**www.mde.state.md.us TTY Users 1-800-735-2258**  **Via Maryland Relay Service Recycled Paper**  

## MARYLAND DEPARTMENT OF THE ENVIRONMENT

**1800 Washington Boulevard** • **Baltimore MD 21230**

**410-537-3000** • **1-800-633-6101**

**Martin O’Malley**

**Governor Shari T. Wilson**  **Secretary**

**Anthony G. Brown**

**Lieutenant Governor Robert M. Summers, Ph.D.**  **Deputy Secretary**

November 19, 2010

Hazardous Waste Management System Identification and Listing of Special Wastes Dispos al of

Coal Combustion Residuals From Electric Utilities D ocket United States Environmental Protection Agency, Mail code: 5305T 1200 Pennsylvania Ave. NW. Washington, DC 20460

Attention: Docket ID No. EPA-HQ-RCRA-2009-0640

Dear Docket Manager:

The Maryland Department of the Environment apprecia tes the opportunity to submit comments on the EPA proposed regulations governing coal combust ion residuals (“CCRs”), as described in EPA’s

Docket ID No. EPA-HQ-RCRA-2009-0640. Detailed comm ents are provided in the enclosed document entitled “Comments by the Maryland Departm ent of the Environment Concerning the United States Environmental Protection Agency’s Pro posals to Regulate Coal Combustion Residuals (CCRs), EPA Docket ID No. EPA-HQ-RCRA-20 09-0640.”

We strongly agree with the need for federal regulat ion of coal combustion residuals. The Department has repeatedly voiced its position, base d on Maryland’s experience with groundwater contamination from CCR disposal sites, that there s hould be a federal threshold for regulation, and that regulation should not be left to individual st ates. Beginning in 2007, Maryland proposed and implemented new rules for CCR generators including reporting and disposal, obtained and implemented legislative authorization for a per ton fee to operate the program, and is now developing rules to govern safe beneficial re-use o f CCRs. Maryland also generally agrees with the technical requirements of EPA’s proposed approaches . The Department, however, does not fully support either of the proposed regulatory options f or the reasons detailed here.

RCRA Subtitle C option

The Department, while acknowledging the need for a federal baseline of regulation, does not support regulation of CCR under RCRA Subtitle C bec ause the criteria for determining whether a waste is hazardous do not support a hazardous waste classification. EPA presents summary data on analyses of CCRs in Table 2 on page 35138 of the Federal Register notice of the proposed rule.**www.mde.state.md.us TTY Users 1-800-735-2258**  **Via Maryland Relay Service Recycled Paper**  Docket ID No. EPA-HQ-RCRA-2009-0640 Page Two

The source data for the summary shows that none of the samples of fly ash, bottom ash, or flue gas desulfurization (FGD) waste analyzed exhibited the toxicity characteristic. While for boiler slag, certain constituents exceeded the toxicity characte ristic, there were also many non-detects and, overall, the mean concentrations did not lead to a hazardous waste designation. For many years, the existing testing protocols for hazardous waste have worked well to ensure proper and safe disposal. The approach of identifying these materi als as a “special waste” undermines the predictability and usefulness of the current requir ements. It also jeopardizes a significant opportunity to safely reuse these materials.

Beyond the major policy implication of developing a n alternative category of waste under the existing regulatory scheme that is widely viewed as working well, Maryland is concerned about the challenges of implementing such a program including disposal capacity and new resources that would be needed. Maryland, as well as 34 other sta tes, have no permitted, active hazardous waste landfills. We rely on commercial facilities located out of state for the disposal of RCRA C wastes. Under the RCRA Subtitle C option, CCRs, of course, must be disposed of in RCRA C facilities. Generators of hazardous materials will be competing with the electric utilities for disposal capacity. We are concerned that this competition may have an unintended consequence of driving disposal costs beyond the reach of smaller generators forcin g closure and possibly even illegal disposal. Maryland did experience such a trend recently when economic factors put disposal costs for solid waste out of reach for very small solid waste haule rs.

If there were no alternative mechanism for safe reg ulation, then perhaps the RCRA C path might be pursued despite these unintended consequences. Howe ver, the 40 CFR 258 option discussed later is an alternative regulatory mechanism that avoids these outcomes and provides for safe regulation.

40 CFR 257 Option

EPA’s proposal to regulate the CCRs under 40 CFR 25 7, the Open Dump regulations, raises concerns about implementation and regulation. Firs t, this proposal does not allow the States to evaluate and approve enhancements to important tech nical elements such as the liner design and groundwater monitoring system, as is the case under the 40 CFR 258 regulations. The inability of the States to specify more stringent monitoring req uirements under the federal rule, such as additional monitoring wells beyond 4 wells, weakens state ability to enforce additional requirements when technically justified and requires states to p ut duplicative rules in place making compliance for operators more difficult.

The use of self-implementing rules raises complianc e concerns and will lead to a dual regulatory system in those states, including Maryland, that h ave implemented more comprehensive requirements.

Recommendation

For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where States must integrate the federal standards into the State program and seek program approval from EPA under 40 CFR 239. This e liminates duplicative requirements and allows States to provide detailed technical review by hydrogeologists and engineers of their solid and industrial waste permitting units to proposed C CR disposal facilities, to ensure that these units**www.mde.state.md.us TTY Users 1-800-735-2258**  **Via Maryland Relay Service Recycled Paper**  Docket ID No. EPA-HQ-RCRA-2009-0640 Page Three

are safely designed and operated. This is much mor e desirable than relying on third-party certifications by consultants as would be the case under the proposed RCRA D option, whom may not as fully cognizant of the geotechnical conditio ns that exist in any given area, or be as familiar with the historical operating conditions at a parti cular site.

Additional Information

We note that EPA is seeking additional information in several areas pertaining to this rulemaking. In the attached comments, we provide responses to thos e questions for which we have information.

While we understand that EPA strongly desires to ha ve a direct role in the enforcement of the rules applicable to CCR, we suggest that EPA consider usi ng the “as stringent as federal law” standard and ensure a threshold level of protection for disp osal in that manner. Establishing national standards and working with the States, which alread y have permitting and enforcement capabilities, would be the most effective means of implementing t hese standards.

Thank you for your efforts to address this importan t national issue. Please contact me or Horacio Tablada, Director of the Land Management Ad ministration, at 410-537-3304, or via e-mail at htablada@mde.state.md.us for additional information.

Sincerely,

Shari T. Wilson Secretary

Enclosure

cc: Robert Summers, Deputy Secretary Heather Barthel, Director, Legislation and Policy Kathy Kinsey, Senior Policy Advisor Horacio Tablada, Director, Land Management Administ ration