Louisiana, and New York, impose or otherwise satisfy899 four out of the five requirements. Two 

states impose three of the requirements. Ten states impose just one or two of the requirements. 

The remaining 22, or nearly than 60% of the states surveyed, do not impose any of these five 

basic closure requirements. See Figure 1, below.

These results are not surprising because only 19 out of the 37 states surveyed have any solid 

waste regulations on the books that are specifically applicable to CCR impoundments.900 Among 

those 19 states that regulate CCR impoundments, the most common of the five basic closure 

requirements is the duty to submit a closure plan. Yet more than 30 percent, or 6 of the 19, 

fail to require a closure plan. The second most common closure requirement is a final cover 

meeting or exceeding the permeability standards EPA proposed. Eight states require adequate 

final cover. However, another eight states fail to require any cover whatsoever for CCR 

impoundments, while three states fail to specify adequate permeability.901 The remaining three 

requirements were even less prevalent. Only five states require groundwater monitoring for the 

proposed 30-year period. By far, the least common closure requirements are dewatering and 

waste stabilization. Only two states require that CCR impoundments be dewatered, and only one 

state explicitly requires that CCR impoundment wastes be stabilized to the extent necessary to 

support the required final cover.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-612

896 Alabama, Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, 

Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New 

Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, 

Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, 

Washington, West Virginia, Wisconsin and Wyoming.

897 See Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35128, 

35252 (proposed June 21, 2010).

898 The results are based on a review of each state’s administrative rules, statutes, and 

representations to the EPA regarding regulatory programs for CCR impoundments. For each 

state, the survey first indicates whether there are any regulations in place applicable to CCR 

impoundments. Next, the survey indicates whether the regulations identified, if any, impose each 

of the four closure requirements listed above. A state is identified as imposing a requirement 

only if state law makes that requirement generally applicable to CCR impoundments, rather than 

a narrow subset of CCR impoundments. A state is identified as imposing a requirement even if 

its administrators may exercise broad discretion in exempting individual CCR impoundments 

from that requirement, if it would otherwise apply by default. This methodology conservatively 

credits states with imposing requirements that may rarely be enforced.

899 New York actually imposes only one of the five requirements that are the focus of this 

review, but is credited here as imposing four because it is the only state that requires operators to 

remove all waste and contaminated soil from CCR impoundments upon closure. EPA proposed 

complete waste removal as an acceptable alternative to closure with CCRs in place. See Disposal 

of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. at 35253. As a result, New 

York is treated as having satisfied the Dewatering, Waste Stabilization, and Impermeable Final 

Cover criteria that would apply to impoundments closed with CCRs in place.

900 These states may require NPDES permits for discharges from the impoundments, but the 

CCR impoundments themselves are not regulated as solid waste disposal units, and therefore the 

state solid waste disposal rules are not applicable.

901 Iowa, Missouri, and South Dakota. See Table 5, “Impermeable Final Cover” for these states.

Comment Response: 

EPA did not establish surface impoundment management requirements (including closure) for 

the reasons articulated in the preamble and elsewhere in the comment responses. See response to 

DCN EPA-HQ-OW-2009-0819-4684-A1

Excerpt Number 169. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-613

Comments on the substance of the CCR rule are outside the scope of this rule. See the final CCR 

rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding impoundment 

closure. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for 

a summary of the requirements of the two rules.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 201

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

B. UNDER ALL OPTIONS, RCRA CLOSURE AND POST-CLOSURE STANDARDS FOR 

CCR SURFACE IMPOUNDMENTS MUST BE REQUIRED TO ENSURE PROTECTION OF 

HUMAN HEATH AND THE ENVIRONMENT.

EPA’s establishment of dry handling as BAT for fly ash transport water will render the nation’s 

enormous fleet of coal ash impoundments obsolete as disposal units. EPA, however, has not 

included the dewatering, secure closure, and post-closure monitoring of these units as part of the 

ELG rule. EPA should establish these requirements as BMPs as discussed in Section X, supra.

Without federal standards for safe closure and post-closure care of CCR impoundments, EPA’s 

rule is not protective. EPA must establish federal standards under the CWA and/or RCRA to 

address the huge threat posed by inactive dumps to public safety, human health and the 

environment.

Comment Response: 

EPA chose not to establish BMPs in this rule. See response to DCN EPA-HQ-OW-2009-0819-

4684-A1, Excerpt Number 169.

See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

impoundment closure. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 119 for a summary of the requirements of the two rules.

Substantive comments on the CCR rule are outside the scope of this rule. EPA addressed 

comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-

640-11970).
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-614

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 202

External Review Flag: Economics/Benefits

External Review Incorporated into Response: No

Comment Excerpt: 

According to EPA, there are 1070 retired and operating CCR impoundments.902 The data 

submitted by utilities pursuant to the ELG Questionnaire indicate that the nation’s operating 

impoundments together impound more than 47.4 billion cubic feet of wastewater and coal 

combustion waste slurry. This number greatly underestimates the total because the volume of 

over 1000 impoundments was claimed as CBI.903 More precisely, according to the Toxic Release 

Inventory, in 2010 alone, power plants reported using impoundments to dispose of CCR 

containing 112.8 million pounds of toxic metals or metal compounds, a category that includes 

arsenic, chromium, lead, and other pollutants that are hazardous in small concentrations and 

difficult to remove from the environment once released.904 These impoundments are largely 

unlined, and many have been used for over four decades as dumps for the toxic mixture.

Unfortunately, this immense quantity of toxic material does not remain contained in these aging 

dumps. Since 2002, six major spills have occurred at five different plants: Plant Bowen, 

Georgia;905 Martins Creek Station, Pennsylvania;906 Oak Creek Plant, Wisconsin;907 Eagle Valley 

Generating Station, Martinsville, Indiana (two dam breaks);908 and the Kingston Fossil Plant, 

Tennessee.909 In addition, the number of EPA-acknowledged damage cases from coal ash 

disposal has jumped nearly three-fold from 47 sites in 2000 to 133 sites in 2013.910 Many 

of these damage cases involved the leaking or failure of CCR surface impoundments. These 

toxic dumps will continue to leak hazardous pollutants and to threaten widespread devastation 

until properly closed. Even after closure, monitoring must occur for decades to ensure the units’ 

integrity.

In the absence of federal or state regulations requiring safe closure, the unthinkable can occur. 

This is illustrated by the intentional breaching of five CCR impoundments at the NIPSCO D.H. 

Mitchell Generating Station in Gary, Indiana.911 In 2002, following the shut-down of the plant, 

NIPSCO released all liquid coal ash waste from five separate coal ash impoundments by 

breaching the impoundment walls. Four of the impoundments had been operating since 1956, 

and the fifth impoundment was constructed in 1969. According to an environmental assessment 

performed by an EPA contractor in 2011, the impoundment walls were breached in four places 

and “all of the wastewater discharged to the Impoundments was discharged through the NPDES 

outlet to Lake Michigan.”912 It is estimated that approximately 134,000 tons of coal ash 

slurry and wastewater was released into the lake.913 At the time of the 2011 inspection, ash 

residue was observed, but no liquid remained in the unlined impoundments and precipitation that 

currently enters the impoundments “appears to infiltrate the ground” through the 

ash.914 Without protective regulations, releases of large quantities of toxic waste may occur at 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-615

hundreds of coal ash impoundments. The strongest options in the ELG rule may have the effect 

of discontinuing the use of existing impoundments and avoiding the creation of new ones, but 

nothing in the proposed ELG rule requires the safe and systematic retirement of existing 

impoundments as necessary to safeguard our communities and environment.

902 78 Fed. Reg. at 34,516.

903 See responses to Steam Electric Questionnaire, Part D, Pond/Impoundment Systems, Question 

D4-3.

904 Environmental Integrity Project, Disposal in Coal Ash Ponds Increases 9% in 2010, January 

5, 2012, available at http://www.environmentalintegrity.org/01_05_2012.php.

905 See http://clatl.com/atlanta/georgia-power-ash-and-arsenic-spill-badnews/Content?oid=1237902

906 75 Fed. Reg. at 35,238.

907 See http://dnr.wi.gov/topic/Spills/documents/oakcreek/noaa-finalreport.pdf.

908 See U.S. Envt’l Prot. Agency, Coal Combustion Residuals Impoundment Assessment 

Reports: Summary Table for Impoundment Reports, (July 19, 2013), available 

at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/.

909 78 Fed. Reg. at 34,466.

910 See EA, Appendix A.

911 See Final Round 10 Dam Assessment Report: NIPSCO DH Mitchell Generating Station Coal 

Ash Impoundments, GZA GeoEnvironmental, Inc,, August 17, 2012, available 

at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/nipsco_mitchell_final.pdf.

912 Id. at 2.

913 Id. at 4.

914 Id. at 6.

Comment Response: 

EPA did not establish surface impoundment management requirements (including closure) in the 

final ELGs. See response to DCN EPA-HQ-OW-2009-0819-4684-A1, Excerpt Number 169.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-616

See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

impoundment closure. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt 

Number 119 for a summary of the requirements of the two rules.

Comments on the CCR rule are outside the scope of this rule. EPA addressed comments on the 

CCR rule in the context of that rulemaking (see Docket EPA-HQ-RCRA-2009-640-11970).

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.

Document Control Number: EPA-HQ-OW-2009-0819-4684-A1

Comment Excerpt Number: 203

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The establishment of dry handling as BAT for fly ash transport water will necessitate the 

disposal of voluminous quantities of fly ash in landfills rather than surface impoundments. 

Similarly, dry handling of bottom ash and the solids produced in the chemical precipitation, 

biological treatment, and evaporation systems for FGD wastewater, will increase the total solid 

waste generated by the industry. Therefore, EPA must establish immediately the concomitant 

design and maintenance standards essential for the construction and safe operation of engineered 

coal ash landfills under RCRA. Currently, the majority of states do not require basic protective 

requirements such as composite liners, leachate collection systems, groundwater monitoring, 

financial assurance, closure and post-closure standards and corrective action at all new coal ash 

landfills. The construction of CCR landfills without these basic standards would undo much of 

the anticipated benefit of the ELG rule.

Comment Response: 

Comments about what requirements EPA must establish under RCRA are outside the scope of 

this rulemaking. EPA addressed the disposal of the materials that will now be dry handled in the 

TDD and elsewhere in the record for this rule.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

See response to DCN EPA-HQ-OW-2009-0819-4466-A1, Excerpt Number 11 for a discussion 

of landfill disposal associated with the ELG.

Commenter Name: Thomas Cmar

Commenter Affiliation: Earthjustice, et al.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-617

Document Control Number: EPA-HQ-OW-2009-0819-4723-A2

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Any best management practices developed by EPA must address active as well as inactive and 

closed landfills.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4684-A1 Excerpt Number 169. See response to DCN EPA-HQOW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 4

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

3. ELG and CCR Rules, Complementary Regulation. MP also supports EPA’s intention to 

develop the final ELG rule and the pending CCR rules so they complement one- another and 

enhance the efficiency of the final regulations (FR page 34441).

For example:

a. The ELG and CCR final rules should be consistent, allowing for the ongoing use of 

impoundments for bottom ash management under either the BPT outcome or the closed loop 

outcome of the proposed ELG regulation.

b. The ELG and CCR rules should be consistent, allowing for the ongoing use of impoundments 

for FGD wastewaters under any proposed ELG outcome.

c. The ELG and CCR rules should be consistent by affirming permit writer discretion for 

imposing complimentary and site condition appropriate effective dates for regulation as well as 

the timing and closure requirements for impoundments.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-618

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing between the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-

A1, Excerpt Number 119 for a discussion of the coordination of the requirements of the two 

rules.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 8

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In addition, MP advocates that the final ELG and CCR regulations provide the permit writer with 

authority to designate consistent and compatible requirements for the installation of leachate 

collection systems.

Comment Response: 

The final ELG does not address requirements for the installation of leachate collection systems. 

Only the discharge of pollutants in combustion residual leachate is regulated under the final ELG 

rule. See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

CCR impoundments and landfills.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

8. Impoundment inspection and maintenance. EPA notes that Best Management Practices 

(BMPs) for impoundment inspections and maintenance may be included in the final ELG (FR 

page 34466). MP opposes the inclusion of BMPs in the final ELG, since Minnesota state 

regulations already administer a number of programs which ensure impoundment structural 

integrity.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-619

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Michael G. Cashin

Commenter Affiliation: Minnesota Power (ALLETE)

Document Control Number: EPA-HQ-OW-2009-0819-4768-A2

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Minnesota Power supports USWAGs work which discusses the need to harmonize the proposed 

ELG and CCR rules given impoundment requirements and future uses, especially for legacy 

wastewaters.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 regarding 

coordination of efforts including legacy wastewaters.

Commenter Name: Mark W. Metcalf

Commenter Affiliation: Wisconsin Public Service Corporation (WPS)

Document Control Number: EPA-HQ-OW-2009-0819-4770-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

In its 2010 proposed rules for coal combustion residuals (CCRs), EPA included structural 

integrity requirements for CCR surface impoundments. 75 Fed. Reg. 35,128, 35,175‐76, 35,214 

(June 21, 2010); 76 Fed. Reg. 63,252 (Oct. 12, 2011) (NODA). In the Effluent Guidelines 

proposal, EPA is considering “best management practices” (BMPs) for surface impoundments 

that receive coal combustion residuals. The BMPs under consideration in this rulemaking are 

similar to the structural integrity inspection and corrective active requirements proposed in the 

CCR rulemaking, but do not include closure requirements that were proposed as part of the CCR 

rulemaking (78 Fed. Reg. 34,466). The BMPs would require inspections every seven days, plans 

for designing, constructing, and maintaining existing impoundments, plans for closure, 

periodic inspections, and annual certification that the construction, operation, and 

maintenance follows the approved plan. When stability and safety issues are identified, 

corrective action would be required.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-620

We cannot comment fully on proposed BMPs that are briefly described but for which no details 

and no proposed language are offered. As specific regulations for surface impoundments have 

already been proposed in another rulemaking, it is imperative that the Agency does not 

promulgate a regulation with duplicate or conflicting requirements. The idea of BMPs for 

surface impoundments should be abandoned in the ELG rulemaking and handled in the CCR 

rulemaking under RCRA.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Jeff Udd

Commenter Affiliation: Minnesota Pollution Control Agency (MPCA)

Document Control Number: EPA-HQ-OW-2009-0819-4775-A1

Comment Excerpt Number: 2

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

The MPCA requests that the Best Management Practices (BMPs) for operation of impoundments 

containing coal combustion residues (CCRs) be eliminated from the proposed regulations. The 

proposed BMPs do not affect the level of pollutant control attained through use of 

impoundments; therefore they should not be incorporated into the effluent limitation guidelines 

proposed in these regulations. The use of BMPs to maintain assurance against structural failure is 

better suited for regulation under the Resources Conservation and Recovery Act, and therefore 

such practices should be addressed in the proposed regulations for management of CCRs.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: Zak Covar

Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ)

Document Control Number: EPA-HQ-OW-2009-0819-4985-A2

Comment Excerpt Number: 7

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-621

Best Management Practices for Impoundments

TCEQ is opposed to establishing BM Ps, construction standards, submittal of plans and 

specifications, closure plans, and annual certifications under this rule.

Although the proposed rule does not propose establishing Best Management Practices (BMPs) at 

this time, in the preamble, EPA has indicated that it is considering establishing BMPs, 

construction standards, submittal of plans and specifications, closure plans, annual certifications, 

etc. This would appear to overlap RCRA regulations and substantially increase burden on 

permittees and water permitting programs. EPA is specifically seeking input on this issue and 

TCEQ is opposed to these requirements under Clean Water Act authority.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: C. Simmons

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5086-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

It is critical that the ash ponds at the Valmont Power Plant be be properly monitored and sealed 

to prevent seepage of heavy metals into our streams, rivers, and eventual drinking water. 

Although Boulder relies heavily on the Valmont power plant for much of its energy, the town 

also prides itself on making the best attempt to live in harmony with nature. An artificial 

membrane underneath the pond may be necessary, although the longevity of the membrane must 

also be taken into effect so as to not create more work later down the road. A new layer of 

Bentonite underneath the pond is generally effective in stopping seepage of water through 

cracks, and is often used for cattle ponds. Bentonite clay is affordable, and naturally abundant in 

colorado. A 2' layer of bentonite will appropriately seal the bottom of the pond, and when filled 

with water the clay will expand and seal any previous cracks. Please consider SOME kind of fix 

for this problem. The drinking water of over 150,000 people could be effected if this issue is not 

addressed.

Comment Response: 

EPA did not establish surface impoundment management requirements in the final ELGs. See 

response to DCN EPA-HQ-OW-2009-0819-4684-A1 Excerpt Number 169. 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-622

See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

impoundment management. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119 for a summary of the requirements of the two rules.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Lili Kranitz

Commenter Affiliation: GEA EGI Contracting/Engineering Co. Ltd.

Document Control Number: EPA-HQ-OW-2009-0819-5093-A2

Comment Excerpt Number: 11

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices for Surface Impoundments

In the proposed ELG rule, EPA describes Best Management Practices (BMP) for CCR surface 

Impoundments (ELG preamble pages 34466-67). The BMP is similar to and based upon the 

promulgated Mine Safety and Health Administration (MSHA) BMP requirements at 30 CFR 

77.216 (regulations for coal slurry impoundments). Both types of impoundments contain sludge 

that exerts constant hydraulic pressure on containment dikes and that is susceptible to 

liquefaction. The described BMP is closely related to the proposed CCR rules: §257.71 (Design 

criteria for existing CCR surface impoundments), §257.72 (Design criteria for new CCR surface 

impoundments and lateral expansions), and §257.83 (Surface impoundment inspection 

requirements). The intent of these proposed rules is to assure the integrity of dikes that are 

subject to a constant hydraulic head and to prevent catastrophic releases of ash products that are 

subject to liquefaction and/or that contain copious quantities of free water.

The cured products produced from the DSS process are solid, exhibit high compressional 

strength and are not susceptible to liquefaction (see Tables 6 & 11). Upon discharge, dense slurry 

spreads out into a thin layer (<5 cm) and exerts no appreciable hydraulic pressure on 

containment dikes prior to solidification (in less than 72 hours). During the curing process, there 

is simply not enough dense slurry present to exert hydraulic stress on a dike or result in any 

significant release. Once cured, the solid nature of DSS products permanently eliminates the risk 

of catastrophic releases. For these reasons, impoundments containing the products of DSS 

technology should not be subject to the same design criteria, operating criteria or inspection 

requirements as those for impoundments that contain large quantities of materials that are 

susceptible to liquefaction and/or that exert a constant hydraulic pressure on containment dikes.

Figure 1 shows the active impoundment at the Matra Power Plant in Hungary. The 

impoundment has been in operation since 1998 and consists of 15 tiers averaging ~10 ft. each 

comprised of successive layers of solidified Type F ash that was pumped to the impoundment as 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-623

dense slurry from the power plant in the background. The impoundment covers an area of 314 

acres at its base and 122 acres at the top, and has been tiered and elevated an average of 150 ft. 

above the impoundment base.

The steepness of the impoundment slope and height of the impoundment are determined in part 

by the compressional strength of the solidified product. The compressional strength, in turn, is 

determined by the chemistry of the dense slurry ingredients. This impoundment poses no risk of 

catastrophic failure or inundation of the surrounding community by liquefaction of ash products 

because the compressional strength of the solidified products comprising the impoundment 

ranges from ~5000 to 11,000 lb/ft3 (see Table 11). There have been no slope failures or other 

incidents requiring remedial action since this impoundment was built and all leachate is returned 

to the plant for DSS processing. Thus, this is a zero discharge impoundment with respect to 

transport water and leachate.

DSS needs to be taken into consideration when establishing BMPs for impoundments. Because 

of the solid nature of DSS products, dam safety (MSHA) requirements should not apply, and less 

stringent dike inspection requirements consistent with lower risks should be allowed.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-624

Comment Response: 

EPA did not establish surface impoundment management requirements in the final ELGs,

See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding 

impoundment management. Also see response to DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119 for a summary of the requirements of the two rules.

Comments on the substance of the CCR rule are outside the scope of this rulemaking, EPA 

addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA-HQRCRA-2009-640-11970).

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 39

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA proposes “best management practices” to prevent catastrophic failures of impoundments of 

coal combustion residuals (CCR). This issue is already being regulated by the CCR rulemaking 

under RCRA. Regulating the same thing under the ELG rules threatens either to duplicate or to 

conflict with the CCR rule. APPA shares EPA’s desire that the agency should avoid conflicts 

between the ELG and CCR rulemakings.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a summary of the 

requirements of the two rules. See response to DCN EPA-HQ-OW-2009-0819-4684-A1

Excerpt Number 169.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 83

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-625

The Rule Needs to Allow for the Continued Treatment of “Legacy Wastes”

EPA’s ELG proposal recognizes that certain “legacy” CCR transport waters, such as fly ash, 

bottom ash, and flue gas mercury control legacy waters, will continue to be managed in 

impoundments, subject to present BPT limits.29 As EPA recognizes, impoundments may be 

necessary both to treat “legacy” wastes already in the impoundments and to treat other 

wastestreams (such as combustion residual leachate or low volume waste) that do not require dry 

handling.

EPA should be careful, then, to allow ash ponds to remain in use as needed. This requires 

crafting the CCR rule so as not to require operators to commence closing ponds within 30 days 

of last receiving CCRs (75 Fed. Reg. at 35,252) and not to require dredging and lining them 

within five years. Promulgating the “Subtitle D Prime” option in the CCR rulemaking is 

necessary to accomplish this.

29 See 78 Fed. Reg. at 34,461-62.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119. Comments on 

the substance of the CCR rule are outside the scope of this rulemaking.

Commenter Name: Theresa Pugh

Commenter Affiliation: American Public Power Association (APPA)

Document Control Number: EPA-HQ-OW-2009-0819-5140-A2

Comment Excerpt Number: 86

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

APPA Seeks Clarification on Lagoons

APPA is aware that some public power utilities use lagoons. If transport water storage or 

leachate storage lagoons are included, then they have to follow best management practices 

(BPM). BMP are appropriate for lagoons designed to store ash but APPA would like to see 

lagoons designed to store decant water or leachate excluded from BMP.

Comment Response: 

EPA is not establishing BMPs for impoundment management under the final ELGs. See 

response to DCN EPA-HQ-OW-2009-0819-4684-A1 Excerpt Number 169. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a summary of the 

requirements of the two rules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-626

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: A. Stone

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5353-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Please protect communities from toxic coal ash pollution. Without strong federal regulations, 

utilities are shielded from their responsibility to upgrade unsafe coal ash dumps, clean up 

contaminants, and close leaking ponds and landfills.

The EPA must finalize long overdue safeguards to protect human health and the environment 

from toxic coal ash waste.

Comment Response: 

See the response to DCN EPA-HQ-OW-2009-0819-3920-A1, Excerpt Number 64.

Commenter Name: S. Torroella

Commenter Affiliation: Private Citizen

Document Control Number: EPA-HQ-OW-2009-0819-5355-A1

Comment Excerpt Number: 1

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Please protect communities from toxic coal ash pollution. Without sharp federal regulations, 

utilities are shielded from their responsibilities to upgrade unsafe coal ash dumps, clean up 

contaminants and close leaking ponds and landfills.

The EPA must finalize safeguards to protect human health and the environment from toxic coal 

ash waste.

Comment Response: 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-627

EPA’s rule will result in substantial reductions of pollutants to the nation’s waters. See the 

preamble to the final rule. EPA did not establish surface impoundment management 

requirements (including closure) in the final ELGs. See response to DCN EPA-HQ-OW-2009-

0819-4684-A1 Excerpt Number 169.

EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPAHQ-RCRA-2009-640-11970).

Commenter Name: Paul Ling

Commenter Affiliation: Kansas City Power & Light Company

Document Control Number: EPA-HQ-OW-2009-0819-5406-A2

Comment Excerpt Number: 17

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices (BMPs) for Ash Ponds

EPA’s BMPs proposal is insufficiently described to allow for meaningful comment at this stage. 

The proposed CWA BMPs may duplicate or conflict with the proposed CCR rulemaking under 

Resource Conservation and Recovery Act (RCRA), as well as some state requirements. EPA 

should leave regulation of surface impoundments to the proposed CCR rule.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: S. L. Phillips

Commenter Affiliation: Louisiana Department of Environmental Quality

Document Control Number: EPA-HQ-OW-2009-0819-5509-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

EPA has stated that it will coordinate the Effluent Guidelines compliance timelines with those of 

the Coal Combustion Residual rule. This is necessary since both rules affect the same ash 

disposal systems, but have differing compliance schedules.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-628

Clarification on compliance periods is needed. LDEQ considers harmonization of requirements 

with the Coal Combustion Residual rule compliance schedule as a necessary element to both 

media.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing of the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: S. L. Phillips

Commenter Affiliation: Louisiana Department of Environmental Quality

Document Control Number: EPA-HQ-OW-2009-0819-5509-A2

Comment Excerpt Number: 13

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Best Management Practices for Coal Combustion Residual Impoundments

There is a provision addressing BMPs for surface impoundments which requires plans for 

closure, inspections every seven days and annual certification by a third party Professional 

Engineer that construction, operation and maintenance are in accordance with the approved plan. 

LDEQ considers that EPA has exceeded its authority under the Clean Water Act to require these 

inspections as part of the guideline revisions. End-of-pipe discharges are under the purview of 

the Clean Water Act, not inspections of impoundments. Inspections of coal combustion residual 

impoundments should not be required as part of these guidelines and are more appropriately 

placed in the Coal Combustion Rule (CCR). lf EPA moves forward with BMP requirements in 

association CCR impoundments, then EPA should describe in more detail the requirements of 

this provision.

Comment Response: 

EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to 

DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.

Commenter Name: S. L. Phillips

Commenter Affiliation: Louisiana Department of Environmental Quality

Document Control Number: EPA-HQ-OW-2009-0819-5509-A2

Comment Excerpt Number: 15
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-629

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Effluent Guideline requirements alignment with the Coal Combustion Residual 

requirements

EPA feels that the proposed effluent guidelines may have the potential to lower the CCR rule 

risk assessment results by as much as an order of magnitude. EPA 's current thinking is that the 

revised risks, coupled with the proposed ELG requirements and the increased federal oversight 

that such requirements could achieve, could provide strong support for a conclusion that 

regulation of CCR disposal under RCRA Subtitle D would be appropriate. The agency intends to 

align the requirements of these proposed guidelines with those of the CCR rule proposed in 

2010. Harmonization of the two rules that apply to many of the same facilities would be 

beneficial.

Comment Response: 

EPA has worked diligently to coordinate the requirements of the CCR rule and the ELG 

rule. See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a 

discussion of EPA’s coordination efforts and DCN EPA-HQ-OW-2009-4305-A3, Excerpt 

Number 128 regarding EPA’s coordination of implementation timing in the ELG versus the final 

CCR rule.

This comment primarily relates to the CCR risk assessment and is outside the scope of the ELG 

rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking (see 

Docket EPA-HQ-RCRA-2009-640-11970).

Commenter Name: F. Gilzow

Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission

Document Control Number: EPA-HQ-OW-2009-0819-5517-A2

Comment Excerpt Number: 12

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

We are particularly concerned that the separate rulemaking to regulate coal combustion residuals 

under the Resource Conservation and Recovery Act (RCRA) will have unfortunate consequences 

taken together with the present effluent limitations guidelines rulemaking. We appreciate EPA’s 

desire to coordinate the two rulemakings, and we urge EPA not to promulgate a CCR rule that 

requires the closing of ash impoundments at almost the same time that the ELG rule may require 
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-630

ash impoundments to stay in service. We will not be able to plan how to comply with the ELG 

rule until we know what the CCR rule will require.

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4305-A3, Excerpt Number 128 for a discussion 

of the timing of the ELG and CCR final rules and DCN EPA-HQ-OW-2009-0819-4379-A1, 

Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: William Matthews

Commenter Affiliation: Cleco Corporation

Document Control Number: EPA-HQ-OW-2009-0819-5550-A1

Comment Excerpt Number: 5

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comment V – Proposed BMPs for CRC impoundments are not described in adequate 

enough detail and would be redundant relative to requirements of other regulatory 

programs 

EPA proposes to establish BMPs in the rule for impoundments containing coal combustion 

residuals. The BMPs would require regular inspections, prompt corrective actions, submittal of 

design & construction plans, maintenance plans, closure plans and annual PE certification of 

compliance with all the requirements. In Louisiana, the Louisiana Department of Environmental 

Quality, Solid Waste Division, addresses most all of these items through the permitting system. 

Annual certification by the permit-holder takes place. The proposed BMPs would be redundant 

for Louisiana facilities and other states with similar programs.

In addition, the proposed BMPs are not described in adequate detail. For example, it is not clear 

if the BMPs would require that EPA approve the submitted design plans before a new 

impoundments could be constructed. Finally, will the BMPs be redundant to the requirements in 

the coming final RCRA CCR rule?

Since Louisiana has a successful management program already in place to prevent uncontrolled 

discharges, Cleco suggests that BMPs not be applied through the proposed effluent guidelines. If 

EPA insists on establishing such controls at the Federal level, BMPs should be applied through 

the final RCRA CCR rule.

Comment Response: 

EPA is not establishing BMPs for impoundment management under the final ELGs. See 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-631

Commenter Name: William Matthews

Commenter Affiliation: Cleco Corporation

Document Control Number: EPA-HQ-OW-2009-0819-5550-A1

Comment Excerpt Number: 6

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

Comment VI - The ELG and CCR rules should be harmonized in several ways 

Considering that the ELG and CCR rules both can involve the same equipment, that is, 

impoundments, the same regulatory agency should coordinate both regulatory programs for 

implementation and enforcement of the two new sets of rules. State regulatory agencies, which 

have a CCR permit program that meets or exceeds the federal standards, such as the Louisiana 

Department of Environmental Quality, should be authorized through the rule harmonization to 

administer both the CCR Subtitle D and ELG regulations. This would allow for the most 

efficient coordination of the rules (rather than having a second agency, such as EPA, involved or 

others involved through the proposed self-implementing option of the CCR Subtitle D rule).

Comment Response: 

See response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119 for a discussion 

of EPA’s coordination efforts.

Commenter Name: David Y. Chung

Commenter Affiliation: Homer City Generation, L.P

Document Control Number: EPA-HQ-OW-2009-0819-5552-A2

Comment Excerpt Number: 16

External Review Flag: No External Review

External Review Incorporated into Response: No

Comment Excerpt: 

V. EPA Cannot And Should Not Finalize BMPs For Surface Impoundments In This 

Rulemaking

EPA states that it is “considering establishing BMPs for plant operators to conduct periodic 

inspections of active and inactive surface impoundments and to take corrective actions where 

warranted.” 78 Fed. Reg. at 34,466. EPA provides limited information on such BMPs, and thus 

Homer City cannot provide meaningful comments at this time. EPA should not, and legally 

cannot, move forward with surface impoundment BMPs until more details are provided and the
Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8-632

stakeholders are afforded an opportunity to review and comment. See Sprint Corp. v. FCC, 315 

F.3d 369 (D.C. Cir. 2003) (final rule must be “logical outgrowth” of an agency’s proposal, but 

“there can be no ‘logical outgrowth’ of a proposal that the agency has not properly noticed”).

EPA is actively evaluating requirements for surface impoundments in the context of its ongoing 

rulemaking under RCRA entitled “Hazardous and Solid Waste Management System; 

Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From 

Electric Utilities.” See 75 Fed. Reg. 35,128 (June 21, 2010) (hereinafter, the “CCR Rule”). Given 

that parallel rulemaking, EPA should not impose duplicative or potentially inconsistent 

requirements under this rule. EPA also should avoid duplicating existing state requirements that 

are applicable to surface impoundments. For example, Homer City is already subject to 

requirements established under Pennsylvania law. See, e.g., 25 Pa. Code Chs. 105 (Dam Safety 

and Waterways Management), 287 (Residual Waste Management), 289 (Residual Waste 

Disposal Impoundments), 290 (Beneficial Use of Coal Ash), and 299 (Storage and 

Transportation of Residual Waste). These state requirements confirm that Pennsylvania “has 

already developed a comprehensive regulatory program for the disposal of CCR that exceeds 

either the Subtitle C or Subtitle D approaches that are proposed in” the CCR Rule. Pa. Dept. of 

Envtl. Protection, Comments on CCR Rule, Docket ID No. EPA-HQ-RCRA-2009-0640-6872, at 

1 (Nov. 19, 2010). EPA should not duplicate or attempt to supersede those requirements in this 

rulemaking.

Comment Response: 

EPA is not establishing BMPs for impoundment management under the final ELGs. See 

response to DCN EPA-HQ-OW-2009-0819-4379-A1, Excerpt Number 119.