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 Disposal of 

Coal Combustion Residuals From Electric Utilities Docket 

United States Environmental Protection Agency, Mailcode: 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 appreciates the opportunity to submit comments on 

the EPA proposed regulations governing coal combustion residuals (“CCRs”), as described in EPA’s 

Docket ID No. EPA-HQ-RCRA-2009-0640. Detailed comments are provided in the enclosed 

document entitled “Comments by the Maryland Department of the Environment Concerning the 

United States Environmental Protection Agency’s Proposals to Regulate Coal Combustion 

Residuals (CCRs), EPA Docket ID No. EPA-HQ-RCRA-2009-0640.” 

We strongly agree with the need for federal regulation of coal combustion residuals. The 

Department has repeatedly voiced its position, based on Maryland’s experience with groundwater 

contamination from CCR disposal sites, that there should be a federal threshold for regulation, and 

that regulation should not be left to individual states. 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 of 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 for 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 because 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 characteristic, 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 materials as a “special waste” undermines the 

predictability and usefulness of the current requirements. It also jeopardizes a significant 

opportunity to safely reuse these materials. 

Beyond the major policy implication of developing an 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 states, 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 forcing 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 haulers. 

If there were no alternative mechanism for safe regulation, then perhaps the RCRA C path might be 

pursued despite these unintended consequences. However, 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 257, the Open Dump regulations, raises 

concerns about implementation and regulation. First, this proposal does not allow the States to 

evaluate and approve enhancements to important technical 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 requirements 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 put duplicative rules in place making compliance for

operators more difficult. 

The use of self-implementing rules raises compliance concerns and will lead to a dual regulatory 

system in those states, including Maryland, that have 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 eliminates duplicative requirements and 

allows States to provide detailed technical review by hydrogeologists and engineers of their solid 

and industrial waste permitting units to proposed CCR 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 more 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 conditions that exist in any given area, or be as familiar 

with the historical operating conditions at a particular 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 those questions for which we have information. 

While we understand that EPA strongly desires to have a direct role in the enforcement of the rules 

applicable to CCR, we suggest that EPA consider using the “as stringent as federal law” standard 

and ensure a threshold level of protection for disposal in that manner. Establishing national 

standards and working with the States, which already have permitting and enforcement capabilities, 

would be the most effective means of implementing these standards. 

Thank you for your efforts to address this important national issue. Please contact me or 

Horacio Tablada, Director of the Land Management Administration, 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 Administration