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

EPA’s Response to Public Comments

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- 1 26. Regulatory Implementation

Commenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Document Control Number: EPA

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- 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 anti

circumvention 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 mo dified, that non

metal 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 reason ably 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 fin al 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 res ponse to DCN EPA

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- 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 cumul ative 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

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- 2 Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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- A1 Comment Excerpt Number: 25 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: States Should Make Any Exemp tion 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 regulation 36 is not the appropriate approach for implementing th e 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 t he 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 o f 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

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- 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

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- 3 26.a . Regulatory Implementation

– Voluntary Program

Commenter Name: David Y. Chung Commenter Affiliation: Homer City Generation, L.P Document Control Number: EPA

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- A2 Comment Excerpt Number: 17 External Review Flag: No External Review E xternal 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 th at 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 add itional 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

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- 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 t hat program. Comment Response: See preamble Section VIII.C.13 and response to DCN EPA

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- 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 tha t 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 Aff

iliation: Santee Cooper Document Control Number: EPA

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

EPA’s Response to Public Comments

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- 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 prov ide 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 comb ustion 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 impoundment s 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 waste water 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 pr oposed 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 permittin g 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 dat es 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 bas is. 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) t o 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

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- 5  Allow incentives for FGD flow reduction; and

 Allow incentives for facilities agreeing to fut ure 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 vol untary 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

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- 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 ar e 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 C CR 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 volunta ry 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 t hat 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. Allowin g 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 i ncentives 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 c oncerns 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., reductionEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 6 achieved by going back to “normal” o peration). 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

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- 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 shou ld 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 t he 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 impleme nted 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 dec ision 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 comme nter’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 3 1, 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

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- 7 Commenter Name: Lisa C. Messinger Comm enter Affiliation: Vectren Corporation Document Control Number: EPA

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- A1 Comment Excerpt Number: 26 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: The Voluntary Compliance ex tension should coincide with permit renewal. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 23.

Commenter Name: Nancy A. Evans Commenter Affiliation: PPL Services Corporation Document Control Number: EPA

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- 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 environm ent 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 appreciat es 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

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- 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 VI II.C.13 and the response to DCN EPA

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- 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 disch arge” 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 Mc Manus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- 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 re quirements 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 ru n 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

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- 9 See response to DCN EPA

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- A1, Excerpt Number 28, and EPA

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- A1, Excerpt Number 23.

Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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- A1 Comment Excerpt Number: 15 External Review Flag: No External Review External Review Incorporated into Response: No

Commen t 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 do ing 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 existin g 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 env ironmentally 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

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- A1, Excerpt Number 28. Finally, EPA does not agree that the voluntary ince ntives program should be “tiered or scaled and extended out.” For the reasons explained in preamble section VIII.C.13 and EPA

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- A1, Excerpt Number 23, plants that opt into the voluntary incentives program have until December 31, 2023, t o 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

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- 10 Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 90 External Review Flag: No External Review External Review Incorporated into Response: No

Com ment 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 (e xcept 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 s pecific 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 r un, 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 VI II.C.13 and XVI.A.1, and responses to DCN EPA

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- A1, Excerpt Number 28 and EPA

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- A1, Excerpt Number 23.

Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control N umber: EPA

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- 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

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- 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.1 3 and see response to DCN EPA

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- A1, Excerpt Number 28.

Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

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- 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 pr ocess 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 pen ding 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

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

EPA’s Response to Public Comments

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- 12 Commenter Name: Cathy S . Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

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- 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 comp liance 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 extens ion 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 resp onses to DCN EPA

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- A1, Excerpt Number 28 and EPA

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- A1, Excerpt Number 23.

Commenter Name: Appalachian Voices Commenter Affiliation: Appalachian Voices Document Control Number: EPA

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- A1 Comment E xcerpt 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 meansEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 incen tives program related to the closure of CCR impoundments, for the reasons explained in preamble section VIII.C.13 and response to DCN EPA

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- A1, Excerpt Number 28. See preamble section VIII for a description of the final rule and the bas es 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

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- A6, Excerpt Number 1 in comment code 25.b.ii r egarding 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.

Commente r Name: Appalachian Voices Commenter Affiliation: Appalachian Voices Document Control Number: EPA

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- 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 wat er discharges). However, we are concerned that these incentives will only be meaningful if the alternative imposes some measureEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- 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. Do cument Control Number: EPA

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- 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 impoundm ents), 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 Ti er 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 wouldEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 15 encourage plants to install liner systems reducing dramatically potential discharge s 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 preven ting, 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 T ier 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 syste ms) 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 req uests 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

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- 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

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- A1 Comment Excerpt Number: 7 External Review Flag: No External Review External Rev iew 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 participat ing facilities and move to dry handling for coal ash or a closed

- loop, tank

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- 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. Th us, 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 conv ert 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 majo r 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 preamb le section VIII.C.13 and response to DCN EPA

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Commenter Name: Erin Bartlett Commenter Affiliation: The Large Public Power Council (LPPC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 20 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: LPPC supports the proposed e xtensions 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
r esource 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 partic ular, 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 add itional 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

‐ handl ing 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 17 date of the extension begins from issu ance 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 con version 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

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Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 26 External Review Flag: No External Review External Review Inco rporated 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. Sp ecifically, 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

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Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Document Control Number: EPA

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- 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

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Commenter N ame: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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Comment Exce rpt:

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 elimi nate 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 th e 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:

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- 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

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 sou rces, 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 permitt ing 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] stat ed 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
commen ts. In particular, the final rule specifies December 31, 2023, as a definitive date byEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 com menter 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 plant s 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 a s 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 t hey 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., standar ds 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 pl ants 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 wastewa ter" 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 i mpoundments (see response to DCN EPA

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- 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

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- A1 Comment Excerpt Number: 172 External Review Flag: Legal External Review Incorporated into Response: No

Comment E xcerpt: 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 t his 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.

771 78 Fed. Reg. at 34,467

- 34,468. Comment Response:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 22 See DCN EPA

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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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 requ ired 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 “r esearch, 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 completio n 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

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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:

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- 23 Document Control Number: EPA

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- 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 t he voluntary incentives program, participating plants would receive an additional two or five years (depending on the program) from the already lengthy compliance deadline 774 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 pro grams 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

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- A1, Excerpt Number 1 9. 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

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- 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 state s 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 requ irements. 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

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

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- 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 respon se to DCN EPA

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B. THE TIER 1 VOLUNTARY INCENTIVES PROGRAM IMPROPERLY OFFERS INDUSTRY SUBSTANTIAL ADDITIONAL TIME FOR IMPLEMENTATION OF BAT IN EX CHANGE 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 increas e 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 t hey 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 o ur 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 subje ct 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 inc lude: (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 ofEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 26 waste. 784 Closure must be completed within two years after placement of waste in the existing impo undment 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 ar eas 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 coa l 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 wa ys 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 bee n 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 opt ions.

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

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- 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

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C. THE TIER 2 PROGRAM GIVES INDUSTRY AN ADDITIONAL FIVE YEARS TO COMPLY WITH BAT L IMITATIONS 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:

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- 28 The Tier 2 program claims to promote the “power plan t 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 d on’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
con sistently 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

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- 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

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 routinel y failed to set case

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- 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 guarant eed 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 enforce able 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

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- 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

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- 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 c ompliance time reflective of that incentivizing transition away from existing impoundment or discharge operation. An example may be a 5 year extensionEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 fo r 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 t he reasons explained in preamble Section VIII.C.13 and response to DCN EPA

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- 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 f ar 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

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- 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 op tions 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

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- 31 incentives program includes a firm deadline of December 31, 2 023, 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

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- A2 Comment Excerpt Number: 12 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Voluntary Incentive Progra m
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 poll utants 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 recogn ize 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 i ncentive 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 l ower 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 DSSEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 manipulati on 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 econ omical technology and is hindering its further deployment. Comment Response: For the reasons described in preamble Section VIII.C.13 and DCN EPA

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Commenter Name: H. Mitchell Commenter Affiliation: Private Citizen Document Control Number: EPA

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- 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 wastew ater 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 volun tary 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

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- 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

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- A2 Comment Excerpt Number: 93 External Review Flag: No External Review External Review I ncorporated 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 a nd 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 th e “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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 be gin 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

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- 35 26.b. Regulatory Implementation

– Timing

Commenter Name: William Matthews Commenter Affiliation: Cleco Corporation Document Control Number: EPA

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Comment VIII

– Compliance deadline is inadequate

EPA ha s 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 cleani ng 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

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Commenter Name: David Y. Chung Commenter Affiliation: Homer City Generation, L.P Document Control Number: EPA

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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 NPDESEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 36 permits are administratively extended for many yea rs 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

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- 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: Thoma s W. Easterly Commenter Affiliation: Indiana Department of Environmental Management (IDEM) Document Control Number: EPA

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- 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 permi ts 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 c annot 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

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Commente r Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- 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 St andards (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 techno logies 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 sys tem, 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 time lines. 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 Schedu les 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:

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- 38 "EPA proposes that certain BAT limitations for existing sources being proposed today (those that would establish re quirements 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 t his 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 disc retion 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 appli ed 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 t hat 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. Implemen ting 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 begi n 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 reg ulatory 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. Presenta tions 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:

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- 39 Following interpretation and education on the Rule, the technology options for each waste stream will ha ve 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 techno logy 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 plan ning 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 cost

effect ive 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 q uality 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 wil l 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 op timum 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,
a nd 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 impac ts, 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 insi de 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 capitalEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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, tec hnology 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
c reate 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 O ption 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 a nd 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 lon ger 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 wastewa ter 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 s chedule 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. L ead

- time on large components, such as transformers and switchgear, can exceed a year. Dry Fly Ash ConversionsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 Pump s 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 r equire 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 retro fits 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 ne w 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 f light 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.

Ano ther 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:

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- 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 propose d 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 installatio n 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 handli ng 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 i f 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 sched ule 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 examp le, 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 plan t w ould 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 permittingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 43 authorities maximum flexibility to set compliance schedule s to comply with these new ELG revis ions. 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

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case compliance schedules in permits that may extend past Jul y 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 slight ly 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 NPDE S 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 followin g 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 beginnin g 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 wast ewater 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 Decemb er 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 fo r 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 technolo gies 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 a re 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 cons ideration 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, E PA 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 finalEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 mention ed 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 f inal 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 fo r 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 limit ation 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. EP A 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 sectio n 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 establ ish 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 deadl ine “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:

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- 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 yea rs 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 standard s 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 wi th 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 magnit ude 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 el ectric 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 num ber 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 c omply 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 c oal 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 ofEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 tim ing 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 t he 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 facilit ies 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 th at 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 dr y 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 fo r 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 sy stems 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 bott om 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 remo te mechanical drag system. For a discussion about land requirements, see the response to DCN EPA

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- 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. Aga in, the commenter provided no data to suggest otherwise.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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ills. See response to DCN EPA

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Exce rpt 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 lim its 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
o n the industry and on our consumers. Comment Response: See response to DCN EPA

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- 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 TranscriptEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 48 Document Control Number: EPA

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-- 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

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Commenter Name: Donald R. Carlson Commenter Affiliation: Kansas Department of Health and Environment (KDHE) Document Control Number: EPA

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- 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 addre ss 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:

Se e response to DCN EPA

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- 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 explai ned 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 a re scheduled to retire any differentlyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 49 than other units or plants under the final rule. See response to DCN EPA

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- A1, Excerpt Number 3. Furthermore, EPA notes the timing of the applicability of the final BAT limitations that are more st ringent 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 o ther rules, as well as “other factors as appropriate.”

Commenter Name: Jamie Rhodes Commenter Affiliation: Environment Council of Rhode Island Document Control Number: EPA

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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 previou sly 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 s oon 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

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- 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 w ill 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:

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- 50 See response to DCN EPA

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Commenter Name: Patrick O’Loughlin Commenter Affiliation: Buckeye Power, Inc. Docum ent Control Number: EPA

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- 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 mus t 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

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- 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 w ere 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

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- 51 Duke Energy disagrees with the timeframe suggested for compliance with the combustion residual leachate effluent limits 79 . While the i mplementation 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, mo dified 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 r equired 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 bo ttom 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

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- 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 r ule 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:

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- 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 Nu mber: EPA

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- 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 wi thin 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 limitatio ns 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 beg inning 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 thr ee 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 i ssue 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 as pects for coordination is ensuring appropriate and complementary compliance timelines. Since a number of theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 53 compliance alternatives and subsequent projects are expected to overlap between the two rules, alignment of the requirements is essential to assur e 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 imp lications 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 w hat 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 modification s 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 additi on, 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 pr oviding 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 fina l 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 ye ars 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 r ule. 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 complian ce 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:

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- 54 115 78 Fed. Reg .at 34479

116 USWAG CCR Comments [EPA

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- 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 establis hed 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

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- 11970). The EPA disagrees with the co mmenter 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 curren tly 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 alterna tive 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 esta blished 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 r equirements 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 residu al leachate, as a result of this final rule.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 55 Commenter Name: Nancy A. Evans Commenter Affiliation: PPL Services Corporation Document Control Number: EPA

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- 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 curr ently 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 preamb le 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 t o 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 Webca st (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 addi tion, 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 co mpliance 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

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- A1, Excerpt Number 126.

Th e 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.” R ather, 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 b y 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 limi tations 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 areEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 Nam e: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 15 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: EPA pr oposes 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 Re sponse: See response to DCN EPA

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Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 100 External Review F lag: 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 consis tent 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

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- A1, Excerpt Number 126.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 57 Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- 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
mee ting 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 v olume 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 sump s 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 sho uld 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 n eeded 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

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Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural ResourcesEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 58 Document Control Number: EPA

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- A1 Comment Excerpt Number: 11 External Review Flag: No External Review External Review I ncorporated 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 jud ges 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 e ffective 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 deadlin e 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

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The final rule e stablishes 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

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- A1 Comment Excerpt Number: 12Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 f or 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

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- A1, Excerpt Number 126.

Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- 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

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Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 36 External Review Flag: No External Review External Review Incorporated into R esponse: No Comment Excerpt:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 t he 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 waste streams 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

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Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 40 External Review Flag: No External Revie w 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 initi al 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 appl y 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 cl early 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 cons ideration 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 BATEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 Op tion 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 project s 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 y ears 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 author ities 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

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- A1, Excerpt Number 126.

Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- 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 met al 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 treatm ent 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:

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- 62 EPA should revise the rule pr oposal 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

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- A1, Excerpt Numbe r 126.

Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- A1 Comment Excerpt Number: 66 External Review Flag: No External Review External Review Incorporated in to 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 w ill 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 pa rticular 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 somet ime 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 pe rmit 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:

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- 63 In Cha pter 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 activ ities 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 alter native 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 report 45 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 amou nt 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

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- A1, Excerpt Number 126. EPA updated its analyses and assumptions about compliance for the final rule. See the RIA.

C ommenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Document Control Number: EPA

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- 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 t iming, 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 wa stewater 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” requi rements 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 sc hedules 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 leachat e 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 syst em 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 fo r 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 P ennsylvania 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:

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- 65 for additional treatment facilities or a pipeline right

- of

- way). Conservatively, the permi tting 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 “pre

applicat ion 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 fact s). 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 in cluded 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

- s pecific 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

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- 66 Commenter Name: Gary A. Dawson Commenter Affiliation: Consumers Energy Company Document Control Number: EPA

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- 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 schedu le of compliance time line should be left to the discretion of the permit writer. Comment Response: See response to DCN EPA

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Commenter Name: Nysa Hogue Commenter Affiliation: Indianapolis Power & Light Company (IPL) Document Control Number: EPA

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- 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 a mbiguity 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, EP A 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 existi ng 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 expect ed 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 permi tting 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 effecti ve 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:

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- 67 Comment Response: See response to DCN EPA

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Commenter Name: Jerry Purvis Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC) Document Control Number: EPA

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- 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 f

inal 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.

Co mment Response: See response to DCN EPA

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Commenter Name: Chad Miller Commenter Affiliation: Montana

- Dakota Utilities Co. Document Control Number: EPA

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- A1 Comment Excerpt Number: 2 Ex ternal 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:

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- 68 The currently proposed rule will require disruptive compliance monitoring and costly wastewater handling modifications that are expecte d to far outweig h the environmental benefits. Comment Response: See the response to DCN EPA

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- A3, Excerpt Number 117 in Comment Code 26.d for further discussion on the proposed anti

- circumvention provisions, and the requirements in cluded 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 E PA

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- A1, Excerpt Number 3 in comment code 6.e.

Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- 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 i nto compliance must be more flexible to accommodate the complexities of the changes needed to achieve compliance. Comment Response: See response to DCN EPA

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Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- 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 timin g 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 si gnificant 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 t he time that may be required to site and construct new landfills. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 126.

Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- 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, fo r 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 belie ve 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 provi ded 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 alternat ive 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 timeEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 es tablishes 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.

Se e response to DCN EPA

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- 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 rul e.” 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 con text of that rulemaking (see Docket EPA

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Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 17 External Review Fla g: 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

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- A1, Excerpt Number 126.

Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resourc es Company Document Control Number: EPA

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- 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 prefer red 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 system s . 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 exis ting 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 implement ation 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 landfi ll. 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

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- A1, Excerpt Num ber 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, an d 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 ba ckup, 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

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- 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 uni ts. 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

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EPA’s Response to Public Comments

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- 72 Commenter Name: Tom DeLawrence Com menter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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- A1 Comment Excerpt Number: 26 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

The Three Year I mplementation 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 fac ilities 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 incorpora ted 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 af ter 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 infrast ructure 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
co ntractors or third party vendors capable of performing the necessary retrofit work at these facilities. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 126.

Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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- 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

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- 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 suffic ient 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 sy stems, 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

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- A1, Excerpt Number 126.

Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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- 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 permitt ing 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

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- A1, Excerpt Number 126.

Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 G en 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
nu mber 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 faci lities 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 req uired modifications to ensure compliance with the ELGs are provided such an opportunity. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 126. Also, as explained in the preamble, for the final rule, EPA notes that, due t o 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 appropr iate for all wastestreams for any facility that requires modifications to comply with any limitations imposed by this final rule. See response to DCN EPA

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- A3, Excerpt Number 130.

Commenter Name: Basil G. Constantelos Commenter Affili ation: Midwest Generation, LLC. Document Control Number: EPA

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- A1 Comment Excerpt Number: 32Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 wat er ELGs that were based on dry ash handling or closed loop systems; Comment Response: See response to DCN EPA

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- A1, Excerpt Number 5.

Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 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

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- A1, Excerpt Number 126.

Commenter Name: JoAnne Rau Commenter Affiliation: Dayton Power & Light Company (DP&L) Document Control Number: EPA

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- 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

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- 76 Any final regulations that are even close to any of the options pr esented 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 ar e 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 t hat 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 m anner 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, modificati ons 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 de sign 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 agen cies need the flexibility to take them into account and allow appropriate implementation timeframes. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 126 in Comment Code 26.b

. See responses to comments in C omment C ode 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

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- A1, Excerpt Number 70 in Comment Code 28.b. As note d 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

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EPA’s Response to Public Comments

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- 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 firs t 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 p lant modifications that may be required by the new rule. Comment Response: See response to DCN EPA

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- 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

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- 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 a dditional 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

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- 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

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- A2, Excerpt Number 4.

Commenter Name: Joseph G. Eutizi Commenter Affiliation: San Miguel Electric Cooperative, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 4 External Review Flag: No Extern al 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 permi t 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

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EPA’s Response to Public Comments

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- 79 Commenter Name: Lisa M. Jaeger Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Docume nt Control Number: EPA

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- 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 requi rements 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

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- A1, Excerpt Number 126, and response to DCN EPA

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- A2, Excerp t Number 4.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- 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

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EPA’s Response to Public Comments

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- 80 Commenter Name: Quinlan J. Shea III Comme nter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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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

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 20 External Review Flag: No External Review Externa l 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 ra ised by the commenter, including changes that are planned in response to other environmental regulations. See response to DCN EPA

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric I nstitute (EEI) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 81 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: And the final rule’s requirements should be phased i n 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

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 68 External Review Flag: No Ext ernal 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

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 94 External Review Flag: No External Review External Review Incorp orated 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

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- 82 Reasonable compliance schedules are crucial to the facilities subject to this rule. If EPA requires dry fly ash and bottom ash handling, tha t 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 coord inated 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 cost

effective 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 buildin g 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 e ngineering and construction companies. Comment Response: EPA is not “stagger[ing]” or “phas[ing] in” the final rule’s requirements. See response to DCN EPA

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- A1, Excerpt Number 66.

Commenter Name: Quinlan J. Shea III Commenter Affiliatio n: Edison Electric Institute (EEI) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 “phase d in,” something that EPA did not propose. See response to DCN EPA

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- A1, Excerpt Number 126.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- 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 Forc ed 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 prom ulgated 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 tre at 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 par ty 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

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- A1, Excerpt Number 126.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 84 Commenter Name: Dean Ellis Commenter Affiliation: Dynegy Inc. Document Control Number: EPA

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- 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 wa sh 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 me et 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 com pliance 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

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- A2, Excerpt Number 4.

Commenter Name: Dean Ellis Commenter Affiliation: Dynegy Inc. Document Control Number: EPA

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- 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 EP A, the deadline for meeting the revised ELG rule (with certain exceptions 2 ) 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 wo uld not beEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 constru ct 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 signi ficant 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 modificat ions 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 generate d 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 i mmediately 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

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- A2, Excerp t 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

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- A1 Comment Excerpt Number: 16 External Review Flag: No External Review Exte rnal 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 retrofitt ed 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

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- 86 Comment Response: See response to DCN EPA

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- A1, Excerpt Number 126.

Commenter Name: Cathy S. Woollums Commen ter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 21 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: The permittin g, 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

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Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

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- 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 un der 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 t o 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 manage ment 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

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- 87 34 USWAG comments submitted to the CCR docket, EPA

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- 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

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- 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 r ulemaking (see Docket EPA

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- 11970). See response to DCN EPA

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Commenter Name: Daniel K. Plath Commenter Affiliation: Northern Indiana Public Service Company (NIPSCO) Document Control Number: EPA

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- 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. Specifi cally, 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 eq uipment, 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

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- 88 EPA disagrees that the “applicability date be conservatively set to an absolute minimum of five (5) years after t he final rule promulgation date.” See response to DCN EPA

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- 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 larg er 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 suitab le 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 MD S in the final rule compliance cost estimates. EPA also notes that, for the final rule, it estimated costs for buildings for F GD 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

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- A2 Comment Excerpt Number: 31 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Lastly, if an ex emption 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 renew ed NPDES permit. Comment Response: See response to DCN EPA

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Commenter Name: Stephen M. Frank Commenter Affiliation: NRG Energy, Inc. Document Control Number: EPA

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- A2 Comment Excerpt Nu mber: 42 External Review Flag: No External Review External Review Incorporated into Response: NoEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 89 Comment Excerpt: Timing of New Requirements EPA anticipates that, under this proposed approach, all steam electric facilities will have the proposed BAT lim itations 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 p lants 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

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- 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

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- 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 challen ges 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 cost

effective approach to compliance. Comment Response:

See response to DCN EPA

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- A1, Excerpt Number 126.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 90 Commenter Name: Dennis Leonard Commenter Affiliation: DTE Energy Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 10 External Review Flag: No Exter nal 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, th rough 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

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- A1, Excerpt Number 126. The final rule establishes requirements applicable to the discharge of pollutants from steam ele ctric 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 a re also outside the scope of this rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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- 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

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- 91 Commenter Name: Mike Roddy Commenter Affiliation: Seminole Electric Cooperative, Inc. (SECI) Document Control Number: EPA

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- A2 Comment Excerpt Number: 7 External Review Flag: No External Review External Review Incorporated into R esponse: 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 i s 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 m id

- 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 syst ems 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

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- 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 da te of the final ELGs, but before November 1, 2018.

Commenter Name: Chuck D. Barlow Commenter Affiliation: Entergy Corporation Document Control Number: EPA

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- A2 Comment Excerpt Number: 4 External Review Flag: No External Review Ext ernal 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

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- 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 incorpor ating 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 pi pes, 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

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Commenter Name: Patrick Finigan Commenter Affiliation: Omaha Public Power District (OPPD) Document Control Number: EPA

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- A1 Comment Excerpt N umber: 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 d ischargers. 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) was tes, 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 propos ed 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 p articular, 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

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- 93 In order to provide for a smooth transition t o 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 p ermit 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 faciliti es 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 i mplies 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 re quirements, 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 f or 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 subje ct 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

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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

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- 94 Document Control Number: EPA

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- 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 per mit 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 t o 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 t he 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

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- 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

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- A2 Comment Excerpt Number: 13 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Excer pt: According to the Boornazian New Source Date Memo, 6 the 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 Memorand um 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

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- 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

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- 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 EP A 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

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- A1, Excerpt Number 126. Regarding proposed Option 5, see responses to comment code 6.i.iii and preamble Section VIII.

Commenter Name: Cec ile 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

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- 96 Document Control Number: EPA

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- A1 Comment Excerpt Number: 6 External Review Flag: No External Review External Review Incorporated into Response: No

C omment 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 b e 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 req uired to comply after a permit renewal. 3 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, whic h 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 o f 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 clarifica tion 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). S ources 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 r enewal 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.

C omment Response: See response to DCN EPA

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- 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

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- 97 Commenter Name: Cecile M. Conroy Commenter Affiliation: International Brotherhood of Boilermakers (IBB) Document Control Number: EPA

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- 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

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- A1, Excerpt Number 126.

Commenter Name: Dorothy Kellogg and Michael Leitman Comme nter Affiliation: National Rural Electric Cooperative Association (NRECA) Document Control Number: EPA

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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

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Commen ter Name: Dorothy Kellogg and Michael Leitman Commenter Affiliation: National Rural Electric Cooperative Association (NRECA) Document Control Number: EPA

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- 98 External Review Flag: No External Review Extern al 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 permittin g 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 fle xibility 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 p articularly 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, i t 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 comment s section II.B. Coordination on Timing of Implementation.) Comment Response: See response to DCN EPA

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- A2, Excerpt Number 4. Also see responses to comment code 27.e r egarding coordination of the final ELGs and CCR rule.

Commenter Name: Erin Bartlett Commenter Affiliation: The Large Public Power Council (LPPC) Document Control Number: EPA

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- 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 propos ed 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, betw een 2017 and 2022 through NPDES wastewaterEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 i n 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 ren ewal

— 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 orde r 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. Establis hment 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 alt er 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 di scretion 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

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- 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 ren ewal 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 Respo nse: See response to DCN EPA

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Commenter Name: Floyd Gilzow Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission (MJ MEUC) Document Control Number: EPA

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- 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 the ir 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 mand atory 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 developin g” 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

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- 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

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Commenter Name: Gregory D. Elmore Commenter Affiliation: Southern Nuclear Operating Company (SNC) Document Control Number: EPA

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- 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 simil ar 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

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Commenter Name: H. Morriss Barney IV Commenter Affiliation: Texas Municipal Power Agency (TMPA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 8 External Review Flag: No External Review External Review Incorporated into Re sponse: 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, 20 17. 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 ma y 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

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- 102 The Electric Generation sector is currently undergoing considerable c hange 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 olde r coal plant before 2022 even if the permit renewal date is, for example, in 2017. Comment Response: See response to DCN EPA

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Commenter Name: Tom Hoffman Commenter Affiliation: Clean Water Action et al. Document Control Number: EPA

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For de cades, 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 comp ly, 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 clean er 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

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EPA’s Response to Public Comments

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- 103 Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 23 External Review Flag: No External R eview 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. complia nce efforts begin in 2017 with a compliance schedule by 2022 at the latest). Comment Response: See response to DCN EPA

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Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Do cument Control Number: EPA

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- 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 n ew 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

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Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 fin al 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 cl eaning 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 su mps, 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 doub t 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 fac ility 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 compl iance 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 s oon 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 r ulemaking where EPA finds significant construction and/or facility changes will be required. Comment Response: See response to DCN EPA

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Commenter Name: Pamela F. Faggert Commenter Affiliation: Dominion Resources, Inc. Document Control Number: EPA

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EPA’s Response to Public Comments

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- 105 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: There is confusion as to how the compliance date ex tension 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 soo n 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 wastewa ter generated on and after December 31, 2023. See preamble sections VIII and XVI for more information. See also response to DCN EPA

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Comm enter Name: Tom DeLawrence Commenter Affiliation: Public Service Company of New Hampshire(PSNH) Document Control Number: EPA

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- A1 Comment Excerpt Number: 19 External Review Flag: No External Review External Review Incorporated into R esponse: 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 Propo sed 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 andEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 106 treat NCMCWs in the manner EPA has proposed in the Proposed Rule. Additional time cou ld 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 Respons e: See response to DCN EPA

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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XV. Constructing New Landfills Would Be Costly and Time

- ConsumingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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
c omply 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 s tart 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 t o 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. Landfil ls 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 un derstaffed 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 P ower 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 la ndfill at Trimble County Power Plant” (Mar. 21, 2013), at http://www.power

- eng.com/articles/2013/03/kentucky

- agency

denies

- permi t

- for

- coal

- ash

- landfill

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- 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:

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- 108 See response to DCN EPA

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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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 d ry 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 mann er . 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 t he 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 mo re 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 themselve s 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

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- 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 demandin g, 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 disa grees 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

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Commenter Name: Andrew Fellows Commenter Affiliation: Clean Water Action et al. Document Control Number: EPA

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- 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 s tandards 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 t housands 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

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EPA’s Response to Public Comments

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- 110 Commenter Name: Brian Brazil Commenter Affiliation: TransAlta Centralia Generation, LLC (TCG) Document Control Number: EPA

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Commen t 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 C CR 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 recog nize 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 perm itting 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

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. Permitting authorities do not have the discretion to determine BPT or BAT on a Best Professional Judgment basis where E PA 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.i i

.

Commenter Name: Julia M. Blankenship Commenter Affiliation: American Municipal Power, Inc. (AMP) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 111 AMP is generally supportive of the proposed compliance date for the Proposed ELG Rul e 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 complian ce 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 Toxi cs Standards (MATS) Rule. Comment Response: See response to DCN EPA

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- 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

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- A2 Comment Excerpt Number: 4 External Review Flag: No External Review External Revi ew 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 ou tside the scope of this rulemaking.

Commenter Name: Deanna White Commenter Affiliation: Clean Water Action

- Minnesota et al. Document Control Number: EPA

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- 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 sever al 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 ze ro 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

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- A1, Excerpt Number 10.

Commenter Name: Kelly Jean Heffner Commenter Affiliation: Pennsylvan ia Department of Environmental Protection Document Control Number: EPA

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- 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 sc hedule 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 propo sed 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

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- A2, Excerpt Number 4. Also, see response to DCN EPA

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- 113 Commenter Name: Zak Covar Commenter Affi liation: Texas Commission on Environmental Quality (TCEQ) Document Control Number: EPA

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- A2 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Complianc e 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 fo r 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 gr eater 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 havi ng 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 author ity. Comment Response: See response to DCN EPA

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- based permit limitations are outside the scope of this final rule, which establishes technology

- based requirements for discharg es 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 th em based on “best professional judgment.”Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 114 Commenter Name: Theresa Pugh Commenter Affiliation: American Public Power Association (APPA) Document Control Number: EPA

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- 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 w ith 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

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Commenter Name: Theresa Pugh Commenter Affiliation: American Public Powe r Association (APPA) Document Control Number: EPA

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- 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

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EPA di sagrees 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 andEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 115 rulemaking. Based on that evaluation and the lac k 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 Nu mber: EPA

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- 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 re maining 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 na tural 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

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Commenter Name: The resa Pugh Commenter Affiliation: American Public Power Association (APPA) Document Control Number: EPA

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- A2 Comment Excerpt Number: 9 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Exce rpt: 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

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- 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:

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- 116 Comm enter Name: Theresa Pugh Commenter Affiliation: American Public Power Association (APPA) Document Control Number: EPA

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- 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 sh ould 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

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- A2, Excerpt Number 4. As described in the first referenced comment response, the final rule does set an outside date of Dec ember 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

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- A2 Comment Exc erpt Number: 84 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Constructing New Landfills Would Be Costly and Time

- ConsumingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 impoundmen ts 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 year s. 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 U WAG) 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 agen cy, 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

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Commenter Name: Theresa Pugh Commenter Affi liation: American Public Power Association (APPA) Document Control Number: EPA

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- 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 waste

streams. APPA supports EPA’s initial approach to timing requirements, but requests the EPAEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 118 consider the many comp ounding 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 m ost 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 for ced 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 ev aluations, 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 op erating 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 shoul d 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 la ndfills 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
nee d 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 utili ties 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 t hat 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 toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 119 an existing treatment facility. EPA should take t he 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, man y 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 bee n 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 o f 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 altern ative 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 fa cilities 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 yea rs . 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 a gency 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 sche dules 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 compa ny 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 secur ed. 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:

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- 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 pro pose. See response to DCN EPA

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Commenter Name: Theresa Pugh Commenter Affiliation: American Public Power Association (APPA) Document Control Number: EPA

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- A2 Comment Excerpt Number: 99 External Review Flag: No External Review Exte rnal 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 t he 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

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Commenter Name: Paul Ling Commenter Affiliation: Kansas City Power & Light Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 4 External Review Flag: No External Review Exte rnal 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:

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- 121 See response to DCN EPA

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Commenter Name: S. L. Phillips Commenter Affiliation: Louisiana Department of Environmental Quality Document Control Number: EPA

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- A2 Comment Excerpt Number: 11 External Review Flag: No External Review External Review Incorporated in to 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 refer red 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 landf

ill. 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

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- 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: Missour i Joint Municipal Electric Utility CommissionEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 122 Document Control Number: EPA

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- 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 betwe en 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, cont rol 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 valida ted. 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

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Commente r Name: Shellie Chard

- McClary Commenter Affiliation: Oklahoma Department of Environmental Quality (DEQ) Document Control Number: EPA

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- A2 Comment Excerpt Number: 10 External Review Flag: No External Review External Review Incorporate d 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 th at 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 a s 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 in direct 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 prog rams as soon as possible after July 1, 2017. This language is usedEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- 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 sta ndards 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

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- A1 Comment Excerpt Number: 148 External Review Flag: Legal External Review Incorpora ted 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 “sch edules 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 rul e, 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:

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- 124 Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Elect ric Institute (EEI) Document Control Number: EPA

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- 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 w riter when incorporating compliance schedules into the permit or other regulatory mechanism. Comment Response: See response to DCN EPA

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliat ion: UWAG Document Control Number: EPA

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7. Schedules for Compliance Should be Determined by the Control Autho rity (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

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- 125 Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate S ervices, Inc. Document Control Number: EPA

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- 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 so oner 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 non

chemical metal cleaning wastewate r 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 ac curate. Alliant Energy has facilities where combustion residual leachate and non

chemical metal cleaning wastewaters are mixed with other wastewaters for treatment prior to discharge. The current permitting authority imposes requirements on the final disch arge, 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 pract ical 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 wastewate rs 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

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Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdi ngs Company Document Control Number: EPA

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- 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 regul ated 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 req uired 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, a nd implementation.

14 78 Fed. Reg. at 34480. Comment Response: See response to DCN EPA

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Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 127 Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- 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

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Commenter Name: Shellie Chard

- McClary Commenter Affiliation: Association of Clean Water Administrators (ACWA) Document Control Number: EPA

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- 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
c ompliance 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 ru le 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

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Commenter Name: Donald R. Carlson Commenter Affiliation: Kansas Department of Health and Environment (KDHE) Document Control Numbe r: EPA

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- 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 referencin g 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 ad ditional 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

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- 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

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- A1 Comment Excerpt N umber: 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 t o 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. EPAEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 129 must state in the final rule that compliance is required with the ne w 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 s tep 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, f

or 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 change s 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 ti me 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 s ome 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 th at 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 fina l 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 fi nal 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:

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- 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 b een 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

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- A1, Excerpt Number 10. Also, comments related to the administration of state

- administered NPDES permitting programs are outside the scope of this rulemaking.

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C. EFFLUENT LIMITATIONS MUST REQUIRE COMPLIANCE WITHIN THREE YEARS OF PROMULGATION OF THE FINAL RULE.

Com pliance 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
co mpliance 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

- y ear 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:

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- 131 Comment Response: See response to DCN EPA

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Commenter Name : Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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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 mu st 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 s urface 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 unregulate d 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 release d 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 ne w 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:

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- 132 732 33 U.S.C. § 1311(b)(2)(C),

- (D). S ee 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 comm ents in Comment Code 27.e.

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 179 External Review Flag: No External Review External Review Incorporate d 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 propos es 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:

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- 133 See responses to DCN EPA

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- 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 secti on 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 pr omulgation 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 Wa ter 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 well

established principle of statuto ry 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 o r 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.”8 02 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 limitatio ns, 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 d etermining what constitutes BAT. 805Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 Administrato r 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 re gular 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 w hole 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:

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- 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

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- 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 n ot 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 wit h, and in fact advances, the pollutant discharge elimination goal of the Act.

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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 mu st 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 noEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 136 later t han 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 e xtended 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, E PA 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 effectiv e 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 f or 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

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- 137 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjus tice, et al. Document Control Number: EPA

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C. THE RECORD DOES NOT SUPPORT EPA’S CONTENTIO N 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, cons truct 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 min imal 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 other wise 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:

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- 138 (noting 24 mon th 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 Ele ctric 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 d oes 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 i s 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 addres sing 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 generat ing 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 begi nning 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 peri od 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 subti tle 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 exa mples 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 a nd 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 RecoveryEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 o perations as a result of other rulemakings, and all such comments are part of the public record for this rulemaking. See, for example, DCN EPA

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- A1, Excerpt Number 126 (from Southern Company) located in Comment Code 26.b; DCN EPA

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- 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 case s 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 th at 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

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- 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 h as 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 years 827 to comply with new requirements and is proposing to exempt cleanup of legacy wastewaters. 828Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 140 EPA’s proposa l 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 del ay 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 clean up 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 dischar ge 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

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- A1, Excerpt Numbe rs 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 possibl e 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 reduct ions in determining Best Available Technology Economically Achievable.

Commenter Name: Dennis Wene Commenter Affiliation: Alcoa Inc.'s Warrick Operations Document Control Number: EPA

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- A1 Comment Excerpt Number: 16 External Review Flag: No External Review External Review Incorporated into Response: NoEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 pump

back 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 fin al 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 ste am 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 equ al 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 Comm enter Affiliation: Minnesota Power (ALLETE) Document Control Number: EPA

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6. No retroactive leach ate 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 Respon se: 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 forEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 Aff

iliation: Minnesota Power (ALLETE) Document Control Number: EPA

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- 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

- the

clock 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 pe rcentage 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 m inimize adverse impacts on our customers. Comment Response: See response to DCN EPA

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- 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

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- 143 26.c. Regulatory Implementation

– Legacy Waste

Commenter Name: Chas Spell Commenter Affiliation: Arizona Public Service Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 14 External Review Flag: No E xternal 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. S pecifically, 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 li mits 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 BP T 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 genera ted 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 wast ewater 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 Sectio n VIII of the final preamble.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 144 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Resp onse: 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

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- A2, Excerpt Number 14.

Commenter N ame: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 119 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

Duke Energy S upports 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 lim its 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 t o dry handling requirements.

101 TDD, Section 14.1.3, pages 14

- 2 & 14

- 3 [EPA

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- 002] Comment Response: See response to DCN EPA

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- 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

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- 145 Commenter Name: Joe L. Citta Commenter Affiliation: Nebraska Public Power District (NPPD) Document Control Number: EPA

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- 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 st andard 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 regul ated 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

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- 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 No vember 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

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- A 2 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

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- 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 exist ing 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 infea sible 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 proj ected 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 sco pe 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

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- A2, Excerpt Number 14.

Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 3 External Review Flag: No External Review External R eview 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 techno logy” limits proposed by the rule

– should be subject only to current limits. Comment Response: See response to DCN EPA

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- A2, Excerpt Number 14.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 147 Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural Resour ces Document Control Number: EPA

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- 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 g ap 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

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- A3, Excerpt Number 119.

Commenter Name: John McManus Commenter Affiliation: A merican Electric Power System (AEP) Document Control Number: EPA

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- 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 wastewate r, 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 waterEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 encou rages 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 mee t 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

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- A1, Excerpt Number 6.

Commenter Name: Nys a Hogue Commenter Affiliation: Indianapolis Power & Light Company (IPL) Document Control Number: EPA

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- A2 Comment Excerpt Number: 15 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Excer pt: 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 con sideration" 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 tre ating 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

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- 149 See response to DCN EPA

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- A2, Excerpt Number 14. The final ELGs regulate the discharge of pollut ants 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 o f 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

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- 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 cu rrent BPT effluent limits.

22 See id . at 34,522

- 23

23 Ibid. Comment Response: See response to DCN EPA

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- A2, Excerpt Number 14.

Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 150 Raven Power supports maintaining the existing ELG requirements allowing for t he continued use of surface impoundments to treat “legacy” wastes. Comment Response: See response to DCN EPA

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Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Docum ent Control Number: EPA

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- 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 suppo rts that it is not appropriate to establish BAT effluent limits, but rather maintain existing BPT limits. Comment Response: See response to DCN EPA

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- A2, Excerpt Number 14.

Commenter Name: Jay Hudson Commenter Affiliation: Santee Cooper Document Control Number: EPA

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- 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 run off, 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
wa stewater, 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

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- 151 This is particularly important for waste streams that have been com mingled, 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 cons tructing 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 d ate. 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 t o 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 re move 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 wit h 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

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- up of treatment systems construc ted 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 i nitial 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.

Commente r Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 l eachate 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 consisten cy, 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 l imitation 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.

Co mmenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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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:

S ee response to DCN EPA

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- A1, Excerpt Number 7.

Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (ALLETE) Document Control Number: EPA

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- A2 Comment Excerpt Number: 6Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 regula tion 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 t o ELG rule requirements. The term legacy should be so applied, with consistency, through

- out the final ELG. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 7.

Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (ALLETE) Document Control Number: EPA

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- 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 trea tment 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

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- A1, Excerpt Number 7.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 78 External Review Flag: No External Review External Review In corporated into Response: NoEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 lega cy 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 wastestream s (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 p onds 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

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- 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

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Commenter Name: Paul Chu Commenter Affiliation: Electric Power Research Institute (EPRI) Document Control Number: EPA

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### 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 pro posed options,Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 co sts 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 f rom 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 biolog ical 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 replie d 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 evaluatio n 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:

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- 156 Comment Response: See response to DCN EPA

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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 in creased 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 regulat ory 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 Contr ol Number: EPA

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- 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 existin g 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 in terim 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:

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- 157 Comment Response: See response to DCN EPA

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- A12, Excerpt Number 6.

Commenter Name: Erin Bartlett Commenter Affiliation: The Large Public Power Council (LPPC) Document Control Number: EPA

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- A1 Comment Excerpt Nu mber: 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 bas ed 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 wo uld 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 availabl e 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).

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Commenter Name: John W. Myers Commenter Affiliation: Tennessee Valley Authority (TVA) Document Control Number: EPA

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- 158 Externa l 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 b een 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 benefi ts 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.

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Commenter Name: Bradley Coyle Commenter Affiliation: Big Rivers Electric Corporation (BREC) Document Control Number: EPA

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Clarification should be made to options for continued operation of surface impoundments containing wastewater The proposed ELGs include provisi ons 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 infeasib ility 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 wastewate rs have been fully eliminated. Comment Response:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 159 See responses to DCN EPA

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- A2, Excerpt Number 3.

Commenter Name: Julia M. Blankenship Commenter Affiliation: American Municipal Power, Inc. (AMP) Document Control Number: EPA

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- 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 equiv alent 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

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B. EFFLUENT LIMITATIONS GUIDELINES CANNOT EXEMPT DISCHARGES OF EXISTING WASTE. EPA’ proposal would have an y 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 stepEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 160 further a nd 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 discharge s 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 achie ved 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 po int 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 a ttainable” 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 was tes. 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 poll utant 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 navigabl e 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 feasib le, 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, th e 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 3 4,522

- 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:

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- 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 wastewa ter 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] discharg es 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 f inal 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 appro priate.” 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 c an 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 lim itations 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 ele ctric power plants to greatly reduce, if not completely eliminate, the disposal and treatment of their major sources of ash

- containingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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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 polluta nts 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 was te 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 esta blishing 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

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831 E.g. , id. at 34,523, 34,461. Comment Response: See response to DCN EPA

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- 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.

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- 163 Document Control Number: EPA

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- A1 Comment Excerpt Number: 185 External Review Flag: No External Review E xternal 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 impou ndments. 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 supp orting 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 co

mingled waste in the impoundments .833
However, EPA acknowledge s 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 sys tem 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 syst em 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 technica l 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 suppo rt 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.
Leg ally, 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 “c ategories and classes of pointEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 source s.” 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 c ategory 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. W hatever 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 co

mingled FGD wastes and leachate a re 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.

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- 165 843 Id. § 1314(b)(2)(A). Congress modified the BAT requirements for the coal remining industry so that BAT for pre

- existing d ischarges 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 discharge s, not pre

- existing waste, further supporting the view that Congress did not intend to exempt the discharge of pre

existing 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 limitati ons 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

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- A1, Excerpt Number 7. EPA disagrees with the commenter that the same s et 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 limit ations 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 wa stestreams, 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 wastewa ter 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 c onstrued 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 t ransport 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 E PA 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:

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- 166 Also, see preamble section VIII and response to DCN EPA

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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 te chnologies 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 co

mingled. The statute does not give EPA a free pass for legacy or co

- mingled waste streams.

EPA has failed to me et its obligation, and has instead simply decided not to investigate whether there are controls and practices that can reduce pollutants stored in impoundments containing co

mingled waste streams. Chemical precipitation followed by biological treatment c an 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 s uggests 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 b y biological treatment, is effective at treating at least certain kinds of co

mingled 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

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- 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 com menter that EPA failed to consider “whether other technologies exist that could treat the existing fly ash and bottom ash wastewater, whether stored separately or co

mingled in impoundments.” EPA did evaluate technologies beyond surface impoundments and dr y 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, in cluding 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 firs t 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 ch aracteristics 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 ha ve enough performance data at a well

- designed, well

- operated plant or plants to derive limitations and standards using its well

established and judicially upheld statistical methodology. In this case, except in very limited circumstances, steam electric po wer 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 t ransport 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 esta blish BAT limitations forEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 achievabl e 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

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 f or 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 waste water. 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 c o

- 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 pollu tants were first generated. Comment Response: See response to DCN EPA

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Se e response to DCN EPA

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- 169 26.d. Regulatory Implementation

– Compliance Monitoring

Commenter Name: William Matthews Commenter Affiliation: Cleco Corporation Document Control Number: EPA

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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 m ethods 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 effic ient 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 efflue nt 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 th e 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

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. 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

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- 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 in ternal 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 U nited 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 se nse. {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 meas ures are considered normal practice within the industry).

Commenter Name: David Y. Chung Commenter Affiliation: Homer City Generation, L.P Document Control Number: EPA

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- A2 Comment Excerpt Number: 9 External Review Flag: No Externa l 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. Specifi cally, 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 pl ant 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:

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- 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 waste water 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 a nother. 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
m onitoring 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 “inte rnal 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 f or 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 re quirement 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

- wi de 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

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- 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

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Commenter Name: David Y. Chung Commenter Affiliation: Ho mer City Generation, L.P Document Control Number: EPA

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B. EPA Should Not Finalize Internal Monito ring 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 fin alize 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 w ith 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, t he 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
m aterial 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:

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- 173 The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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Commenter Name: Da vid Y. Chung Commenter Affiliation: Homer City Generation, L.P Document Control Number: EPA

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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 pi le 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 wit h 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 requi re internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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. EPA agrees with the commenter that the requirements for bottom ash tr ansport 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 tha t 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, shortEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 174 duration discharges of wastewater from minor leaks ( e.g. , leaks from valve packing, pipe flanges,
o r 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

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- 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 comb ined 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 sug gested by the commenter. See response to DCN EPA

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 117 External Review Flag: Legal External Review Incorporated into Response: No Comment Excerpt: EPA proposes to add three provis ions 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) demonstrat e 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 s ensitive” analytical methods. The first of these provisions would apply to FGD wastewater and gasificationEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 175 wastewater and would require the imposition of effluent limits from the proposed ELG to these internal wastestreams prior to commingling with other w astestreams 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 w ith 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 a nother 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 198 0 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 limitati ons 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. E PA , 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 was testream, 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 Cour t 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:

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- 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 unde rlying 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 contr ol 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. Circu it 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 “monit oring 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

- ba sed 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 qual ity 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 vario us 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 a re 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:

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- 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 conc lude 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 stru cture 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

- circu mvention 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 compl iance 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 Ci ties 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 dil uted 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 “imp racticable 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. Th erefore, Duke Energy recommends removing the internal wastestream limit requirement from the anti

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- 178 94 78 Fed.Reg at 34465.; TDD at Sections 8.1.2.8 and 14.1.4.3 [EPA

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- 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 addre ssed 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 thr ough 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 w astestream. 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 cea ses 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 additiona l information regarding EPA’s rationale for promulgating this provision. This rule does not relate to water

quality based effluent limitations and that aspect of the comment is outside the scope of this rule. In the technology

- based portion of the Act, re quirements on internal wastestreams have been upheld. See response to DCN EPA

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 meth ods” 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 eno ugh 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 analyz ed 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 quantitat ion,’’ 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 was tewater. 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 Register 98 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 genera l rule would allow the use of DRC (dynamic reaction cells) and CRC (collision reaction cells) with Method 200.8 99 , the current method, as written, is inadequate and doesn’t provide sufficient detailed guidance to produce accurate and repeatable res ults 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:

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- 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 sensiti ve” 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 requir es 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 t hat 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 stand ards 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

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- 181 Comment Excerpt: The flue gas desulfurization (FGD) wastewater limits proposed for Best Availa ble 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 pollutant s (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 prohibiti on 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 scrubbe rs 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 se lenium (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 tr eatment 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 supportin g 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 "convention ally 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 res ults 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 mainta in 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 shouldEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 182 be at the discharge from the wetland treatment system, rather than at the point of wat er 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 combustio n 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 s imilar 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 n either 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 fo r 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

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. Regarding the specific oper ations and permitting of the Westar Energy constructed wetland system, see response to DCN EPA

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EPA’s Response to Public Comments

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- 183 Report) (DCN SE05831/SE05832) for additional details on the methodology EPA used to estimate the monitoring costs. Regarding low

- level metals analysis a nd the availability of laboratories to perform the analyses, see response to DCN EPA

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- A3, Excerpt Number 67 in Comment Code 32. EPA notes that there are only three gasification plants operating in the steam electric power generating ind ustry, 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 Comment er Affiliation: Oklahoma Department of Environmental Quality (DEQ) Document Control Number: EPA

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- 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 amou nt 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 wat er 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 additiona l 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

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. 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 han dling. 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:

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- 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 ap plicable 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 exc eptions 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 fina l 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 botto m 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 transpor t 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 wastewat er 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 r ule 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:

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- 185 Commenter Name: Bl ack Hills Corporation (BHC) Commenter Affiliation: Black Hills Corporation (BHC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 3 External Review Flag: No External Review External Review Incorporated into Response: No

Comme nt 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 han dling (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 i n 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 “sufficientl y 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 natu ral 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 BA T); 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 un der 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

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- 186 The final rule does not require suff iciently sensitive analytical methods because another rule does this. See response to DCN EPA

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- A3, Excerpt Number 118.

The final rule does include an anti

- circumvention provision that generally prevents plants from moving wastestreams s ubject to zero pollutant discharge requirements to another process that discharges. See response to DCN EPA

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- A2, Excerpt Number 7. There is an exception to this, however for ash transport water that is used in the FGD scrubber. See 40 C FR 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

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- A1 Comment Excerpt Number: 16 External Review Flag: No Ex ternal 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

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- ci rcumvention provisions, see response to DCN EPA

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- 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

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- 187 EPA’s “anti

- circumvention” proposals will interfere with efforts to reuse and thus conserve water. Water conserv ation 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 proces ses. 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 wa ter. 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 197 4 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

- sav ing 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 encourag es 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 limitatio ns and standards. See response to DCN EPA

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. 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

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- A2, Excerpt Number 7.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 20 External Review Flag: No External Revie w 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:

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- 188 Comment Response: The final rule does not require sufficiently sensitive analytical methods because it would be duplicative. See response to DCN EPA

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 fo r 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 leachate 80

. Although EPA is concerned with pollutant loading and is attemp ting 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 pri or 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 volu me 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

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- 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 inEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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- A1 Comment Excerpt Number: 4 External Review Flag: No Exter nal 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 ne eds 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
n umeric limitations and standards. See response to DCN EPA

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Commenter Name: Joe L. Citta Commenter Affiliation: Nebraska Public Power District (NPPD) Doc ument Control Number: EPA

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- 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 monitoringEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 190 and compliance. There are several ways in which flexibility i n 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 internall y 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 requi re 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 tra nsport 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 proce ss. 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 wo uld 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 recyclin g of water should not be pen ali zed 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:

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- 191 The final rule does not requi re internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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Commenter Name: Joe L. Citta Commenter Affiliation: Nebraska Publ ic Power District (NPPD) Document Control Number: EPA

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- 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 inte nded 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 sluic e 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 surf ace 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 fou r 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 wit h certain numeric limitations and standards. See response to DCN EPA

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

EPA’s Response to Public Comments

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- 192 Regarding water conservation related to dry ash handling and the anti

- circumvention provisions including the use of ash t ransport water in the scrubber, see responses to DCN EPA

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- 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 Contr ol Number: EPA

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- 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 p roposed 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

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- 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 rul e to facilitate an orderly transition to the new standards. Comment Response: See response to DCN EPA

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- A1, Excerpt Number 16.

Commenter Name: Erin Bartlett Commenter Affiliation: The Large Public Power Council (LPPC) Document Co ntrol Number: EPA

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EPA’s Response to Public Comments

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- 1 93 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

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- A1, Excerpt Number 16.

Commenter Name: Lisa C. Messinger Commenter Affiliation: Vectren Corporation Document C ontrol Number: EPA

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- 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 t he 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 re use 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 disch arge 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

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- 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

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- A2, Excer pt 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

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- 194 Commenter Name: Lisa C. Messinger Commenter Affiliation: Vectren Corporation Document Control Number: EPA

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- A1 Comment Excerpt Number: 22 External Review Flag: No External Review Ext ernal Review Incorporated into Response: No Comment Excerpt:

Anti

- Circumvention

- Requiring individual waste waters to demonstrate compliance prior to co

mingling with other waste streams is counter to water conservation and minimization efforts

. The pro posed 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, reus e 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 po nd 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
excess ive 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 wit h specific limits for certain pollutants of concern added for the discharge

. A facility should be allowed to r euse water internally and co

- ma nage multiple waste streams in a single treatment system or series of treatment systems that have a point of compl iance 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 Respon se: The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- A3, Excerpt Number 117 in Comment Code 26.d

. Regarding water conservation relat ed to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7 and the preamble to this final rule.

Commenter Name: Lisa C. Messinger Commenter Affiliation: Vectren Corporation Document C ontrol Number: EPA

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EPA’s Response to Public Comments

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- 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 t o DCN EPA

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- 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

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- A2, Excerpt Number 7 and the preamble t o the final rule.

Commenter Name: P. J. Becker Commenter Affiliation: City Water, Light and Power (CWLP) Document Control Number: EPA

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- A2 Comment Excerpt Number: 9 External Review Flag: No External Review External Review Incorpora ted 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 appr oximately 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 fol lowing 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 Elim ination 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 establis hing 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 a sh 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 syst em 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 comp liance with certain numeric limitations and standards. See response to DCN EPA

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- A2, Excerpt Number 7 and the preamble to the final rule. EPA notes that this commenter did not provide any specific information on the re

use and recycle practices it uses to maintain lake levels and did not provide any detail s 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 ru le.

Commenter Name: P. J. Becker Commenter Affiliation: City Water, Light and Power (CWLP) Document Control Number: EPA

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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 standard s. See response to DCN EPA

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.

Commenter Name: P. J. Becker Commenter Affiliation: City Water, Light and Power (CWLP) Document Control Number: EPA

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- 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 l imits, 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 no t require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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. Regarding a 250

- MW threshold, see response to DCN EPA

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- A2, Excerpt Number 1 in Comment Code 5.c.

Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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EPA’s Response to Public Comments

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- 198 External Review Flag: No External Review Ex ternal 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 intern al monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- A3, Excerpt Number 117 in Comment Code 26.d

. The final rule does not require sufficiently sensitive analytical methods as t his would be duplicative with another rule already promulgated. See response to DCN EPA

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- 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

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- 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

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- A1 Comment Excerpt Number: 135 External Review Flag: Ana lytical 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 Waste stream” 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 quan tity 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 trad itional 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 w aste 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 p ollutants 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 p rior to use ... in any other plant process or commingling ... with anyEffluent 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

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. The final rule does not require sufficiently sensitive analytical methods as that would be duplicative with another rule. See response to DCN EPA

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- A3, Excerpt Number 118.

Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 137 External Review Flag: Analytical External Review Incorporated into Response: No

Comme nt 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.g ov/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 s ensitive” 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 proposedEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 201 “sufficiently sensitive” rul es 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 disreg ards 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 t he 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 UW AG’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 s hortcomings 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. Th e 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 f urther 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 acco rding 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 thoseEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 202 that are exp erimental, 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 t reating 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 Direct ors, 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 permi tting 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 there fore 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 ha ve 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 lev els 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

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Commenter Name: C hris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- 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 Interferen ce 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. Th is 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

- us e.” 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 co nsiderable. 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 wate r, 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 supp ly/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 pa rt 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 oppor tunities 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 waste water 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 refra ctory 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 implement ed 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 toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 204 micro

- manage individual wastes treams does n ot 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 respo nse to DCN EPA

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. Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7 and the pream ble to the final rule.

Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- 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 i nternal 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 wast estream" 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
sour ce" 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

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- 205 It is also recognized by EPA that, due to the economies of scale, combi ning 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 Fe d. 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 th e 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 B AT (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 specifie d 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 d emonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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

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- A3, Excerpt Number 118.

Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- A1 Comment Exc erpt 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

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- 206 EPA has also proposed anti

- circumvention provisions that would prevent facilities from circumventing the effluent limitation and sta ndards. 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 resul ts 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. noncon tact 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 i t 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

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- 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 Num ber: EPA

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- 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 demons trated 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 levelsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 207 necessary to demonstrate compliance with applicable effluent limits (78 FR at 34465

- 34466). T hese 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 plan t 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
m ore 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 sect ion, 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 th e, “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 t he 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 shoul d 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 paragr aphs (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

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- 208 The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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

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- 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

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- A3, Excerpt Number 118.

Commenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Document Control Number: EPA

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Comment Exc erpt:

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 movi ng 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 permittee s 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 inEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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. F or 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 k ey 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 nut rient 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 ha s 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 Stati on 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 active ly 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 thes e 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 In dustry (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 g enerators 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 “anti

circu mvention” provisions.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- 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 res ponse to DCN EPA

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- 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

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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 uti lity 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 anti

circumvention provision limits the number of options available to a utility for interna l 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 s uch 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

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- 211 The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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 res ponses to comments in Comment Code 26.a.

Commenter Name: Gary A. Dawson Commenter Affiliation: Consumers Energy Company Document Control Number: EPA

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- 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 justi fied 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 r euse” 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 respo nse to DCN EPA

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. The final rule does not require sufficiently sensitive analytical methods because it would be duplicative. See response to DCN EPA

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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

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- 212 Document Control Number: EPA

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- A1 Comment Excerpt Number: 13 External Review Flag: No External Review Ext ernal 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 t heir 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, co mbustion 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 as pect. 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 manag ing 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 f or 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

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- 213 The final rule does not require internal monitoring to de monstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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. 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 co sts 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 include d 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 s ubject 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

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- A1 Comme nt 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

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- A1, Excerpt Number 13.

Commenter Name: Jeffrey A. McNelly Commenter Affiliation: Anthracite Region Independent Power Producers AssociationEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 214 (ARIPPA) Document Control Number: EPA

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- A1 Comment Excerpt N umber: 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 trea tment. Comment Response: See response to DCN EPA

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Commenter Name: Nysa Hogue Commenter Affiliation: Indianapolis Power & Light Company (IPL) Document Control Number: EPA

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- A2 Comment Exce rpt 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
com bined 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 Pretreatme nt 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 fina l 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

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- 215 In additi on 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 render ing 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 wastestream s 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 Powe r 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 li ght 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 indiv idual 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 e ffluent 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 individ ual 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 unde rEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 anticircumventio n 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

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- A2, Excerpt Number 7. As explained in that response and pr eamble 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 previous ly 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

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- 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 th at 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 prohibi tion 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 tec hnology

- 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 c ombustion 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 impo undment 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 occasi on 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.

EK PC 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 acknowled ge 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 ofEffluent 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 s tormwater 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 complianc e with certain numeric limitations and standards. See response to DCN EPA

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. The final rule establishes the following BAT limitations for combustion residual leachate: a numeric effluent limita tion 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

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- 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 with in 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

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

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- 219 Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- A1 Comment Excerpt Number: 7 External Review Flag: No External R eview 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 con ditions. 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

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. Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7 and preamble.

Comment er Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- A1 Comment Excerpt Number: 30 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

The Anti

- C ircumvention 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 orde r 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 f or 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

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- 220 EPA’s anti

- circumvention requirements dictate the treatment of individual waste streams before
co

- mingling with other waste streams or waters will dr amatically 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 detrimenta l 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. abo ve 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 limitation s and standards. See response to DCN EPA

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- 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

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- A2, Exce rpt Number 7. Also, see preamble.

Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- 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 w here 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 w astewaters 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 monitoringEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 221 prior to use, or comingling is required, co treatment may no longer be viable, forcing design and construction of s eparate 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 monitor ing to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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.

Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- 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 ca tegorical 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

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. 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

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- 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 c ircumventing 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 th at 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

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- 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

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- 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

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Commenter Name: Tom DeLawrence Commenter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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- 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 ant i

- 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 t o aEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 h as 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 o r 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 imp oundment 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 S ource 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 chemic als, 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 minim al 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 re duce 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 additi onal internal treatment by the facility. However, the facility should be able toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 standar ds. See response to DCN EPA

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.

Commenter Name: Tom DeLawrence Commenter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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- A1 Comment Excerpt Numb er: 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 d ischarge 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 cl osed 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 i n 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 di scharge (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 gene rally 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
conce ntrations 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 poll utant 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 byEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 225 requiring technologies beyond the BPT co ntrol level.” EPA, Development Document for Effluent Limitations Guidelines and Standards and Pretreatment Standards for the Steam Electric Point Source Category, EPA

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- 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 unjustifie d. 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 b e 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 addi tion, 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 wil l 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 technolo gy 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 comp liance with certain numeric limitations and standards. See response to DCN EPA

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. 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 reasonsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 226 explained in the preamble to the final rule. For pollutant reduction estimates, see the T DD and other comment responses regarding bottom ash. In particular, see response to DCN EPA

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- 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 pream ble 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

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Commenter Name: Barbara A. Walz Commenter Affiliation: Tri

- State Generation and Transmission Association, Inc. Document Control Number: EPA

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- 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, parti cularly 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 demons trate compliance with certain numeric limitations and standards. See response to DCN EPA

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. Regarding water conservation related to dry ash handling and the anti

- circumvention provisions includ ing the use of ash transport water in the scrubber, see response to DCN EPA

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- 227 Commenter Name: Paul Bailey Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE) Document Control Number: EPA

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- A1 Comment Excerpt Number: 15 External Review Flag: No Exte rnal Review External Review Incorporated into Response: No Comment Excerpt:

EPA’s “anti

- circumvention” provisions are flawed. EPA is proposing to add “anti

circumvention” 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 str eams. 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 b e 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 o f 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.

Commen t Response: The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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.

Commenter Name: Raven P ower Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 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.

Commen t Response: The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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.

Commenter Name: Raven P ower Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 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 proc ess 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 und ue 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 propose d rule would prohibit the current beneficial reuse of municipal grey water for temperature, chloride and TDS reduction of FGD wastewater prior to entering nutrient

- reducingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 base d 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, t he 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 purpos es 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 m inimize 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 variable s 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 2010 9 and is not scheduled to be issued unti l 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 200.8 10 , the current approved method, as written, is still inadequate and does not provide sufficie nt 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 prep aration 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

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- 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 stand ards. See response to DCN EPA

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. The final rule does not require sufficiently sensitive analytical methods as that would be duplicative. See response to DCN EPA

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- A3, Excerpt Number 118. Regarding the use of EPA’s SOPs for analysis of FGD wastewater, see response to DCN EPA

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- A1, Excerpt Number 28 in Comment Code 32.

Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 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 ex isting 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 mo nitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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EPA’s Response to Public Comments

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- 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

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- A3, Excerpt Number 118.

Commenter Name: Jared Morrison Commenter Affiliation: Westar Energy Document Control Number: EPA

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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 CW TS, 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 techn ology. Comment Response: The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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

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- A1, Excerpt Number 1 in Comment Code 12.

Commenter Name: Michalene Reilly Commenter Affiliation: Hoosier Energy Rural Ele ctric CooperativeEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 232 Document Control Number: EPA

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Continued and expanded use of centralized wastew ater 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 wastestream s, 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 comminglin g 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 Botto m 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 Wast ewater 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

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- 233 The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- A2, Excerpt Number 7.

The final rule does not require sufficiently sensitive analytical methods as that would be duplicative. See response to DCN EPA

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- A3, Excerpt Number 118.

Commenter Name: Michalene Reilly Commenter Affiliation: Hoosier Energy Rural Electric Cooperative D ocument Control Number: EPA

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- 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 th e 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 con trolled 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 imposi tion 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 p ollutants 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 ac count 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 c ombined 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

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EPA’s Response to Public Comments

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- 234 Commenter Name: James S. Alves Commenter Affiliation: Gulf Power Company Document Control Number: EPA

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- 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 pr ocess 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, wate r 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 significa nt 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.

Flor ida 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 reus e 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 in centivized 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 G ulf 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 wa ter 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 aEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 235 POTW. This water is treated by the POTW and returned to our plant for re

- use. It is unclear whether this would be allo wed 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 imple mented 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

- man age 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

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- 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

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- A2 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Interference with Water Reuse Obje ctives 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 ge nerating 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 provision s “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

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- 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 ma tters 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 na tural 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 t reatment 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 memb ers 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 pr oposed 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 pol lution 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.

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

EPA’s Response to Public Comments

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- 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

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- A2, Excerpt Number 7. The final rule doe s 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

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- A1 Comment Excerpt Number: 21 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

Anti

- circumventi on 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 parti cular 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 cost

effective practice of commingling and treating combined wastewaters. For ex ample, 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., bot tom 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 practic e of combining similar waste streams for treatment, and the anti

circumvention 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

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.

Commenter Name: Bruce W. Ramme Commen ter Affiliation: We Energies Document Control Number: EPA

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EPA’s Response to Public Comments

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- 238 Comment Excerpt: Proposed Anti

- Circumvention Provision s, 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 sev eral 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 wastes tream (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 dil ution 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
a ppropriate 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 par ticipants, 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

- circumv ention 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. EP A 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 land fills 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 transportin g 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 route d through a chemical precipitation system. The PIPP site does not have wet flue gas desulfurization air pollutionEffluent 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 generat ed 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 th rough 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 wastewate r (including bottom ash transport water). The current conventional physical

chemical wastewater treatment system treats the low volume wastewater equalization basin as needed to comply with the BPT permit limits. The proposed anti

- circumvention provision s 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 waste water 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 efflue nt 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 str eams 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 co

treatment 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 an d 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 t o 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

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- 240 The final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See respons e to DCN EPA

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- 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 leach ate 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

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- A1 Comment Excerpt Number: 91 External Re view 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

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- A3, Excerpt Number 117 in Comment Code 26.d

.

Commenter Name: Jay Hudson Commenter Affiliation: Santee Cooper Document Control Number: EPA

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- A1 Comment Excerpt Number: 16 External Review Flag: Legal External Review Incorporated into Response: No Comment Excerpt: Compli ance 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 mixingEffluent 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 whe n 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 th e 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 long er 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

- u se 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 a nd difficult to install the required monitoring equipment. Therefore, these requirements could lead to a reduction in bene ficial reuse or recycling of
wa stewater at existing facilities and result in an increase in water use. Santee Cooper therefore urges t hat 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 an d the number of waste stream sources containing similar pollutants, effluent limits and monitoring requirements for certain internal waste streams (e.g.,FGD wastewater ,combustion residua l leachate, gasification wastewater) are necessary to ensu re appropr iate 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

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- 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

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- A3, Excerpt Number 117 in Comment Code 26.d

.

Commenter Name: Thomas W. Curtis Comm enter Affiliation: American Water Works Association (AWWA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 4 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: 4. Requi re 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:

Moni toring to determine if water quality

- based effluent limits are necessary is outside the scope of the final rule. See response to DCN EPA

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The final rule does not establish BAT or PSES l imitations for bromide for the reasons stated in the preamble.

Commenter Name: Vicki Card Commenter Affiliation: Colorado Springs Utilities Document Control Number: EPA

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ANTI

- CIRCUMVENTIONEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 a llows 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 Propos ed 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 undetect able 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 o n 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 w astestreams 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 c reate 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 waste waters 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 certa in numeric limitations and standards. See response to DCN EPA

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Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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EPA’s Response to Public Comments

8

- 244 Comment Excerpt:

The anti

- circumvention provision of the proposed ELG regulation and the inclusion of new non

chemical 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 rul e does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- A3, Excerpt Number 117 in Comment Code 26.d

. Regarding non

- chemical metal cleaning wastes, see res ponse to DCN EPA

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Commenter Name: Tom DeLawrence Commenter Affiliation: Public Service Company of New Hampshire(PSNH) Document Control Number: EPA

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- A1 Comment Excerpt Numb er: 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 dilutio n 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 regulat ory 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 wi ll 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 concent ration 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 r esponse to DCN EPA

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EPA’s Response to Public Comments

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- 245 Commenter Name: Joseph G. Eutizi Commenter Affiliation: San Miguel Electric Cooperative, Inc. Document Control Number: EPA

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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 nea rly 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

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. 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 requir ed. 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

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- 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 toEffluent 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 el ectricity 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

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Commenter Name: Lisa M. Jaeger Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- A2 Comment Excerpt Number: 13 External Review Flag: No External Revie w 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 sensi tive 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 rec ently 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 wastewate rs, coal ash wastewaters, leachate, or surface impoundment run

off. 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 efflu ent

 Fly ash effluent

 Landfill leachate and surface impoundment effluents

 Gasification wastewaters

 Non

- chemical metal cleaning wastewatersEffluent 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 extrac t them and isolate them from interconnected systems. These interconnections are often integrated water re

- use systems in power plants such as using non

chemical metal cleaning wash water combined with plant wash

- down to be used as makeup for bottom ash w ater 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 c omplex 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 wa ter 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 difficu lty 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

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. Regarding the sufficiently sensitive anti

- circumvention provision, the final rule does not establish an anti

- circumve ntion provision that would have required sufficiently sensitive analytical methods. See response to DCN EPA

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- A3, Excerpt Number 118. Regarding the capabilities of analytical laboratories, see response to DCN EPA

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- A1 , Excerpt Number 28 and DCN EPA

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- 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

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- 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 eff luent 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 (asEffluent 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 no t 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

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Commenter Name: Lisa M. Jaeger Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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 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 ut ilities 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

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 4 Exter nal 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 facilit ies 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

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- 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

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 30 External Review Flag: No External Review Ex ternal 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 fina l rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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

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- A3, Excerpt Number 118. Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Contr ol Number: EPA

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- 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

- Circumven tion” 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 anti

circumvention provisions should be eliminate d 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 r egulations. 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 wa ter 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. A s 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 el ectric 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 paragrap hs (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

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- 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 di scharge to “waters of the United States.” Iowa League of Cities v. EPA , 711 F.3d 844 (8 th 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 ef fluent 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 water

quality 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 ‘po int 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 poll utants 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

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- 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 i n 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

- I ndustry 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 memorandum 17 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” p rovision 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 analyt ical 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 Desulfur ization (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 D CN EPA

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. Regarding the sufficiently sensitive anti

- circumvention provision, the final rule does not establish an anti

- circumvention provision that would have required sufficiently sensitive
an alytical methods. See response to DCN EPA

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 123 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Proposed anti

- circumvention provisions sh ould 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 an d standards. See response to DCN EPA

- HQ

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. Regarding the sufficiently sensitive anti

- circumvention provision, the final rule does not establish an anti

- circumvention provision that would have requ ired sufficiently sensitive analytical methods. See response to DCN EPA

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EPA’s Response to Public Comments

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- 254 Regarding water conservation related to dry ash handling and the anti

- circumvention provisions see response to DCN EPA

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Commenter Name: Henry Eby Commenter Affiliation: Lower Colorado River Authority (LCRA) Document Control Number: EPA

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- 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 applicabilit y 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 facil ities 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 Wa ter 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 discharge d 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 facili ty 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 s tate 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, th en the wastestream is not a Regulated Wastestream and the facility does not have to comply with theEffluent 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 posit ion 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 t ransport 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 ul timate 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 t he 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 defin itions 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

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. 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 anti

circumvention provision that was promulgated in the final rule. Fly ash transport water or bottom ash transport water can be co mmingled 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

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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 signif icant 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 interna l 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 indi rect 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 econ omic 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 inter nal 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 facilit y 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 Pr oposed 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 wa ters 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

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- 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

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- 2009

- 0819

- 4485

- A1, Excer pt Number 5.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

- HQ

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- 4489

- A1 Comment Excerpt Number: 47 External Review Flag: No External Review External Review Incorporated into Respon se: 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 waste waters. 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 wat er. 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 wit h 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 demonstrat e 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 respo nse 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 method s. 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

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- 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 s treams 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). EP A 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 pla nt 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 wat er 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 i ncrease 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 orEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 259 bott om 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 si ze. 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 me tals 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

- sp ecific 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 con servation 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

- cir cumvention 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

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- 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 discha rge waste stream is either dry

- handled or converted to a closed loop system. Whereas fly ashEffluent 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

- circumv ention 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

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- 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 conflic ts 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 u se of ash transport water as scrubber makeup, see response to DCN EPA

- HQ

- OW

2009

- 0819

- 4181

- A2, Excerpt Number 7.

Commenter Name: Dean Ellis Commenter Affiliation: Dynegy Inc. Document Control Number: EPA

- HQ

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- 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 applic able 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
wa stestreams, 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 E PA’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 nonchemica l 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 once

through cooling waters) to ash ponds. This includes low

- volume wastew aters (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
was h 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 w aters 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 w ater would remain equal to current BPT effluent limits. However, in light of the importance of this issue, EPA should clearly state thatEffluent 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 monito ring 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

- 200 9

- 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 transpo rt water, see response to DCN EPA

- HQ

- OW

2009

- 0819

- 4454

- A2, Excerpt Number 17 in Comment Code 26.d

.

Commenter Name: Dean Ellis Commenter Affiliation: Dynegy Inc. Document Control Number: EPA

- HQ

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- 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 Respons e: 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 Num ber 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

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2009

- 081 9

- 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

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- 0819

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- A1 Comment Excerpt Number: 33 External Review Flag: No External Review External Review Incorporated into Re sponse: 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 monit oring 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

. Reg arding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

- HQ

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- 0819

- 4181

- A2, Excerpt Number 7.

Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

- HQ

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- 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 elimin ated 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 limitsEffluent 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 t he 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 proc ess 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” t o 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 R eview 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 dupl icative 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, i t 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

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- 4305

- A3, Excerpt Number 118.

Commenter Name: Paul Chu Commenter Affiliation: Electr ic Power Research Institute (EPRI) Document Control Number: EPA

- HQ

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- 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 d oes 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 Co mment 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 dischargeEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 266 effluent limit/s tandard 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 t o 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 low

volume wastewat er, 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 co ncern 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 numer ic 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

- OW

2009

- 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 E xcerpt 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 rec ommends 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 monitor ing 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

- 46 55, 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 ent er 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

- cir cumvention 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 cl arification 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 m anagement 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
c ircumventing 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 s ituations 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 ea sily 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 pr ecipitation. 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 wi ll 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 iro n 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 aggl omeration, 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 impai r 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 E PA’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 (specifica lly, 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 inter nal 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

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- 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 st reams in processes that ultimately discharge to surface water in specific cases where pollutant loadings can easily be calculated and utilized to establish WQBELs and effectivelyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 270 protect surface water.” First, water quality based effluent limits are outsid e 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

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- A2, Exc erpt Number 7 in Comment Code 26.d

. Also see the referenced response regarding the use of ash transport water as scrubber make

up. Second, the anti

- circumvention provisions, (except for ash transport water used in FGD scrubbers), ensure that the BAT or B ADCT 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 provision s 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

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- 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 allo w 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 oth er 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

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

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- 271 Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- A2 Comment Excerpt Number: 3 External Review Flag: N o 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

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- A2, Excerpt Number 13.

Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- 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 transp ort 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 s treams 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 or der 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, t he 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 inEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 272 the docket which considered the cost to isolate bottom a sh 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 ap pear 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 c ertain 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 require ments 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 iss ue 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 wat ers 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 limi tations and standards. See response to DCN EPA

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- 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 a ccounting 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 forEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 273 the plants to install a dry bottom ash handling system for steam electric generating un its 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; ther efore, these generating units do not incur related compliance costs.

Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- 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 me tal 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 me et 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 an y 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 separa te 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 re

design 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 comp ly 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

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- 274 Regarding the internal monitoring anti

- circumvention provisions, the final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standa rds. See response to DCN EPA

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- A3, Excerpt Number 117 in Comment Code 26.d

. Regarding non

- chemical metal cleaning wastes, see response to DCN EPA

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Commenter Name: Mike Roddy Commenter Affiliation: Seminole Electric Cooperative, Inc. (SECI) Document Control Number: EPA

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- A2 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

W ater 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 facil itating 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 accordanc e 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 c urrently 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 275 FGD system. Comingled wastewater not reused is treated with advanced metal re moval 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.

SEC I 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 impor tant 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

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. Regarding water conservation related to dry ash handling and the anti

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- A2, Excerpt Number 7.

Comme nter Name: Paul Carpmone Commenter Affiliation: Tampa Electric Company (TEC) Document Control Number: EPA

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- 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 b uilding 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 anti

circumvention provision, we must provide some backgro und 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 di scharging it back to the Bay. The station's separate process makeup waterEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

- disc harge 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 a nd 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 disch arge 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 dedi cated 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 settl ing 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 tr ansport water becomes a "zero discharge" waste stream, the net effect of the anti

circumvention 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 s creen 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 va por compression evaporator (BVCE). The condensate from the BVCE is returned to the reuse system. The permeate from the BVCE is directed through a forcedEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 277 circulation evaporator (FCE). The solids from the FCE are removed for disposal and the condensate of t he 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 modif ications 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 an d 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 poss ible 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 wa ter 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 Hillsbor ough, 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 compli ance with certain numeric limitations and standards. See response to DCN EPA

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- 27 8 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 “Recycle d 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 fi nal 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
w ater 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 han dling 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 Affilia tion: Omaha Public Power District (OPPD) Document Control Number: EPA

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- 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 intende d 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 toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 (TD D) 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 wastewat er, 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 comment 5 on how inter nal 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 discha rge 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 tre atment 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 comme nt 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 monitorin g to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 280 Commenter Name: Patrick Finigan Commenter Affiliation: Omaha Public Power District (OPPD) Document Control Number: EPA

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- 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 w aste 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 comp romising 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
r ather 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

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- A2, Excerpt Number 7.

Commenter Name: Dorothy Kellogg and Michael Leitman Commenter Affiliation: National Rural Electric Cooperative Association (NRECA) Document Control Number: EPA

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N RECA 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:

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- 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

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- A2, Excerpt Number 7.

Commenter Name: Dorothy Kellogg and Michael Leitman Commenter Affiliation: National Rural Electric Cooperative Association (NRECA) Document Cont rol Number: EPA

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- 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
e ncourage 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 meth ods 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: Regardi ng 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 C omment 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

- 08 19

- 4305

- A3, Excerpt Number 118. Regarding trading and “water bubbles,” see response to DCN EPA

- HQ

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- 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

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- 2009

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- 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
r equire 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:
Reg arding 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 Publ ic Power Council (LPPC) Document Control Number: EPA

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- 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 m echanisms 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. EP A 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 reuse d. 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 requi re 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

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- 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

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- 4485

- A1, Excerpt Number 5.

Commenter Name: Katherine Rubin Commenter Affiliation: Los Angeles Department of Water and Power (LADWP) Document Control Number: EPA

- HQ

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- 2009

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- 4658

- A2 Comment Excerpt Number: 1 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Excer pt: 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 thatEffluent 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 stream s 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 Discha rge 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 disch arge 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 N PDES) are not covered by the ELGs Rule. Comment Response: See response to DCN EPA

- HQ

- OW

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- 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 requ iring NPDES permits.

Commenter Name: Erin Bartlett Commenter Affiliation: The Large Public Power Council (LPPC) Document Control Number: EPA

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- 2009

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- 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 thes e 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 col lected 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 wa stewater 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 th e 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 w ater 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 comment 16 on how internal monitoring will affect water re

‐ use, noting that the agency believes that dilution and waste stream interaction make internal monitoring
neces sary 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 water s 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 con tinue 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 mo nitoring 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 exte nt, 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 provisio ns, including the use of ash transport water in the scrubber, 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

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- 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 r educe 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 penali zed 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

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- 0819

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- 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 Barn ey IV Commenter Affiliation: Texas Municipal Power Agency (TMPA) Document Control Number: EPA

- HQ

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- 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 m easures 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., mixi ng 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 mad e 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

- circumventio n 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 Documen t Control Number: EPA

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- 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 anti

circumvention 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 s treams 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 enti re 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

- circumven tion 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

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- 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

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- 0819

- 4593

- A1 Comment Excerpt Number: 11 Ext ernal 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

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- 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 cu rrently 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 o f 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 dischar ge 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 at tractive. 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: Jo hn 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 M ireles Commenter Affiliation: Luminant Document Control Number: EPA

- HQ

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- 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 t o 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

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- 4614

- A1 Comment Excerpt Number: 9 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

EPA's Anti

- Circumvent ion" 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 t he 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 chall enges 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 o r 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 volum es 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 treatmen t 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 proce ss 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
reu se/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" th rough "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 o f 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,
e tc. 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 extre me 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 water 3 and 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
ev en 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 o f additional wastewater facilities to provide storage for wastewater awaiting treatment or for periods where treatment processes are out

- of

service or do not achieve the required quality. Depending on the physical size and/or location of the facility, the re 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 andEffluent 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 n ot 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

- circumven tion 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 requi re 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 Num ber 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

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- 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 gi ven 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 establishEffluent 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 1 17 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: Dominio n 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 Affi liation: Public Service Company of New Hampshire ( PSNH) Document Control Number: EPA

- HQ

- OW

- 2009

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- 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 aEffluent 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 th e 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 t o 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 t he 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, re quires 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 co sts, 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 b een 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 o ther 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 s tates: 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 fl y 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 NPDE S 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 impo se 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

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. Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7.

Commenter Name: Tom DeLawrence Commenter Affiliation: Public Service Company of New Hampshire ( PSNH) Document Control Number: EPA

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- A1 Comment Excerpt Number: 63 External Review Flag: No External Review External Review Incorporated into Response: No

Comm ent 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 eff ect 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 u nreliable 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 gene rally 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 thanEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 quantif y 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

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- 2186 at 498 (1982 Development Document). The same reasoning app lies 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 unjusti fied. 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 wo uld 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

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C ommenter Name: Roger E. Claff Commenter Affiliation: American Petroleum Institute (API) Document Control Number: EPA

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- 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 establish ing 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

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- 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 multipl e 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 separate ly 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 r egulated 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 fa cility 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 th e 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 applic able 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 Generat ion) 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. Eve n 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

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- 299 (h) Internal waste streams. (1) When permit effluent limitations or standards i mposed 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, t he 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 nece ssary, 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 discha rge 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 th e 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 M aximum 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 th is 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 estab lishes 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 t o meet EPA's "Building "Block" approach for the establishment of final effluent limits for a facility based onEffluent 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 regu lations 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 configuration s 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 commensurat e 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

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Commenter Name: Roger E. Claff Commenter Affiliation: American Petroleum Institute (API) Document Control Number: EPA

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- A1 Comment Excerpt Number: 3 External Review Flag: No Ex ternal 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 Witho ut Commensurate Environmental BenefitEffluent 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 d irectly 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 poi nt 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. T he 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

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.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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- 4655 Comment Excerpt Number: 19 External Revi ew 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 int ernal 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

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EPA’s Response to Public Comments

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- 302 Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7. Regarding the sufficiently sensitive anti

- circumvention provision, the final rule doe s not establish an anti

- circumvention provision that would have required sufficiently sensitive analytical methods. See response to DCN EPA

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- A3, Excerpt Number 118.

Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter A ffiliation: UWAG Document Control Number: EPA

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XXIX. EPA’s Internal Limits Are Unnecessary and M ay 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 commi ngling 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 wast ewater 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 a sh 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 residualEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 standard s. 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 requi rements 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 central ized 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 t reatment 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 Gui delines 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 appl ied, 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 m aximum 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 w aste 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 p revents centralized treatment of different wastestreams.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 separa tely 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 fur ther 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 s eparately 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 non

discharging. 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 justifi ed 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 reco gnizes 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 “exceptio nal 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

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- 305 Regarding water conservation related to dry ash handling and the anti

- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7.

Commenter Name: Jerry Schwartz Commenter Affiliation: American Forest & Paper Association (AF&PA) Document Control Number: EPA

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- A2 Comment Excerpt Number: 5 External Review Flag: No External Review External Review Incorp orated 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 practic es 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 provision s, the final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- circumvention provisions, see response to DCN EPA

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- A2, Excerpt Number 7. Regarding the sufficiently

- sensitive anti

- circumvention provision, the final rule does not establish an anti

- circumvention provisi on that would have required sufficiently sensitive analytical methods. See response to DCN EPA

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- A3, Excerpt Number 118.

Commenter Name: Amy Trojecki Commenter Affiliation: Exelon Corporation Document Control Number: EPA

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- A2 Comment Excerpt Number: 9Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 ev ent, 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

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- A3, Exce rpt Number 117 in Comment Code 26.d

. Regarding non

- chemical metal cleaning wastes, see response to DCN EPA

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- 4655, Excerpt Number 154 in Comment Code 22.

Commenter Name: Brian Brazil Commenter Affiliation: TransAlta Centralia Generation, LLC (TCG) Document Control Number: EPA

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- 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 conserv ation. 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 speci fic 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 e ffluent discharge flow to the receiving water. While it may make sense for EPA to prohibit dilution of wastewater with non

- contact coolingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 307 water, EPA must not require compliance on individual wastewater streams within the plant at plants that do not dil ute 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 wast ewater 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 once

through cooling water and could use it in an effort to dilut e 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

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- A 2, 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 Compa nies of Texas, Inc. (AECT) Document Control Number: EPA

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- 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 th at 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 provide s 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 ele ctric 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 wastew ater. The anti

circumvention 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 effluentEffluent 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 wastewa ter, 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 th ose 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 l ost 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 anti cipated 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 EP A’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 lig nite 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 elec tric 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 recycl ing 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 i s, 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 increa sing 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, c ommercial, 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 toEffluent 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 t he 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

- of

service. 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 adop t 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

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- 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

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- A2, Excerpt Number 7.

Re garding the application of the anti

- circumvention provisions to wastewater that are not ultimately discharged, see response to DCN EPA

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- A1, Excerpt Number 5.

Commenter Name: Julia M. Blankenship Commenter Affiliation: American Munic ipal Power, Inc. (AMP) Document Control Number: EPA

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- 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 Rul e’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 non

chemical 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 aEffluent 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

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- A3, Excerpt Number 117 in Comment Code 26.d

.

Commenter Name: Juliet Cohen Commenter Affiliation: Chattahoochee Riverkeeper Document Control Number: EPA

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- 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, nitro gen 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 EL Gs 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 o f 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 regula ted. 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 beEffluent 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

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- A2 Comment Excerpt Number: 8 External Review Flag: No Ext ernal 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 "sufficient ly 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

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- 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

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- 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

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- A3, Excerpt Number 118.

Commenter Name: Dennis Wene Commenter Affiliation: Alcoa Inc.'s Warrick Operations Document Control Number: EPA

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- A1Effluent 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 mu st 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 dis charge. This may require application of a mass balance analysis and calculation to account for combined wastewaters with di ffering effluent limits at the point where the discharge is actually regulated

- at the primary outfall. Comment Response: Regardin g 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 Co mment 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

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- 2009

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- 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 "ant i

- 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 DC N EPA

- HQ

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- 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

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- A2, Excerpt Number 6 in Comment Cod e 18

.

Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (ALLETE) Document Control Number: EPA

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- 4768

- A2 Comment Excerpt Number: 10 External Review Flag: No External Review External Review Incorporated into Respons e: No Comment Excerpt:

The anti

- circumvention provision of the proposed ELG regulation and the inclusion of new non

chemical metal cleaning wastewater sources would result in non

- chemical metal cleaning waste regulations that would be impractical to impl ement, 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 comp liance with certain numeric limitations and standards. See response to DCN EPA

- HQ

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- A3, Excerpt Number 117 in Comment Code 26.d

. Regarding non

- chemical metal cleaning wastes, see response to DCN EPA

- HQ

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- 2009

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- 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

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- A2 Comment Excerpt Number: 11 External Review Flag: No External Review External Re view 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 wast e 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 effluen t 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 anoth er 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, an d 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 identif ies 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 cost s 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 res ponse to DCN EPA

- HQ

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- 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

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- 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 Commente r Name: Zak Covar Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ) Document Control Number: EPA

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- 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 permi tting 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 fo r 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

- Circ umvention 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

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- 0819

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- A3, Excerpt Number 117 in Comment Code 26.d

.

Commenter Name: Zak Covar Com menter Affiliation: Texas Commission on Environmental Quality (TCEQ) Document Control Number: EPA

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- 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 limitat ions 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 thes e 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 req uire 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 an ti

- 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

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- A2 Comm ent 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 incl usion 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. A ll 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 adopt ed 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 ac cordingly.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

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- 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 Nu mber: EPA

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- 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

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- A3, Excerpt Number 117 in Comment Code 26.d

.

Commenter Name: Theresa Pugh Commenter Affiliation: American Public Power Association (APPA) Document Control Number: EPA

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- 5140

- A2 Comment Excerpt Number: 38 External Review Flag: No External Review External Review Incorpo rated 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 opera ted by cities that also operate drinking water or wastewater utilities. All efforts should beEffluent 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 st andards. 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 Numb er 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

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- 2009

- 0819

- 5406

- A2 Comment Excerpt Number: 13 External Review Flag: No External Review External Review Incorporat ed 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 encou raging 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 respo nse 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 sens itive 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

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- 2009

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- 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

- circumventi on 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, w ater 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 signifi cant 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.

Fl orida 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 re use 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 withEffluent 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 on e 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 al lowed 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 imp lemented 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

- m anage 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 wat er 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 Do cument Control Number: EPA

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- 2009

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- 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 wat er 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 321 water would eventually be discharg ed. 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

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. Regarding water conservation related to dry ash handling and the anti

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Comment er Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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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 conf usion.

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 R egulatory Agenda,” available at http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201304&RIN=2040

- AC84

. ThereEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 322 i s 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 scienti fic 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. P residential 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 metho ds. 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 sen sitive” 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 concern s 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:

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- 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 an d 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 prop oses 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 ii i. 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/N ELAC 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 con troversy 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 n one 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 su fficiently 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 Wastewa ter 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 methodsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 324 vary by 300%

- 600%”). UWAG has found that the cost of Method 1668C for PCB s 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 Combustio n 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 memo randum 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 fa ils 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 Fede ral 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 Discharg e” 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:

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- 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 mea n “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 wi th “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

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.. In addition, EPA does not agree that its analysis of the “impacts” of the proposed rule are not credible and EPA has incorporated the co sts 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 t o 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 cos ts. 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

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EPA notes that the final anti

- circumvention provisions do not apply to previo usly established requirements for this point source category.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 326 Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 65 External Review Flag: Analytical External Revi ew 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 y ears 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 R obin 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 docume nted 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;

 t hat 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
a ccurately 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

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 w hether 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 Register 17 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 200.8 18 , 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 me thods 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 dete ction 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 capabilitie s. 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 Report 19 further documents th e 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 result s between different labs.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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- 0004] October 29, 2009 Comment Response: See response to DCN EPA

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Commenter Nam e: J. Madras Commenter Affiliation: Missouri Department of Natural Resources Document Control Number: EPA

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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 approve d 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 v apor 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 av erage effluent limit of 1.29 ng/L.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 R esponse: 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 e ffluent limitations and standards for gasification wastewater.

Commenter Name: Tom DeLawrence Commenter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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- 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” analy tical 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 a ware, 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 detecti on limits (“MDL”), EPA convened a Federal Advisory Committee in 2007, which found that the current MDL procedure had deficiencies that should be corrected. However, toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 330 date, none of the Committee’s recommendations for correcting the MDL deficiencies have b een 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 choos ing 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 com plicated 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 maxi mum 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 instr umentation 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 incre ase 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

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Commenter Name: Jared Morrison Commenter Affiliation: Westar Energy Document Control Number: EPA

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- 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, n oted 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 Kansa s 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 curren t 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 labora tories 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

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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) Docume nt Control Number: EPA

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- 332 Comment Excerpt: EPA's Proposed Requirement that Analytical Methods be "Sufficiently Sensit ive" 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 Q uality 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 includi ng 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 "suffi ciently 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 an alytical 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 ext end 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 faci lity 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 concentr ations in effluents are extremely high, and the regulated community insists upon certainty in permit limits compliance determinations beforeEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 55 Externa l 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 limita tion.” 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 method s 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 s hortcomings 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

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- 334 “sufficiently sensitive” rul e 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 the se 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 20 0.8, 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 non

approved method and the cost to purchase the advanced equipment needed to run more sensitive methods. F or 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 an d 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 u se 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 mon itoring methods. Comment Response: Regarding the sufficiently sensitive anti

- circumvention provision in the proposed ELG, see response to DCN EPA

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Commenter Name: Zak Covar Commenter Affiliation: Texas Commission on Environmental Quality (TCEQ) Document Control Number: EPA

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- 335 Analytical Test Methods TCEQ suggests revisions to the revised analytical methods guidelines to allow site specific test meth od 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 effl uent limits. This provision requires methods to be used that can detect pollutants at the proposed technology

based standards. TCEQ's latest revisions to the minimum analytical methods (MALs) contained in "Procedures to Implement the Texas Surface Water Qu ality 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 preven t 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 leve ls 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

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- circumvention provisions, the final rule does not require internal monitoring to demonstrate compliance with certain numeric limitations and standards. See response to DCN EPA

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- 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

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- 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 s tringent 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 metal s 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 concentrati ons 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.

More over, 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 specifi c 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 credi t 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; orEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 337 (ii) The discharger demonstrates that the cont rol 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 pollutant s 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
meas ure 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 max imum 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 tre atment 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 Comment er Affiliation: City Public Service of San Antonio (CPS Energy) Document Control Number: EPA

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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 a ny plant processes. Comment Response:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 ar e outside the scope of the rulemaking.

Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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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

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Commenter Name: Dennis Wene Commenter Affiliation: Alcoa Inc.'s Warrick Operations Document Control Number: EPA

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- 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:

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- 339 The rule fails to address intake allowances and the natural chemistry that will occur once the p H of the wastewater is stabilized to discharge levels. Comment Response: See response to DCN EPA

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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:

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- 340 26.f. Regulatory Implementation

– Other

Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Excerpt Number: 27 External Revie w 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 dange rous 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 Cou nty 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 o ffenders. 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

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- 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 p ublic 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 enfo rceable federal limits on toxic discharges. Comment Response: See response to DCN EPA

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- 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

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- 342 Commenter Name: Public Hearing Transcript Commenter Affilia tion: Public Hearing Transcript Document Control Number: EPA

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- 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 Caro lina, 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 dis charge, 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

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Commenter Name: Public Hearing Tran script Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Excerpt Number: 46 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Valley Pow er 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 s ignificant 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:

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- 343 The good news is that there's many stakeholder groups, including Milwaukee Riverkee per 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) a nd 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 rulemakin g. 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

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- 344 fish, boat, and recreate jus t 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 regu latory 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 D CN EPA

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Excerpt Number: 85 External Review Flag: No Ext ernal 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 ha ving 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 nati onal 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, ma ny 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 standar ds, and we need them now in this narrow window where scrubbers are beingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 b asic 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

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Excerpt Number: 91 External Review Flag: No External Review External Revi ew 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

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- 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 o ccurred 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

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Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- 347 At least 16 of these plants have discharges contaminated by metalating coal ash and dangerous smokestacks from scrubber sludge. Worst, of t hese 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

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Commenter Name: Cheryl Nenn Commenter Affiliation: Milwaukee Riverkeeper Document Control Number: EPA

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Commenter Name: Cheryl Nenn Commenter Affiliation: Milwaukee Riverkee per Document Control Number: EPA

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- 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 protectiv e 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 Mich igan 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

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Commenter Name: Diana Dascala

- Joffe Commenter Affiliation: Chesapeake Climate Action Network Document Control Number: EPA

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- 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 guide lines 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

- base d 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 w hich 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 tha t power plant's outfall pipes and had no idea that they were encountering dangerous toxins everyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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Commenter Name: Donald R. Carlson Commenter Affiliation: Kansas Department of Health and Environment (KDHE) Document Control Number: EPA

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- A1 Comment Excerpt Number: 3 External Review Flag: No External Revi ew 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 lim its, 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 guidel ines 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 o r 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 eff luent 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 a nd standards applicable to the discharge of pollutants from the steam electric power generating industry based on the “best available technology economicallyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 350 achievable” and the “best available demonstrated control technology,” as those terms are used in
s ections 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 p rojects 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 wheth er 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 “categ ories”) 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 o f 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. T wo 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 o f the entities thatEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 tradi ng 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,
a rsenic, 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 well

designed and well

- operated control and treatment technologies. In this case, EPA is setting a national technology

- based standard for the control of nitrate/nitr ite 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:

I n 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 ou tfalls 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 und er 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
an other 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:

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- 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 pollut ant 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 mul tiple 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 tha n 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 example s 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 practi ce, 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 det ermined 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

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- A2 Comment Excerp t 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 toxic s 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, 125.3Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 353 4 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

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Commenter Name: Patrick O’Loughlin Commenter Affiliatio n: Buckeye Power, Inc. Document Control Number: EPA

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- 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 p otential 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 re move 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 repre sents 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:

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- 354 Although not required by the CWA, and not a determining fac tor 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 fo r the selected regulatory option (Option D) have a cost

effectiveness 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 cost

effectiven ess in EPA’s decisions for the final rule, see response to DCN EPA

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. EPA’s final standards for FGD wastewater for nitrate/nitrite are more than an order of magnitude greater than the proposed limi ts. See preamble section XI. See response to DCN EPA

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- 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 b elow 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 perfo rmance 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 Po llutant 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 technol ogy

- 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 standa rds 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 r emove nitrate/nitrite or that it will simultane ously 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 t he 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 d enitrification 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 ni trify 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 100Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 reduct ion regardless of the technology employed.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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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

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- A1, Excerpt Number 126. Also, see preamble sections VIII and XVI.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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:

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- 356 Comment Response: See response to DCN EPA

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- 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

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- 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 poll utants such as that currently being piloted in the Ohio River basin. Comment Response: See response to DCN EPA

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Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- 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 shou ld 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 esta blish 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 abo ut non

chemical metal cleaning waste see responses for Comment Code 22.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 357 Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural Resources Document Control Number: EPA

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- 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 propose d 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 Resp onse: See response to DCN EPA

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Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- A1 Comment Excerpt Number: 16 Extern al 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 memo 14 , states may require biological treatment, which is not a preferred treatment technology under Options 1 and 3a. This also forces states to make technology assess ments 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:

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- 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 site

specific BPJ. See response to DCN EPA

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Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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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 simul taneously 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 f or 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/nitri te 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, whil e 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 e ffective 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 $22.3 mill ion (2010$). 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 needEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 359 to control nitrate/nitrite to the low levels pro posed 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 D ocument, 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 Resp onse: See response to DCN EPA

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Commenter Name: Gary A. Dawson Commenter Affiliation: Consumers Energy Company Document Con trol Number: EPA

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- 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:

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- 360 Comment Response:

R egarding the PCB “no discharge” requirements, see response to DCN EPA

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Commenter Name: Chad Miller Commenter Affiliation: Montana

- Dakota Utilities Co. Document Control Number: EPA

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Flue Gas Desulfurization

- Best Professional Judgment (BPJ). In the proposed ELG rule, EPA suggests a BPJ a pproach 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 pe rmit 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 r equirements. 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 site

specific BPJ. See response to DCN EPA

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Commenter Name: Chad Miller Commenter Affiliation: Montana

- Dakota Utilities Co. Document Control Number: EPA

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- 361 We encourage EPA to provide guidance to industry and regulating agencies on Best Professional Judgment standards for Flue Gas Desulfurization wastewater. As current ly 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 site

specific BPJ. See response to DCN EPA

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Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- A1 Commen t 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 technol ogy 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 se t 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 ge neration 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 n itrate 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

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- 362 If EPA moves fo rward 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) contrad ict 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 th ese 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 non

water quality environmental impacts. See Section VIII of the final preamble. Also, see response to DCN EPA

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- A2, Excerpt Number 20 and response to DCN EPA

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Commenter Na me: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 10 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Exc erpt: 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 i n 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
con tinued to develop and detection limits have steadily decreased. Historically, the IllinoisEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 363 Environmental Protection Agency has used discretion to define applicable detection limits for verifying compliance with such criteria. In order to avoid future ambig uity 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 t he PCB “no discharge” requirements, see response to DCN EPA

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Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- 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

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Commenter Name: Ronald H. Hix Commenter Affiliation: NextEra Energy, Inc. (NEE) Document Control Number: EPA

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- A1 Comment Excerpt Number: 5 External Review Flag: No External Review External Review Incorporated into Respon se: 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 Rul e). 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 respo nse to DCN EPA

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- A1, Excerpt Number 3.

Commenter Name: Michalene Reilly Commenter Affiliation: Hoosier Energy Rural Electric Cooperative Document Control Number: EPA

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- A1 Comment Excerpt Number: 19 External Revie w 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 pollutant s 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

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- A1, Excerpt Number 3.

Commenter Name: Thomas W. Curtis Commenter Affiliation: American Water Works Association (AWWA) Document Control Number: EPA

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Comm ent 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

- specifi c 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 Inst itute (EEI) Document Control Number: EPA

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- 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.

Co mment Response: See response to DCN EPA

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Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- 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 limi ts (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, in cluding 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

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- 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 po wer 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 dr opped 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

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Commenter Name: Quinlan J. Shea III Co mmenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 124 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Trading shou ld be explicitly authorized in the rule. Comment Response: See response to DCN EPA

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Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- 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 c ertain 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 regi on or throughout the country. Accordingly, should EPA select this regulatory option, Alabama Power requests that the ag ency 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 Respo nse: 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 site

specific BPJ. See response to DCN EPA

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Commenter Name: Paul Chu Commenter Affiliation: Electric Power Research Institute (EPRI) Document Control Number: EPA

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- 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

- effecti ve 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 s cale. 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 percentEffluent 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. Th e amount of nitrate/nitrite in FGD wastewater is small compared to the amounts introduced from municipal wastewater treatment facilities and non

point sources. Thus, reductions from FGD wastewater would provide minimal, if any, measureable benefit to rece iving 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 fr om 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 r eductions 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, thr ough 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 Pol icy 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 improv ements 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 demon strated 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 Perci asepe, 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 fo r, “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 technology

based effluent limit (TBEL), in the absence of specific authorization, inclusion of technology

based 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

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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 fr om 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.pd f ), “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

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- 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' abil ity 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 re ducing 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 monitorEffluent 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 q uestions 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 timef rame 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 a nd 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
w ritten, 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 adop ting 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

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Commenter Name: Jimmy Daukas Commenter Affiliation: American Farmland Trust (AFT) Document Control Number: EPA

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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 qu ality 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 concer n. 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 eco nomic 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 quanti fication 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 incen tives 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
a ffected 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 aut horized 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

- basedEffluent 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 authorizatio n for trading as the proposed rule is promulgated. We urge EPA to do so. Comment Response: See responses to DCN EPA

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Commenter Name: Shellie Chard

- McClary Commenter Affiliation: Association of Clean Water Administrators (ACWA) Document Control Number: EPA

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Comment Excer pt: 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 c ommunity, and language that specifically allows for nitrate trading to avoid any confusion. Comment Response: See responses to DCN EPA

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Commenter Name: B ecky Smith Commenter Affiliation: Clean Water Action et al. Document Control Number: EPA

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EPA’s Response to Public Comments

8

- 373 The Cle an 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 avai lable 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

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Commenter Name: H. Morriss Barney IV Commenter Affiliation: Texas Municipal Power Agency (TMPA) Document Control Number: EPA

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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 lis ted 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 site

specific BP J. See response to DCN EPA

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Commenter Name: John W. Myers Commenter Affiliation: Tennessee Valley Authority (TVA) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 nut rients 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 resp onse to DCN EPA

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Commenter Name: Tom DeLawrence Commenter Affiliation: Public Service Company of New Hampshire ( PSNH) Document Control Number: EPA

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- 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 dev elop 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 estab lish limitations for FGD wastewater using site

specific BPJ. See response to DCN EPA

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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XXVIII. The Final ELG Rule Should Authorize Pollutant TradingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 375 The final ELG Rule sh ould 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 i t 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 ma jor 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 i f 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 th e 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) b elieves 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. Ma rket

- 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 $9 00 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:

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- 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 c oncept 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 an d 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 a s “[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 high ly beneficial tool is to be made available in this context pursuant to EPA’s Trading Policy. EPA’s policy supports technology

based trading, but only where “expressly authorized by federal regulations” such as the ELG Rule. Thus, without explicit provisi on 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 con sider 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 exp ressly allow a “water bubble.” This is a regulatory flexibility mechanism which would allow for trading of credits for identical pollutants at any single steam electricEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 377 facility with multiple compliance points. This approach is in keeping with EPA’s Trad ing 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 gui delines 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” ap proach 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 fa cility ... 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 mas s 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). T his 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”). A s 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
c onsistent 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

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kind interstate water quality trading project in the Ohio River Basi n, 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 wo rkshops 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:

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- 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 n itrate/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 pro cess 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 reco rd 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, t hen 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 nutr ients. 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 C onnecticut, 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 po llutant 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, mercur y) 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 t rading. 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 TradingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 379 UWAG recommen ds 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 representi ng 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.

Comme nt 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

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 Clu b, 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 P roject 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

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Commenter Name: Thomas Cmar Commenter Affiliation: Ear thjustice, et al. Document Control Number: EPA

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- 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 determi nation 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 exho rtations to permitting authorities to make case

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- 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 lim its 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 analys es 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 engin eers, chemists, and economists. 356 EPA Region 1 has cited limited resources and the difficulty of settingEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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- case BAT determin ations 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 revi ew 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 powe r 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 d id 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 Co al 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

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357 See Declaration of David M. Webster in Support of Opposition to Petition for a Writ of Mandamus, In re Sierra Club and Our Chil dren’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 site

specific BPJ. See response to DCN EPA

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- 382 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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3. EPA’s proposed exemptions will perpetuate and worsen a status quo in which states ignore their obligation to make case

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- 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 o ffices 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 inde terminate statements that biological treatment may not be affordable for some units 361 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 fa ct 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 justi fy its decision to establish BAT on a case

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- 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 t o 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

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- 383 361 78 Fed. Reg. at 34,470.

362 EPA

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specific BPJ. See response to DCN EPA

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Commenter Name: N. S. Lambert Commenter Affiliation: Private Citizen Document Con trol Number: EPA

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- 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

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Commenter Name: C. S tokes Commenter Affiliation: Private Citizen Document Control Number: EPA

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- 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 Stand ards (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
sourc es 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:

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- 385 27. Coordination with Other EPA Rules

Commenter Name: Paul Bailey Commenter Affiliation: American Coalition for C lean Coal Electricity (ACCCE) Document Control Number: EPA

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- 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, coa l

- fueled power plants had invested approximately $110 billion for controls to reduce air emissions. 4 In addition, coal

- fueled power plants will spend an estimated $95 billion to achieve additional emission reductions under the Mercury and Air Toxics Standa rds (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 diox ide (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 Cro ss

- 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 NAAQ S 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

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- 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 retirementsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 Guideline s 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 toge ther in making multi

million 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 E PA 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 Inve stment 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

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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 impac t 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 an alysis, 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

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- 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, post

compliance 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 includ es 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 ca se 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 pr oposed 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 effect s 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
s ector 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 regardin g 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 r ules 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

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- 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 the se 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 2017Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 ne ed 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 f or 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 specifical ly 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

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- 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 rul e regarding Hazardous Air Pollutants (HAPs)Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 monitorin g 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 uninterrupte d 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 rega rding implementation and implementation timelines,” see response to DCN EPA

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- 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 reti rements 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 ener gy supply, distribution and use.

Commenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Document Control Number: EPA

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- 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 sh ortsighted. 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 electr ic 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 t he 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 promul gate 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 gener ating 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 monitor ing concentrations (“SMCs”) to exempt many sources from pre

- permit PM2.5 monitoringEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 deter ioration (“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) o f 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 t he power generation industry as well as the cumulative costs associated with those rules. Indeed, EPA itself notes that two of the above

cited rulemakings are the most costly in the agency’s history. On a more practical note, the cumulative impacts must b e 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 oth er 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 i ndustry. 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:
Rega rding 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 collecti ve impact of the various rulemakings,” see response to DCN EPA

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- 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 p rivate 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 po wer plants will face particular challenges in obtaining financial capital to comply with the final rule, even as theyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 392 may also be meeting requirements associated with other environmental regulations at approximately the same time. Regarding the commente r’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

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- 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 outli ned 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 sa me 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 reg ulatory 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:

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- 393 4 See 78 Fed. Reg. at 34440

- 41.

5 See 76 Fed. Reg. at 3 821. 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

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- A1, Excerpt Number 9. EPA notes that the market modeling approach used in IPM provides ins ight 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 nati onal 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 th e 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

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- 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:

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- 394 1. Propo sed 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.

C omment 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

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- 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 inconsi stent 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 authori ty 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 fin al 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 Ass ociation (APPA) Document Control Number: EPA

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- 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, bu t 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 guidel ines 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 pol lutants 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 o f 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 aqueo us 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 regulat ions, 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 EPA

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Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- A1 Comment Excerpt Number: 9 External Review Flag: No External Review External Revi ew 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 reli abilityEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 othe r 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

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Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural Resources Document Control Number: EPA

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- 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. Est ablishment 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

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- A1, Exc erpt 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 s ystems 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 re cord 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:

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- 397 Commenter Name: F. Gilzow Com menter Affiliation: Missouri Joint Municipal Electric Utility Commission Document Control Number: EPA

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Comment Excer pt: 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 requirement s. 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

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Commenter Name: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Numbe r: EPA

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XXXVI. Cumulative Impacts Weigh Against EPA’s Expensive BAT Options

The steam electric in dustry 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 effluentEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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.whi tehouse.gov/sites/default/files/omb/assets/inforeg/cumulative

effects

- guidance.pdf

. Where appropriate and feasible, agencies should consider cumulative effects and opportunities for regulatory harmonization as part of their analysis of particular rules,
a nd 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:
Regar ding 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

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- 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 a gainst 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 E PA 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 benef

its.”); 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 cost

benefit 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

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- 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 p lants 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 fi nal 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 for ced 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 combin e 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 Coa l 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 m ust 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 resou rces 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 ha ndle 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

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- 400 Regarding co ordination of the requirements of the final steam electric ELGs and the CCR rule, see response to DCN EPA

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Commenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Doc ument Control Number: EPA

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- 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 fu rther 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 f inal and proposed environmental rules are having on the electric generation industry,” see the responses to DCN EPA

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Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- A2 Comment Excerpt Number: 8 External Review Flag: No External Review External Review Incorporated int o 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 se ctions 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

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Commenter Name: Steve Jackson Commenter Affiliation: Alliant Energy Corporate Services, Inc. Document Control Number: EPA

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- 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

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- 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 R IA 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

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- A1, Excerpt Number 1). As detailed in these responses and in Chapter 7 of th e 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:

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- 402 Document Control Number: EPA

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- A1 Comment Excerpt Number: 2 Exter nal 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 V III.C.7 and XVI.A regarding timing of implementation of the final rule’s requirements. See response to DCN EPA

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 pollutant s 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 pla nts 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 an d 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 feder al 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 polluta nts could potentially impact the effectiveness of the treatment processes, which increase public drinking water treatment costs.” 4 Yet EPA doesn’tEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 403 quantify or monetize benefits arising from reduced drinking water treatment costs or better health as a res ult 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 p ower 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 p ollution from entering waterways every year, is also in keeping with EPA’s FY 2011

- 2015 Strategic Plan. 7 In 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 (EPA

821

- 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. P rot. 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:

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- 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 Limi tations 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 limitat ions 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. Fis heries 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 Execut ive 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 toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 d isinfection/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 ot her 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 e nvironmental 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

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- 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 dis charges of pollutants from the steam electric power generating industry.

Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- 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 retrofi ts. 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 pendi ng 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

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- 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 sh ow 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 perc ent 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 perce nt of the baselineEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 proj ected 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: All iant Energy Corporate Services, Inc. Document Control Number: EPA

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- 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 over all 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
ev aluated 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

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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:

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- 408 Document Control Number: EPA

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- 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 no t 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

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- A1, Excerpt Number 9 regarding EPA’s evaluation of the cumulative effect of regulations on the electric power sector, including with respect to the “imple mentation 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
e nvironmental 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 E LGs 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 mo netized, 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

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Commenter Name: Lisa Carty Commenter Affiliation: Xcel EnergyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 409 Document Control Number: EP A

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- 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 rul e 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 ent ities be provided the flexibility to make regional decisions to effectively support the rulings. Comment Response: See responses to DCN EPA

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Commenter Name: L. Stenerson Commenter Affiliation: Private Citizen Document Control Number: EPA

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- A1 Comment Excer pt 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 oi l 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 d rilling occurs.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 addressi ng 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 limita tions 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

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- 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 E LGs, 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

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EPA’s Response to Public Comments

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- 411 Comment Excerpt: I urge the EPA to finalize the guidance on hydraulic fracturing usin g 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 com ment 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 Comm enter Affiliation: Private Citizen Document Control Number: EPA

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- 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 w ells 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 polluta nts from the steam electric power generating point source category.

Commenter Name: T. Dash Commenter Affiliation: Private Citizen Document Control Number: EPA

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- 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

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- 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 l imitations 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

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- 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.

Comm ent 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 ele ctric power generating point source category.

Commenter Name: R. Zabors Commenter Affiliation: Private Citizen Document Control Number: EPA

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- A1 Comment Excerpt Number: 1 External Review Flag: No External Review External Review I ncorporated 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 contain s 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

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- 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 possibl e 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. Dibbe ns Commenter Affiliation: Private Citizen Document Control Number: EPA

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- A1 Comment Excerpt Number: 1 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Please fulfill your agenc y'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 strategi es 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

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- 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

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- A1 Comment Excerpt Number: 3 External Review Flag: No External Review Ex ternal 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 Electri c 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 Nu mber: EPA

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- 415 Please note that what pollutes our lake more than power plants, like the coal burners w aters 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 agricul tural 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

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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 th e steam electric power generating point source category.

Commenter Name: E. Anderson Commenter Affiliation: Private Citizen Document Control Number: EPA

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- 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 reductio ns 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

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- 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 publi shing 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 Bulleti n 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:

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- 417 Specific questions, comments and observations regarding the SCC process discussed in the two source documents

Te chnical 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. S uch 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 c ritical 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 ar e 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 simulati on 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 plan ts, 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 exa mple, 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 met hodologies 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 projec tions 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 tem peratures 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 a n aversion to use of un

- alidated models for any practical purposes, our own analysis of actual physical data on atmospheric CO2Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 418 and global average surface temperatures over the last 163 years from 1850 through 2012 indicates a CO2 climate sensitivity valu e 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 meth odology 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 2 013 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 IP CC 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 glo bal 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 hypo thetical and un

suited for critical decision

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- 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 statis tical 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 re port'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 e nough 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:

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- 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 a dditional 41.8 percent atmospheric CO2 concentration rise above the 2012 value of 395 ppm is required to achieve the "doubled" pre

industrial 280 ppm level of 560 ppm. Also, the next 41 percent increase in atmospheric CO2 concentration should not have as m uch 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 curre nt 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 (exc erpted 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.

Se c. 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:

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- 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 r egulations.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 commen t 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 af fected, 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 red undant, 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 shal l 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. C

onsistent 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 a nd 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 o f 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 onlin e 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 t he 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 achi eving the regulatory objectives. Emphasis AddedEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 pu blic 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 t he “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 fo r 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 (OS TP), 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 pee r 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 guideli nes 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 toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 regula tory 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’’ c ontains 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 cred ibility 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 r eviewers, 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 acr oss 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 uncert ainty 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 I II(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 Sec tion 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 Bulle tin 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 rev iew; timing; scope of the review; selection of reviewers; disclosure and attribution; public participation; and disposition of reviewer comments. Emphasis AddedEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 o f 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 acknowledg ed 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 e quilibrium 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 pap ers 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 o f 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 testim ony confirmed that the IPCC climate models central to the SCC2013 results are unable to reproduce observations: http://www.ep w.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=16e80c55

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- 424 1) The magnitude of global

- average atmospheric warming between 1979 and 2012 is only about 50% that predicted by the cl imate 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 i s 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 disagr eement 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 (o r 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 clim ate “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 fac t 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 succes sfully 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:

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- 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 Climat e 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 f

or 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

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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 amplif

y 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 pa leoclimate data clearly show CO2 levels rise and fall in the atmosphere hundreds of years afterEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 emissio ns 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 dec isions 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
accu mulation 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 b eneficial 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 ti me 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, a nd 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 Ana lysis 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 i t 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

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- 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 E LGs. 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 Technolog y.” 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

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- A1, Excerpt Number 1 (comment code 29.h).

Commenter Name: Bradley Coyle Commenter Affiliation: Big Rivers Electric Corporation (BREC) Document Control Number: EPA

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- A2 Comment Excerpt Number: 1 External Review Flag: No External Review Externa l 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 u nder 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.

Th e 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 additio nal 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

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- A1, Excerpt Number 5. Using the Integrated Planning Model, EPA also assessed the projected impacts of theEffluent 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 electri c 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 signif icant 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 Aff

iliation: Private Citizen Document Control Number: EPA

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- 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 Res ponse:
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 cer tain 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

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- A2 Comment Excerpt Number: 13 External Review Flag: Economics/Benefits External Review Incorporated into Response: No Comment Excerpt: Finally the proposed rule do es 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 shortl y 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 typic ally 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 t he 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 s oon 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. Coordi nation

– OW/316b

Commenter Name: Public Hearing Transcript Commenter Affiliation: Public Hearing Transcript Document Control Number: EPA

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- A1 Comment Excerpt Number: 114 External Review Flag: No External Review External Review Incorp orated 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 rulemaki ng, 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 yea r 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

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- 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 o f 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 o peration. (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

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- A1, Excerpt Number 114.

Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural Resources Document Control Number: EPA

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- 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 , facil ities 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 beginn ing 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

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- A1 Comment Excerpt Number: 64 External Review Flag: No External Review External Review Incorporated in to 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 “pro tect 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

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- 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 witnesse s 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 inconsisten t 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

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- A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts and DCN EPA

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- 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: Pat ricia Schuba Commenter Affiliation: Labadie Environmental Organization Document Control Number: EPA

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- A30 Comment Excerpt Number: 1 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerp t:

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 A vailability (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. Commen ts 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

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- 11970).

The ELG's focus is to address point source discharges o f 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, throu gh 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 contamina ted 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 qualitat ive terms. See S ection 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.

Comme nter 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

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- 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 res idual (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 t heir 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 ha zardous 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 th e 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 sim ilarities 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 o n 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 J une 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 determinatio n 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 requirement s 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 inEffluent 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 surfac e 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, treat ment, 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 tre atment 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 a s 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
a pproved 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 per mitted 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 dest ined 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 w ill 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 (l andfill 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 pe rmit 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 st ructure. We believe a wastewater treatment lagoon/impoundment does not present the sameEffluent 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 r emain 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 mana gement 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 ad dress 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 requir ements 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 permi t in light of the Decision by the US Court of Appeals for the 5 Circuit (National Pork Produ cers 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 requ irements 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 im poundments via the C WA 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 Impoundme nt". KDHE recommends that the d efinition 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 a rid 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 thoseEffluent 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 regu latory 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 stat e 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 haza rdous 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
r equirements for the "qualified person" is tha t 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 a n 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 o n 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 eve nt 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, r egardless 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 reposi tory) 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 t hey 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 ex pertise 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 ofEffluent 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 outs ide the scope of this rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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RCRA

- 2009

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- 11970). EPA notes that the final ELGs do not require BMPs

. See response to DCN EPA

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- 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

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- 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 req uirements 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.

Com ment Response: EPA is not establishing BMPs for CCR impoundments under the final ELG rule. See response to DCN EPA

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- 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

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- 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 cost

effective manner. Comment Response: See response to DCN EPA

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- A3, Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules and DCN EPA

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- A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: J. Mic hael Brown Commenter Affiliation: Ohio Valley Electric Corporation (OVEC) Document Control Number: EPA

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Comment Exce rpt: 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

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- 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

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- 11970).

Comme nter Name: Patrick O’Loughlin Commenter Affiliation: Buckeye Power, Inc. Document Control Number: EPA

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- A2 Comment Excerpt Number: 19 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Exc erpt: 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). B uckeye 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 impoun dments. 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 coordinate d 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 impound ments 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 agenciesEffluent 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 waste s 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 D CN EPA

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- A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts. See the preamble to the final rule and response to DCN EPA

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- 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

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- A1 Comment Excerpt Number: 2 External Review Flag: No E xternal 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
r equire 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 stabil ity 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 impoundmen t 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

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- 443 Commenter Name: Ted Siler Commenter Affiliation: Holland Board of Public Works Document Control Number: EPA

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- 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 unfortunat e 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 a nd 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

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- A1, Excerpt Number 119 regarding t he 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

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- A2 Comment Excerpt Number: 13 External Review Flag: No External Review External Review Incor porated 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 th e 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 “unsa tisfactory” 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 444 vast majority of these “poor” ratings w ere 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

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- A1, Excerpt Number 119. Comments specifically pertaining to EPA’s CCR rule are outside the scope of this rulemaking. EPA addressed comments on t he CCR rule in the context of that rulemaking (see Docket EPA

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- 11970).

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 Manag ement 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

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EPA’s Response to Public Comments

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- 445 Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 pr oposal with the CCR proposal. Comment Response: See response to DCN EPA

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- 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 confl icting requirements. Comment Response: See response to DCN EPA

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- 446 See comment codes 28 and 29 regarding the benefit analysis.

Commenter Name: Cari Boyce Commenter Affi liation: Duke Energy Document Control Number: EPA

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- 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 neces sary 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 o f 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 c omments are offered to support EPA’s objective “to ensure that the two rules work together ... without creating avoidable or unnecessary burdens.” 107 Duke Energy is also submitting similar comments to the RCRA Docket [EPA

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- 0299] in association wi th the CCR rulemaking proposed on June 21, 2010.

106 Id. at 34441

107 Id. Comment Response: See response to DCN EPA

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EPA’s Response to Public Comments

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- 447 Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Numb er: 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 t he 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 duplicatio n 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 requiremen ts. 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 e conomic 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 impa ct analysis that both accounted for the costs of the CCR rule and other relevant rulemakings on this industry. See response to DCN EPA

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- A1, Excerpt Number 119 regarding the coordination efforts undertaken by EPA.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 123Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 448 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

A State

- Administered CC R 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 op erate 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 interprete d 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 th e 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 impoundm ent 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 u nder 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 enforceme nt 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 thro ugh 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

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- 4 49 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

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- 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

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- A1, Excerpt Number 119 response to DCN EPA

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- A1, Excerpt Number 12 reg arding coordination of the ELG and CCR rules.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Comment Excerpt Number: 127 External Review Flag: No External Review External Review Inc orporated 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 t he 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 determini ng 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 impound ments, 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 utilityEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 450 operations, Duke Energy requests that EPA provide greater detail about what the BMP s 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 whi ch 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 seve ral 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. Add itionally, 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 st ructures 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 catast rophic 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 a nd 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

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- 451 Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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- A3 Co mment 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 cons umers.” 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 f or 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 th e 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 coordin ated 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 requireme nts, 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 the se 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 t he 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

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- 452  Adequate Time is Need ed 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 syste ms. 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 o nly 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 plan t 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 const ructing a new landfill.

110 78 Fed. Reg. at 34441 Comment Response: See EPA response to DCN EPA

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- 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 ou tside 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 requi rements 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 implem entation 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 descr ibed 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 beg inning 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 cons ider in determining what date is “as soon as possible” is coordination withEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 c losure 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 note d 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 sche dules.

Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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Comment Exc erpt: 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

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Commenter Name: Cari Boyce Commenter Affiliation: Duke Energy Document Control Number: EPA

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EPA’s Response to Public Comments

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- 454 Best Management Practices (BMPs) for surface impoundments s hould 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 EPA

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Commenter Name: Leonard F. Ho pkins Commenter Affiliation: Southern Illinois Power Cooperative (SIPC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerp t:
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 t his 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 i n 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/residua ls.” 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

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Commenter Name: Leonard F. Hopkins Commenter Affiliation: Southern Illinois Power Cooperative (SIPC) Document Control Number: EPA

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- 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

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- 11970).

Commenter Name: Leonard F. Hopkins Commenter Affiliation: Southern Illinois Power Cooperative (SIPC) Document Control Number: EPA

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- A1 Comment Excerpt Number: 14 External Review Flag: No External Review External Re view 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 EPA

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Commenter Name: Leo nard F. Hopkins Commenter Affiliation: Southern Illinois Power Cooperative (SIPC) Document Control Number: EPA

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Com ment Excerpt:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 tran sport water. SIPC agrees, and the D Prime Option will assure that occurs. Comment Response: See response to DCN EPA

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Commenter Name: Joe L. Citta Commenter Affiliation: Nebraska Public Power District (NPPD ) Document Control Number: EPA

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- 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 beca use 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 co mpliance 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 econo mic 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 retr ofit 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

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- 457 Commenter Name: Joe L. Citta Commenter Affiliation: Nebraska Public Power District (NPPD) Document Control Number: EPA

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- 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 co mplete information. Comment Response: See response to DCN EPA

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Commenter Name: Lisa C. Messinger Commenter Affiliation: Vectren Corporation Document Control Number: EPA

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- 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 structur es 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:

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- 458 Comment Response: See response to DCN EPA

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Commenter Name: Lisa C. Messinger Commenter Affiliation: Vectren Corporation Document Control Number: EPA

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- 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 conflictin g and contradictory requirements that affect the same structures. Comment Response: See response to DCN EPA

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Commenter Name: P. J. Becker Commenter Affiliation: City Water, Light and Power (CWLP) Document Control Number: EPA

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- A2 Comment Excerpt Number: 13 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: But CWLP especially agrees wit h 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 ru le will require. Comment Response: See response to DCN EPA

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- 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

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Commenter Name: Chris M. H obson Commenter Affiliation: Southern Company Document Control Number: EPA

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- 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

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Commenter Name: Chris M. Hobson Commenter Affiliati on: Southern Company Document Control Number: EPA

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- 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 Al ign 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:

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- 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, Southe rn 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, unli ned 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 approach 44 properly developed with additional state regulatory oversight provisions would be fully protect ive 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 sub

ject 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 monito ring. 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 p ost

- 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 tr ansport 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 th e “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 biologica l 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 fl y 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 pon ds 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:

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- 461 Southern operates multiple facilities 47 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 “S ubtitle 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 referenc e 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

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- 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 coo rdinating 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 imple mentation 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 b etween 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 a dequate. + 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 un certainty 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 th is 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 extentEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 463 practicable...” In this case, it is prudent for EPA to consider the requirements p roposed 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 de cisions.

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 tw o 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 ap ply 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 tha t 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 lo w 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. Ne ither 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 c ompliance 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:

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- 464 2017, or extend five or more years after that, depending on the permit cycle and the specifics of compliance. Un der 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 o n 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 t o 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 wast ewaters

– 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 wou ld 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 opera tion 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

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- 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 requirement s 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 s tructural 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 vol ume 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 an y 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 an d 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 require ments 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, ce rtain 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 1 251 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 compli ance 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:

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- 466 Although there are different objectives in the two statutes g overning 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 req uire 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 r ule. 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, legac y 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 accurat ely, 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 C WA 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 prohi bition 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 ope rated 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 standardsEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 467 that apply under RCRA have set forth what is necessary to reduce the risk of catastrophic failure and to protect ground water. 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 re gulations 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; availab le 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 outpu ts 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 acc ounted 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 r egulatory 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 assumpti ons 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 acros s 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 resu lt, 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

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- 76, 35,214; 76 Fed. Reg. 63,252 (Oct. 12, 2011) (NODA). EPA said that the “impoundment collapse at [Kingston, Tennessee]... illustrated that structura l 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 no t 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

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- 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

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- 0211 (Nov. 14, 2011) (USWAG 2011 Comments). But USWAG also pointed out that EPA’s own analysis of the st ructural 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 CCREffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 ad ditional 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. S ee DCN EPA

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- 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 EPA

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Commenter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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Comm ent 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 reques ted 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. MSH A 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 slurr y 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 34,4 66 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 isEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 470 more suitab le 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

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- 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

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Com menter Name: Chris M. Hobson Commenter Affiliation: Southern Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 125 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerp t: 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 cons ervative 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 Co mpany 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 clarifica tion regarding the “independence” of a registered professional engineer for the purposes of the annual certification for ensuringEffluent 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 regist ered 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 suffi ciently “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 pr ofessional 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 in spections 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 impoundm ents. 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 Fo r 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 decision

mak ing 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 th is 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

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- 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 w astewater 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 mu st 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 pr ocess 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 c ompliance 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 me eting 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 th e 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

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- 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 rulemaki ng. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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- 11970).Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 473 Commenter Name: Paul Nazaryk Commenter Affiliation: BHP Navajo Coal Company (BNCC) and San Juan Coal Company (SJCC) Document Control Number: EPA

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- 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 p roposed 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

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- A1, Excerpt Number 119 for a discussion of the coordination between the two rules. See DCN EPA

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- 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 a re outside the scope of the ELG rulemaking. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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Commenter Name: Paul Nazaryk Commenter Affiliation: BHP Navajo Coal Company (BNCC) and San Ju an Coal Company (SJCC) Document Control Number: EPA

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- 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 b est 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

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- 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 kno wledgeable 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 B MPs 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

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- 11970).

Commenter Name: J. Madras Commenter Affiliation: Missouri Department of Natural Resources Document Control Number: EPA

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- A1 Comment Excerpt Number: 14 External Review Flag: No External Review External Review Incorporat ed 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

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- 475 Comment Response: See response to DCN EPA

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- A1, Excerpt Number 11.

Commenter Name: Mark Thoma Commenter Affiliation: Otter Trail Power Company Document Control Number: EPA

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- 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 fo r 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. Furt hermore, no perceivable benefit would be achieved in regulating non

discharging 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 b e 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

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- 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

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Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- 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

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- 476 Comment Response: See response to DCN EPA

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HQ

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Commenter Name: Ron Shipman Commenter Affiliation: Georgia Power Company Document Control Number: EPA

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- 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 impo sing 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 the se 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 unde r 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 un der 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 resp onse to DCN EPA

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- A3, Excerpt Number 128 and DCN EPA

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Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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5. Intersec tion 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 en gineering, 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 provi sions 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 ash

handling 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 im poundments 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 re quirement 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 h ave 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 de cisions would affect compliance under the other rule. For example, the ELG rule proposes under all options that compliance withEffluent 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 Optio n 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 al lowed 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 timelin es 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 f

or 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 addi tional 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

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- 005, [hereinafter EPA Regulatory Impact Analysis], April 2013. Comment Response: See response to DCN EPA

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- A3, Excerpt Numb er 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

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Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 slu icing 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 k nown 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

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Commenter Name: John McManus Commenter Affiliation: American Electric Power System (AEP) Document Control Number: EPA

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- 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 regulat ions 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 violati on 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 curren tly 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 rati ng. 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 us e 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 availab le 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 establishi ng BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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Commenter Name: Jacob G. Smeltz Commenter Affiliation: Electric Power Generation Association (EPGA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 5 External Review Flag: No External Review External Review Incorporated into Response: NoEffluent 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 stream s from coal combustion residuals (“CCRs”). EPA also has an active rulemaking on CCRs which is currently under consideration. See Docket No. EPA

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- 0209. Both the current Proposal and the CCR rulemaking seek to manage the same unit and/or acti vity 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

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- 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 Affiliatio n: Electric Power Generation Association (EPGA) Document Control Number: EPA

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EPA should not incl ude 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 f inal ELG. See response to DCN EPA

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Commenter Name: Gary A. Dawson Commenter Affiliation: Consumers Energy Company Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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. EPA

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- 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

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Commenter Name: Gary A. Dawson Commenter Affiliati on: Consumers Energy Company Document Control Number: EPA

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- A2 Comment Excerpt Number: 18 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: BMPs for Surface Impoundments

Consume rs 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 pose d 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

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- 483 EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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Commenter Name: Jeffrey A. McNelly Commenter Affiliation: Anthracite Region Independent Power Producers Association (ARIPPA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 15 External Review Flag: No External Re view 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 impoundmen t 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 i nitiate 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 ins tability 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 tho se 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 impoundm ents 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 wh o 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

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- 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

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Commenter Name: Jeffrey A. McNelly Commenter Affiliation: Anthracite Region Independent Power Producers Association (ARIPPA) Document Control Number: EPA

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- 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

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Commenter Name: Nysa Hogue Commenter Affiliation: Indianapolis Power & Light Company (IPL) Document Co ntrol Number: EPA

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EPA’s Response to Public Comments

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- 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 throu gh 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 associate d 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 cost s 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 EPA

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Commenter Name: Jerry Purvis Commenter Affiliation: East Kentucky Power Cooperative, Inc. (EKPC) Document Control Number: EPA

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- A1 Comment Excerp t 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 beEffluent 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

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Commenter Name : Jessica Wicha Commenter Affiliation: Gypsum Association Document Control Number: EPA

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- A1 Comment Excerpt Number: 2 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: In the p reamble 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 cont inue 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 Ru le, 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

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. 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

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EPA’s Response to Public Comments

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- 487 Commenter Name: Jessica Wicha Commenter Affiliation: Gypsum Association Document Control Number: EPA

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- 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 INTENTI ON 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 co ordinated 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," co nsistent 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 h ealth 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 tw o 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 slui cing 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 connec tion 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 fina lizing 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

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EPA’s Response to Public Comments

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- 488 Commenter Name: Chad Miller Commenter Affiliation: Montana

- Dakota Utilities Co. Document Control Number: EPA

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ELG Rule Harmonization with CCR Rule.

Montana

- Dakota appreciates the EPA's consideration of how the proposed ELG regulations will correlat e 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 conti nue 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

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Commenter Name: Chad Miller Commenter Affiliation: Montana

- Dakota Utilities Co. Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 harm onization process it is importa nt 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

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Commenter Name: Lisa Carty Commenter Affiliation: Xcel Energy Document Control Number: EPA

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- 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 establ ishing 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 a uthority 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 po llutants. The events identified are clearly moreEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 p ointed 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 pr opose 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 Manag ement 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 i mpoundments 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 conv ersion 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 s ystems; 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 ye ar 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 wit h 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

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- 491 To ensure that the C CR 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 BM Ps for CCR impoundments under the final ELG. See response to DCN EPA

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- 11970). See response to DCN EPA

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- 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 t he 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

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Commenter Name: John C. Pozzo Commenter Affili ation: Ameren Energy Resources Company Document Control Number: EPA

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- 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 su pport 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

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EPA’s Response to Public Comments

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- 492 Commenter Name: John C. Pozzo Commenter Affiliation : Ameren Energy Resources Company Document Control Number: EPA

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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 per iod 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

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Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 16 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: We agree that surface impoundment integrit y 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, compr ehensive 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 t he 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 impoundmentEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 493 desi gn, 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 und er the final ELG. See response to DCN EPA

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Commenter Name: John C. Pozzo Commenter Affiliation: Ameren Energy Resources Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 2 3 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

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Commenter Name: Tom DeLawrence Commenter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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- 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

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- 494 EPA is not establis hing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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Commenter Name: Tom DeLawrence Commenter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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Conversion to Closed

- Loop Systems Is Premature in Light of the Proposed Coal Combustion Residue (“CCR”) Regulation s. 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

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Commenter Name: Tom DeLawrence Comm enter Affiliation: PowerSouth Energy Cooperative Document Control Number: EPA

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EPA’s Response to Public Comments

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- 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 collectio n 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 disagre es 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 basi s 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

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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, toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 496 monitor instrumentation such as piezometers. Should any potentially hazardous condition develo p, 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 nece ssary, 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 impoun dment 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 Adm inistration (“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 authorit y; (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 stru ctures 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 frequen cies 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 t his 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 meaningfull y 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 e ach of these significant concerns. Comment Response: EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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Commenter Name: Tom DeLawrence Commenter Affiliation: Pow erSouth Energy Cooperative Document Control Number: EPA

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- 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 fo r 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 rulemaki ng. 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 integrit y 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 assessme nts 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 pri marily 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 RC RA 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 BM Ps 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
unnec essary), 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:

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- 498 13 See EPA, Coal Combustion Residuals Impoundment Assessment Reports, http://www.e pa.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

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Commenter Name: John T. Graves Commenter Affiliation: Minnkota Power Company, Inc. Document Control Number: EPA

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- A1 Comment Excerpt Number: 3 External Review Flag: No External Review External Review Incorporat ed 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

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Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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- 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 im poundment BMP efforts on those surface impoundments that pose the greatest risk. Comment Response: See response to DCN EPA

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Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Docum ent Control Number: EPA

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MIDWEST GEN SUPPORTS ALIGNING THE ELG WITH THE CCR RULE TO AVOID COMPLIA NCE 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 sh ould 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 d ockets EPA

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– 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 comme nts 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 isEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 impoundmen ts 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, fol lowing 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 establis hing 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

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Commenter Name: Basil G. Constantelos Commenter Affiliation: Midwest Generation, LLC. Document Control Number: EPA

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- 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

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- 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

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Commenter Name: Paul Bailey Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE) Document Control Number: EPA

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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 th eir timing will be coordinated. Comment Response: See response to DCN EPA

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Commenter Name: Paul Bailey Commenter Affiliation: American Coalition for Clean Coal Electricity (ACCCE) Document Control Number: EPA

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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:

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- 502 Although EPA has recognized the need to coordinate its Effluent Guidelines with the CCR rule, the fact is it has not done so. 9 In 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 impleme ntation. 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 (RCR A) 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 integr ity 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 subs tantive 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, obtaini ng 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 thi s 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 commun ity, 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 impli cations that such decisions would have for meeting each rule’s requirements. 14 Proper coordination of the rules would minimize the risks toEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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- 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

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- 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

- si te 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 footp rint. 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 liner s 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 permittin g 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 closed

loop bottom ash system because the ash can be disposed in an off

- site landfill. As discussed inEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 504 the response to DCN EPA

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Commenter Name: Raven Power Holdings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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- 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 L imitations Guidelines (ELG) proposal with the Coal Combustion Residual (CCR) proposal. Comment Response: See response to DCN EPA

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Commenter Name: Raven Power Ho ldings, LLC Commenter Affiliation: Raven Power Holdings, LLC Document Control Number: EPA

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Coord inating 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

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- 505 Commenter Name: JoAnne Rau Commenter Affiliation: Dayton Power & Light Company (DP&L) Document Control Number: EPA

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- 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 inspection s 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 cl osure, 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 requireme nt 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
commen ts 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] illust rated 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 manage ment 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" asse ssed 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 o r 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 thi s 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:

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- 506  The propos ed 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 i n the final ELGs are moot. See response to DCN EPA

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Commenter Name: Michalene Reilly Commenter Affiliation: Hoosier Energy Rural Electric Cooperative Document Control Number: EPA

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- 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 RCR A; 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

- Surfac e 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 r ule 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 Prim e 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 Was tes".) Comment Response:Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 507 EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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- A1, Excerpt Number 119 regarding the final E LG 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

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Commenter Name: Bruce W. Ramme Commenter Affiliation: We Energies Document Control Number: EPA

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- 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 receiv e, 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 su rface 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 wash

down 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 th e 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

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- 508 Commenter Name: Bruce W. Ramme Commenter Affiliation: We Energies Document Control Number: EPA

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- 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 storag e 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, mat erial 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 huma n 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

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Commen ts 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

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- 11970).

Commenter Name: Bruce W. Ramme Commenter Affiliation: We Energies Document Control Number: EPA

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EPA’s Response to Public Comments

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- 509 EPA Should Consider Limiting the Scope of Applicable Surface Impoun dments 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 a ll 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 th at 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, dispos e 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 impou ndments. 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 incidentall y 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 boile rs 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 suspen ded 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 residua l 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 limestoneEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 510 and gypsum fines, is usually route d 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 sc ope 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 confusio n 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 o f 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 quality 26

. 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 rec eive 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 o f 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

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- 11970).

Commenter Name: Bruce W. Ramme Commenter Affiliation: We EnergiesEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 511 Document Control Number: EPA

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- 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 Su rface 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 b elieves 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 C lassification 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 integr ity 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 l ife 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:

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- 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

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Commenter Name: Bruce W. Ramme Commenter Affiliation: We Energies Document Control Number: EPA

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- A1 Comment Excerpt Number: 92 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: The scope of applicable surfac e 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 receivi ng 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 impo undment, 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

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- 11970).

Commenter Name: Bruce W. Ramme Commenter Affiliation: We Energies Document Control Number: EPA

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- 513 External Review Flag: No External Review External Review Incorporated into Response: No

C omment 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 envi ronment. 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

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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

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- 11970).

Commenter Name: Jay Hudson Commenter Affiliation: Santee Cooper Document Control Number : EPA

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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 ha ve 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, andEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 wit hin 30 days of last receiving CCRs 31 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 bot h 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

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Commenter Name: Jay Hudson Commenter Affiliation: Santee Cooper Document Control Number: EPA

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- A1 Comment Excerpt Number: 27 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Best Management Practices (BMPs) for CC R 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 (RC RA). Regulating the same thing underEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- 516 Commenter Name: Vicki Card Commenter Affiliation: Colora do Springs Utilities Document Control Number: EPA

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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 requirem ents, 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 th e 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 im poundments 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 enviro nmental monitoring that provide for adequate protection of human health and the environment 2 . The Colorado Department of Natural Resources’

- Dam Safety Branch of the Office of the State Engineer within the Division of Water Resources

- regulates and condu cts periodic inspections of dams associated with impoundments to assess structural integrity 3 . 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 Waste 4 that wastewater in storage in an impoundment before discharge to surface water or to a POTW is considered to be solid waste subject to RCRA requi rements. 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.

2 Colorado 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:

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- 517 3 State of Colorado Dept. of Natural Resources Division of Water Resources Office of the State Engineer Dam Safety Branch, 2007. Rules and Regulations fo r Dam Safety and Dam Construction. 2

- CCR

- 402

- 1 Effective January 1, 2007.

4 U.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

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Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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- A1 Comment Excerpt Number: 5 External Review Flag: No External Review External Review Incorpo rated 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 regulat ions (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

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- 518 Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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- 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 wit h 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 discharg e 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

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Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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- A1 Comment Excerpt Number: 14 External Review Flag: No External Review External Review Incorporated i nto 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

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- 519 Commenter Name: Michael G. Cashin Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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- 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 impoundm ent closure under the final CCR regulation. Comment Response: See response to DCN EPA

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Commenter Name: Michael G. Cashi n Commenter Affiliation: Minnesota Power (MP) Document Control Number: EPA

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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

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Commenter Name: Joseph G. Eutizi Commenter Affiliation: San Miguel Electric Cooperative, Inc. Document Control Number: EPA

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- 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)

- ass uming 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

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Commenter Name: Joseph G. Eutizi Commenter Affiliation: San Miguel Electric Cooperative, Inc. Document Control Number: EPA

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- 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 be ing 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 M SHA 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 ev ery seven days by a person qualified ....”. This language should be modified to conform to the MSHA rules thatEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 st eam 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

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Co mments 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

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Commenter Name: Lisa M. Jaeger Commenter Affiliation: Council of Industrial Boiler Owners (CIBO) Document Control Number: EPA

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- 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 co mment 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 w ould 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 impou ndments 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 a s 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

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- 522 W ater 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 clean ing 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 v arious 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:

EP A is not establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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- A1, Excerpt Number 119. In developing the final ELGs, EPA recognizes that plants currently use surface impoundments to manage various wastewat ers 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 suc h 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

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- 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 m anagement 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 resp onse to DCN EPA

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- A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 5Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

8

- 523 External Review Fla g: 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

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- A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- 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 mini mum, 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 n ot establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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- 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

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- 2009

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- A1, Excerpt Number 119. Also see response to DCN EPA

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- A1, Excerpt Number 11.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 58Effluent 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 Exter nal 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, reg ulating 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

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- A1, Excerpt Number 72.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- A1 Comment Excerpt Number: 87 External Review Flag: No External Review Exte rnal 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 is sues 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 we ll 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 t he 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

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- 4379

- A1, Excerpt Number 119.

Commenter Name: Quinlan J. Shea III Commenter Affiliation: Edison Electric Institute (EEI) Document Control Number: EPA

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- 2009

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- A1 Comment Excerpt Number: 89 External Review Flag: No External Review External Review In corporated 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 Comment s 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 wi th 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 a nd 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 t he 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

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- OW

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- 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

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- 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: E PA

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- 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

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- 2009

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- 4487

- A1, Excerpt Number 29.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 9 Externa l 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, bo ttom 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 u ses. 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/benefi t 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 ad vance of the final ELG in December 2014. The final ELGs are not in conflict with the final CCR rule. See response to DCN EPA

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- A1, Excerpt Number 119, DCN EPA

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- A3, Excerpt Number 128 and DCN EPA

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- A1, Excerpt Number 59.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- 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

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- 2009

- 0819

- 4460

- A1, Excerpt Number 72.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- 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 treatm ent 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 sh ould 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

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- 2009

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- A1, Excerpt Number 72.

Commenter Name: Tom DeLawre nce Commenter Affiliation: Alabama Power Company Document Control Number: EPA

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- A1 Comment Excerpt Number: 56 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:
VIII. Best Manage ment 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 facilit y 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 affect ed 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 wou ld 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 BM Ps 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 possibleEffluent 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

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- A1, Excerpt Number 119. Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addressed comments on the CCR ru le 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

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- 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 Se ction 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 f rom 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 surf ace 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 rul e 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

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- 2009

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- 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 st eam 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 int o 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 o n EPA’s proposal. Comment Response: EPA is not establishing BMPs for CCR impoundments under the final ELG. See response to DCN EPA

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- 4379

- A1, Excerpt Number 119.

Commenter Name: Tom DeLawrence Commenter Affiliation: Alabama Power Compan y Document Control Number: EPA

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- 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 RulemakingsEffluent 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 integri ty 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 p rimarily 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 par t 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. Whil e 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 bec ause 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 ignor es 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 establish ing BMPs for CCR impoundments under the final ELGs. See response to DCN EPA

- HQ

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- 2009

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- 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

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- 2009

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- 4491

- A1 Comment Excerpt Number: 28 External Review Flag: No External Review External R eview 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. Do cument Control Number: EPA

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- 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 int ent, 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 bel ieves 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 ImplementationEffluent 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 imp lementation 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 relia bility 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 compli ance 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 u nder 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 Compan y Document Control Number: EPA

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- 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 bo th 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

- 53 4 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

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- 2009

- 0819

- 4379

- A1, Excerpt Number 119 for a discussion of the coordinati on between the two rules.

Commenter Name: Cathy S. Woollums Commenter Affiliation: MidAmerican Energy Holdings Company Document Control Number: EPA

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- 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 ELG 25 the prelimin ary 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 Collec tion 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 justifiab le option for regulating CCR management units.

25 Id. at 34442.

26 Id.

27 Id. at 34441. Comment Response: See response DCN EPA

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- 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 Holding s 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 e ffect 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 requireme nts 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
ru le. 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 oblig ations 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

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- A3, Excerpt Number 128 for a discussion of the timing between the ELG and CCR final rules. Comments on the substance of the CCREffluent 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

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- 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 t hrough 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 genera lly 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 struc tural 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 com parable 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 appropria te 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 condi tions 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 we re 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 wh ether 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 s hould 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 presen t anEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- A1, Excerpt Number 119.

Commenter Name: Appalachian Voices Commenter Affiliation: Appalachian Voices Document Control Number: EPA

- HQ

- OW

- 2009

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- 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 groundwate r 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

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- 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 surfac e impoundments to ground water and will reduce theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 E LG 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

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- 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 detai l 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 stat es 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 (Residu al 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 p art 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 su rface 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
cover ed 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 beEffluent 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 establis hing BMPs for CCR impoundments under the final. See response to DCN EPA

- HQ

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- 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 Exte rnal 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

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- 0 819 and EPA

- HQ

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- 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 surfa ce impoundments. Rather, they establish restrictions on pollutant discharges in wastestreams that are discharged to surface waters. See response to DCN EPA

- HQ

- OW

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- A1, Excerpt Number 119.

Commenter Name: Steve Jackson Commenter Affiliation : Alliant Energy Corporate Services, Inc. Document Control Number: EPA

- HQ

- OW

- 2009

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- A2 Comment Excerpt Number: 4Effluent 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 impo undment 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

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- 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 Administ ration (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 th e 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 requirement s 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

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- A1, Excerpt Number 119. Comments related to the CCR rule are outside the scope of the ELG rulemaking. EPA addr essed 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

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- 2009

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- 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 an d 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 le ss than or equal to 400 MW may re

design 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 requ ests 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 Nu mber 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 E nergy Company Document Control Number: EPA

- HQ

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- 2009

- 0819

- 4517

- A2 Comment Excerpt Number: 11 External Review Flag: No External Review External Review Incorporated into Response: NoEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 542 Comment Excerpt: The cumulative impact of the final ELG and RCRA rulem akings 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

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- 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

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- A1 Comment Excerpt Number: 11 External Review Flag: No External R eview 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. B oth 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 de cisions. 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 allo w 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 s erious 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 E LG rule if the CCR rule is not issued in a timely manner. EPA noted in the proposed ELGEffluent 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 Agen cy 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 facilitie s. 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

- OW

2009

- 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 regulate d 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, E xcerpt 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

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- A2 Commen t 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), 5 states strongly support the Subtitle D option for regulation of CCR in accordance with RCRA. ACWA agrees that the use o f 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 unde r 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: Identificat ion 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 VII I of the preamble to the final rule and response to DCN EPA

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OW

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- 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 so me 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 c larity around overlap with RCRA, and the fact that the RCRA regulations are not finalized, ACWA suggestsEffluent 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, AC WA 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 respon se to DCN EPA

- HQ

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- A1, Excerpt Number 119.

Commenter Name: Cecile M. Conroy Commenter Affiliation: International Brotherhood of Boilermakers (IBB) Document Control Number: EPA

- HQ

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- 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 requ ire 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, th e 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 befor e 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, t he 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 stra nded 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, determin ing 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 informat ion 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 C CR 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

- HQ

OW

- 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

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- 2009

- 0819

- 4564

- A1Effluent 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 requ irements 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 rul e 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 req uirements 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 con text 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 co nclusion 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 reg ulations 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 r ecords for each rulemaking. However, EPA has closely coordinated efforts between these two regulatory actions as discussed in the response to DCN EPA

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- A1, Excerpt Number 119. In addition, EPA notes that requirements under this ELG fina l 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 ap propriately 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 Ke llogg 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 i nto 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 res ponse 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 incl uding 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 Leitm an 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

Com ment 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 Fla g: 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 clo se 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

- O W

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 rulemaki ng (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 tre at 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

- 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

- 640

- 11970).

Commenter Name: Erik Silvola Commenter Affiliation: Great River Energy (GRE) Document Control Number: EPA

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- 2009

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- 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 proposi ng 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 col lected 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

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- 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

- H Q

- 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 c ompliance 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 t hat 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 w ill 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 f acilities. 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 dispos al and storage of coal combustion residuals. For more detail of what is regulated by each rule see response to DCN EPA

- HQ

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- 0819

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- A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts on these two rules. SeeEffluent 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 compli ance 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

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2009

- 0819

- 4305

- A3, E xcerpt 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

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- A 1 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 t hat 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 Respons e: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

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- 2009

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- 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 presen t 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 timi ng 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) D ocument Control Number: EPA

- HQ

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- 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 wa ters, 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 impound ments 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 req uire 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 accompli sh this. Comment Response: See response to DCN EPA

- HQ

- OW

- 2009

- 0819

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- 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 Na me: Jeff Udd Commenter Affiliation: Minnesota Pollution Control Agency (MPCA) Document Control Number: EPA

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- 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 attai ned 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 Reso urces 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 EP A

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- 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

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- A1 Comment Excerpt Number: 34 External Review Flag: No External Revi ew 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 landfi lls. 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 w astewater 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

- RCR A

- 2009

- 640

- 11970).

Commenter Name: John W. Myers Commenter Affiliation: Tennessee Valley Authority (TVA) Document Control Number: EPA

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- A1 Comment Excerpt Number: 36 External Review Flag: No External Review External Review Incorpor ated 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 pr ograms 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

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- 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 leg al, as it is unknown whether Sections 304(e) and 306 of the Clean Water Act provide EPA with the authority to regulate structural perfo rm ance standards. These elements are authorized under RCRA and are included in the CCR Rule. Other reasons are more pra ctical, 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 mean ingful evaluation andEffluent 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 res ponse to DCN EPA

- HQ

- OW

- 2009

- 0819

- 4379

- A1, Excerpt Number 119.

Commenter Name: Pamela Ritger Commenter Affiliation: Clean Wisconsin Document Control Number: EPA

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- 2009

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- 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 ha zardous 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

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- 2009

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- 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: NoEffluent 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 p ond 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 bot tom 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

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- 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

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- 4460

- A1, Excerpt Number 72 and DCN EPA

HQ

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- 2009

- 0819

- 4379

- A1, Excerpt Numbe r 119.

Commenter Name: Tom DeLawrence Commenter Affiliation: Public Service Company of New Hampshire(PSNH) Document Control Number: EPA

- HQ

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- 2009

- 0819

- 4633

- A1 Comment Excerpt Number: 57 External Review Flag: No External Review External Review Incorp orated into Response: NoEffluent 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 t o 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 coa l 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 day s 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
c ondition 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 ev acuate, 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 appro priate authority; (3) conduct periodic inspections by trained personnelEffluent 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 app ly 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 insp ection 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 pursua nt 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 d ifference 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 a re 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 d efinition 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 ext ended 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 ar e 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(P SNH) 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 g eneralities 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. Promulgatio n 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 ab ove, 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 ru lemaking (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

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- OW

- 2009

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- 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 i ts 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. Relyin g 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 BMP s 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 in tegrity 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 dat a 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 timel y 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 c omply 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 c ompany response/action plans).

Comment R esponse: EPA is not establishing BMPs for CCR impoundments under the final ELGs. See response to DCN EPA

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- 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

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- A2 Comment Excer pt 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.

Commen t 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

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Commenter Name: James R. Roewer Commenter Affil iation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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- 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 faci lity in its revised NDPES permit; and Comment Response: See response to DCN EPA

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- A1, Excerpt Number 119. EPA notes that the timing of the is suance 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

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- 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 impo undment 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 bel ieves 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 f inal ELG. See response to DCN EPA

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Commenter Name: James R. Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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- 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 catego ry.” 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 sour ce 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 develop ment 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 f ace 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 indust rial 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 exp loration 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

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- 566 Commenter Name: James R. Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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3. Elimination of the Requirement that CCR Units Automatic ally 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 impou ndment 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 rec eive 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 waste waters 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 be gin 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 expr essly 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
r equirement 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 i mpoundment 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 fr ame 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 ofEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 continuin g 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

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- 0028). We also explai ned 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 u ndermined. 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 be tween 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 wou ld 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 Implement ation 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 coordinate d 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 unders tanding 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 Stea m 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 decideEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

- effectiv e.” 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 positio n 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 t o 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 owne r/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 cl ose 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 wa stewater treatment function that was provided by the CCR impoundment. See USWAG CCR Comments, EPA

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- 10483, App. 19 (Report of EOP entitled “ Cost Estimates for the Mandatory Closure of Surface Impoundments Used for the Management of Coal Co mbustion 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 t o 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 signifi cantly 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 req uires a facility to undertake a wet to dry conversion of CCR management should beEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 wo rked diligently to coordinate the requirements of the CCR rule and the ELG rule. See response to DCN EPA

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- A3, Excerpt Number 128 regardin g 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 t he 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

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- 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 Af

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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, h owever, 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

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- 570 through RCRA citizen suits. This means, as a practical matter, that whether a particular facility is comp lying 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. T his 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.

Ho w 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 bo th 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. 3 In contrast, a federal court addressing an individual citizen suit action involving an alleged violatio n 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 an d 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 self

implement ing 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 qualifi ed 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 con trols 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 th e 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 enforcea ble 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:

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- 571 We believe the states also would be supportive of this approach. In this way, many of the self

implementing procedures in the Subtitle D approach, as well as the BMPs in th e 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 rule s 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

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Co mments 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

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III. SURF ACE 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, permit ees 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 e liminate the hazards and notify appropriate authorities, are proposed. Second, EPA proposed mandating a set of structuralEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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, the se 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 inte grity 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

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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 im poundments 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 und er 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 stru ctural integrity of surfaceEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 r equirements 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 p rovisions 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 with in 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 measu res 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 pro vides, 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 industr ial 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 Fe d. 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 impoun dment 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 regul ate 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 pollutant s 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 wh ether 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 relate d 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 becaus e 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:

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- 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 typicall y 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
o utfall, 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 b e 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 codifi ed 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 i mpoundment operator would be obligated to take, including eliminating the hazard, evacuating personnel, and noti fying authorities, if a hazard were identified. 78 Fed. Reg. at 34466. EPA does not identify a source of authority under the CWA to mandate RC RA

- 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 firs t instance by compelling non

compliant 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 a pply 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

- f

ired 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 surfaceEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 575 impoundments. At least two evaporation ponds appear on EPA’s list of CCR surface impoundments with high hazard potential ratings. 4 Regulating surface integrit y 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 b e 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 pon ds) 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 potentiall y 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 tha t 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 t he 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

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Commenter Name: James R. Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Co ntrol Number: EPA

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B. If the Proposed BMPs Are to Be Included in the ELG Rule, Th ey Should Be Revised and Proposed SeparatelyEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 f inalize 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 BMP s 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 Propo sal 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 for th 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 wh at 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 p roposed 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 devi ate 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 incorpor ate 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 nevert heless 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 po tential 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 followin g 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 m ore above the upstream toe of the structure;”Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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 regulatio ns 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 provi des 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 impo undment “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 prev ent economic or environmental los ses 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 pot ential 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 th erefore 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 §§ 19.25.12.1 1(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 Guide lines 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 anEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 578 extended time and performance observation data indi cates 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 instrumentati on 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 nu mber 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 monitor ing 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 c ondition 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 stru cture 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 safeguar ds 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 o n 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 supp lemental 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 reasonab le 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:

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- 579 5 The proposal suggests that EPA may view the proposed BMPs as a substitute for the s imilar 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

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- A1, Excerpt Number 119. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

HQ

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- 11970).

Commenter Name: James R. Roewer Commenter Affiliation: Utility Solid Waste Activities Group (USWAG) Document Control Number: EPA

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- 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 rul es. 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. Apa rt 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

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Commenter N ame: Elizabeth E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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- 580 Comment Excerpt Number: 20 External Review Flag: No External Review External Review Incorporated into Response: No

Comment Excer pt: 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

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Commenter Name: Elizabe th E. Aldridge, Hunton & Williams Commenter Affiliation: UWAG Document Control Number: EPA

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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 fo r 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 ins pections every seven days, plans for designing, constructing, and maintaining existing impoundments, plans for closure, periodic inspections, and annualEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 581 certification that the construction, operation, and maintenance follows the approved plan. When stabil ity 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 impoundme nts. 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 rel eases 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 “H azardous 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

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- 10483; Comments of USW AG, 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, 201 1),” Doc. ID No. EPA

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- 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 ana lysis 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 sur vey 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 utili ty 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 im poundments, 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 o f 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:

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- 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 surfac e 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.” Apparent ly 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 submit ted 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 re ports 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 alle ged 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 remediat ed (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 CC R 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 RuleEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 583 Even if BMPs were justified, it would make no sense to impose them twice, once under RCRA and once under the C lean 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 s o 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 pro poses 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 m ust 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 failur es. 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 ma terial 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, d oes 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 (5 th 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 t he 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 fed eral 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 professiona l 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 imp ose new federalEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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.

Com ment 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

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EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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Commenter Name: Jerry Schwartz Commenter Affiliation: American Forest & Paper Association (AF&PA) Document Control Number: EPA

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- 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

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Commenter Name: Lauren P. Alterman Commenter Affiliation: CertainTeed Corporation Document Control Number: EPA

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- 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
a re 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. Th e 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 wa ste that should continue to be regulated under Subtitle D. Comment Response: See response to DCN EPA

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- 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

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Commenter Name: Lauren P. Alterman Commenter Affiliation: CertainTeed Corporation Document Control Number: EPA

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- 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 A gency 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 huma n 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 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,Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 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

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Commenter Name: Lauren P. Alterman Commenter Affiliation: CertainTeed Corporation Document Control Number: EPA

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- 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 rul e and the ELG rule. See response to DCN EPA

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- A3, Excerpt Number 128 regarding EPA’s coordination of implementation timing in the ELG vers us the final CCR rule.

Commenter Name: Bradley Coyle Commenter Affiliation: Big Rivers Electric Corporation (BREC) Document Control Number: EPA

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- 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 th e 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

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- 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

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- A2 Comment Excerpt Number: 9 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: Second, the proposed best management pr actices (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 as sociated 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

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- A1, Excerpt Number 119.

Commenter Name: Raymond L. Evans Commente r Affiliation: FirstEnergy Corp. Document Control Number: EPA

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- 588 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt: EPA's proposed best management pra ctices (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

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- A1, Excerpt Number 119.

Commenter Name: Kevin D. Frizzell Commenter Affiliation: Owensboro Municipal Utilities (OMU) Elmer Smith Station (ESS) Document Control Number: EPA

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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 th e 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 th e 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

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- A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts and DCN EPA

- HQ

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- 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 impound ments under the final ELG. See response to DCN EPA

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EPA’s Response to Public Comments

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- 589 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 17 E xternal 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 preve nt 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 effecti ve 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

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HQ

- RCR A

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- 11970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 withEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 im poundments 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 Resour ce 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 t he 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 EP A

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OW

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- 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 t hat rulemaking (see Docket EPA

- HQ

- RCRA

- 2009

- 640

- 11970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 pursuan t 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 speci fic 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

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- 11970). EPA has done the best job it could with the inf ormation in the record to characterize the discharges from impoundments be they dischargesEffluent 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 groundwate r 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 BAD C T, EPA did an environmental assessment and a benefits

- costs analysis which characterized these disc harges 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

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- 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 s pecific 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 performan ce 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 dispos al 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 subsect ion 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, neces sary 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 long standing 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 anc illary industrial activities”; (2) “[a]uthorized under section 402(p) of the CWA for theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 592 control of storm water discharges”; (3) “[n]umeric effluent limitations are infeasible”; or (4) “[t]he practices are reasonably necessary to achieve effluent limitatio ns 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 operations 716 and for storm water discharges. 717 To adequately address the pollutant discharges from CCR surf ace 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 hydrologi cally 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 e stablishing requirements under the CWA. See response to DCN EPA

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 requirements 721 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, desc ribed 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

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- 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

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- RCRA

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EPA’s Response to Public Comments

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- 594 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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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 inspect ions 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 claus e 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 inspe ctions 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, s eepage, 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 m ay 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 inspect ions, 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 scop e of the required report, a time periodEffluent 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 D irector. 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

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Comments on the subs tance 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

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EPA’s Response to Public Comments

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- 596 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Documen t Control Number: EPA

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- 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 regulation s 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 impou ndments 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 tha t 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
s treams. 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 re quire 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
r eleases 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

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- 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. KY00042 01 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 requiremen ts in the CCR rule. See response to DCN EPA

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Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 165 Externa l 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 abse nce 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 o ut 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 ana lyses 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. 741Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 (A ug. 2, 2013) (comments filed Sept. 3, 2013) (Document ID No. EPA

- HQ

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- 2012

- 0028

- 0111).

737 See, for example , Duke Energy, W.C. Beckjord Station, New Richmond, Ohio: Significant

hazard ash Pond C determined to be "marginally stable;" and Indianapolis Pow er & 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

- RCRA

2012

- 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 r easons 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 impoundme nts 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

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- 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 conditio n 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

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- 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 impound ments 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 danger ous 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. Be cause 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 t he 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 docume ntation 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 pro blems 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 High

Hazard, Poor

- Rated Dam(s)” summarizes the problems fo und 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 sh ows, 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 des cribing 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 th e 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 review ed 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 EPAEffluent 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 deficiencie s 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. Age ncy, Coal Combustion Residuals Impoundment Assessment Reports : Summary Table for Impoundment Reports, (July 19, 2013), available at http://www.epa.gov/osw/nonhaz/industrial/s pecial/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 Commenter s 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, Earthj ustice, 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 lowEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 601 even for s tructural 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/su rveys2/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

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OW

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- A1, Ex cerpt 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 Commente r Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 167 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

3. The absence of eme rgency 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 prope rty 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 b e 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 presen ce 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

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- 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 Servi ce, 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 mea sured 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 annually 756 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 recom mendations 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: E mergency 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

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- A1, Excerpt Number 119.EPA also considered section 101(f)’s directionEffluent 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 rul e. 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

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- A1 , Excerpt Number 119 for a discussion of EPA’s coordination efforts and DCN EPA

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- 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

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- A1 Comment Excerpt Number: 168 External Review Flag: No External Review External Review Incorporated into Response: No Comment Excerpt:

F. IF EPA DOES NOT REQU IRE 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 f or CCR impoundments under the final ELG. See response to DCN EPA

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- A1, Excerpt Number 119 EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

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- 11970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 169 External Review Flag: No External Review External Review Incorporated into Response: NoEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 604 Comment Excerpt:

G. EPA MUST ES TABLISH 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 di schargers.” 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 45 7 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 dire ctly 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 mu st include the BMPs. Second, EPA must also include CCR impoundments that discharge leachate to groundwater with a hydrological connection to surface water. The CWAEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 605 prohibits such discharges without a permit. 762 Leaks in a pollution containment system, lik e 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/Impoundm ent 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:

Whi le 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 limitati ons, 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 secti on 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 aEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 606 particular permitting proceeding. Se e response to DCN EPA

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- 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 re sult 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 le aching 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

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- A1, Excerpt Number 72.

Co mments 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

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- 11970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjusti ce, et al. Document Control Number: EPA

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- 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 IMPOUNDMEN TS 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

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- A1 Ex cerpt Number 169. See response to DCN EPA

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- A1, Excerpt Number 119.Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

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- 607 Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 minim ize 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 wat er 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 requir e 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 re quire 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 r equirements, 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 an d 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

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- A1, Excerpt Number 169. See the final CCR rule at 80 FR 21302 (April 17, 2015) for EPA’s regulations regarding impoundment closu re. Also see response to DCN EPA

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- A1, Excerpt Number 169 regarding groundwater contamination.

Commenter Name: Th omas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 significan t 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 dist inctly 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 no t 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 asses sment is outside the scope of the final ELGs. EPA addressed comments on the CCR rule in the context of that rulemaking (see Docket EPA

HQ

- RCRA

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- 640

- 11970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Nu mber: EPA

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- 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 t he 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 und er 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 c onsumers. 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 dra ft CCR risk assessment and risk screening analysis for fugitive dust. 855 However, as explained below, EPA’s proposed arbitrary use of data collected for theEffluent 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 promo ting 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 technology

based rules. Unlike RSRA regulations, these rules are not based on risk. This comment excerpt relates to the CCR risk assessment and are outside the sco pe of the final ELGs.

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- 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 ret ired 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) stabiliz ation 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 permeabil ity no greater than 1 x 10

- 5 cm/sec, whichever is less; and (5) conducting 30 years ofEffluent 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 revie w. 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 satisfy 899 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 permea bility 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 requiremen ts 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, Maryl and, 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 r esults 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 applicabl e 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 appl icable 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 woul d 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 p lace.

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, Mis souri, 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

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- 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

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- 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 EPA

HQ

- RCRA

- 2009

- 640

- 11 970).

Commenter Name: Thomas Cmar Commenter Affiliation: Earthjustice, et al. Document Control Number: EPA

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- A1 Comment Excerpt Number: 201 External Review Flag: No External Review External Review Incorporated into Response: No

Com ment 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 wil l 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 require ments 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

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- 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

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- A1 Comm ent 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 impoundment s 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 arseni c, 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 fro m 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 impoundmen ts 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 impound ments 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 discharg ed 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 obse rved, 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 atEffluent 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 Pro ject, 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

- bad

news/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 R eports, (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 1 19 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 con struction 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, cl osure 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 requi rements 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 c ontext of that rulemaking (see Docket EPA

HQ

- 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: Ear thjustice, 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

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- 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 mus t 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

- HQ

OW

- 2009

- 0 819

- 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 f inal 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 com plimentary 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) D ocument 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 sy stems. 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. Impo undment 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 reg ulations 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

- O W

- 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 requir ements 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 requiremen ts 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 bu t 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 conflict ing 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 regulatio ns. 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 B MPs 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

- 20 09

- 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 consideri ng 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 Respo nse: 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 o f 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 i ssue 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 EPA

HQ

- 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 Rev iew 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 pressu re 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 hydrau lic 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 subj ect 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.

F igure 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 impou ndment asEffluent 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 impound ment 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 s lope 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 allow ed.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

- HQ

RCRA

- 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 unde r 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.

Comm enter 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 lagoon s. 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 lea chate 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 EPA

HQ

- 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 regu lations, 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 c oal 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 t o 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 EPA

HQ

- 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 meaningfu l 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 pr oposed 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. LD EQ 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 timi ng 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 Do cument 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 impou ndments. 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 impoundmen ts, 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

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Commenter Na me: S. L. Phillips Commenter Affiliation: Louisiana Department of Environmental Quality Document Control Number: EPA

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- A2 Comment Excerpt Number: 15Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 m agnitude. 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

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- 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

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- 11970).

Commenter Name: F. Gilzow Commenter Affiliation: Missouri Joint Municipal Electric Utility Commission Document Control Number: EPA

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- A2 Comment Excerp t 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 Re covery 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 cl osing of ash impoundments at almost the same time that the ELG rule may requireEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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

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- A3, Excerpt Number 128 for a discussion of the timing of the ELG and CCR final rules and DCN EPA

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- A1, Excerpt Number 119 for a discussion of the coordination between the two rules.

Commenter Name: Wil liam Matthews Commenter Affiliation: Cleco Corporation Document Control Number: EPA

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- 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 simila r 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 re dundant 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

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EPA’s Response to Public Comments

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- 631 Commenter Name: William Matthews Commenter Affiliation: Cleco Corporation Document Control Number: EPA

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- A1 Comment Excerpt Number: 6 External Review Flag: No External Review External Review Incorporate d 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, sho uld 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 thro ugh the proposed self

- implementing option of the CCR Subtitle D rule). Comment Response: See response to DCN EPA

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- A1, Excerpt Number 119 for a discussion of EPA’s coordination efforts.

Commenter Name: David Y. Chung Commenter Affil iation: Homer City Generation, L.P Document Control Number: EPA

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- 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 Fi nalize 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 theEffluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category:

EPA’s Response to Public Comments

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- 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 o f 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 als o 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 Man agement), 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 com prehensive 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

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- 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

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- A1, Excerpt Number 119.