1

Hazardous and Solid Waste Management 

System;

Disposal of Coal Combustion Residuals from 

Electric Utilities;

(Docket # EPA-HQ-RCRA-2009-0640)

Comment Summary and Response Document

Volume 4: Location Restrictions

December, 2014
2

Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for 

the management of coal combustion residuals (CCRs) which was published in the Federal 

Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act 

(RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at 

electric utilities and from independent power producers. Two regulatory options were proposed. 

Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May 

2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes 

subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in 

landfill or surface impoundments. Under the second option, EPA proposed to leave the Bevill 

determination in place and regulate the disposal of CCR as non-hazardous solid waste under 

subtitle D of RCRA by issuing minimum national criteria. Both options would require 

composite liners, groundwater monitoring, structural stability requirements, corrective action, 

and closure/post closure care. 

EPA also solicited comments on all aspects of both proposed options. The Agency

received over 450,000 comments on the proposed rule. The majority of the comments focused

on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C

or subtitle D. EPA also conducted eight public hearings and took additional comments on the

proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.

EPA-HQ-RCRA-2009-0640, Docket ID No. EPA-HQ-RCRA-2011-0392, and Docket ID No.

EPA-HQ-RCRA-2012-0028. All documents in these dockets are available at

http://www.regulations.gov. Although listed in the index, some information is not publicly
3

available, e.g., Confidential Business Information (CBI) or other information whose disclosure is

restricted by statute. Certain other material, such as copyrighted material, is not placed on the

Internet and will be publicly available only in hard copy form. Publicly available docket

materials are available either electronically in http://www.regulations.gov or in hard copy at the

OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW,

Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202) 566–1744, and the telephone number for the OSWER Docket is 202–566–0276.

After reviewing all the comments and additional data received, EPA is promulgating a 

final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. This rule 

addresses the risks from structural failures of CCR surface impoundments, groundwater 

contamination from the improper management of CCR in landfills and surface impoundments 

and fugitive dust emissions. 

The Agency has developed seventeen volumes of summarizing comments on major 

topics covered in the proposed rule (see table below) and the Agency’s responses to those 

comments, as well as a separate volume summarizing comments provided during public 

hearings. Since EPA is finalizing a rule under subtitle D of RCRA, only those comments 

submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed 

in the comment and response documents.

Volume Topic

1 General Comments 
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Volume Topic

2

RCRA Subtitle D Regulatory Approach (Legal issues/Self-implementing 

Design/Reliance on Certifications by an Independent Professional 

Engineer/Recordkeeping, State Submissions, Posting to the 

Internet/Finance Assurance/Alternative Approaches) 

3

Scope and Purpose/Effective Dates/Applicability/Off-site 

Disposal/Definitions 

4 Location Restrictions 

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity 

7

Operating Criteria: Endangered species/Surface water/Inspections/Run-on 

Run-off 

8 Operating Criteria: Air Criteria 

9 Groundwater and Corrective Action 

10 Closure and Post-Closure Care 

11 Additional Comments including Overfills/ Harmonization with ELG. 

12 Beneficial Use 

13 Risk Assessment 

14 State Authorities, Programs and Regulations 

15 Compendium of Damage Cases 

16 Regulatory Impact Analysis (RIA) 

17 EPA’s Assessment Program 
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Section 3.7.1 - General facility requirements including location restrictions, e.g., prohibit 

siting in floodplain or seismic impact area (35181)

Total Number of Submissions: 12

Total Number of Comments: 14

Comment Number: EPA-HQ-RCRA-2009-0640-02821-3

Organization1:Missouri Coalition for the Environment

Commenter1: Matt Ashley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Further, in keeping with the spirit of prevention, enacting a blanket prohibition on coal ash 

disposal in floodplains and for use as fill in levees would avoid potentially devastating 

consequences the flooding of a coal ash impoundment or landfill would cause, and MCE 

encourages the EPA to do so.

Response: EPA appreciates the commenter’s concern. However as explained in the proposal, 

the Agency believes the existing provisions of §257.3-1, which already apply to facilities with 

coal ash impoundments located in floodplains, are sufficiently protective and EPA is finalizing 

this rule as proposed.

Comment Number: EPA-HQ-RCRA-2009-0640-02821-9

Organization1:Missouri Coalition for the Environment

Commenter1: Matt Ashley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

A protective coal ash regulation is necessary to "tie up loose ends" in coal energy production by 

ensuring the safest means of disposal for coal ash. In order to achieve this, the new coal ash 

regulation should:

1. Designate coal ash as a hazardous waste under Subtitle C of RCRA;

2. Prohibit ANY disposal of coal ash in floodplains;

Response: As explained is this finalized rule, the Agency believes coal ash disposal is 

appropriately handled using its Subtitle D authorities. Facilities located in floodplains are 
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already subject to provisions of §257.3-1(b)(3) which prohibits disposal practices that would 

result in the carrying away of solid waste by waters of a base flood.

Comment Number: EPA-HQ-RCRA-2009-0640-05439-5

Organization1:

Commenter1:Robert D. Edstrom, Ph.D.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 10.5.3.3

Comment Excerpt Text:

The designation of minimum distances of CCRs to surface water and to seasonal ground water, 

whether in confined storage or placement for beneficial use, should occur for all cases. 

Response: In this rule under §257.60 EPA has finalized a requirement that new CCR landfills, 

all CCR surface impoundments and all lateral expansions of CCR landfills and CCR surface 

impoundments must be constructed with a base that is no less than five feet above the uppermost 

aquifer. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-67

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

Page 35181, Column 2: General Facility Requirements including Location Restrictions

The department agrees there should be boundary conditions for constructing new CCR surface 

impoundments and landfills. In the Tennessee solid waste regulations there are buffer 

requirements for location of new landfills.

Buffer Zone Standards [From Tennessee Rule 1200-1-7-.04(3)(a)]

Disposal Facilities must be located, designed, constructed, operated, and maintained such that the 

fill areas are, at a minimum:

1. 100 feet from all property lines;

2. 500 feet from all residences, unless the owner of the residential property agrees in writing to a 

shorter distance;

3. 500 feet from all wells determined to be downgradient and used as a source of drinking water 

by humans or livestock;

4. 200 feet from the normal boundaries of springs, streams, lakes, (except that this standard shall 

not apply to any wet weather conveyance nor to bodies of water constructed and designed to be a 
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part of the facility); and

5. A total site buffer with no constructed appurtenances within 50 feet of the property line.

Response: The Agency appreciates this information on location buffers from the State of

Tennessee. And in setting minimum national standards in this rule under §257.60 EPA has 

chosen to finalize location buffers for CCR disposal units located above the uppermost aquifer, 

in fault areas. States may choose to implement more stringent requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-113

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1

Comment Excerpt Text:

CCR landfills and surface impoundments should be banned in wetlands, fault areas, seismic 

impact zones and unstable areas. Consideration should also be given to placing restrictions on 

landfills and surface impoundments in sensitive aquifer recharge zones, karst environments, and 

floodplains. Many of the CCR landfills and surface impoundments, which are already located in 

floodplains, will be breached in the future if the rivers change course and cut through areas 

where wastes have been disposed. New landfills constructed under the promulgated rules should 

be prohibited from siting in these areas. 

Response: Although EPA shares the commenter’s concern regarding the siting of CCR landfills 

and CCR surface impoundments in sensitive areas, the Agency disagrees with the assertion that 

CCR disposal units should be banned from locating in wetlands fault areas, seismic impact zones 

and unstable areas. In this rule under §257.60-.64 EPA has chosen to prohibit locating a new 

CCR disposal unit in wetlands, fault areas, seismic impact zones, and unstable areas (including 

areas of karst terrane) unless the owner or operator makes a demonstration that the unit meets the 

requirements of a performance standard that serves as the alternative to the location restriction. 

EPA did not propose to impose all location requirements on existing CCR landfills because of 

the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if 

existing CCR landfills in these locations were required to close. As stated in this rule, the 

Agency concluded that the potential disposal capacity shortfalls would pose more environmental 

and public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. Units located in floodplains are already subject to 

provisions of §257.3-1(b)(3), which prohibits disposal practices that would result in the carrying 

away of solid waste by waters of a base flood.
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Comment Number: EPA-HQ-RCRA-2009-0640-07001-20

Organization1:Vectren Corporation

Commenter1: Angila M. Reinerford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.11

Comment Excerpt Text:

Proposed Seismic Restrictions Unwarranted and Could Have Potentially Severe Cost Impacts on 

Southwestern Indiana Ratepayers. 

As currently proposed, the RCRA Subtitle C regulations would not allow for the construction of 

new CCR landfills in a seismic impact zone. For purposes of this rule, EPA is proposing to 

define a seismic impact zone as an area having a ten percent or greater probability that the 

maximum expected horizontal acceleration in hard rock will exceed 0.10 g in 50 years. Both 

Vectren's generating facilities are located within a seismic zone as defined by EPA, specifically 

within the seismic zone of the New Madrid fault. If implemented, Vectren would be prohibited 

from building a disposal facility on its existing brownfield property, and would require that all 

non-recyclable CCRs generated by Vectren's facilities be trucked to disposal facilities located 

85-110 miles from its facilities. Vectren has estimated that this seismic prohibition would result 

in an additional $1 million in annual disposal costs to Vectren's ratepayers if Vectren should be 

required to haul its CCRs to a disposal facility 100 miles away. 

The seismic prohibition impacts more than the individual Vectren units. Upon cursory review of 

the facilities in southwestern Indiana, northern Kentucky and southern Illinois that would be 

located within the New Madrid seismic zone and thus prohibited 6'om constructing new disposal 

units on site due to the above-referenced seismic siting restrictions, Vectren has identified no less 

than 40 additional generating stations representing approximately 42,000 MWs of coal-fired 

generating capacity that would be required to truck CCRs to disposal facilities constructed 

outside the defined seismic zone. If Vectren 's facilities generate an average of 500,000 tons of 

CCRs annually, a quick calculation would indicate that annually over 19 million tons of CCRs 

from these similarly impacted facilities in the tri-state region would be required to be disposed of 

outside the defined seismic zone. In effect, if promulgated, this seismic restriction will have the 

unintended result of the construction of a "ring" of new hazardous waste disposal facilities on 

greenfield sites located immediately outside the defined seismic zone. The exponentially 

increased waste transportation costs and negative environmental impacts of building a ring of 

new hazardous waste disposal facilities immediately outside the defined seismic zone can not be 

what EPA intended in this regulation. 

Response: Under this finalized rule EPA is promulgating regulations for CCR landfills using its 

Subtitle D authorities for non-hazardous solid waste disposal facilities. New CCR landfills are 

prohibited from locations within seismic impact zones unless the owner or operator can 

demonstrate that all structural components including liners, leachate collection and removal 

systems, and surface water control systems, can withstand the maximum horizontal acceleration 

in lithified earth material for the site. This is not a ban, but a minimum national performance 
9

standard for new CCR landfills and other CCR disposal facilities located in these sensitive areas. 

Among other benefits, the finalized provisions are designed to prevent potential CCR releases 

from landfills due to seismic shaking.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-17

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

The validity of EPA's assumption that, in most cases, CCRs would continue to be disposed onsite under the Subtitle C option is questionable. Many existing coal burning power plants 

potentially affected by this rule are located in flood plains. Federal and more stringent State 

specific siting requirements for hazardous waste land disposal facilities would, in many cases, 

significantly limit the locations where these facilities can be constructed. Hence, plans for 

development of regional disposal facilities/capacity may need to be seriously considered. Should 

such regional facilities be developed, this would, when compared with on-site management, 

cause a huge increase in over-the-road and rail transportation of CCRs, leading to significant 

increases in associated greenhouse gas generation, highway traffic safety issues and likely 

spillage of CCRs along haul routes, potentially leading to the type of environmental damage that 

the rule is intended to prevent. Community issues and concerns related to siting of and 

transportation of CCRs through their communities to regional disposal facilities could also be 

significant. These aspects should be examined more carefully by EPA relative to the governing 

assumption of continuing on-site CCR management and disposal before rendering a final 

decision on how to regulate CCRs. 

Response: EPA appreciates the commenter’s concerns regarding the potential environmental 

damages from off-site CCR management under the Subtitle C option, but the Agency in this rule 

has chosen to promulgate regulations for CCR disposal facilities using its Subtitle D authorities 

for non-hazardous solid waste. Nevertheless, the Agency here is responding to these concerns 

because similar issues can be raised with regard to CCR disposal under Subtitle D. The 

commenter presumes that facilities would stop using on-site disposal at current disposal rates. 

However, since EPA is not implementing a subtitle C rule, it is likely there will not be a 

significant shift from on-site CCR disposal to off-site CCR disposal. Moreover, the Agency 

notes that the spilling of an entire truck of CCRs would not create the types of risks/damages that 

it estimates from the tens or even hundreds of acres of disposed CCRs present in landfills and 

impoundments without liners.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-39

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian
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Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In addition, the proposed definition of "existing CCR landfill" should be modified to include 

lateral expansions of operating units where such expansion is within the site footprint of an area 

already approved and permitted by the state. There is no environmental or health-based reason 

for not including approved and permitted locations within the definition of an existing CCR 

landfill. The undeveloped portion of the approved permitted site has undergone environmental 

and related technical review by the permitting authorities and has been approved for the location 

of a CCR landfill. To exclude a location that has otherwise already been permitted for a CCR 

landfill from the definition of an "existing" landfill merely because there is not a binding 

contractual commitment to begin construction would illlfairly subject these areas to the design 

and operating standards for "new CCR landfills," when identical locations are considered 

"existing CCR landfills" subject to different operating standards based merely on the existence of

a contract to commence construction. Such a distinction is arbitrary and capricious and provides 

no practical benefit.

Response: In this rule EPA is establishing minimum national criteria that apply to facilities that

manage CCRs. Under the present regulatory structure, federal requirements apply directly to 

facilities, and operate independent of state involvement. As a practical matter this means the 

definition of ‘existing CCR landfill’ as defined in this rule is independent of the undeveloped 

area already approved and permitted by the State. Therefore, the facility owner and operator 

must simultaneously comply with both existing state and federal provisions. As explained in the 

preamble, EPA believes the additional federal protections are necessary to protect health and the 

environment based on the information that is currently available.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-54

Organization1:Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.4.4.4 4.4.4.6 4.4.4.7

Comment Excerpt Text:

Seismic Location Criteria

The Proposed Rule contains several location restriction criteria, including seismic impact zone 

criteria. US EPA requests input on the seismic criterion and how it should be applied.

Attachment M is a Technical Memo showing areas in the United States that would be impacted 
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by the two approaches proposed by US EPA in the Proposed Rule (EPRI, 2010). The purpose of 

developing this information was to determine how many power plant facilities would be 

impacted by the seismic impact criteria. The seismic impact zones were based on data generated 

by the United States Geological Survey (USGS). Locations of the power plants listed in the RIA 

are also shown on these maps.

In the first approach, US EPA suggested a possible exclusion for landfills in seismic impact 

zones, defined as areas with a peak ground acceleration greater than 0.1 g (earth’s gravitational 

pull). Approximately 148 power plants would fall within this seismic impact zone. The proposal 

appears to allow variances for sites within the seismic zone based on a demonstration that the site 

is designed to withstand the maximum horizontal ground acceleration in that area. In a second 

approach, US EPA is considering a standard that requires all facilities to demonstrate stability 

under the maximum ground acceleration at the facility site.

An exclusion of CCR landfills in these seismic impact zones (0.1 g peak ground acceleration) 

would require the 148 plants located within that zone to either demonstrate stability, add 

additional design features to meet the stability requirement, or go off-site to dispose of their 

CCRs. Similarly, the second approach would require all facilities to either demonstrate that 

standard design met the stability requirement, or to add additional design features in order to 

meet the stability requirement. Design features needed to meet the seismic impact zone stability 

requirement will vary based on site-specific conditions (e.g., facility size, types of soils present). 

The potential for siting restrictions or the additional costs associated with the seismic impact 

zone criteria were not evaluated by EPRI.

Response: The commenter has slightly mischaracterized the seismic location criteria proposed 

by EPA. Under §257.63 the Agency proposed that new CCR landfills, new CCR surface 

impoundments and all lateral expansions be prohibited from locating in a seismic impact zone 

unless a demonstration is made that all containment structures are designed to resist the 

maximum horizontal acceleration in lithified earth material for the site. EPA proposed to define 

seismic impact zone one of two ways, either as an area having a 10 percent or greater probability 

that the maximum expected horizontal acceleration in horizontal rock will exceed 0.10g in 250 

years, or alternatively an area having a 2 percent to 10 percent probability of ground motion in 

50 years. Under both approaches CCR disposal units would have to be able to withstand the 

expected maximum horizontal acceleration for the area before they could be located in the 

seismic impact zone. The Agency did not propose to apply the seismic location standard to 

existing CCR landfills, only new ones and all lateral expansions. In this rule EPA has finalized 

the seismic location prohibition as proposed. The Agency appreciates the information provided 

by the commenter related to the number of CCR facilities affected by the location prohibition

Section 4.4.4 - Location restrictions and individual location requirements (35197-35202)

Total Number of Submissions: 19

Total Number of Comments: 26
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Comment Number: EPA-HQ-RCRA-2009-0640-05439-10

Organization1:

Commenter1:Robert D. Edstrom, Ph.D.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

I would also respectfully submit for your consideration the following additional restrictions on 

CCR placement under subtitle D: 1) a minimum depth to the seasonal average ground water table 

based on site specific soil characteristics and leaching characteristics of the CCR; 2) limit CCRs 

to be used only in encapsulated applications where the CCRs become part of the infrastructural 

matrix; and 3) set liability limits for governmental organizations building infrastructure that use 

CCRs in such projects.

Response: In this final rule, EPA has finalized a requirement that new CCR landfills, all CCR 

surface impoundments and all lateral expansions of CCR landfills and CCR surface 

impoundments must be constructed with a base that is located no less than five feet above the 

upper limit of the uppermost aquifer. To take into consideration the possibility of such large 

seasonal fluctuations in the watertable, EPA has changed the definition of “uppermost aquifer” to 

specify that the measurement of the upper limit of the aquifer must be made at a point nearest to 

the natural ground surface to which the aquifer rises during the wet season.

Comment Number: EPA-HQ-RCRA-2009-0640-06018-6

Organization1:Indiana Department of Environmental Management (IDEM)

Commenter1: Thomas W. Easterly

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5

Comment Excerpt Text:

If the Subtitle D option is chosen, IDEM is recommending matching the proposed location 

restriction and design standards with those of MSWLFs, so CCRs may continue to be managed 

in MSWLFs.

Response: This final rule establishes five location restrictions under Subtitle D that are similar, 

but not identical to those for MSWLFs. The location criteria include restrictions relating to 

placement of CCR above the uppermost aquifer, in wetlands, within fault areas, in seismic 

impact zones, and in unstable areas. All of these location restrictions require the owner or 

operator of a CCR unit to demonstrate that they meet the specific criteria. As discussed 

elsewhere in this preamble, the five location restrictions apply to all new CCR landfills, all new 

and existing CCR surface impoundments, and all lateral expansions of CCR units; however, 

existing CCR landfills are only subject to the location restriction for unstable areas. As stated in 
13

the preamble of this rule, the Agency sees no need to impose duplicative requirements for MSW 

landfills that receive CCR. Consequently, the final rule excludes MSW landfills from the 

requirements of the rule by adding them in a list of excluded facilities or activities under § 

257.50.

Comment Number: EPA-HQ-RCRA-2009-0640-06252-13

Organization1:Minnkota Power Cooperative, Inc. (Minnkota)

Commenter1:John T. Graves

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should not apply location restrictions to existing surface impoundments or landfills. 

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface 

impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA 

maintains its determination that application of the location standards to existing CCR surface 

impoundments is necessary to achieve the standard in section 4004(a). Absent the location 

restrictions being promulgated, the risk of impacts to human health and the environment from the 

rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable 

area location restriction for existing CCR landfills because the record clearly shows that failure 

of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood 

would continue, in the absence of the restrictions in the final rule, to result in damage cases 

where constituents from CCR are released affecting both groundwater and surface waters. As the 

Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from 

location instability are of far more concern than any disposal capacity concerns resulting from 

the closure of existing CCR disposal units in unstable areas.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-7

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

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

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
14

Comment Excerpt Text:

2. EPA Should Revise Location Restrictions to Accommodate Demonstrations of Safety at New 

and Existing Facilities. 

The existence of location-based concerns such as fault lines, seismicity, and wetlands should not 

result in an absolute prohibition against siting a CCB facility or allowing existing sites to 

continue in operation. EPA should not apply location restrictions in a manner that precludes 

continued operation of existing facilities, subject to reasonable efforts to confirm that existing 

facilities are protective of safety, human health, and the environment. Rather, any regulatory 

standards should require the facility owner to take these issues into account and demonstrate 

design and engineering features that address the issues and provide for an adequate margin of 

safety.

For example, any new regulations should allow surface impoundments that successfully manage 

wet-handled CCBs to remain in operation, because they present minimal risk to groundwater and 

do not threaten human health or the environment. If available information demonstrates that an 

existing surface impoundment presents a minimal risk to groundwater (e.g., existing liner 

information; groundwater data showing insignificant impacts; water-supply well surveys 

indicating a sufficient distance to nearest receptors; favorable hydrogeology (e.g., hydraulic 

conductivity, presence of confining beds); natural attenuation capacity of the geologic media; 

groundwater modeling; risk assessments), then operation of the impoundment should be allowed 

to continue. For example, many new gypsum disposal facilities have composite liners with 

leachate collection and removal systems. The facilities have been designed to withstand the 10% 

probable exceedance (“PE”) in 250 years or 2% PE in 50 years seismic event and have been 

designed to handle water in the unit as well as a dry facility. Accordingly, these facilities should 

be allowed to continue receiving CCBs. Management of CCB storage facilities should, at a 

minimum, incorporate a variance process allowing for surface impoundments that manage wethandled CCBs to remain in operation because they present minimal risk to groundwater. 

Southern Company provides additional comments on particular location restrictions below, 

based on our inhouse expertise and years of experience operating surface impoundments and 

landfills

Response: For most location restrictions, EPA agrees with the commenter’s assertion that the 

existence of location-based concerns should not result in in an absolute prohibition against siting 

a CCR disposal unit or allowing existing sites to operate. As stated in the preamble of the 

proposal, and finalized today, these location restrictions do apply to existing surface

impoundments, which means that facilities need to either demonstrate that the surface

impoundment meets the performance standard that serves as the alternative to the prohibition, 

retrofit the unit so that it can meet the performance standard, or close. Nevertheless, if a facility

can demonstrate that an impoundment has sufficient buffer above the uppermost aquifer, and can 

make the requisite location demonstrations, it can continue to operate. In contrast, EPA sees no 

reason or special argument to adopt more stringent requirements under subtitle D criteria for 

existing CCR landfills, particularly given the volume of the material and the disruption that 

could be involved if these design requirements were applied. EPA is making this distinction

because the record indicates that the risks associated with CCR surface impoundments are 

substantially higher than the risks posed by CCR landfills.
15

Comment Number: EPA-HQ-RCRA-2009-0640-06398-34

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4

Comment Excerpt Text:

Duke Energy notes that the pre-construction siting of many of the existing surface 

impoundments and landfills at Duke Energy stations has been conducted with oversight and 

review from various state agencies with respect to the same location restrictions that EPA 

proposes to apply to existing surface impoundments. As such, if Duke Energy had encountered a 

location restriction at the time it sought approval to construct one of these existing 

impoundments or landfills, the state would have required mitigation steps to address the 

restriction. Alternatively, the state would have simply denied the initial request to construct.

There were some surface impoundments constructed at Duke Energy stations prior to these 

location restrictions being promulgated into state regulations. However, as previously noted, 

none of the inspections at Duke Energy facilities has resulted in any of the impoundments 

receiving an “unsatisfactory” rating, meaning that not a single impoundment is considered unsafe 

or requires immediate or emergency remedial action. 

Response: EPA appreciates the commenter’s claim that state agencies have conducted 

oversight of pre-construction siting of CCR surface impoundments. However, the Agency has 

not drawn any conclusions on the adequacy of state programs. In the interim, this final rule 

imposes minimum federal criteria, including location standards, with which CCR landfills and 

CCR surface impoundments must comply. As stated in the preamble to this final rule, these 

regulations exist independent of any applicable state criteria, and do not constrain or direct state 

action. Facilities must, therefore, comply with both federal and state criteria simultaneously. 

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity 

assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-36

Organization1:Duke Energy
16

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Any requirement to satisfy the location restrictions, without the option to mitigate any 

environmental or stability concerns, could force Duke Energy to unnecessarily transport CCR 

significant distances for disposal. Consequently, with respect to the Proposed Rule, EPA must 

not subject existing CCR surface impoundments to location restrictions if those units satisfied all 

siting requirements in effect at the time of construction and have been operating safely without a 

demonstrated adverse impact to human health and the environment. Instead, the decision whether 

to subject existing surface impoundments to the new location restrictions should be based upon 

an evaluation (from a third-party professional engineer) of the specific risks posed by such 

facilities at each location. Where the location restrictions are applied to an existing 

impoundment, the facility should be allowed to mitigate any environmental concerns or 

demonstrate that the environmental concerns have already been mitigated in lieu of closure.

Response: EPA disagrees with the commenter's assertion that in order to apply national 

minimum standards to existing CCR surface impoundments, specific risks must first be 

demonstrated at each location based upon an evaluation from each individual unit.. First, it is 

well established that an agency may regulate a class of similarly situated [entities] through 

rulemaking, rather than on the basis of an individualized assessment of every entity that will be 

subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to 

establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second, 

section 4004(a) does not require a demonstration of actual impacts, merely that these units 

present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record 

demonstrating that the specific location restrictions in the final rule are necessary for CCR 

disposal units (landfills and surface impoundments), as a class, to ensure that there will be no 

reasonable probability of adverse effects on health or the environment. In this case, the factual 

record supports the need for all of the location standards for existing CCR surface impoundments 

imposed by this rule. For most location restrictions facilities need to either demonstrate that the 

surface impoundment meets the performance standard that serves as the alternative to the 

prohibition, retrofit the unit so that it can meet the performance standard, or close.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-38

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.6

Comment Excerpt Text:

Furthermore, it must be noted that most existing state environmental regulatory programs 
17

provide that all applicable state agencies (e.g., Department of Natural Resources or other state 

and local agencies with jurisdiction over specific siting restrictions) be part of the siting and 

permitting process for new surface impoundments and landfills. EPA should consequently 

provide a mechanism for states to adopt these regulations to ensure all location restrictions are 

addressed before approvals are issued for new facilities. Again, it is evident that any selfimplementing rule would create an excessive burden by requiring compliance with duplicative 

and potentially conflicting requirements with no corresponding human health or environmental 

benefit.

Response: EPA agrees that it would be preferable to establish a program for states to adopt 

these finalized regulations to ensure that all location restrictions are addressed as part of a facility 

approval process. However, no provisions comparable to state implementation of federal 

requirements under section 4005(c) for MSWLFs appear in either section 4004(a) or section 

4003, which governs the approval of state solid waste management plans under Part 256.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-49

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The discussion of landfill locational restrictions on p . 35198 addresses the proposed Subtitle D 

rule locational restrictions for wetlands, fault areas, or seismic impact zones. We believe that 

States that have such restrictions in their rules also have provisions for exemptions or alternatives 

analyses. 

Response: The Agency appreciates the commenter’s assertion that States with location 

restrictions in their regulations also have provisions for alternatives. This final rule imposes no 

requirements on States to adopt these regulations, to develop a permit program, or submit a 

program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA 

such authority. Nevertheless, the Agency encourages States not only to adopt at least the federal 

minimum criteria into their regulations, but to go beyond these minimum requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06722-17

Organization1:Arkansas Electric Cooperative Corporation (AECC)

Commenter1: Jonathan Oliver

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
18

Comment Excerpt Text:

EPA should not apply location restrictions to existing surface impoundments or landfills. 

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA has explained the rationale for applying today’s provisions to existing CCR 

surface impoundments, and the commenters have submitted nothing to rebut that rationale. 

Thus, EPA maintains its determination that application of the location standards to existing CCR 

surface impoundments is necessary to achieve the standard in section 4004(a). Absent the 

location restrictions being promulgated, the risk of impacts to human health and the environment 

from the rapid and catastrophic destruction of CCR surface impoundments sited in these 

sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters.

Comment Number: EPA-HQ-RCRA-2009-0640-06838-20

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

MPCA does not anticipate many current CCRs landfills being affected by the proposed Subtitle 

D location restrictions. The proposed location requirements are similar to those applied prior to 

permitting landfills in Minnesota. If location requirements cannot be met, a variance is 

necessary. Adequate information must be provided to verify the site is protective of the 

environment and human health. A similar variance process is necessary for all alternative landfill 

designs in Minnesota.

Response: EPA appreciates receiving this information on location requirements and the variance 

process in Minnesota state landfill regulations. However, since this rule is self-implementing it 

lacks the oversight provided by a permit program. Because of the lack of oversight controls, the 

Agency has chosen not to include provisions for waivers in this final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07534-5

Organization1:Aquaterra Environmental Solutions, Inc.

Commenter1: Scott Waltrip

Commenter Type: Other Company

Classification: Substantive
19

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.2 4.6.1 4.6.1.5 4.7

Comment Excerpt Text:

Subsection 257.71(d) (1) through (15) 

Please clarify how the location restrictions contained in §§257.60 through 64 would apply to 

retrofitted impoundments. 

Response: Under this final rule retrofitted CCR surface impoundments would be considered 

new units, since CCRs would be removed and a composite liner constructed. These units would 

be prohibited from locating in wetlands, fault areas, seismic impact zones, and unstable areas 

(including areas of karst terrane) unless the owner or operator makes a demonstration that the 

unit meets the requirements of a performance standard that serves as the alternative to the 

location restriction. Moreover, they would be prohibited from being constructed with a base that 

is located less than five feet from the top of the uppermost aquifer.

Comment Number: EPA-HQ-RCRA-2009-0640-08220-15

Organization1:PowerSouth Energy Cooperative

Commenter1: Dr. Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should not apply location restrictions to existing surface impoundments or landfills. 

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA has explained the rationale for applying today’s provisions to existing CCR 

surface impoundments, and the commenters have submitted nothing to rebut that rationale. 

Thus, EPA maintains its determination that application of the location standards to existing CCR 

surface impoundments is necessary to achieve the standard in section 4004(a). Absent the 

location restrictions being promulgated, the risk of impacts to human health and the environment 

from the rapid and catastrophic destruction of CCR surface impoundments sited in these 

sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters.
20

Comment Number: EPA-HQ-RCRA-2009-0640-08226-42

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

In addition to the 5 feet of separation between the uppermost aquifer and the bottom of the CCR 

landfill recommended above, Ohio EPA recommends that CCR facilities be prohibited from 

being located in sand and gravel quarries, limestone quarries, sandstone quarries, karst areas, 

source water protections areas for a public well field, within 1000 feet of a private water supply 

and over unconsolidated aquifers capable of sustaining a yield greater than 100 gallons per 

minute. All of these locations are susceptible to ground water contamination and should not be 

used for the permanent disposal of any waste material. 

Response: The Agency appreciates this information on suggested location buffers from the State 

of Ohio. In setting minimum national standards in this rule under §257.60 EPA has chosen to 

finalize location buffers for CCR disposal units located above the uppermost aquifer, and in fault 

areas. States may choose to implement more stringent requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-08841-28

Organization1:Deseret Generation and Transmission Co-operative

Commenter1: Howard Vickers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA shouloh and today would've been d not apply location restrictions to existing surface 

impoundments or landfills. 

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA has explained the rationale for applying today’s provisions to existing CCR 

surface impoundments, and the commenters have submitted nothing to rebut that rationale. 

Thus, EPA maintains its determination that application of the location standards to existing CCR 

surface impoundments is necessary to achieve the standard in section 4004(a). Absent the 

location restrictions being promulgated, the risk of impacts to human health and the environment 

from the rapid and catastrophic destruction of CCR surface impoundments sited in these 

sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 
21

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-63

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Location Criteria (40 C.F.R. § 257.40(a))

Pursuant to 257.40(a), CCR surface impoundments and landfills are subject to Section 257.3-1. 

However, because CCR units are more analogous to municipal solid waste landfills, the 

requirements of Section 258.11 should be applicable instead of those set forth in Section 257.3-1. 

Response: EPA disagrees with the commenter’s assertion that CCR disposal units are analogous 

to Municipal Solid Waste landfills, and for reasons outlined in the preambles of both the 

proposal and today’s final rule the Agency has chosen to develop regulations under Part 257 

applicable to CCR surface impoundments and landfills.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-51

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

· Additional information regarding the extent to which landfill capacity would be affected by 

applying the proposed subtitle D location restrictions to existing CCR landfills.

Requiring CCRs to be placed in industrial landfills would greatly reduce the lifespan of 

permitted industrial landfills in Virginia. Virginia DEQ is unaware of the amount of CCRs that 

are generated within the state annually, mainly because of the successes of reuse and recycling 

programs that occur under provisions of beneficial use. Most recent estimates indicate that 

Virginia has available capacity at non-captive industrial landfills for approximately 13 million 
22

tons of industrial waste. In reality industrial landfills handle many types of waste streams and the 

remaining lifespan of these landfills would be significantly reduced if CCRs are required to be 

disposed at these facilities. There are currently only two permitted non-captive industrial 

landfills in Virginia and Virginia DEQ is unable to estimate if these two facilities would be 

capable of managing the additional waste material if CCRs were required to be placed in these 

landfills. There would likely be an increase in the number of captive landfills operating in 

Virginia, which would require an increase in the resources needed to oversee these landfills 

because the standards CCR landfills would be required to meet under this proposal are similar to 

existing Municipal Solid Waste and Industrial landfill standards.

Response: As stated in the preamble, this final rule does not affect existing beneficial use 

applications. So the commenter’s concern regarding significant reduction in available disposal 

capacity due to disposal of additional CCRs in landfills should be moot. Moreover, existing 

CCR landfills are not required to comply with all location restrictions, just those for floodplains 

and unstable areas. EPA disagrees with the commenter’s assertion that the application of these 

location restrictions to existing landfills will result in reduced disposal capacity. The Agency 

believes that owners and operators will be able to demonstrate compliance with the restrictions. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-50

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

6. Pg. 35242, Section 257.62: Suggest changing language so that it is clear that the 

demonstration must be to the satisfaction of the State. This is applicable throughout the 

document.

Response: As explained in the preamble, the final regulations EPA is promulgating impose 

minimum federal criteria with which CCR landfills and CCR surface impoundments must 

comply. The sections of RCRA that are currently applicable to CCR – sections 1008(a), 4004(a), 

and 4005(a)--only authorize the Agency to establish minimum national criteria that apply to 

“facilities.” The restriction that the criteria apply only to “facilities” means that EPA cannot 

establish any requirements on states or state programs, either directly or indirectly. This also 

means that EPA cannot require a facility to obtain state approval. These regulations impose no 

requirements on States to adopt these regulations, to develop a permit program, or submit a 

program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA 

such authority. 
23

Comment Number: EPA-HQ-RCRA-2009-0640-09337-51

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

7. Pg. 35242, Section 257.64(b)(1): Add ground subsidence related to mining or fluid 

withdrawal, and earth fissuring. Or can also be added to Poor Foundation Conditions.

Response: The definition of unstable area in §257.53 of this final rule as ‘a location that is 

susceptible to natural or human-induced events or forces.....’ encompasses the types of ground 

subsidence and fissuring mentioned by the commenter. All are capable of impairing the CCR 

unit. While EPA encourages States to adopt at least the federal minimum criteria into their 

regulations, States are also free to elaborate on the types of onsite local conditions covered under 

the definition of unstable areas that may result in differential settling.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-52

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

8. Pg. 35242, Section 257.64(b)(2): Suggest adding embankments, spillways, outlets

Response: Section 257.64(b) defines the minimum factors the owner or operator must consider 

when determining whether an area is unstable. Section 257.64(b)(3), and not (b)(2), specifies 

consideration of on-site or local human-made features. Although embankments, spillways, and 

outlets can fit the definition of human-made features, the commenter includes no information 

regarding why adding these features would necessarily make an area unstable. The Agency is, 

therefore going with the definition of section 257.64(b) as proposed.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-6

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive
24

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Even under the Subtitle D and D prime proposal, Santee Cooper has serious concerns regarding 

EPA's apparent policy decision to force the closure of existing CCR surface impoundments and 

has equal concerns about location restrictions for new landfills and impoundments.

Response: EPA disagrees with the commenter’s assertion that the Agency is trying to force 

closure of CCR surface impoundments. However, as discussed in the preamble of both the 

proposal and this final rule, the factual record supports the need for all of the location standards 

for existing CCR surface impoundments and new CCR disposal units (including landfills and 

impoundments) imposed by this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09427-15

Organization1:San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: Joseph G. Eutizi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should not apply location restrictions to existing surface impoundments or landfills.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA has explained the rationale for applying today’s provisions to existing CCR 

surface impoundments, and the commenters have submitted nothing to rebut that rationale. 

Thus, EPA maintains its determination that application of the location standards to existing CCR 

surface impoundments is necessary to achieve the standard in section 4004(a). Absent the 

location restrictions being promulgated, the risk of impacts to human health and the environment 

from the rapid and catastrophic destruction of CCR surface impoundments sited in these 

sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters.
25

Comment Number: EPA-HQ-RCRA-2009-0640-09951-23

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The proposed location requirements do not reflect a complete prohibition on siting facilities in 

areas of concern, but provide a performance standard that facilities must meet in order to site a 

unit in such a location. EPA has requested information on the extent to which facilities could 

comply with the proposed performance standards, and the necessary costs that would be incurred 

to retrofit CCR disposal units to meet these standards is solicited.

Performance standards are always preferable to rigid dictated regulation. They allow for new and 

innovative designs which may be more cost effective and more protective of the environment 

without the unnecessary burden of changing regulations or a going through a variance process.

Response: EPA is finalizing the requirements of this rule to establish minimum national 

standards for the management of CCR. The requirements are designed to be self-implementing, 

in part, to minimize the involvement of regulatory entities unless states choose to be involved.

Comment Number: EPA-HQ-RCRA-2009-0640-09951-28

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.7

Comment Excerpt Text:

§ 257.60 Placement above the natural water table.

The definition of natural water table does not adequately identify the highest point of the water 

table elevation. As defined, measurement of the water table could occur in dry months where the 

water table is low. If the design is based on this low elevation, ground water may rise into a CCP 

fill area. We have found that the use of the seasonal high ground water table to be more accurate 

and protective of the ground water. The definition below comes from the Soil Conservation 

Service, U.S. Department of Agriculture. We suggest the proposed language be changed as 

follows:

§ 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must be 
26

constructed with a base that is located a minimum of two feet above the seasonal high ground 

water table.

(b) For purposes of this section, seasonal high ground water table means the highest level of a 

saturated zone (the apparent or perched water table) over a continuous period of more than two 

weeks in most years, but not a permanent water table.

Response: As explained in the preamble, this final rule has finalized a clarified definition of the 

natural water table. There are many factors, including seasonal variations that influence the 

location of the groundwater table making it difficult to determine the “natural” level. Moreover, 

local site-specific hydrogeologic conditions within the aquifer may cause the natural 

groundwater table to exceed five feet and vary as much as ten feet. To take into consideration 

the possibility of such large seasonal fluctuations, EPA has changed the definition of “uppermost 

aquifer” to specify that the measurement of the upper limit of the aquifer must be made at a point 

nearest to the natural ground surface to which the aquifer rises during the wet season. The 

finalized definition of “uppermost aquifer” will encompass large seasonal variations, and is a 

more appropriate parameter than “seasonal high ground water table” because it is more clearly 

defined.

Section 4.4.4.1 - Differences in location restrictions for existing and new CCR LFs and SIs, 

and for lateral expansions (which fall within definition of new units)

Total Number of Submissions: 25

Total Number of Comments: 33

Comment Number: EPA-HQ-RCRA-2009-0640-05439-5

Organization1:

Commenter1:Robert D. Edstrom, Ph.D.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.1 10.5.3.3

Comment Excerpt Text:

The designation of minimum distances of CCRs to surface water and to seasonal ground water, 

whether in confined storage or placement for beneficial use, should occur for all cases. 

Response: The Agency disagrees with the commenter’s assertion there should be location 

restrictions for placement of CCRs for beneficial uses. For reasons stated in the preamble, this 

final rule does not affect existing beneficial use applications. Nor has EPA finalized any 

placement restrictions for CCRs ‘in confined storage’, although CCR piles are subject to the 

same location restrictions as CCR landfills.

Comment Number: EPA-HQ-RCRA-2009-0640-06198-5

Organization1:Ameren Corporation
27

Commenter1: Paul R. Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2

Comment Excerpt Text:

IV. Existing Surface Impoundments Or Landfills Location Restrictions 

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 

impoundments and landfills could not be located in floodplains or unstable areas except if they 

meet a design or operating standard sufficient that the risk associated with the location restriction 

has been addressed. Id. at 35242-43 (proposed 40 C.F.R. § 257.64). In addition, new surface 

impoundments and new landfills could not be located in wetlands, fault areas, or seismic impact 

zones and must be located at least two feet above the natural water table. Id. at 35241-42 

(proposed 40 C.F.R. §§ 257.60 - 257.63.) Of significant concern, EPA states in the preamble to 

the proposal that it intends to subject existing surface impoundments to al/ of these new location 

restrictions due to the risks posed by these units. Id. at 35198-99. In the corresponding proposed 

regulatory text, however, existing surface impoundments are only subject to the floodplains and 

unstable area location restrictions. See id. at 35243 (proposed 40 C.F.R. § 257.65). 

We assume for purposes of these comments that EPA intends to subject existing CCR surface 

impoundments to the additional location restrictions consistent with the proposal's preamble and 

that the Agency's proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory 

text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EPA 

intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF 

regulations, here, the Agency clearly departs from those regulations, requiring all existing 

surface impoundments to comply with the full range of location restrictions, a condition that is 

normally only applied to new units. This is a departure from the MSWLFs standards; EPA has 

not made a compelling justification for treating CCR impoundments more harshly than MSWLF 

units. 

Subjecting existing surface impoundments to these location restrictions must be backed by an 

evaluation of the risks posed by facilities in each of these types of locations. Ameren is not aware 

of structural stability issues directly caused by the placement of surface impoundments in 

wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. 

The Agency does not assess the risks associated with the placement of existing impoundments in 

these areas. EPA simply asserts that the risks associated wtth impoundments are greater than 

those associated with landfills and cites to the TVA spill as an example of the environmental 

consequences of a "catastrophic collapse" of a CCR impoundment. Id. at 35199. The Agency 

must conduct a detailed analysis of CCR surface impoundments located in these restricted 

locations and demonstrate, based on this analysis, that there are, in fact, increased risks from 

these Impoundments to justify such a significant departure from how the Agency addressed and 

regulated MSWLFs. 
28

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions 

because EPA reasons that such units are structurally less vulnerable than impoundments. Also, 

there would be significant disposal capacity shortfalls if existing CCR landfills located in these 

restricted areas - i.e., wetlands, fault areas or seismic impact areas - had to close. 75 Fed. Reg. at 

35198. Ameren agrees with EPA that existing CCR landfills should not be subject to these 

additional location restrictions and shares EPA's concern that subjecting them to such controls 

would cause a significant decrease in disposal capacity. 

Ameren shares EPA's concern that many CCR landfills are located in areas that would be subject 

to one or more of the above-referenced location restrictions and, while some landfills may be 

able to retrofit or already are in compliance with the performance standard tailored to the 

location restriction, some landfills could be forced to close due to the challenges of attempting to 

retrofit to meet the location-based performance standards. Aside from the fact that there is no 

factual record supporting the application of these additional restrictions to existing landfills, 

closure of these units would create disposal Shortfalls. Among other things, unit closures would 

greatly complicate operations at many utilities that would need to find additional disposal 

capacity, requiring utilities to obtain procure new real estate for siting a new landfill (which may 

be a significant distance from a power plant), obtain a new disposal permit for the landfill (which 

can take an extended period of time), and transport significant volumes of CCRs great distances 

to the newly-permitted facilities. There is simply no environmental basis for causing this 

disruption to utility CCR disposal practices by subjecting existing CCR landfills to the full range 

of location restrictions.

Response: As stated in the preamble to this rule, and repeated here, the Agency acknowledges 

that an error was made in drafting the proposed subtitle D regulatory language for the location 

restrictions. These location restrictions do apply to existing CCR surface impoundments, which 

means that facilities need to either demonstrate that the surface impoundment meets the 

performance standard that serves as the alternative to the prohibition, retrofit the unit so that it 

can meet the performance standard, or close.

EPA, disagrees with the commenter's assertion that in order to justify national standards 

applicable to existing surface impoundments that the location restrictions must be backed by an 

evaluation of the risks posed by facilities in each of these types of locations. The commenter has 

misstated the standard applicable to this rule. Congress specifically directed EPA to proceed by 

rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). 

Section 4004(a) does not require a demonstration of actual impacts, merely that these units 

present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record 

demonstrating that the specific location restrictions in the final rule are necessary for CCR 

disposal units (landfills and surface impoundments), as a class, to ensure that there will be no 

reasonable probability of adverse effects on health or the environment. And in this case, as 

discussed in the preamble, the factual record supports the need for all of the location standards 

imposed by today's rule.

The Agency agrees with the commenter’s characterization of EPA’s conclusion that it would be 

inappropriate to apply all location standards to existing CCR landfills. However, EPA wishes to 

emphasize that existing CCR landfills are subject to the finalized location restriction applicable 

to units in unstable areas. EPA disagrees with the commenter’s assertion that the application of 
29

just one location restriction to existing landfills will result in reduced disposal capacity. The 

Agency believes that owners and operators will be able to demonstrate compliance with this

restriction. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-27

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Existing landfills designed and operated as stipulated by RCRA Subtitle D regulations should be 

allowed to continue accepting CCR.

Response: EPA agrees that existing landfills subject to RCRA Subtitle D regulation under Part 

258 should be allowed to continue accepting CCRs. As stated in the preamble of this rule, the 

Agency sees no need to impose duplicative requirements for MSW landfills that receive CCR. 

Consequently, the final rule excludes MSW landfills from the requirements of the rule by adding 

them in a list of excluded facilities or activities under § 257.50. 

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

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1 4.4.6 4.4.7.1 4.4.8 4.4.9.1

Comment Excerpt Text:

New landfills and expansion of existing landfills to be used for the disposal of CCR should be 

required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic 

stability assessment, engineering design criteria, operational standards, groundwater monitoring, 

quarterly inspections, closure (including cap), post-closure monitoring and maintenance, 

financial assurance and notification of CCR disposal on the property deed. 

Response: In developing the subtitle D option for the proposal, EPA considered a number of 

existing programs as relevant models. EPA drew most heavily on the existing 40 CFR Part 258 

program applicable to municipal solid waste landfills. While this program does not address CCR 

disposal in surface impoundments, it provided EPA with a general regulatory framework that 

addressed all aspects of disposal in certain land-based units. Given the Agency’s expansive 

history and experience with these requirements, EPA believed that the part 258 criteria with 

certain modifications for other land-based disposal units (i.e., surface impoundments) 

represented a reasonable balance between ensuring the protection of human health and the 
30

environment from the risk of CCR disposal and the absence of any regulatory oversight. (See 75 

FR 35192-35195.) The finalized criteria include location standards, engineering design criteria, 

groundwater monitoring, and closure criteria that are explained in the preamble to this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-31

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1 4.4.5.2 4.4.7.1 4.4.8.2 4.4.9.1

Comment Excerpt Text:

New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for 

solid waste landfills. The regulations should include:

-Public Notice of intent to construct.

-Demonstration of suitable geologic conditions for construction.

-An engineering design which includes a geologic buffer, synthetic liner, leachate collection 

system, groundwater monitoring system with a minimum of four wells, buffer zones, 

construction with a dam safety factor of 1.5, estimated disposal capacity of the surface 

impoundment, seismic analysis and seismic safety factor of 1.5, closure plan, post-closure 

monitoring and maintenance plan and financial assurance in an amount sufficient to complete 

environmental investigation and cleanup should the surface impoundment fail or have releases to 

groundwater and/or surface water.

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

treatment or for waste treatment and CCR disposal.

Response: EPA’s regulatory approach for CCR landfills and CCR surface impoundments is 

discussed extensively Unit V, and throughout the preamble to this final rule. The Agency has no 

authority to require a permit program. However, Tennessee can certainly impose such a 

requirement under state law (and EPA would encourage them to do so). Regarding the specific 

regulatory elements listed by the commenter, the requirements for new surface impoundments 

finalized in this final rule includes some but not others (no leachate collection system).

Comment Number: EPA-HQ-RCRA-2009-0640-06308-11

Organization1:NRG Energy Inc.

Commenter1:Verne Shortell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA Should Not Apply Location Restrictions to Existing Surface Impoundments or Landfills 
31

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR landfills and surface impoundments. New and existing CCR surface 

impoundments and landfills could not be located in floodplains or unstable areas. In addition, 

new CCR surface impoundments and landfills could not be located in wetlands, fault areas, or 

seismic impact zones and must be located at least two feet above the natural water table. The 

proposed Subtitle D regulatory text indicates that, for existing surface impoundments, these 

location restrictions apply only to flood plains and unstable areas. However, the preamble to the 

proposal indicated that EPA intends to subject all location restrictions to existing surface 

impoundments. NRG supports the more extensive comments on this issue from USWAG. 

In addition, NRG recommends exemptions for existing facilities, specifically that federal criteria 

be implemented as guidelines and that location criteria be defined only by state agencies and that 

existing facilities and lands permitted for expansion receive these exemptions.

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” The Agency disagrees with the commenter’s assertions that federal criteria be 

implemented as guidelines, that location criteria be defined only by State agencies, and that 

existing facilities and lands permitted for expansion receive these exemptions. The Agency 

considers guidelines to be insufficiently protective. As stated in the preamble to this rule, the 

record is clear that current management of these wastes can present, and in many cases has 

presented, significant risks to human health and the environment. The current level of risk 

clearly warrants the issuance of Federal standards to ensure consistent management practices and 

a national minimum level of safety. Although EPA has not made a final determination on the 

adequacy of state regulations, current information suggests for the Agency to allow location 

criteria to be defined only by state agencies would ensure neither consistent management nor a 

minimum level of safety. Moreover, these regulations exist independent of any applicable state 

criteria. Therefore, facilities permitted by the state for expansion must comply with both federal 

and state criteria simultaneously. 

Comment Number: EPA-HQ-RCRA-2009-0640-06313-113

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.1

Comment Excerpt Text:

CCR landfills and surface impoundments should be banned in wetlands, fault areas, seismic 

impact zones and unstable areas. Consideration should also be given to placing restrictions on 

landfills and surface impoundments in sensitive aquifer recharge zones, karst environments, and 
32

floodplains. Many of the CCR landfills and surface impoundments, which are already located in 

floodplains, will be breached in the future if the rivers change course and cut through areas 

where wastes have been disposed. New landfills constructed under the promulgated rules should 

be prohibited from siting in these areas. 

Response: Although EPA shares the commenter’s concern regarding the siting of CCR landfills 

and CCR surface impoundments in sensitive areas, the Agency disagrees with the assertion that 

CCR disposal units should be banned from locating in wetlands fault areas, seismic impact zones 

and unstable areas. In this rule under §257.60-.64 EPA has chosen to prohibit locating a new 

CCR disposal unit in wetlands, fault areas, seismic impact zones, and unstable areas (including 

areas of karst terrane) unless the owner or operator makes a demonstration that the unit meets the 

requirements of a performance standard that serves as the alternative to the location restriction. 

EPA did not propose to impose all location requirements on existing CCR landfills because of 

the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if 

existing CCR landfills in these locations were required to close. As stated in this rule, the 

Agency concluded that the potential disposal capacity shortfalls would pose more environmental 

and public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. Units located in floodplains are already subject to 

provisions of §257.3-1(b)(3), which prohibits disposal practices that would result in the carrying 

away of solid waste by waters of a base flood.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-96

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

When Subtitle C regulations became effective for hazardous waste landfills, owners and 

operators were allowed to continue using existing landfills that did not meet the promulgated 

liner requirements. These requirements applied only to lateral expansion of the existing landfills 

or the construction of new cells. 

For several reasons, which are not applicable to CCR landfills and surface impoundments, 

existing hazardous waste landfills, which did not meet the new requirements, were quickly 

closed. First, most of the hazardous waste landfill cells were small compared to the size required 

for CCR wastes. Thus, they were closed out rather quickly and newly permitted cells were built 

to replace them. 

Secondly, hazardous waste landfills are not owned by the industries they serve. Many of their 

customers had significant liabilities under CERCLA for past disposal, even at sites that had state 

permits. Thus, the hazardous waste disposal company sale staff needed to assure their customers 
33

that their wastes would be disposed of in landfills, which fully complied with the new 

regulations. Hazardous waste landfill owners compete with each other for business and such 

assurance is a major component of their sales approach. 

CCR landfills are typically much larger than the hazardous waste cells in use in the early 1980’s 

and thus, some of the grandfathered CCR landfills, without liners and leachate collection 

systems, etc., could be used without lateral expansion for many more years. Secondly, CCR 

landfills and surface impoundments are characteristically owned and operated by the owner of 

the coal fired power plant that produces the CCR wastes. Therefore, there is no mechanism by 

which competition is available to foster compliance with the new regulatory requirements. 

Thus, grandfathering of existing CCR landfills and surface impoundments could allow the same 

type of pollution to occur as has already been documented by CCR disposal case studies 

(USEPA, 2007; Environmental Integrity Project and Earthjustice, 2010; Environmental Integrity 

Project, Earthjustice, and Sierra Club, 2010). 

Response: In this final rule existing surface impoundments are subject to all location 

restrictions. This means that facilities need to either demonstrate that the surface impoundment 

meets the performance standard that serves as the alternative to the prohibition, retrofit the unit 

so that it can meet the performance standard, or close. EPA did not propose to impose all 

location requirements on existing CCR landfills because of the concern that potential disposal 

capacity shortfalls could result in certain regions of the U.S. if existing CCR landfills in these 

locations were required to close. The Agency concluded that the potential disposal capacity 

shortfalls would pose more environmental and public health concerns, based on the potential for 

significant disruption of solid waste management state-wide from the closure of these units, than 

the potential risks of further pollution from allowing existing CCR landfills to remain in these 

locations, given that these units would be subject to the design and operating requirements of the 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-33

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA states in the preamble of the Proposed Rule that it intends to subject existing surface 

impoundments to all of the new location restrictions due to the risks posed by these units. Id. at 

35198-99. In the corresponding proposed regulatory text, however, existing surface 

impoundments are only subject to the location restrictions related to floodplains and unstable 

areas. Duke Energy disagrees with EPA to the extent that it intends to subject existing CCR 

surface impoundments to all of the additional location restrictions found in 40 C.F.R. § 257, 

consistent with the preamble.
34

Duke Energy agrees with EPA that the location restrictions should apply for all new surface 

impoundments and landfills, and that compliance with these restrictions should be documented. 

However, Duke Energy disagrees with EPA’s proposal to subject existing CCR surface 

impoundments and landfills to the proposed location restrictions. EPA should instead provide a 

mechanism for a facility to demonstrate that any environmental or stability concern associated 

with a specific location restriction has been or can be adequately mitigated.

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” The data supporting the Agency’s decision to impose all location standards on 

existing CCR surface impoundments is discussed extensively in the preamble of this rule. In this 

rule, for most location restrictions facilities are allowed to either demonstrate that the surface 

impoundment meets the performance standard that serves as the alternative to the prohibition, 

retrofit the unit so that it can meet the performance standard, or close. Existing CCR landfills are 

subject to location restriction for unstable areas. For existing CCR landfills and CCR surface 

impoundments the location standards in subpart A of 40 CFR 257 for floodplains, endangered 

species, and surface waters continue to apply. As with surface impoundments, facilities with 

CCR landfills in unstable areas are allowed to either demonstrate that the unit meets the 

performance standard that serves as the alternative to the prohibition, retrofit the unit so that it 

can meet the performance standard, or close.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-46

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3 4.7

Comment Excerpt Text:

(iv) The Definition of Existing CCR Landfills – 40 C.F.R. § 257.40(2)(b).

The proposed definition of an “Existing CCR Landfill” should be modified to include lateral 

expansions of operating units where such expansion is within the site footprint of an area already 

approved and permitted by the state for the landfill. While the currently proposed definition 

includes undeveloped areas within the footprint of an approved permitted site, it also requires 

that construction actually commence at the site or that some type of binding contractual 

obligation be present for these areas to be considered an existing CCR landfill. However, 

regardless of whether construction has commenced or there is a contractual obligation present for 

expansion, such undeveloped areas pose no additional risk since they are already approved and 

permitted. Moreover, there is no health-based or environmental-based reason to support such a 

distinction. Under both scenarios, the undeveloped portion of the approved permitted site must 
35

undergo environmental and related technical review by the permitting authorities and be 

approved for the location of a CCR landfill. To exclude a location that has otherwise already 

been permitted for a CCR landfill from the definition of an “existing” landfill merely because 

there is not a binding contractual commitment to begin construction would unfairly subject these 

areas to the design and operating standards for new CCR landfills, especially where identical 

locations are considered existing CCR landfills but are subject to different operating standards 

based merely on the existence of a contract to commence construction. Such a distinction is 

arbitrary and capricious and provides no practical benefit.

Response: As stated in the preamble and repeated here, EPA agrees with commenters that with 

regard to the “commence construction” provision of the definition, there should be no distinction 

between undeveloped areas where federal, state and local approvals or permits necessary to 

begin physical construction have been obtained, and undeveloped areas that have obtained the 

same approvals but also have a binding contractual agreement in place for the construction of the 

unit. Given the proposed language in the definition, “the owner or operator has entered into 

contractual obligations – which cannot be cancelled or modified without substantial loss – for 

physical construction of the CCR landfill to be completed within a reasonable time,” the Agency 

has concluded, that absent some type of guidance that objectively discusses how “substantial 

loss” could be calculated by the owner or operator, the purpose and/or effect of this requirement 

in meeting the objectives of this rule remain unclear. Consequently, the Agency has decided to 

remove this provision from the definition of “existing CCR landfill” but is retaining what the 

Agency considers are the two most important elements of the definition. First, that the owner or 

operator has obtained the federal, state, and local approvals or permits necessary to begin 

physical construction; and second, that a continuous on-site, physical construction program has 

begun (i.e., groundbreaking has occurred). Therefore, EPA is finalizing the definition of 

“existing CCR landfill” as follows.

Existing CCR landfill means a CCR landfill that receives CCR both before and after [INSERT 

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER], 

or for which construction commenced prior to [INSERT DATE 180 DAYS AFTER THE DATE 

OF PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after [INSERT 

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

A CCR landfill has commenced construction if the owner or operator has obtained the federal, 

state, and local approvals or permits necessary to begin physical construction and a continuous 

on-site, physical construction program had begun prior to [INSERT DATE 180 DAYS AFTER 

THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-50

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
36

Comment Excerpt Text:

We believe that the current population of CCR landfills in Wisconsin does comply with these 

locational criteria. We suggest that these locational criteria should be maintained, subject to 

review by State agencies and approval, approval with conditions, or alternative locations or 

designs, as need be. We also see no reason not to apply these locational criteria to surface 

impoundments. 

Response: In this final rule existing CCR surface impoundments are subject to all location 

restrictions, whereas existing CCR landfills are subject only to location restrictions for unstable 

areas. For all existing CCR landfills and CCR surface impoundments location standards in 

subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters continue to 

apply. The sections of RCRA that are currently applicable to CCR – sections 1008(a), 4004(a), 

and 4005(a)--only authorize the Agency to establish minimum national criteria that apply to 

“facilities.” The restriction that the criteria apply only to “facilities” means that EPA cannot 

establish any requirements on states or state programs, either directly or indirectly. This also 

means that EPA cannot require a facility to obtain state approval. These regulations impose no 

requirements on States to adopt these regulations, to develop a permit program, or submit a 

program covering these units to EPA for approval, as subtitle D of RCRA does not provide EPA 

such authority. 

Comment Number: EPA-HQ-RCRA-2009-0640-06422-34

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Location Restrictions Should Not Apply to Existing Surface Impoundments

Dynegy opposes EPA's proposal to apply the new location restrictions -- water table, wetlands, 

fault areas, seismic impact zones, and unstable areas -- to existing surface impoundments. 75 

Fed. Reg. at 35198-99. As explained in section XII.B of USWAG's comments on the Proposed 

CCR Rule, EPA has not justified imposing these location restrictions to existing surface 

impoundments, and the proposed extension of location restrictions for new municipal solid waste 

landfills to existing CCR surface impoundments is unsupported by the rulemaking record. 

Moreover, application of the location restrictions to existing surface impoundments will likely 

require the closure of many existing surface impoundments. EPA's actions to alleviate the 

resulting disposal capacity concerns are not sufficient.

Response: In the proposed rule preamble EPA has explained the rationale for applying today’s 

provisions to existing CCR surface impoundments, and the commenter has submitted nothing to 
37

rebut that rationale. Thus, EPA maintains its determination that application of the location 

standards to existing CCR surface impoundments is necessary to achieve the standard in section 

4004(a). In addition, location standards in subpart A of 40 CFR 257 for floodplains, endangered 

species, and surface waters continue to apply for all CCR disposal units. Absent the location 

restrictions being promulgated, the risk of impacts to human health and the environment from the 

rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In the absence of the restrictions in the final rule, failure of 

CCR units in these areas have, and in all likelihood would continue to result in damage cases 

where constituents from CCR are released affecting both groundwater and surface waters. 

Comment Number: EPA-HQ-RCRA-2009-0640-06517-3

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

40 CFR 257.60 through 257.64 Location Restrictions

We recommend that EPA include a specific site restriction regarding placement of CCRs in a 

100-year floodplain, despite the fact that it is already covered by current paragraph 257.3-1. This 

would be a similar approach to the Subtitle D rules for MSWLFs.

Response: The commenter has not supplied a rationale explaining why the already applicable 

general environmental performance standards of §257.3-1 are insufficiently protective. As stated 

in the proposal for this rule, because owners and operators of existing landfills already should be 

in compliance with this criterion, applying this location restriction will have no impact to the 

existing disposal capacity, while continuing to provide protection of human health and the 

environment.

Comment Number: EPA-HQ-RCRA-2009-0640-06517-9

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

This also raises an interesting issue with regard to the location restrictions contained in §§257.60 

through 64. The location restriction regarding unstable areas (§257.64) would clearly apply 

whether the retrofitted impoundment would be considered new or existing. However, it is not 
38

clear whether any of the others would apply to retrofitted impoundments.

Please revise either §257.71 or subsections §§257.60 through 63 to include language specifying 

the applicability of the location restrictions to retrofitted impoundments. Special consideration 

should be given to whether or not the owner of an existing surface impoundment would be 

allowed to retrofit the impoundment and continue operating if the base of the existing 

impoundment is less than two feet above the natural water table.

Response: In this final rule EPA considers retrofitted CCR surface impoundments to be new 

units and, therefore, subject to all location restrictions. Moreover, the Agency has finalized the 

location restriction for the base of an existing surface impoundment at ‘....no less than 1.52 

meters (five feet) above the upper limit of the uppermost aquifer.’ This restriction prohibits 

construction or operation of any CCR surface impoundment, including a retrofitted 

impoundment, with a base that is less than five feet above the upper limit of the uppermost 

aquifer.

Comment Number: EPA-HQ-RCRA-2009-0640-06827-11

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. Comprehensive Location Restrictions for CCR Surface Impoundments are Unwarranted

The Subtitle D option imposes various location restrictions to new and existing CCR surface 

impoundments. Specifically, new and existing CCR surface impoundments could not be located 

in floodplains (a requirement that is already in effect) or in unstable areas. Additionally, new 

surface impoundments could not be located in wetlands, fault areas or seismic impact zones and 

must be located at least two feet above the natural water table.

However, the Agency states in the preamble to the proposed rule that it intends to subject 

existing surface impoundments to all of these new location restrictions due to the risks that they 

pose. In the corresponding proposed regulatory text, however, existing surface impoundments 

are only subject to the floodplain and unstable area location restrictions.

OG&E assumes for purposes of these comments that the Agency intends to subject existing CCR 

surface impoundments to all of the location restrictions as stated in the preamble and not that 

stated in the regulatory text. If this is the case, the Agency has radically departed from the 

location restriction provisions of the existing municipal solid waste landfill rules on which the 

Subtitle D option is based without any justification for regulating surface impoundments more 

stringently than those landfills. Subjecting existing surface impoundments to these additional 

location restrictions must be backed by an evaluation of the risks posed by each impoundment 

based on its location. In that regard, the Agency should either limit the location restrictions to 

flood plains and unstable areas or conduct a detailed analysis of CCR surface impoundments 

located in these restricted locations and demonstrate, based on this analysis that there are, in fact, 
39

increased risks from these impoundments to justify such a significant departure from how the 

Agency addressed municipal solid waste landfills

Response: The commenter misstates the existing restrictions under §257.3-1 for land disposal 

units located in floodplains, which are already applicable to CCR surface impoundments. For 

land disposal units located in floodplains, which would include all CCR landfills and surface 

impoundments, the provisions of §257.3-1(b)(3) prohibit disposal practices that would result in 

the carrying away of solid waste by waters of a base flood. This is not an outright location ban. 

In today’s final rule, new and existing CCR surface impoundments cannot be located in 

wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or operator makes 

a demonstration that the unit meets the requirements of a performance standard that serves as the 

alternative to the location restriction. In addition, the location standards in subpart A of 40 CFR 

257 for floodplains, endangered species, and surface waters continue to apply. 

In response to the discrepancies between the preamble language and the regulatory text, EPA 

admits that indeed an error was made in drafting the proposed regulatory language for the 

location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” The data supporting the Agency’s decision to impose all location standards on 

existing CCR surface impoundments is discussed extensively in the preamble of this rule.

EPA disagrees with the commenter's assertion that in order to apply national minimum standards 

to existing CCR surface impoundments, specific risks must first be demonstrated at each location 

based upon an evaluation from each individual unit. First, it is well established that an agency 

may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis 

of an individualized assessment of every entity that will be subject to the rule. And indeed,

Congress specifically directed EPA to proceed by rulemaking to establish minimum national 

standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a 

demonstration of actual impacts, merely that these units present an unacceptable risk of harm. 

Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location 

restrictions in the final rule are necessary for CCR disposal units (landfills and surface 

impoundments), as a class, to ensure that there will be no reasonable probability of adverse 

effects on health or the environment. In this case, the factual record supports the need for all of 

the location standards for existing CCR surface impoundments imposed by this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-15

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should not apply location restrictions to existing CCR surface impoundments. 
40

EPA should not apply the location restrictions that arc proposed for new CCR surface 

impoundments to existing CCR surface impoundments. As previously stated, Dominion supports 

the D Prime option, which would allow existing CCR surface impoundments to continue 

operating for the remainder of their useful life. These impoundments should be allowed to 

continue to operate without being subjected to the full range of location restrictions included in 

the proposed rule. However, in the preamble to the proposed rule, EPA states that it intends to 

subject existing CCR surface impoundments to all of the location restrictions that it intends to 

apply to new surface impoundments. 75 Fed. Reg. at 35198-99. This would mean that existing 

surface impoundments could not be located in floodplains, unstable areas, wetlands, fault areas, 

or seismic impact zones, and the impoundments must be located at least two feet above the 

natural water table. Contradictory to the preamble language, the corresponding proposed Subtitle 

D regulatory text states that existing CCR surface impoundments arc only subject to the 

floodplain and unstable area location restrictions. Sec Id. at 35243 (proposed 40 C.F.R. § 

257.65). 

We do not believe that existing CCR surface impoundments should be subjected to all the 

location restrictions proposed for new impoundments, as currently proposed in the preamble. 

Subjecting existing surface impoundments to all the location restrictions must be documented by 

a detailed risk evaluation of CCR surface impoundments. EPA must demonstrate, based upon the 

results of the evaluation, that there arc increased risks posed by the impoundments. Otherwise, 

there is no justification for EPA to subject CCR surface impoundments to more stringent location 

restrictions than those imposed on MSWLFs. 

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” The data supporting the Agency’s decision to impose all location standards on 

existing CCR surface impoundments is discussed extensively in the preamble of this rule.

The commenter misstates the restrictions for land disposal units located in floodplains, which are 

already applicable to CCR surface impoundments. For land disposal units located in floodplains, 

which would include all CCR landfills and surface impoundments, the provisions of §257.3-

1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste by waters 

of a base flood. This is not an outright location ban. In today’s final rule, new and existing CCR 

surface impoundments cannot be located in wetlands, seismic impact zones, fault areas, or 

unstable areas unless the owner or operator makes a demonstration that the unit meets the 

requirements of a performance standard that serves as the alternative to the location restriction. 

In addition, the location standards in subpart A of 40 CFR 257 for floodplains, endangered 

species, and surface waters continue to apply. Existing CCR surface impoundments can 

continue to operate if they can successfully make all applicable demonstrations.

EPA disagrees with the commenter's assertion that in order to apply national minimum 

standards to existing CCR surface impoundments, specific risks must first be demonstrated at 

each location based upon an evaluation from each individual unit. First, it is well established 

that an agency may regulate a class of similarly situated [entities] through rulemaking, rather 
41

than on the basis of an individualized assessment of every entity that will be subject to the rule. 

And indeed, Congress specifically directed EPA to proceed by rulemaking to establish minimum 

national standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not 

require a demonstration of actual impacts, merely that these units present an unacceptable risk of 

harm. Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific 

location restrictions in the final rule are necessary for CCR disposal units (landfills and surface 

impoundments), as a class, to ensure that there will be no reasonable probability of adverse 

effects on health or the environment. In this case, the factual record supports the need for all of 

the location standards for existing CCR surface impoundments imposed by this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06833-18

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In addition, since the structural assessments conducted to date show that none of the CCR 

surface impoundments pose immediate safety threats, the impoundments should be allowed to 

continue operating without all location restrictions imposed on the impoundments. As such, the 

preamble language should be modified to be consistent with the Subtitle D regulatory text. which 

is consistent with the Subtitle D regulations for existing MSWLFs. CCR surface impoundments 

should not be subjected to more stringent location restrictions than MSWLFs regulated under 

Subtitle D. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing CCR surface 

impoundments are not appropriate or warranted. The risks associated with the catastrophic 

failure of a CCR surface impoundment, while significant, are not the only risks associated with 

these disposal units, and did not form the basis for EPA’s proposed location restrictions. In the 

proposal and final rule EPA has discussed at length the real and significant potential for these 

units to contaminate groundwater and surface water sources of drinking water. Moreover, the 

structural integrity assessments demonstrated that in the absence of regulatory oversight, serious

risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-06846-8

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive

Comment Category:
42

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.6 4.4.5.1.1

Comment Excerpt Text:

o In Part 257.64(a) EPA is requiring that owner/ operators of new or existing CCR landfills or 

surface impoundments or lateral expansions located in unstable areas (such as karst areas in 

Florida) demonstrate that engineering measures have been incorporated into the facility to ensure 

that the structural components of the design will not be disrupted. EPA goes on to say that this 

demonstration must be certified by an independent registered professional engineer. The 

Department agrees that this demonstration is appropriate for new facilities and lateral expansions 

of existing ones, but does not agree this is appropriate for existing facilities. How is a registered 

engineer to certify this determination? What criteria will the engineer use? For example, it is not 

appropriate or practical to install numerous borings down through the waste into the underlying 

subsurface to determine the structural integrity of that subsurface. The figure referenced by EPA 

on page 35201 of the proposed rule suggests that approximately 50% of the entire state of 

Florida would be subject to this new requirement. The Department recommends "existing 

facilities" be removed from this part of the rule and addressed in a separate section. This new 

section should require that a registered professional engineer conduct a visual inspection of the 

existing landfills or surface impoundments located in unstable areas and prepare a report on any 

evidence of sinkholes or subsidence activity found at them. If there appears to be active 

sinkholes at the facility then the engineer should recommend possible remedial measures to 

minimize the likelihood of a failure occurring. In addition, the owner or operator must notify the 

state of this finding and what measures will be taken to minimize this failure.

Response: EPA disagrees with the commenter’s assertion that today’s required demonstration is 

inappropriate for existing CCR landfills and surface impoundments located in karst areas. 

According to the U.S. Geological Survey nearly 25 percent of the United States is in karst terrain 

and a large segment of this area is undergoing rapid urban and industrial development. In a karst 

aquifer, depending on conditions, pollutants may flow from a point source into the ground to all 

seeps and springs in its distributary system, many of which could be located well outside the 

facility boundary. 

As stated in this final rule, to make a demonstration it is important for owners and operators of 

CCR landfills and surface impoundments in karst areas to adequately characterize subsurface 

conditions. EPA expects owners and operators of CCR landfills and surface impoundments to 

follow the Agency’s 1989 guidance titled Ground-Water Monitoring in Karst Terranes: 

Recommended Protocols and Implicit Assumptions (EPA/600/X-89/050). Groundwater 

monitoring wells must be capable of detecting any contaminants released from the CCR unit into 

the karst aquifer. Therefore, the owner or operator should ensure, and a qualified professional 

engineer verify, that monitoring wells intercept these pathways. Verification will usually 

necessitate the use of tracers to track groundwater flow towards offsite seeps or springs from the 

uppermost aquifer beneath the facility. 

For existing facilities, in lieu of physical borings owners and operators can utilize geophysical 

techniques, including electroresistivity, ground-penetrating radar, electromagnetic conductivity, 

or seismic refraction to detect subsurface anomalies, but these should be applied and interpreted 

by a qualified professional engineer or geophysicist. Where paleosinks are suspected, in-situ 

geotechnical techniques (e.g., electric piezometer) should be employed to detect subtle 
43

downward hydraulic gradients. Where feasible, subsurface drilling is recommended for 

verifying the results of geophysical investigations. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-33

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Of significant concern, EPA states in the preamble to the proposal that it intends to subject 

existing surface impoundments to all of these new location restrictions due to the risks posed by 

these units. Id. at 35198-99. In the corresponding proposed regulatory text, however, existing 

surface impoundments are only subject to the floodplains and unstable area location restrictions. 

See id. at 35243 (proposed 40 C.F.R. § 257.65). 

Avista assumes for purposes of these comments that EPA intends to subject existing CCR 

surface impoundments to the additional location restrictions consistent with the proposal’s 

preamble and that the Agency’s proposed regulatory text is inaccurate. Presumably, EPA copied 

the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. 

Although EPA intends to base the Subtitle D CCR disposal unit regulations in large part on the 

MSWLF regulations, here, the Agency clearly proposed to depart from those regulations, 

requiring all existing surface impoundments to comply with the full range of location

restrictions, a condition that is normally only applied to new units. 

This is an extreme and draconian departure from the MSWLFs standards; EPA has not made a 

compelling justification for treating CCR impoundments more harshly than MSWLF units. 

Subjecting existing surface impoundments to these location restrictions must be supported by an 

evaluation of the risks posed by facilities in each of these types of locations. 

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” The data supporting the Agency’s decision to impose all location standards on 

existing CCR surface impoundments is discussed extensively in the preamble of this rule.

EPA, disagrees with the commenter's assertion that in order to justify national standards 

applicable to existing CCR surface impoundments that the location restrictions must be backed 

by an evaluation of the risks posed by facilities in each of these types of locations. The 

commenter has misstated the standard applicable to this rule. Congress specifically directed 

EPA to proceed by rulemaking to establish minimum national standards under RCRA sections 

1008(a) and 4004(a). Section 4004(a) does not require a demonstration of actual impacts, merely 

that these units present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a 

factual record demonstrating that the specific location restrictions in the final rule are necessary 
44

for CCR disposal units (landfills and surface impoundments), as a class, to ensure that there will 

be no reasonable probability of adverse effects on health or the environment. And in this case, as 

discussed in the preamble, the factual record supports the need for all of the location standards 

imposed by today's rule. Absent the location restrictions being promulgated, the risk of impacts 

to human health and the environment from the rapid and catastrophic destruction of CCR surface 

impoundments sited in these sensitive areas would exceed acceptable levels. In the absence of 

the restrictions in the final rule, failure of CCR units in these areas have, and in all likelihood 

would continue to result in damage cases where constituents from CCR are released affecting 

both groundwater and surface waters. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-35

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 4.4.4.4

Comment Excerpt Text:

Avista does not believe that EPA can compile the record evidence necessary to support such a 

regulation. In fact, over the last year and a half since the TVA ash release, EPA has been 

conducting comprehensive structural integrity assessments of utility CCR impoundments across 

the country. The results of EPA’s investigation have not, to date, identified any CCR 

impoundment that presents the imminent threat of a catastrophic release similar to that which 

occurred at TVA's Kingston facility. EPA Coal Combustion Residuals Impoundment Assessment 

Reports (available online at http://www.epa.gov/epawaste/nonhaz/industrial/special/ fossil/ 

surveys2/index.htm) (current as of Nov. 3, 2010). Specifically, EPA’s structural assessments

rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory” – terms commonly 

used in the field of dam safety. EPA explains that, “[e]xpert experience has shown that only 

impoundments rated as “unsatisfactory” pose immediate safety threats.” Id. Of the 120 CCR 

impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating. 

Id. And, as EPA correctly points out, even those impoundments that received a “fair” or “poor” 

rating may have been found by the inspectors to be structurally sound, but did not receive a 

“satisfactory” rating based solely on lack of information. Therefore, there is no factual basis to 

assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying 

the imposition of all the location restrictions on existing units; indeed, the record evidence makes 

clear that such restrictions are not appropriate or warranted. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 
45

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-8

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA Should Not Apply Location Restrictions To Existing Surface Impoundments Or 

Landfills

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 

impoundments and landfills could not be located in floodplains (a requirement that is already in 

effect) or unstable areas. In addition, new surface impoundments and new landfills could not be 

located in wetlands, fault areas, or seismic impact zones and must be located at least two feet 

above the natural water table. Of significant concern, EPA states in the preamble to the proposal 

that it intends to subject existing surface impoundments to all of these new location restrictions 

due to the risks posed by these units. In the corresponding proposed regulatory text, however, 

existing surface impoundments are only subject to the floodplains and unstable area location 

restrictions.

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions 

because EPA reasons that such units are structurally less vulnerable than impoundments and that 

there would be a significant disposal capacity shortfalls if existing CCR landfills located in these 

restricted areas – i.e., wetlands, fault areas or seismic impact areas – had to close. Tri-State G&T 

supports the proposal that existing CCR landfills should not be subject to any additional location 

restrictions and shares EPA’s concern that subjecting them to such controls would cause a 

significant decrease in disposal capacity.

Tri-State G&T shares EPA concern that many CCR landfills are located in areas that would be 

subject to one or more of the above-referenced locations restrictions and, while some landfills 

may be able to retrofit or already are in compliance with the performance standard tailored to the 

location restriction, some landfills could be forced to close due to the challenges of attempting to 

retrofit to meet the location-based performance standards. Aside from the fact that there is no 

factual record supporting the application of these additional restrictions to existing landfills, 

closure of these units would create disposal shortfalls. Among other things, unit closures would 

greatly complicate operations at many utilities that would need to find additional disposal 

capacity, including attempting to obtain new real estate for siting a new landfill (which may be a 

significant distance from a power plant), obtaining a new disposal permit for the landfill (which 

can take an extended period of time), and transporting significant volumes of CCRs great 

distances to the newly-permitted facilities. There is simply no environmental basis for causing 
46

this disruption to utility CCR disposal practices by subjecting existing CCR landfills to the full 

range of location restrictions

Response: The commenter misstates the existing restrictions under for land disposal units 

located in floodplains, which are already applicable to both CCR landfills and CCR surface 

impoundments. For land disposal units located in floodplains, the provisions of §257.3-1(b)(3) 

prohibit disposal practices that would result in the carrying away of solid waste by waters of a 

base flood. This is not an outright location ban. The other location criteria include restrictions 

relating to placement of all CCR disposal units above the uppermost aquifer, in wetlands, within 

fault areas, in seismic impact zones, and placement of all in unstable areas. Existing CCR 

landfills are subject to only currently applicable restrictions for units on floodplains and new 

location restrictions for units in unstable areas. All of these location restrictions require the 

owner or operator of a CCR unit to demonstrate that they meet the specific criteria. These 

restrictions are not prohibitions, but minimum national performance standards for new CCR 

landfills and other CCR disposal facilities located in these sensitive areas. 

EPA disagrees with the commenter’s assertion that the application of location restrictions to 

existing landfills will result in reduced disposal capacity. For many facilities the Agency 

believes that owners and operators will be able to demonstrate compliance with the restrictions. 

The Agency also disagrees with the commenter’s assertion that there is no factual record 

supporting the application of these additional restrictions to existing CCR landfills. EPA did not 

propose to impose all location requirements on existing CCR landfills because of the concern 

that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing 

CCR landfills in these locations were required to close. As stated in this rule, the Agency 

concluded that the potential disposal capacity shortfalls would pose more environmental and 

public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-32

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Should Not Apply Location Restrictions To Existing Surface Impoundments Or 

Landfills

The proposed Subtitle D standards would impose various location restrictions on new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 
47

impoundments and landfills could not be located in floodplains (a requirement that is already in 

effect) or unstable areas. In addition, new surface impoundments and new landfills cannot be 

located in wetlands, fault areas, or seismic impact zones and must be located at least two feet 

above the natural water table. Entergy shares EPA’s concern that many CCR landfills are located 

in areas that would be subject to one or more of the above-referenced location restrictions. While 

some landfills may be able to retrofit or are already in compliance with the performance standard 

tailored to the location restriction, some landfills could be forced to close due to the challenges 

of attempting to retrofit to meet the location-based performance standards. Aside from the fact 

that there is no factual record supporting the application of these additional restrictions to 

existing landfills, closure of these units would create storage and disposal shortfalls. Among 

other things, unit closures would greatly complicate operations at many utilities that would need 

to find additional storage and disposal capacity, requiring utilities to procure new real estate for 

siting a new landfill (which may be a significant distance from a power plant), obtain a new 

disposal permit for the landfill (which can take several years), and transport significant volumes 

of CCRs great distances to the newly-permitted facilities. There is simply no environmental basis 

for causing this disruption to utility CCR disposal practices by subjecting existing CCR landfills 

to the full range of location restrictions.

Response: The commenter misstates the existing restrictions under for land disposal units 

located in floodplains, which are already applicable to both CCR landfills and CCR surface 

impoundments. For land disposal units located in floodplains, the provisions of §257.3-1(b)(3) 

prohibit disposal practices that would result in the carrying away of solid waste by waters of a 

base flood. This is not an outright location ban. The other location criteria include restrictions 

relating to placement of all CCR disposal units above the uppermost aquifer, in wetlands, within 

fault areas, in seismic impact zones, and placement of all in unstable areas. Existing CCR 

landfills are subject to only currently applicable restrictions for units on floodplains and new 

location restrictions for units in unstable areas. All of these location restrictions require the 

owner or operator of a CCR unit to demonstrate that they meet the specific criteria. These 

restrictions are not prohibitions, but minimum national performance standards for new CCR 

landfills and other CCR disposal facilities located in these sensitive areas. 

EPA disagrees with the commenter’s assertion that the application of location restrictions to 

existing landfills will result in reduced disposal capacity. For many facilities the Agency 

believes that owners and operators will be able to demonstrate compliance with the restrictions. 

The Agency also disagrees with the commenter’s assertion that there is no factual record 

supporting the application of these additional restrictions to existing CCR landfills. EPA did not 

propose to impose all location requirements on existing CCR landfills because of the concern 

that potential disposal capacity shortfalls could result in certain regions of the U.S. if existing 

CCR landfills in these locations were required to close. As stated in this rule, the Agency 

concluded that the potential disposal capacity shortfalls would pose more environmental and 

public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. 
48

Comment Number: EPA-HQ-RCRA-2009-0640-06988-15

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.4 4.4.7.9.1 4.4.7.8.1 4.4.5.1.1 10.3.2.2

Comment Excerpt Text:

In addition, APPA agrees with the key problems identified by USWAG, including:

- unrealistically short closure time frames for CCR disposal units

- the unwarranted application of all location restrictions to existing CCR surface impoundments

- the inclusion of inappropriate constituents in the proposed groundwater monitoring program

- the failure to allow for alternate liner systems

- the overly broad definition of “CCR Landfill” that inappropriately includes all “large scale fill 

operations.”

Response: In the proposed rule preamble EPA has explained the rationale for applying today’s 

provisions to existing CCR surface impoundments, and the commenter has submitted nothing to 

rebut that rationale. Thus, EPA maintains its determination that application of the location 

standards to existing CCR surface impoundments is necessary to achieve the standard in section 

4004(a). In addition, location standards in subpart A of 40 CFR 257 for floodplains, endangered 

species, and surface waters continue to apply for all CCR disposal units. Absent the location 

restrictions being promulgated, the risk of impacts to human health and the environment from the 

rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In the absence of the restrictions in the final rule, failure of 

CCR units in these areas have, and in all likelihood would continue to result in damage cases 

where constituents from CCR are released affecting both groundwater and surface waters. 

Comment Number: EPA-HQ-RCRA-2009-0640-07047-25

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GRE also feels EPA should not apply the location restrictions to existing landfills and 

impoundments as a blanket. While we understand applying restrictions to new units, we feel that 

existing facilities should have a mechanism to complete a professional evaluation regarding 

stability and performance of the existing facility.
49

Response: While EPA agrees that existing CCR landfills and CCR surface impoundments 

should periodically receive stability and performance evaluations, absent the location restrictions 

being promulgated, the risk of impacts to human health and the environment from the rapid and 

catastrophic destruction of CCR surface impoundments sited in these sensitive areas and landfills 

sited in floodplains and unstable areas would exceed acceptable levels.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-33

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NDEQ’s permit program does not distinguish between landfills or surface impoundments. For 

purposes of permitting, both are considered to be “disposal areas” and are subject to the same 

regulatory requirements.

Response: EPA appreciates receiving this information regarding NDEQs permit program.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-26

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Location Restrictions: 

It is not necessary or appropriate for EPA to retroactively apply the proposed RCRA-D location 

restrictions to existing CCR landfills. We do not have comprehensive information on the number 

of facilities potential affected or the costs this may impose, but recognize that the costs could be 

significant. As noted in a prior comment, it can be exceedingly difficult to successfully site and 

construct new capacity elsewhere. Failure to consider and include this cost before proposing the 

rule is another deficiency in the RIA. Location Restrictions Should Not be Absolute: There are 

few circumstances for which an engineering or technical solution is not possible, although the 

cost to implement that solution may prove to be excessive for the facility owner. However, that 

cost/benefit decision should be left to the facility owner when a workable solution exists.

Response: In this final rule, existing CCR landfills are subject only to existing floodplain 

provisions under 40 CFR Part 257 Subpart A and location restrictions for units in unstable areas.

For many of these facilities EPA believes that owners and operators will be able to demonstrate 
50

compliance with the restrictions. In setting requirements under RCRA the standard is “no

reasonable probability of adverse effects.” Costs are not a consideration in determining the 

appropriate criteria under RCRA section 4004(a).

Comment Number: EPA-HQ-RCRA-2009-0640-08840-15

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. Location Restrictions for Existing Landfills and Surface Impoundments

EPA is proposing to apply a number of location restrictions on existing landfills and surface 

impoundments. New and existing landfills and surface impoundments would be prohibited in 

flood plains and unstable areas. New landfills and surface impoundments, as well as existing 

surface impoundments would also be prohibited from being located in wetlands, fault areas, or 

seismic impact zones, and must be located at least two feet above the natural water table. 75 Fed. 

Reg. at 35241-35243. EPGA is especially concerned with the requirement that the existing 

surface impoundments are subject to all these location restrictions. 75 Fed. Reg. at 35198-35199. 

This is inconsistent with past rulemaking and is not justified in the proposed rulemaking.

As mentioned above, there is no reason to force the closure of existing landfills and surface 

impoundments that are operating safely and effectively simply because they were in operation 

when the rules were promulgated. Here again, EPGA believes that the new requirements for 

ground water monitoring and structural integrity would provide the necessary protections to 

safety and the environment for these existing facilities

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface 

impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA 

maintains its determination that application of the location standards to existing CCR surface 

impoundments is necessary to achieve the standard in section 4004(a). Absent the location 

restrictions being promulgated, the risk of impacts to human health and the environment from the 

rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In addition, the Agency is finalizing, as proposed, the unstable 

area location restriction for existing CCR landfills because the record clearly shows that failure 

of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all likelihood 

would continue, in the absence of the restrictions in the final rule, to result in damage cases 

where constituents from CCR are released affecting both groundwater and surface waters. As the 

Agency stated in the proposed rule, the impacts resulting from the failure of CCR units from 
51

location instability are of far more concern than any disposal capacity concerns resulting from 

the closure of existing CCR disposal units in unstable areas.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-59

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In addition, the proposed definition of "existing CCR landfill" should be modified to include 

lateral expansions of operating units where such expansion is within the site footprint of an area 

already approved and permitted by the state. There is no environmental or health-based reason 

for not including approved and permitted locations within the definition of an existing CCR 

landfill. The undeveloped portion of the approved permitted site has undergone environmental 

and related technical review by the permitting authorities and has been approved for the location 

of a CCR landfill. To exclude a location that has otherwise already been permitted for a CCR 

landfill from the definition of an "existing" landfill merely because there is not a binding 

contractual commitment to begin construction would unfairly subject these areas to the design 

and operating standards for "new CCR landfills," when identical locations are considered 

"existing CCR landfills" and subject to different operating standards based merely on the 

existence of a contract to commence construction. Such a distinction is arbitrary and capricious 

and provides no practical benefit.

Response: As stated in the preamble and repeated here, EPA agrees with commenters that with 

regard to the “commence construction” provision of the definition, there should be no distinction 

between undeveloped areas where federal, state and local approvals or permits necessary to 

begin physical construction have been obtained, and undeveloped areas that have obtained the 

same approvals but also have a binding contractual agreement in place for the construction of the 

unit. Given the proposed language in the definition, “the owner or operator has entered into 

contractual obligations – which cannot be cancelled or modified without substantial loss – for 

physical construction of the CCR landfill to be completed within a reasonable time,” the Agency 

has concluded, that absent some type of guidance that objectively discusses how “substantial 

loss” could be calculated by the owner or operator, the purpose and/or effect of this requirement 

in meeting the objectives of this rule remain unclear. Consequently, the Agency has decided to 

remove this provision from the definition of “existing CCR landfill” but is retaining what the 

Agency considers are the two most important elements of the definition. First, that the owner or 

operator has obtained the federal, state, and local approvals or permits necessary to begin 

physical construction; and second, that a continuous on-site, physical construction program has 

begun (i.e., groundbreaking has occurred). Therefore, EPA is finalizing the definition of 

“existing CCR landfill” as follows.
52

Existing CCR landfill means a CCR landfill that receives CCR both before and after [INSERT 

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER], 

or for which construction commenced prior to [INSERT DATE 180 DAYS AFTER THE DATE 

OF PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after [INSERT 

DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

A CCR landfill has commenced construction if the owner or operator has obtained the federal, 

state, and local approvals or permits necessary to begin physical construction and a continuous 

on-site, physical construction program had begun prior to [INSERT DATE 180 DAYS AFTER 

THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

Comment Number: EPA-HQ-RCRA-2009-0640-09274-15

Organization1:RRI Energy Inc.

Commenter1: S. Dixon

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. Location Restrictions for Existing Landfills and Surface Impoundments

EPA is proposing to apply a number of location restrictions on existing landfills and surface 

impoundments. New and existing landfills and surface impoundments would be prohibited in 

flood plains and unstable areas. New landfills and surface impoundments, as well as existing 

surface impoundments would also be prohibited from being located in wetlands, fault areas, or 

seismic impact zones, and must be located at least two feet above the natural water table. 75 Fed. 

Reg. at 35241-35243. RRI is especially concerned with the requirement that the existing surface 

impoundments are subject to all these location restrictions. 75 Fed. Reg. at 35198-35199.

This is inconsistent with past rulemaking and is not justified in the proposed rulemaking.

As mentioned above, there is no reason to force the closure of existing landfills and surface 

impoundments that are operating safely and effectively simply because they were in operation 

when the rules were promulgated. Here again, RRI believes that the new requirements for ground 

water monitoring and structural integrity would provide the necessary protections to safety and 

the environment for these existing facilities

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface 

impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA 

maintains its determination that application of the location standards to existing CCR surface 

impoundments is necessary to achieve the standard in section 4004(a). In addition, location 

standards in subpart A of 40 CFR 257 for floodplains, endangered species, and surface waters 

continue to apply for all CCR disposal units. Absent the location restrictions being promulgated, 
53

the risk of impacts to human health and the environment from the rapid and catastrophic 

destruction of CCR surface impoundments sited in these sensitive areas would exceed acceptable 

levels. In addition, the Agency is finalizing, as proposed, the unstable area location restriction 

for existing CCR landfills because the record clearly shows that failure of CCR units in these 

areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the 

absence of the restrictions in the final rule, to result in damage cases where constituents from 

CCR are released affecting both groundwater and surface waters. As the Agency stated in the 

proposed rule, the impacts resulting from the failure of CCR units from location instability are of 

far more concern than any disposal capacity concerns resulting from the closure of existing CCR 

disposal units in unstable areas.

Comment Number: EPA-HQ-RCRA-2009-0640-09885-23

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4

Comment Excerpt Text:

EPA should not apply location restrictions to existing surface impoundments or landfills

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 

impoundments and landfills could not be located in floodplains (a requirement that is already in 

effect) or unstable areas. In addition, new surface impoundments and new landfills could not be 

located in wetlands, fault areas or seismic impact zones, and must be located at least two feet 

above the natural water table. Of significant concern, EPA states in the preamble to the proposal 

that it intends to subject existing surface impoundments to all of these new location restrictions 

due to the risks posed by these units. In the corresponding proposed regulatory text, however, 

existing surface impoundments are only subject to the floodplains and unstable area location 

restrictions.

For purposes of these comments, Progress Energy assumes that EPA intends to subject existing 

CCR surface impoundments to the additional location restrictions consistent with the proposal’s 

preamble. Presumably, EPA copied the regulatory text for the regulations applicable to MSWLFs 

as codified at 40 C.F.R. Part 258. Although EPA intends to base the Subtitle D CCR disposal 

unit regulations in large part on the MSWLF regulations, the Agency clearly departs from those 

regulations in proposing to require all existing surface impoundments to comply with the full 

range of location restrictions, a condition that is normally applied only to new units. This is an 

extreme departure from the MSWLFs standards; EPA has not made a compelling justification for 

treating CCR impoundments more harshly than MSWLF units.

Subjecting existing surface impoundments to these location restrictions must be backed by an 

evaluation of the risks posed by facilities in each of these types of locations. Progress Energy is 
54

not aware of structural stability issues directly caused by the placement of surface impoundments 

in wetlands, fault areas, or seismic impact areas of less than two feet above the natural water 

table. More importantly, apparently neither is EPA; the agency does not even begin to assess the 

risks associated with the placement of existing impoundments in these areas and simply asserts 

that the risks associated with impoundments are greater than those associated with landfills, 

citing the TVA spill as an example of the environmental consequences of a “catastrophic 

collapse” of a CCR impoundment. These general assertions do not constitute the type of record 

evidence necessary to impose such sweeping requirements on all existing CCR surface 

impoundments. The agency must conduct a detailed analysis of CCR surface impoundments 

located in these restricted locations and demonstrate, based on this analysis, that there are 

increased risks from these impoundments to justify such a significant departure from how the 

Agency addressed and regulated MSWLFs. 

Progress Energy does not believe that EPA can compile the record evidence necessary to support 

such a regulation. In fact, over the last year and a half since the TVA ash release, EPA has been 

conducting comprehensive structural integrity assessments of utility CCR impoundments across 

the country. The results of EPA’s investigation have not, to date, identified any CCR 

impoundment that presents the imminent threat of a catastrophic release similar to that which 

occurred at TVA’s Kingston facility. Specifically, EPA’s structural assessments rated the 

impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory” – terms commonly used in 

the field of dam safety. EPA explains that, “[e]xpert experience has shown that only 

impoundments rated as ‘unsatisfactory’ pose immediate safety threats.” Of the 120 CCR 

impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating. 

As EPA correctly points out, even those impoundments that received a “fair” or “poor” rating 

may have been found by the inspectors to be structurally sound, but did not receive a 

“satisfactory” rating based primarily on lack of information. Therefore, there is no factual basis 

to assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying 

the imposition of all the location restrictions on existing units; indeed, the record evidence makes 

clear that such restrictions are not warranted

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA has explained the rationale for applying today’s provisions to existing CCR 

surface impoundments, and the commenters have submitted nothing to rebut that rationale. 

Thus, EPA maintains its determination that application of the location standards to existing CCR 

surface impoundments is necessary to achieve the standard in section 4004(a). Absent the 

location restrictions being promulgated, the risk of impacts to human health and the environment 

from the rapid and catastrophic destruction of CCR surface impoundments sited in these 

sensitive areas would exceed acceptable levels. In addition, the Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters.

EPA, disagrees with the commenter's assertion that in order to justify national standards 

applicable to existing surface impoundments that the location restrictions must be backed by an 
55

evaluation of the risks posed by facilities in each of these types of locations. The commenter has 

misstated the standard applicable to this rule. Congress specifically directed EPA to proceed by 

rulemaking to establish minimum national standards under RCRA sections 1008(a) and 4004(a). 

Section 4004(a) does not require a demonstration of actual impacts, merely that these units 

present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record 

demonstrating that the specific location restrictions in the final rule are necessary for CCR 

disposal units (landfills and surface impoundments), as a class, to ensure that there will be no 

reasonable probability of adverse effects on health or the environment. And in this case, as 

discussed in the preamble, the factual record supports the need for all of the location standards 

imposed by today's rule.

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity 

assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-10166-14

Organization1:Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Location (siting) requirements should not apply to existing facilities. Siting requirements are 

intended to help assure that the permitted/licensed surface impoundment or landfill meets 

performance standards. There is no rationale to apply these criteria to existing facilities that 

otherwise meet performance criteria.

Response: the finalized location criteria are minimum national standards under RCRA sections 

1008(a) and 4004(a). The rationale and factual record supporting the application of these 

standards to existing CCR disposal units (surface impoundments and landfills) is extensively in 

the preambles to the proposal and this final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-49

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:
56

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4

Comment Excerpt Text:

B. EPA Should Not Apply Location Restrictions To Existing Surface Impoundments Or 

Landfills

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 

impoundments and landfills could not be located in floodplains (a requirement that is already in 

effect) or unstable areas. Id. at 35242-43 (proposed 40 C.F.R. § 257.64). [Footnote 42: For this 

and a few other location restrictions, disposal units can be located in these locations if they meet 

a design or operating standard sufficient that the risk associated with the location restriction has 

been addressed. ] In addition, new surface impoundments and new landfills could not be located 

in wetlands, fault areas, or seismic impact zones and must be located at least two feet above the 

natural water table. Id. at 35241-42 (proposed 40 C.F.R. §§ 257.60 - 257.63.) Of significant 

concern, EPA states in the preamble to the proposal that it intends to subject existing surface 

impoundments to all of these new location restrictions due to the risks posed by these units. Id. at 

35198-99. In the corresponding proposed regulatory text, however, existing surface 

impoundments are only subject to the floodplains and unstable area location restrictions. See id. 

at 35243 (proposed 40 C.F.R. § 257.65).

USWAG assumes for purposes of these comments that EPA intends to subject existing CCR 

surface impoundments to the additional location restrictions consistent with the proposal‘s 

preamble and that the Agency‘s proposed regulatory text is inaccurate. Presumably, EPA copied 

the regulatory text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. 

Although EPA intends to base the Subtitle D CCR disposal unit regulations in large part on the 

MSWLF regulations, here, the Agency clearly departs from those regulations, requiring all 

existing surface impoundments to comply with the full range of location restrictions, a condition 

that is normally only applied to new units. This is an extreme and draconian departure from the 

MSWLFs standards; EPA has not made a compelling justification for treating CCR 

impoundments more stringently than MSWLF units.

Subjecting existing surface impoundments to these location restrictions must be backed by an 

evaluation of the risks posed by facilities in each of these types of locations. USWAG is not 

aware of structural stability issues directly caused by the placement of surface impoundments in 

wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. 

More importantly, apparently neither is EPA. The Agency does not even begin to assess the risks 

associated with the placement of existing impoundments in these areas. EPA simply asserts that 

the risks associated with impoundments are greater than those associated with landfills and cites 

to the TVA spill as an example of the environmental consequences of a “catastrophic collapse” 

of a CCR impoundment. Id. at 35199. These general assertions, however, do not constitute the 

type of record evidence necessary to impose such sweeping requirements on all existing CCR 

surface impoundments. The Agency must conduct a detailed analysis of CCR surface 

impoundments located in these restricted locations and demonstrate, based on this analysis, that 

there are, in fact, increased risks from these impoundments to justify such a significant departure 

from how the Agency addressed and regulated MSWLFs.
57

USWAG does not believe that EPA can compile the record evidence necessary to support such a 

regulation. In fact, over the last year and a half since the TVA ash release, EPA has been 

conducting comprehensive structural integrity assessments of utility CCR impoundments across 

the country. The results of EPA‘s investigation have not, to date, identified any CCR 

impoundment that presents the imminent threat of a catastrophic release similar to that which 

occurred at TVA‘s Kingston facility. EPA Coal Combustion Residuals Impoundment 

Assessment Reports (available online at 

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/index.htm) (current as of 

Nov. 3, 2010). Specifically, EPA‘s structural assessments rated the impoundments as 

“satisfactory,” “fair,” “poor,” or “unsatisfactory” – terms commonly used in the field of dam 

safety. EPA explains that, “[e]xpert experience has shown that only impoundments rated as 

?unsatisfactory‘ pose immediate safety threats.” Id. Of the 120 CCR impoundments evaluated 

thus far, none of the impoundments received an “unsatisfactory” rating. Id. And, as EPA 

correctly points out, even those impoundments that received a “fair” or “poor” rating may have 

been found by the inspectors to be structurally sound, but did not receive a “satisfactory” rating 

based solely on lack of information. Therefore, there is no factual basis to assert that existing 

CCR impoundments pose the type of risk of catastrophic failure that justify the imposition of all 

the location restrictions on existing units; indeed, the record evidence makes clear that such 

restrictions are not warranted.

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions 

because EPA reasons that such units are structurally less vulnerable than impoundments. Also, 

there would be significant disposal capacity shortfalls if existing CCR landfills located in these 

restricted areas – i.e., wetlands, fault areas or seismic impact areas – had to close. 75 Fed. Reg. at 

35198. USWAG agrees with EPA that existing CCR landfills should not be subject to these 

additional location restrictions and shares EPA‘s concern that subjecting them to such controls 

would cause a significant decrease in disposal capacity.

USWAG shares EPA‘s concern that many CCR landfills are located in areas that would be 

subject to one or more of the above-referenced location restrictions and, while some landfills 

may be able to retrofit or already are in compliance with the performance standard tailored to the 

location restriction, some landfills could be forced to close due to the challenges of attempting to 

retrofit to meet the location-based performance standards. Aside from the fact that there is no 

factual record supporting the application of these additional restrictions to existing landfills, 

closure of these units would create disposal shortfalls. Among other things, unit closures would 

greatly complicate operations at many utilities that would need to find additional disposal 

capacity, requiring utilities to procure new real estate for siting a new landfill (which may be a 

significant distance from a power plant), obtain a new disposal permit for the landfill (which can 

take an extended period of time), and transport significant volumes of CCRs great distances to 

the newly-permitted facilities. There is simply no environmental basis for causing this disruption 

to utility CCR disposal practices by subjecting existing CCR landfills to the full range of location 

restrictions.

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 
58

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” 

The commenter misstates the restrictions for land disposal units located in floodplains, which 

would include all CCR landfills and surface impoundments. For these units the provisions of 

§257.3-1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste 

by waters of a base flood. This is not an outright location ban. As discussed elsewhere in this 

preamble, the five location restrictions apply to all new CCR landfills, all new and existing CCR 

surface impoundments, and all lateral expansions of CCR units; however, existing CCR landfills 

are only subject to the location restriction for unstable areas. CCR disposal units cannot be 

located in wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or 

operator makes a demonstration that the unit meets the requirements of a performance standard 

that serves as the alternative to the location restriction. In addition, the location restriction 

applicable to the base of CCR disposal units (all surface impoundments, existing landfills, and all 

lateral expansions) has been finalized at no less than five feet above the upper limit of the 

uppermost aquifer. Moreover, the existing location standards in subpart A of 40 CFR 257 for 

floodplains, endangered species, and surface waters continue to apply. For most location 

restrictions, existing CCR surface impoundments can continue to operate if they can successfully 

make all applicable demonstrations.

EPA did not propose to impose all location requirements on existing CCR landfills because of 

the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if 

existing CCR landfills in these locations were required to close. As stated in this rule, the 

Agency concluded that the potential disposal capacity shortfalls would pose more environmental 

and public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. However, the Agency is finalizing as proposed the 

unstable area location restriction for existing CCR landfills because the record clearly shows that 

failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all 

likelihood would continue, in the absence of the restrictions in the final rule, to result in damage 

cases where constituents from CCR are released affecting both groundwater and surface waters. 

As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units 

from location instability are of far more concern than any disposal capacity concerns resulting 

from the closure of existing CCR disposal units in unstable areas. Further, EPA believes that 

many facilities will be able to make the requisite demonstrations with the location restrictions. 

Moreover, if a CCR surface impoundment does have to close due to a lack of disposal capacity, 

the facility may be eligible, in certain circumstances, for an extension of time to find additional 

capacity before it must begin closure of the unit. 

EPA disagrees with the commenter's assertion that in order to apply national minimum standards 

to existing CCR surface impoundments, specific risks must first be demonstrated at each location 

based upon an evaluation from each individual unit. First, it is well established that an agency 

may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis 

of an individualized assessment of every entity that will be subject to the rule. And indeed, 

Congress specifically directed EPA to proceed by rulemaking to establish minimum national 

standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a 
59

demonstration of actual impacts, merely that these units present an unacceptable risk of harm. 

Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location 

restrictions in the final rule are necessary for CCR disposal units (landfills and surface 

impoundments), as a class, to ensure that there will be no reasonable probability of adverse 

effects on health or the environment. In this case, the factual record, as extensively discussed in 

the preamble to the proposal to this rule, supports the need for all of the location standards for 

existing CCR surface impoundments imposed by this rule. For most location restrictions 

facilities need to either demonstrate that the surface impoundment meets the performance 

standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the 

performance standard, or close..

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity 

assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Section 4.4.4.2 - EPA seeks comment and additional info regarding extent to which CCR 

LF capacity would be affected by applying proposed location restrictions for floodplains 

and unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, 

karst terraces) to existing CCR LFs; EPA is particularly interested in prevalence of 

existing CCR LFs in floodplains and unstable areas (35198, 35223)

Total Number of Submissions: 12

Total Number of Comments: 12

Comment Number: EPA-HQ-RCRA-2009-0640-02821-5

Organization1:Missouri Coalition for the Environment

Commenter1: Matt Ashley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Another example of the potential for serious coal ash pollution risk is a proposed coal ash landfill 

near Labadie, Missouri. The local electric utility, Ameren UE, is proposing a coal ash landfill 

near its coal plant in the town of Labadie. This proposed landfill site is in a floodplain that was 

beneath ten feet of water in the 1993 flood.[Footnote 1: http://www.fox2now.com/news/ktvilabadie-mo-landfill-concerns_020110,0,2210010.story]

In the event of a flood, even the safest, most regulatory-compliant landfill would be useless in 
60

preventing the escape of coal ash into the water supply and needlessly exposing the public to 

harmful chemicals. Especially since data showing that flood severity and frequency will increase 

in many areas over the next several decades, disposing of coal ash in floodplains creates an 

unnecessary risk.

Response: Existing land disposal units in floodplains are already subject to the locations 

restrictions in 40 CFR 257.3-1, which prohibits practices that restrict flow of the base flood, 

reduce temporary water storage capacity of the floodplain, or result in washout of solid waste so 

as to pose a hazard to human life, wildlife, or land or water resources. EPA encourages states to 

adopt these provisions, and Missouri is free to adopt more stringent standards.

Comment Number: EPA-HQ-RCRA-2009-0640-06196-52

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Battlefield Golf Course potential damage case is an example of the fact that presumably 

protective state provisions did not prevent contamination of an aquifer from CCR land filling. In 

spite of the fact that the Virginia Administrative Code required that CCRs be placed at least two 

feet above the ground water level and be covered by an 18 inch soil cap, onsite wells were 

contaminated by CCRs and threaten to migrate off-site (35231). A requirement that fill or land 

application of CCRs be placed two or more feet from the upper limit of the natural water table is 

not sufficiently protective of human health and the environment because it does not take into 

account rainy periods where aquifer water levels rise above the natural water table. CCR use 

should be totally prohibited in flood plains, wetlands and karst areas. There is evidence that 

heavy rainfall exacerbates CCR contamination. As was documented in the Emory River, elevated 

levels of arsenic, cadmium, chromium and lead were detected after heavy rainfall (35233). 

Groundwater monitoring is an after the fact measure that does not prevent aquifer contamination 

and thus does not justify EPA’s characterization as the “single most critical set of protective 

measures on which EPA is relying.” (35205).

Response: EPA is aware that significant gaps remain in many state regulatory programs, and in 

this final rule, the Agency has not made a final determination regarding their adequacy. In the 

interim, the federal requirements of this rule can be administered by citizen suit enforcement. 

The Agency disagrees with the commenter’s assertion that CCR landfills should be prohibited 

from locating in wetlands, floodplains, and karst areas. In this final rule, new CCR units and 

lateral expansions are prohibited from locating in wetlands and karst areas unless a 

demonstration is made that the unit meets specific performance criteria. CCR units, including 

landfills, located in floodplains are already subject to location restrictions in 40 CFR 257.3-1. 
61

Comment Number: EPA-HQ-RCRA-2009-0640-06198-5

Organization1:Ameren Corporation

Commenter1: Paul R. Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1

Comment Excerpt Text:

IV. Existing Surface Impoundments Or Landfills Location Restrictions 

The proposed Subtitle D standards would impose various location restrictions to new and 

existing CCR surface impoundments and landfills. In particular, new and existing CCR surface 

impoundments and landfills could not be located in floodplains or unstable areas except if they 

meet a design or operating standard sufficient that the risk associated with the location restriction 

has been addressed. Id. at 35242-43 (proposed 40 C.F.R. § 257.64). In addition, new surface 

impoundments and new landfills could not be located in wetlands, fault areas, or seismic impact 

zones and must be located at least two feet above the natural water table. Id. at 35241-42 

(proposed 40 C.F.R. §§ 257.60 - 257.63.) Of significant concern, EPA states in the preamble to 

the proposal that it intends to subject existing surface impoundments to al/ of these new location 

restrictions due to the risks posed by these units. Id. at 35198-99. In the corresponding proposed 

regulatory text, however, existing surface impoundments are only subject to the floodplains and 

unstable area location restrictions. See id. at 35243 (proposed 40 C.F.R. § 257.65). 

We assume for purposes of these comments that EPA intends to subject existing CCR surface 

impoundments to the additional location restrictions consistent with the proposal's preamble and 

that the Agency's proposed regulatory text is inaccurate. Presumably, EPA copied the regulatory 

text for the regulations applicable to MSWLFs as codified at 40 C.F.R. Part 258. Although EPA 

intends to base the Subtitle D CCR disposal unit regulations in large part on the MSWLF 

regulations, here, the Agency clearly departs from those regulations, requiring all existing 

surface impoundments to comply with the full range of location restrictions, a condition that is 

normally only applied to new units. This is a departure from the MSWLFs standards; EPA has 

not made a compelling justification for treating CCR impoundments more harshly than MSWLF 

units. 

Subjecting existing surface impoundments to these location restrictions must be backed by an 

evaluation of the risks posed by facilities in each of these types of locations. Ameren is not aware 

of structural stability issues directly caused by the placement of surface impoundments in 

wetlands, fault areas, or seismic impact areas of less than two feet above the natural water table. 

The Agency does not assess the risks associated with the placement of existing impoundments in 

these areas. EPA simply asserts that the risks associated wtth impoundments are greater than 

those associated with landfills and cites to the TVA spill as an example of the environmental 

consequences of a "catastrophic collapse" of a CCR impoundment. Id. at 35199. The Agency 

must conduct a detailed analysis of CCR surface impoundments located in these restricted 

locations and demonstrate, based on this analysis, that there are, in fact, increased risks from 
62

these Impoundments to justify such a significant departure from how the Agency addressed and 

regulated MSWLFs. 

EPA does not propose subjecting existing CCR landfills to the full range of location restrictions 

because EPA reasons that such units are structurally less vulnerable than impoundments. Also, 

there would be significant disposal capacity shortfalls if existing CCR landfills located in these 

restricted areas - i.e., wetlands, fault areas or seismic impact areas - had to close. 75 Fed. Reg. at 

35198. Ameren agrees with EPA that existing CCR landfills should not be subject to these 

additional location restrictions and shares EPA's concern that subjecting them to such controls 

would cause a significant decrease in disposal capacity. 

Ameren shares EPA's concern that many CCR landfills are located in areas that would be subject 

to one or more of the above-referenced location restrictions and, while some landfills may be 

able to retrofit or already are in compliance with the performance standard tailored to the 

location restriction, some landfills could be forced to close due to the challenges of attempting to 

retrofit to meet the location-based performance standards. Aside from the fact that there is no 

factual record supporting the application of these additional restrictions to existing landfills, 

closure of these units would create disposal Shortfalls. Among other things, unit closures would 

greatly complicate operations at many utilities that would need to find additional disposal 

capacity, requiring utilities to obtain procure new real estate for siting a new landfill (which may 

be a significant distance from a power plant), obtain a new disposal permit for the landfill (which 

can take an extended period of time), and transport significant volumes of CCRs great distances 

to the newly-permitted facilities. There is simply no environmental basis for causing this 

disruption to utility CCR disposal practices by subjecting existing CCR landfills to the full range 

of location restrictions.

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” 

The commenter misstates the restrictions for land disposal units located in floodplains, which 

would include all CCR landfills and surface impoundments. For these units the provisions of 

§257.3-1(b)(3) prohibit disposal practices that would result in the carrying away of solid waste 

by waters of a base flood. This is not an outright location ban. As discussed elsewhere in this 

preamble, the five location restrictions apply to all new CCR landfills, all new and existing CCR 

surface impoundments, and all lateral expansions of CCR units; however, existing CCR landfills 

are only subject to the location restriction for unstable areas. CCR disposal units cannot be 

located in wetlands, seismic impact zones, fault areas, or unstable areas unless the owner or 

operator makes a demonstration that the unit meets the requirements of a performance standard 

that serves as the alternative to the location restriction. In addition, the location restriction 

applicable to the base of CCR disposal units (all surface impoundments, existing landfills, and all 

lateral expansions) has been finalized at no less than five feet above the upper limit of the 

uppermost aquifer. Moreover, the existing location standards in subpart A of 40 CFR 257 for 

floodplains, endangered species, and surface waters continue to apply. For most location 
63

restrictions, existing CCR surface impoundments can continue to operate if they can successfully 

make all applicable demonstrations. 

EPA did not propose to impose all location requirements on existing CCR landfills because of 

the concern that potential disposal capacity shortfalls could result in certain regions of the U.S. if 

existing CCR landfills in these locations were required to close. As stated in this rule, the 

Agency concluded that the potential disposal capacity shortfalls would pose more environmental 

and public health concerns, based on the potential for significant disruption of solid waste 

management state-wide from the closure of these units, than the potential risks from allowing 

existing CCR landfills to remain in these locations, given that these units would be subject to the 

design and operating requirements of the rule. However, the Agency is finalizing as proposed the 

unstable area location restriction for existing CCR landfills because the record clearly shows that 

failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) have and in all 

likelihood would continue, in the absence of the restrictions in the final rule, to result in damage 

cases where constituents from CCR are released affecting both groundwater and surface waters. 

As the Agency stated in the proposed rule, the impacts resulting from the failure of CCR units 

from location instability are of far more concern than any disposal capacity concerns resulting 

from the closure of existing CCR disposal units in unstable areas. Further, EPA believes that 

many facilities will be able to make the requisite demonstrations with the location restrictions. 

Moreover, if a CCR surface impoundment does have to close due to a lack of disposal capacity, 

the facility may be eligible, in certain circumstances, for an extension of time to find additional 

capacity before it must begin closure of the unit. 

EPA disagrees with the commenter's assertion that in order to apply national minimum standards 

to existing CCR surface impoundments, specific risks must first be demonstrated at each location 

based upon an evaluation from each individual unit. First, it is well established that an agency 

may regulate a class of similarly situated [entities] through rulemaking, rather than on the basis 

of an individualized assessment of every entity that will be subject to the rule. And indeed, 

Congress specifically directed EPA to proceed by rulemaking to establish minimum national 

standards under RCRA sections 1008(a) and 4004(a). Second, section 4004(a) does not require a 

demonstration of actual impacts, merely that these units present an unacceptable risk of harm. 

Thus, it is sufficient for EPA to establish a factual record demonstrating that the specific location 

restrictions in the final rule are necessary for CCR disposal units (landfills and surface 

impoundments), as a class, to ensure that there will be no reasonable probability of adverse 

effects on health or the environment. In this case, the factual record, as extensively discussed in 

the preamble to the proposal to this rule, supports the need for all of the location standards for 

existing CCR surface impoundments imposed by this rule. For most location restrictions 

facilities need to either demonstrate that the surface impoundment meets the performance 

standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the 

performance standard, or close. 

EPA further disagrees with the commenter’s claim that the results of EPA’s structural integrity 

assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 
64

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-06251-2

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: We Energies has been required to meet the location restrictions relative to 

wetlands, fault areas and unstable areas as outlined in Sections 257.61, 257.62, 257.63 and 

257.64 of the proposed rule since the inception of Part 115 of PA 641 in Michigan and NR 500 

in Wisconsin. The proposed rules for placement above the natural water table (Section 257.60) 

are not feasible in areas dominated by heavy clay soils, such as Southeast Wisconsin. In areas of 

poorly drained soils, the natural water table as defined in the proposed rule, is typically within a 

few feet of the ground surface in climates such as Wisconsin’s. In order for We Energies to site a 

landfill in the area of our operation in Southeast Wisconsin, we would need to locate the base of 

the liner near the ground surface. Such a development would be extremely inefficient because we 

would need to increase the acreage substantially in order to achieve the necessary disposal 

airspace. 

We would also need to import hundreds of thousands of tons of soil, at great expense of 

economical and natural resources in order to construct liner components, berms and cover 

components to compensate for our inability to attain these necessary soils during excavation for 

the liner base. Wisconsin regulations (NR 500) allow the placement of landfill liners below the 

water table, defined as zone of saturation landfills. We Energies, and other entities, have been 

operating zone of saturation landfills with liners and leachate collection systems for many years 

without any evidence of leachate leakage through these liners. We Energies proposes that the 

EPA rewrite Section 257.60 to allow zone of saturation landfills as currently defined in NR 500 

of the Wisconsin Administrative Code.

Response: EPA understands that in some regions (such as areas of Florida or Wisconsin) it will 

be difficult or impossible to meet this requirement given the hydrogeologic conditions. EPA, 

however, has damage case evidence that implicates failure of some compacted clay liners, in-situ 

clay liners and single membrane liners at CCR disposal facilities. To be most protective, EPA 

believes that CCR surface impoundments should not be sited in sensitive locations. And even 

though costs are not relevant in determining the appropriate criteria under §4004(a), the risks 

from these units absent the five foot buffer between the base and uppermost aquifer being 

promulgated today far outweigh the costs of requiring surface impoundments to close or retrofit. 
65

Comment Number: EPA-HQ-RCRA-2009-0640-06260-76

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Based only on proposed Subtitle D siting restrictions, Kentucky may lose one site: TVA 

Shawnee. The grandfathering of existing sites, with additional safeguards to resist earthquake 

damage or make repairs afterwards, would help alleviate the situation at that disposal facility. 

The owner is converting the surface impoundment to a landfill, so the only site restriction that 

would apply under the Subtitle D option is the stability and floodplain requirements. TVA must 

already have a floodplain permit, leaving stability as the main, but not insurmountable, issue.

Response: EPA disagrees with the commenter’s suggestion to exempt (‘grandfather’) existing 

CCR surface impoundments from requirements of this final rule. The Agency believes the 

impacts resulting from the failure of CCR units from seismic instability are of far more concern 

than any disposal capacity concerns resulting from the closure of existing CCR disposal units in 

fault zones or seismic impact zones.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-35

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It would be problematic if Duke Energy were required to retroactively comply with all of the 

location restrictions or close surface impoundments and landfills, leading to the significant loss 

of storage capacity. 

Response: The factual record, as extensively discussed in the preamble to the proposal to this 

rule, supports the need for all of the location standards for existing CCR surface impoundments 

imposed by this rule. The Agency is finalizing as proposed the unstable area location restriction 

for existing CCR landfills because the record clearly shows that failure of CCR units in these 

areas (e.g., due to instabilities in Karst terrains) have and in all likelihood would continue, in the 

absence of the restrictions in the final rule, to result in damage cases where constituents from 

CCR are released affecting both groundwater and surface waters. For most location restrictions 

facilities need to either demonstrate that the surface impoundment meets the performance 

standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the 
66

performance standard, or close. EPA believes that many facilities will be able to make the 

requisite demonstrations with the location restrictions. Moreover, if a CCR surface 

impoundment does have to close due to a lack of disposal capacity, the facility may be eligible, 

in certain circumstances, for an extension of time to find additional capacity before it must begin 

closure of the unit. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-16

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.3 4.4.4.4 5.6.4

Comment Excerpt Text:

We are not aware of structural stability issues directly caused by the placement of CCR surface 

impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet 

above the natural water table. EPA asserts that the risks associated with impoundments are 

greater than those with landfills, and cites the TVA Kingston release as an example of the 

environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At 

35199. These types of assertions do not constitute the type of evidence necessary to impose all 

the location restrictions on existing CCR surface impoundments. In fact, we do not believe that 

EPA can compile the evidence necessary to support these requirements. EPA has been 

conducting comprehensive structural integrity assessments of utility CCR surface impoundments 

across the country over the last year and a half since the TVA release. The results of EPA's 

investigation have not, to date, identified any CCR surface impoundments that present the 

imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston 

facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online 

at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2lindex.htm). 

Specifically, EPA's contractors conducting the structural assessments rated the impoundments as 

"satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety. 

EPA states that "expert experience has shown that only impoundments rated as "unsatisfactory" 

pose immediate safety threats." Id. Of the 120 CCR surface impoundments evaluated thus far, 

none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as EPA correctly 

points out, even those impoundments that received a "fair" or "poor" rating may have been 

structurally sound but did not receive a "satisfactory" rating based solely on lack of information. 

Therefore, there is no factual basis to assert that existing CCR surface impoundments pose the 

level of risks necessary to require closure of the impoundments or to justify the imposition of all 

the location restrictions on these units. In fact. the evidence clearly demonstrates that such 

restrictions are not warranted. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 
67

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-9

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 4.4.4.3 4.4.4.4 4.4.4.5 4.4.4.6

Comment Excerpt Text:

Siting criteria include: requirements if siting in a 100-year floodplain [391-3-4-.05(1)(d)]; 

restrictions on siting in wetlands [391-3-4-.05(1)(e)]; restrictions on siting " ... within 200 feet 

(60 meters) of a fault that has had displacement in Holocene time ... " [391-3-4-.05(1)(f)]; 

restrictions on siting in " ... seismic impact zones ... " [391-3-4-.05(1)(g)]; and restrictions on 

siting in " ... unstable areas ... " [391-3-4-.05(1)(h)]. These requirements are virtually identical to 

the proposed 40CFR257.60-64.

Response: EPA appreciates receiving this information on siting criteria in State of Georgia 

regulations.

Comment Number: EPA-HQ-RCRA-2009-0640-08247-5

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA SHOULD NOT APPLY LOCATION RESTRICTIONS TO EXISTING SURFACE 

IMPOUNDMENT OR LANDFILLS 

New and existing CCR surface impoundments and landfills could not be located in floodplains (a 

requirement that is already in effect) or unstable areas. In addition, new surface impoundments 

and new landfills could not be located in wetlands, fault areas, or seismic impact zones and must 

be located at least two feet above the natural water table. EPA does not propose subjecting 

existing CCR landfills to the full range of location restrictions because EPA reasons that such 

units are structurally less vulnerable than impoundments and that there would be a significant 

disposal capacity shortfalls if existing CCR landfills located in these restricted areas – i.e., 

wetlands, fault areas or seismic impact areas – had to close. 

TEP agrees with EPA that existing CCR landfills should not be subject to these additional 
68

location restrictions and agrees with EPA that subjecting them to such controls would cause a 

significant decrease in disposal capacity. It would also require sites to purchase new lands for 

landfill development, and to determine appropriate transportation for significant volumes of 

CCRs.

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing CCR surface impoundments or landfills. As discussed 

extensively in the preambles to the proposal and final rule, the factual record supports the need 

for all of the location standards imposed by today's rule. Absent the location restrictions being 

promulgated, the risk of impacts to human health and the environment from the rapid and 

catastrophic destruction of CCR surface impoundments sited in these sensitive areas would 

exceed acceptable levels. Moreover, EPA believes that many facilities will be able to make the 

requisite demonstrations with the location restrictions. If a CCR surface impoundment does have 

to close due to a lack of disposal capacity, the facility may be eligible, in certain circumstances, 

for an extension of time to find additional capacity before it must begin closure of the unit. 

Comment Number: EPA-HQ-RCRA-2009-0640-10497-11

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

d. Application of the Unstable Area Restriction to Existing Facilities Is Inappropriate

The subtitle D prime option provides that owners or operators of new or existing CCR landfills 

and surface impoundments “located in an unstable area must demonstrate that engineering 

measures have been incorporated into the landfill, surface impoundment, or lateral expansion 

design to ensure that the integrity of the structural components of the landfill or surface 

impoundment will not be disrupted.” 75 Fed. Reg. 35242 (proposed 40 C.F.R. § 257.64). 

Furthermore, the demonstration must be certified by an independent registered professional. Id. 

If a facility is unable to make this demonstration, the landfill or surface impoundment must close 

within five (5) years and conduct post–closure activities. Id. at 35243 (proposed 40 C.F.R. § 

257.65).

An unstable area is defined as “a location that is susceptible to natural or human induced events 

or forces capable of impairing the integrity of some or all of the CCR landfill or surface 

impoundment...structural components responsible for preventing releases” and includes “karst 

terrains.” Id. at 35243 (proposed 40 C.F.R. § 257.65). In the preamble to the Proposed Rules, 

EPA stated that it intends to include “only those karst terraces in which rapid subsidence and 

sinkhole development have been a common occurrence in recent geologic time.” 75 Fed. Reg. 

35201. EPA also cited to a USGS map entitled “Engineering Aspects of Karst,” published in 

1994 (“Karst Map”), which EPA claims shows many of the karst areas in the United States. Id. 

Notably, the map identifies approximately one third of Florida (primarily central Florida) as an 

area in which extensive historical subsidence has occurred.
69

The subtitle D prime option subjects all new CCR landfills and surface impoundments to the 

existing MSWLF location restrictions, which include wetlands, unstable areas, fault areas and 

seismic areas. 75 Fed Reg 35241-42 (proposed 40 C.F.R §§ 257.61, 257.62, 257.61, 257.64). 

Additionally, the floodplain restriction set forth in 40 C.F.R. 257.3-1 is also applicable. 75 Fed 

Reg 35240 (proposed 40 C.F.R § 257.40). However, only the unstable area and floodplain 

restrictions would be applied to existing CCR landfills and surface impoundments. EPA stated 

that the wetland, fault area and seismic impact area restrictions should not be applied to existing 

CCR landfills and surface impoundments in such areas because they may be forced to close and 

that this “could result in a serious reduction of CCR landfill capacity in those areas.” [Footnote 

10: Seminole agrees that the wetland location restriction should not be applied to existing CCR 

landfills or surface impoundments.] 75 Fed. Reg. 35198.

There is no reason to believe that the application of the unstable area restriction to existing CCR 

landfills and surface impoundments in Florida would not have the same impact. The Karst Map 

cited by EPA identifies central Florida, where the majority of Florida’s CCR landfills are 

located, as an area in which extensive historical subsidence has occurred. On the map, only 

Missouri is identified as having a similar area. Given the concentration of CCR landfills and 

surface impoundments in central Florida, the application of the unstable area restriction could 

have a significant impact on the management of CCRs and may substantially reduce the disposal 

capacity in Florida. The unstable area restriction, therefore, also should not be applied to existing 

landfills.

EPA attempted to justify the application of the unstable area restriction to existing CCR landfills 

and surface impoundments on its belief that impacts caused by the “rapid and catastrophic 

destruction” of CCR landfills in such areas outweighs any disposal capacity concerns. Id. EPA 

did not, however, provide any explanation as to why it believes a sinkhole in an unstable area 

would cause more “rapid” or “catastrophic” destruction of a CCR landfill than an earthquake in a 

seismic area. The distinction, therefore, is arbitrary and capricious. See State Farm, at 43 

(holding that agencies “must examine the relevant data and articulate a satisfactory explanation 

for its action, including a “rational connection between the facts found and the choice 

made”)(internal quotations omitted).

The subtitle D prime option does provide existing facilities with the opportunity to make a 

demonstration that the integrity of the CCR landfill or surface impoundment will not be 

disrupted. Such demonstrations, however, would be extremely difficult given the fact that the 

landfill would already have been constructed and an engineering or subsurface investigation 

would not be possible without disturbing the integrity of the landfill. Additionally, it is unclear 

what engineering measures would be deemed sufficient “to ensure that the integrity of the 

structural components of the landfill or surface impoundment will not be disrupted.” 75 Fed. 

Reg. 35242 (proposed 40 C.F.R. § 257.64).

Seminole has already demonstrated to FDEP that the subsurface will provide support for the 

CCR landfill. Pursuant to its conditions of certification, Seminole was required to provide 

adequate geophysical testing in accordance with the Florida’s Solid Waste Management 

Facilities Rule, Chapter 62-701, F.A.C. See Final Order, XII.11 Specifically, Rule 62-701.410, 

F.A.C. provides that a hydrogeological and geotechnical investigation must be conducted by or 

under a professional engineer with relevant experience. Seminole performed this investigation 

and provided the information to FDEP prior to the construction of the CCR landfill. Seminole 

also performed an investigation for its lateral build out, and is currently awaiting the issuance of 

its construction approval. Consequently, Seminole should not have to obtain additional 
70

certification from a third party professional engineer for its existing CCR landfill or its build out. 

In light of the information already submitted and the approvals obtained, additional certification 

is unwarranted and unnecessary

Response: EPA disagrees with the commenter’s assertion that application of location 

restrictions to existing CCR disposal facilities is inappropriate. The Agency is finalizing, as 

proposed, the unstable area location restriction for existing CCR landfills because the record 

clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terrains) 

have and in all likelihood would continue, in the absence of the restrictions in the final rule, to 

result in damage cases where constituents from CCR are released affecting both groundwater and 

surface waters. As the Agency stated in the proposed rule, the impacts resulting from the failure 

of CCR units from location instability are of far more concern than any disposal capacity 

concerns resulting from the closure of existing CCR disposal units in unstable areas.

The damage cases associated with subsidence and collapse of CCR units in karst areas illustrate 

the vulnerabilities associated with CCR units in unstable areas, and document the relevant data 

behind the Agency’s decision to impose restrictions on CCR disposal units, including existing 

CCR landfills, located in unstable areas, particularly those in karst areas . For example, in 2002 

a 4-acre sinkhole collapsed under a 250 acre ash pond in Cartersville, GA. Over a 3 day period 

2.2 million gallons of ash pond effluent and 1.87 million pounds of ash was discharged from this 

sinkhole to a tributary of the Etowah River above Rome, GA’s drinking water intake. Samples 

collected within the ash footprint in the tributary indicate that concentration of certain metals 

(arsenic, cadmium, chromium, copper, lead, mercury, and nickel) exceeded EPA Region IV 

ecological sediment screening values indicating a potential for ecological affects to aquatic life. 

Sediment concentrations of arsenic were measured at 14ppm dry weight, a level that is over 5 

times the toxic threshold. Biological sampling after the event indicated that benthic organisms in 

the tributary and ash deposition zone were either killed by contaminants or physically smothered. 

The company has since taken steps to grout and fill the sinkhole, although karst geology 

conditions underlying the surface impoundment remain. Ash was removed from the tributary 

bottom. Monetized damages from the release have been estimated at $6.1 million .In another 

damage case at a generating facility in Gallatin, TN, three unlined large capacity ash 

management areas (two active impoundments, one inactive ash disposal area; total area is ~500 

acres, with a combined storage capacity of 15 million cu yds) are located on the bank of the 

Cumberland River, which is common municipal water supply source in the area, including for 

the Gallatin Water Department, which is located just over a mile downstream. Although some of 

the site area is underlain by alluvium, the remainder is underlain by soft soluble limestone 

bedrock or its clay weathering residuum. Karst bedrock and sinkhole activity is present plantwide and has been noted in a facility assessment report as a concern. Sinkholes were identified 

during the 2006 expansion of a fly ash pond, and in 2010, a small sinkhole appeared nearby a 

saddle dike. There is also historical documentation in annual reports from late 1970’s that 

mention uncontrolled leakage into sinkholes associated with the bottom ash pond complex. Onsite groundwater for the inactive ash disposal area is monitored by the facility, and results in 

2008 and 2009 showed on-site exceedances of groundwater protection standards for beryllium, 

cadmium, nickel, and vanadium. EPA believes karst subsurface conditions have not been 

adequately characterized at this facility. The active ash impoundments remain unlined, although 

the facility assessment report has recommended consideration of retrofitting the active ponds 

with liners as part of a long-term strategy to address risks from karst. In developing this damage 
71

case the Agency found no data available for off-site groundwater nearby this facility and 

groundwater quality remains a concern.

The Agency disagrees with the commenter’s claim that an engineering or subsurface 

investigation would not be possible without disturbing the integrity of the landfill. Geophysical 

techniques utilizing ground-penetrating radar or seismic refraction are capable of detecting 

subsurface anomalies, without disturbing landfill integrity, but these should be applied and 

interpreted by a qualified professional engineer or geophysicist. Where paleosinks are suspected,

in-situ geotechnical techniques (e.g., electric piezometer) should be employed to detect subtle 

downward hydraulic gradients. Only where feasible, should subsurface drilling be employed to 

verify the results of geophysical investigations. 

EPA appreciates the commenter’s claim that state agencies have conducted oversight of preconstruction siting of CCR landfills. And it should not be an additional burden to use this same 

information to support compliance with the federal location requirement. However, the Agency 

has not drawn any conclusions on the adequacy of state programs. In the interim, this final rule 

imposes minimum federal criteria, including location standards, with which CCR landfills and 

CCR surface impoundments must comply. As stated in the preamble to this final rule, these 

regulations exist independent of any applicable state criteria, and do not constrain or direct state 

action. Facilities must, therefore, comply with both federal and state criteria simultaneously. 

Comment Number: EPA-HQ-RCRA-2009-0640-10498-16

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

d. Application of the Unstable Area Restriction to Existing Facilities Is Inappropriate

i. A Large Section of Florida May be Classified an Unstable Area as Defined

FDEP has many years experience permitting solid waste disposal facilities in karst terrains. As 

part of the power plant certification process, FDEP has typically required geophysical testing to 

be performed for each CCR landfill or surface impoundment in accordance with its MSWLF 

regulations. In light of this existing process in Florida, and the difficulties inherent in trying to 

certify an existing facility, such certification is unwarranted. 

Response: EPA appreciates the work of Florida state authorities in permitting solid waste 

disposal facilities in karst terrains. However, the Agency has not drawn any conclusions on the 

adequacy of state programs. In the interim, this final rule imposes minimum federal criteria, 

including location standards, with which CCR landfills and CCR surface impoundments must 

comply. As stated in the preamble to this final rule, these regulations exist independent of any 
72

applicable state criteria, and do not constrain or direct state action. Facilities must, therefore, 

comply with both federal and state criteria simultaneously. 

Section 4.4.4.3 - EPA seeks comment and additional info regarding number of existing 

CCR LFs that are located in wetlands (35198); including any comments about EPA is not 

proposing closure of existing CCR LFs in wetlands

Total Number of Submissions: 4

Total Number of Comments: 4

Comment Number: EPA-HQ-RCRA-2009-0640-06251-3

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: All three of our operating landfills in Southeast Wisconsin are sited on parcels 

containing at least some wetlands. Additionally, parcels of land in Southeast Wisconsin that are 

large enough to site a landfill and contain no wetlands are rare. We expect that any new CCR 

landfills sited in Southeast Wisconsin will result in wetland encroachments with associated 

mitigation measures required. Wetlands on landfill properties are already regulated under the 

Clean Water Act and we believe that is the appropriate regulatory jurisdiction.

Response: In support of the provisions finalized under RCRA subtitle D in this rule, EPA is 

citing several damage cases, including 30 cases of “proven” damage to the environment that 

involve aquatic disposal of CCRs, 14 of which involve impacts to wetlands from release of 

CCRs. In addition, other federal laws may be applicable in siting a CCR disposal unit in a 

wetland. These include: Sections 401, 402, and 404 of the Clean Water Act; the Rivers and 

Harbors Act of 1989; the National Environmental Policy Act; the Migratory Bird Conservation 

Act; the Fish and Wildlife Coordination Act; the Coastal Zone Management Act; the Wild and 

Scenic Rivers Act; and the National Historic Preservation Act. The use of a wetlands location 

for a CCR disposal unit may also require a permit from the U.S. Army Corps of Engineers. To 

the extent these are applicable, compliance with these RCRA criteria does not alleviate the need 

to comply with these other federal requirements, and the owner or operator of the facility 

remains responsible for ensuring compliance with all applicable Federal and state requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06352-15

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau
73

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.4

Comment Excerpt Text:

B. There appears to be a conflict between the preamble text and the proposed regulatory 

language regarding location restrictions applicable to surface impoundments. In the preamble 

text, USEPA states that"... the proposed regulations would apply all of the location restrictions to 

existing surface impoundments, [FN 17: 75 Fed. Reg. at 35198.] (which include restrictions on 

placement above the natural water table, in wetlands, near fault areas, in seismic impact zones, or 

in unstable areas). The corresponding regulatory text at proposed 40 CFR §257.65 would subject 

existing surface impoundments only to the floodplain and unstable area location restrictions. 

DP&L assumes the proposed regulatory text is the actual intended scope of the siting restrictions 

applicable to surface impoundments

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-16

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.4 5.6.4

Comment Excerpt Text:

We are not aware of structural stability issues directly caused by the placement of CCR surface 

impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet 

above the natural water table. EPA asserts that the risks associated with impoundments are 

greater than those with landfills, and cites the TVA Kingston release as an example of the 

environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At 

35199. These types of assertions do not constitute the type of evidence necessary to impose all 

the location restrictions on existing CCR surface impoundments. In fact, we do not believe that 

EPA can compile the evidence necessary to support these requirements. EPA has been 

conducting comprehensive structural integrity assessments of utility CCR surface impoundments 

across the country over the last year and a half since the TVA release. The results of EPA's 

investigation have not, to date, identified any CCR surface impoundments that present the 

imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston 

facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online 

at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2lindex.htm). 

Specifically, EPA's contractors conducting the structural assessments rated the impoundments as 
74

"satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety. 

EPA states that "expert experience has shown that only impoundments rated as "unsatisfactory" 

pose immediate safety threats." Id. Of the 120 CCR surface impoundments evaluated thus far, 

none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as EPA correctly 

points out, even those impoundments that received a "fair" or "poor" rating may have been 

structurally sound but did not receive a "satisfactory" rating based solely on lack of information. 

Therefore, there is no factual basis to assert that existing CCR surface impoundments pose the 

level of risks necessary to require closure of the impoundments or to justify the imposition of all 

the location restrictions on these units. In fact. the evidence clearly demonstrates that such 

restrictions are not warranted. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Section 4.4.4.4 - EPA solicits comment and additional data/info regarding extent to which 

existing CCR LFs are currently located in fault areas, including active Holocene fault 

areas, or in seismic impact areas (35198, 35223); including any comments about EPA is not 

proposing closure of existing CCR LFs in fault areas or seismic impact areas

Total Number of Submissions: 12

Total Number of Comments: 14

Comment Number: EPA-HQ-RCRA-2009-0640-06260-74

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kentucky's regulations do not presently include seismic design standards or requirements for 

fault offset for CCR landfills or ash ponds. Moreover, dating displacement along faults, 

especially those with Quaternary or Holocene displacement, is difficult and requires much work 

and expense. As a consequence, no site-specific fault studies have been completed at CCR 

facilities in the Commonwealth.

However, TVA Shawnee, located near Paducah, is the most probable site to have Holocene 

displacement. There is no site-specific data, though. The Peoria Loess is faulted at the Paducah 

Gaseous Diffusion Plant which is south of the TVA facility. This indicates relatively recent, 
75

although not unequivocally Holocene faulting, given that the Peoria Loess is approximately 

11,500 to 25,000 years old.

Response: EPA appreciates receiving this information on seismic design requirements for CCR 

disposal units in Kentucky. However, the Agency has not drawn any conclusions on the 

adequacy of state programs. In the interim, this final rule imposes minimum federal criteria, 

including location standards, with which CCR landfills and CCR surface impoundments must 

comply. As stated in the preamble to this final rule, these regulations exist independent of any 

applicable state criteria, and do not constrain or direct state action.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-8

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

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

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

a. Any Subtitle D Standards Should Allow CCB Disposal Facilities to Account for Stability 

Issues Associated with Local Geology. 

Southern Company observes that a demonstration of safety in light of sitespecific stability issues 

may require seismic mapping, borings, and other investigations and analysis that will lead to 

development of greater knowledge and understanding of potential risks at a particular site. We 

believe it is safer and more effective to analyze and account for site-specific geological 

conditions than to impose inflexible, centralized, national standards that by their nature do not 

and cannot account for real world conditions at the actual CCB facility site. Accordingly, any 

new standards should allow for a site-specific demonstration of safety rather than imposing rigid 

federal standards. 

The following comments include specific instances that explain why site-specific analysis is 

superior to general, centralized standards, as well as other comments on the particulars of 

proposed location restrictions. 

Seismic impact zones. 

EPA proposes to define seismic impact zones as areas having a 10 percent or greater probability 

that the maximum expected horizontal acceleration in hard rock expressed as a percentage of the 

earth’s gravitational pull (g), will exceed 0.10g in 250 years (10%PE/250y). [Footnote 45: See 

id. at 35201.] Alternatively, EPA proposes to adopt criteria from the National Earthquake 

Hazards Reduction Program (“NEHRP”) of the U.S. Geological Survey (“USGS”)—a ground 
76

motion probability of 2% and a 50-year time period (2%PE/50y).

The NEHRP/USGS 2%PE/50y standard provides a sufficient margin of safety. [Footnote 46: A 

preliminary review indicates approximately 10 plants of Southern Company subsidiaries with 

CCB facilities in seismic impact zones. We note with concern the proposal under the Subtitle C 

option to prohibit CCB facilities in seismic impact zones. See id. at 35181. There is no apparent 

allowance for design professional certification of safe operation. It is unnecessary and 

unreasonable to use a ceiling of PGA=0.1g as an absolute ceiling to site CCR facility. There are 

design and analysis methods available to develop/design safe facilities, even with a higher PGA. 

Further, while Southern Company opposes the use of the MSHA regulations and guidelines as a 

model for CCB impoundment regulations (Part V.B.3. of these comments), the ceiling of PGA = 

0.1g is contrary to existing standards under the MHSA regulations as well as those standards 

governing nuclear facilities. The MSHA design manual for coal refuse facilities includes specific 

procedures to evaluate coal refuse facilities that experience shaking well in excess of 0.1g. 

Further, there is no similar ceiling for the siting of nuclear facilities. Southern Company strongly 

opposes such an restriction.] Based on the recurrence interval, the difference between 2%PE/50y 

and 10%PE/250y is negligible. The recurrence interval would be 2,375 years for the 

10%PE/250y standard and 2,475 years for the 2%PE/50y standard. However, the 2%PE/50y data 

is more accessible and better maintained. NEHRP/USGS resources for probabilistic ground 

motions are widely available and regularly updated to reflect advancements in seismic hazard 

mapping. 

If a screening level for the demonstration of seismic stability such as PGA=0.1g with 2%PE/50y 

is to be established, then the screening level should be set based on engineering review of 

embankments damaged by earthquakes or some other engineering study that demonstrates both 

the safety of structures below the screening limit and the necessity of seismic stability analysis 

above the screening limit. Moreover, if a screening criteria of PGA=0.1g with 2%PE/50y is 

established for demonstration of seismic stability, the screening level should provide uniform 

protection across the United States. First, the screening criteria should incorporate earthquake 

magnitude. Second, the screening criteria should incorporate the accelerations that result from 

the actual site conditions. While large embankment dams may be built directly on rock (where 

the PGA acceleration is applicable), short height CCB facilities tend to be constructed on natural 

soil that may be 100 or more feet thick, thus amplifying bedrock motion. Third, the screening 

criteria should consider the nature of the structure and the frequency of the earthquake 

vibrations. For instance, a tall ash stack may have a significantly different period than a shallow 

incised pond. The spectral acceleration used in the 2009 International Building Code, Section 

1613, is a good example of how the period of the structure can be incorporated in design.

Response: As explained is this finalized rule, the Agency believes coal ash disposal is 

appropriately handled using its Subtitle D authorities. All CCR surface impoundments and new 

CCR landfills are prohibited from locations within seismic impact zones unless the owner or 

operator can demonstrate that all structural components including liners, leachate collection and 

removal systems, and surface water control systems, can withstand the maximum horizontal 

acceleration in lithified earth material for the site. This is not a ban, but a minimum national 

performance standard for new CCR landfills and other CCR disposal facilities located in these 

sensitive areas. Among other benefits, the finalized provisions are designed to prevent potential 

CCR releases from landfills due to seismic shaking. Under today’s finalized rule, a seismic impact 
77

zone means an area having a 2% or greater probability that the maximum expected horizontal 

acceleration, expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 

50 years. Maximum horizontal acceleration in lithified earth material means the maximum 

expected horizontal acceleration at the ground surface as depicted on a seismic hazard map, with 

a 98% or greater probability that the acceleration will not be exceeded in 50 years, or the 

maximum expected horizontal acceleration based on a site-specific seismic risk assessment. For 

units located in seismic impact zones, as part of any demonstration, owners and operators should 

include: (1) a determination of the expected peak ground acceleration from a maximum strength 

earthquake that could occur in the area; (2) a determination of the site-specific seismic hazards 

such as soil settlement; and (3) a facility design that is capable of withstanding the peak ground 

acceleration. Seismic designs broadly should include a response analysis to quantify the 

demands of earthquake motion on facility structures (landfills, surface impoundments, liners, 

covers, leachate collection systems, surface water handling systems), liquefaction analyses of 

both waste and foundation soils to evaluate stability under seismic loading, and a slope stability 

and deformation analyses. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-15

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.3

Comment Excerpt Text:

B. There appears to be a conflict between the preamble text and the proposed regulatory 

language regarding location restrictions applicable to surface impoundments. In the preamble 

text, USEPA states that"... the proposed regulations would apply all of the location restrictions to 

existing surface impoundments, [FN 17: 75 Fed. Reg. at 35198.] (which include restrictions on 

placement above the natural water table, in wetlands, near fault areas, in seismic impact zones, or 

in unstable areas). The corresponding regulatory text at proposed 40 CFR §257.65 would subject 

existing surface impoundments only to the floodplain and unstable area location restrictions. 

DP&L assumes the proposed regulatory text is the actual intended scope of the siting restrictions 

applicable to surface impoundments

Response: In response to the discrepancies between the preamble language and the regulatory 

text, EPA admits that indeed an error was made in drafting the proposed regulatory language for 

the location restrictions as it applies to existing CCR surface impoundments. The regulatory 

language should have included “all surface impoundments” as opposed to only “new surface 

impoundments.” 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-37

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company
78

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The seismic zone location restriction is one example of a restriction that could affect many 

existing facilities. Most of Duke Energy’s stations in the state of Indiana are within a seismic 

zone. Without the ability to demonstrate that the facility is safe, Duke Energy would be required 

to transport CCR a significant distance off-site for disposal. EPA therefore must provide a 

mechanism that allows an electric utility to demonstrate that it has addressed any location/siting 

concerns through engineering controls or other best management practices if such demonstration 

had not already been made prior to construction.

Response: Under this rule, new CCR landfills and all CCR surface impoundments are 

prohibited from locations within seismic impact zones unless the owner or operator can 

demonstrate that all structural components including liners, leachate collection and removal 

systems, and surface water control systems, can withstand the maximum horizontal acceleration 

in lithified earth material for the site. This is not a ban, but a minimum national performance 

standard for new CCR landfills and other CCR disposal facilities located in these sensitive areas.

Comment Number: EPA-HQ-RCRA-2009-0640-06446-11

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. Proposed seismic location restrictions

Estimates have shown that approximately 148 coal-fired plants fall within the proposed 

exclusionary areas. Based on the proposed criteria, nearly 30% of existing coal-fired regulatory 

impact analysis (RIA) plants would not be able to construct new disposal facilities, unless they 

prove the facility can withstand the design seismic event. Although there is some reason to have 

concerns with facilities that contain large quantities of liquids or other materials that flow, CCR 

landfills are basically large blocks of low permeability materials that are unlikely to cause any 

offsite effects even in the event of a major earthquake. Hoosier Energy has not seen any evidence 

that the tremendous cost of hauling large volumes of CCRs offsite meets any cost benefit criteria. 

This is especially true when you consider the idea that hundreds of trucks on the road from 

power plants present a much higher risk of exposure to the citizenry because of accidents, than 

does a single on-site location within the borders of the power plant facility.

Response: EPA disagrees with the commenter’s assertion that CCR landfills are unlikely to 

cause any offsite effects in the event of a major earthquake, and the commenter has provided no 

information to support the assertion. As stated in the preamble to this final rule, stresses 
79

produced during earthquake motion can cause serious damage to landfill integrity via seismically 

induced ground failure and associated rupture of liner systems and subsequent damage to 

leachate collection systems. If the unit is unlined, seismic motion could disrupt landfill caps and 

foundation soils that impede migration of percolating water. Potential damage to CCR disposal 

units resulting from structures located across a fault include surface breakage, cracks and fissures 

between fill and confining slopes, slope failure via landslides, liquefaction-induced lateral 

spreading and settlement of the pile, disruption of surface water and drainage control systems, 

and rupture of leachate collection systems. In impoundments, for example, interior dike failure 

and leakage, and rupture of multilayer liner systems would also be of concern. Failure of the 

leachate collection system may prevent removal of generated leachate, allowing it to pond on the 

liner. If the liner system is ruptured, this may create a pathway for leachate to migrate into and 

contaminate the uppermost aquifer. In addition to the potential damage to leachate collection 

and liner systems, the integrity of the landfill slopes could also be impaired by fault rupture, 

potentially exposing coal combustion residuals to surface runoff. The best protection is to avoid 

locating new CCR landfills and all CCR surface impoundments across faults and fault zones 

subject to displacement. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-16

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.2 4.4.4.3 5.6.4

Comment Excerpt Text:

We are not aware of structural stability issues directly caused by the placement of CCR surface 

impoundments in wetlands, fault areas, or seismic impact areas, or in locations less than two feet 

above the natural water table. EPA asserts that the risks associated with impoundments are 

greater than those with landfills, and cites the TVA Kingston release as an example of the 

environmental consequences of a "catastrophic collapse" of a CCR surface impoundment. ld. At 

35199. These types of assertions do not constitute the type of evidence necessary to impose all 

the location restrictions on existing CCR surface impoundments. In fact, we do not believe that 

EPA can compile the evidence necessary to support these requirements. EPA has been 

conducting comprehensive structural integrity assessments of utility CCR surface impoundments 

across the country over the last year and a half since the TVA release. The results of EPA's 

investigation have not, to date, identified any CCR surface impoundments that present the 

imminent threat of a catastrophic release similar to that which occurred at TVA's Kingston 

facility (EPA Coal Combustion Residuals Impoundment Assessment Reports, available online 

at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2lindex.htm). 

Specifically, EPA's contractors conducting the structural assessments rated the impoundments as 

"satisfactory", "fair", "poor", or "unsatisfactory" terms commonly used in the field of dam safety. 

EPA states that "expert experience has shown that only impoundments rated as "unsatisfactory" 

pose immediate safety threats." Id. Of the 120 CCR surface impoundments evaluated thus far, 
80

none of the impoundments received an "unsatisfactory" rating. Id. Furthermore, as EPA correctly 

points out, even those impoundments that received a "fair" or "poor" rating may have been 

structurally sound but did not receive a "satisfactory" rating based solely on lack of information. 

Therefore, there is no factual basis to assert that existing CCR surface impoundments pose the 

level of risks necessary to require closure of the impoundments or to justify the imposition of all 

the location restrictions on these units. In fact. the evidence clearly demonstrates that such 

restrictions are not warranted. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-34

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Avista is not aware of structural stability issues directly caused by the placement of surface 

impoundments in wetlands, fault areas, or seismic impact areas of less than two feet above the 

natural water table. More importantly, apparently neither is EPA. The Agency has not assessed 

the risks associated with the placement of existing impoundments in these areas. EPA simply 

asserts that the risks associated with impoundments are greater than those associated with 

landfills and cites to the TVA spill as an example of the environmental consequences of a 

“catastrophic collapse” of a CCR impoundment. Id. at 35199. These general assertions, however, 

do not constitute the type of record evidence necessary to impose such sweeping requirements on 

all existing CCR surface impoundments. The Agency must conduct a detailed analysis of CCR 

surface impoundments located in these restricted locations and demonstrate, based on this 

analysis, that there are, in fact, increased risks from these impoundments to justify such a 

significant departure from how the Agency addressed and regulated MSWLFs. 

Response: EPA disagrees with the commenter's assertion that in order to apply national 

minimum standards to existing CCR surface impoundments, specific risks must first be 

demonstrated at each location based upon an evaluation from each individual unit. First, it is 

well established that an agency may regulate a class of similarly situated [entities] through 

rulemaking, rather than on the basis of an individualized assessment of every entity that will be 

subject to the rule. And indeed, Congress specifically directed EPA to proceed by rulemaking to 

establish minimum national standards under RCRA sections 1008(a) and 4004(a). Second, 
81

section 4004(a) does not require a demonstration of actual impacts, merely that these units 

present an unacceptable risk of harm. Thus, it is sufficient for EPA to establish a factual record 

demonstrating that the specific location restrictions in the final rule are necessary for CCR 

disposal units (landfills and surface impoundments), as a class, to ensure that there will be no 

reasonable probability of adverse effects on health or the environment. In this case, the factual 

record, as extensively discussed in the preamble to the proposal to this rule, supports the need for 

all of the location standards for existing CCR surface impoundments imposed by this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-35

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 5.6.4

Comment Excerpt Text:

Avista does not believe that EPA can compile the record evidence necessary to support such a 

regulation. In fact, over the last year and a half since the TVA ash release, EPA has been 

conducting comprehensive structural integrity assessments of utility CCR impoundments across 

the country. The results of EPA’s investigation have not, to date, identified any CCR 

impoundment that presents the imminent threat of a catastrophic release similar to that which 

occurred at TVA's Kingston facility. EPA Coal Combustion Residuals Impoundment Assessment 

Reports (available online at http://www.epa.gov/epawaste/nonhaz/industrial/special/ fossil/ 

surveys2/index.htm) (current as of Nov. 3, 2010). Specifically, EPA’s structural assessments 

rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory” – terms commonly 

used in the field of dam safety. EPA explains that, “[e]xpert experience has shown that only 

impoundments rated as “unsatisfactory” pose immediate safety threats.” Id. Of the 120 CCR 

impoundments evaluated thus far, none of the impoundments received an “unsatisfactory” rating. 

Id. And, as EPA correctly points out, even those impoundments that received a “fair” or “poor” 

rating may have been found by the inspectors to be structurally sound, but did not receive a 

“satisfactory” rating based solely on lack of information. Therefore, there is no factual basis to

assert that existing CCR impoundments pose the type of risks of catastrophic failure justifying 

the imposition of all the location restrictions on existing units; indeed, the record evidence makes 

clear that such restrictions are not appropriate or warranted. 

Response: EPA disagrees with the commenter’s claim that the results of EPA’s structural 

integrity assessments show that the imposition of location requirements on existing units are not 

appropriate or warranted. The risks associated with the catastrophic failure of a CCR surface 

impoundment, while significant, are not the only risks associated with these disposal units, and 

did not form the basis for EPA’s proposed location restrictions. EPA discussed at length the real 

and significant potential for these units to contaminate groundwater and surface water sources of 

drinking water. Moreover, the structural integrity assessments demonstrated that in the absence 
82

of regulatory oversight, serious risks to human health and the environment can arise. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-34

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NDEQ’s regulations use the term “fossil fuel combustion ash” which is equivalent to EPA’s term 

of CCR. NDEQ regulations do not have locational criteria for “fault areas” or “seismic impact 

zones” because in development of its regulations those types of criteria were not identified to be 

prevalent in Nebraska and therefore not relevant to the permitting process. 

Response: EPA appreciates receiving this information on the locational criteria in Nebraska 

DEQ regulations.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-25

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.7

Comment Excerpt Text:

Seismic Zones and Fault Lines: 

Identification of geologic hazards such as seismic zones and fault lines is, in our experience, 

already a requirement of state regulations applicable to solid waste disposal facilities. The 

proximity of any such features to a proposed or existing facility would be a consideration in the 

siting and design of a new facility and would require the application of appropriate mitigating 

engineering solutions at existing facilities. It would also seem that EPA would have sufficient 

information available from the 2009 CCR Surface Impoundment ICR and the subsequent on-site 

structural integrity and safety assessments to determine whether this is an issue that merits 

regulatory concern.

Response: In this rule EPA is establishing minimum national criteria that apply to facilities that 

manage CCRs. As explained extensively in the preamble to the proposal, the Agency has the 

factual information to support new location restrictions. Under the present regulatory structure, 

federal requirements apply directly to facilities, and operate independent of state involvement. 
83

Therefore, the facility owner and operator must simultaneously comply with both existing state 

and federal provisions. As explained in the preamble, EPA believes the additional federal 

protections are necessary to protect health and the environment based on the information that is 

currently available. States are free to impose requirements that are more stringent than the 

requirements of this rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10494-17

Organization1:Electric Power Research Institute (EPRI)

Commenter1:Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3.1

Comment Excerpt Text:

Based on the first proposed seismic impact zone definition, a site’s maximum horizontal ground 

acceleration for an occurrence interval of 10% in 250 years cannot exceed 0.1g (0.981m/s2). If 

the horizontal ground acceleration for that site at the specified interval exceeds 0.1g then, 

according to this criterion, a new disposal facility cannot be constructed at that location, unless 

the facility is designed to resist the maximum horizontal acceleration.

Figure 1 illustrates the coal-fired plants that will be impacted by the proposed seismic impact 

zone criteria. Note that in the figure the seismic impact zone is defined as the area exceeding the 

horizontal ground acceleration criteria for an occurrence interval of 2% in 50 years, rather than 

10% in 250 years. These two occurrence intervals are statistically very similar; the 2% in 50 

years interval was used because the 10%/250-year interval data are dated and are no longer 

supported by the USGS. As shown on the figure, approximately 148 coal-fired plants fall within 

the proposed exclusionary areas. Based on the proposed criteria, nearly 30% of existing coalfired plants listed in the Regulatory Impact Analysis would not be able to construct new disposal 

facilities, unless they prove the facility can withstand the design seismic event.

The alternative approach defines a second method of applying a seismic related standard which 

is to demonstrate stability through the use of the maximum horizontal ground acceleration 

occurring at a site for the suggested interval of 2% in 50 years. Using the suggested 2% in 50 

year occurrence interval and the USGS seismic data, the maximum horizontal ground 

acceleration expected for a given site can be found. Figure 2 illustrates the locations of the coalfired plants and the variability of ground accelerations for the 2% in 50 year interval.

However, if the stability standard is not met, either the facility cannot be built, or, stabilizing 

modifications must be incorporated to the facility’s design. Potential stabilizing modifications 

may include constructing at shallower slopes, mass removal and replacement of unstable soils

under the facility footprint, deep dynamic compaction, and deep soil mixing. Since typical CCR 

facilities and impoundments have large footprint areas, many of the stabilizing improvement 

technologies are likely to have significant cost.
84

[See original attachment for the map of PROPOSED SEISMIC IMPACT ZONES]

[See original attachment for the map of SEISMIC HAZARD MAP]

Response: As explained is this finalized rule, all CCR surface impoundments and new CCR 

landfills are prohibited from locations within seismic impact zones unless the owner or operator 

can demonstrate that all structural components including liners, leachate collection and removal 

systems, and surface water control systems, can withstand the maximum horizontal acceleration 

in lithified earth material for the site. This is not a ban, but a minimum national performance 

standard for new CCR landfills and other CCR disposal facilities located in these sensitive areas. 

Among other benefits, the finalized provisions are designed to prevent potential CCR releases 

from landfills due to seismic shaking. Under today’s finalized rule, a seismic impact zone means 

an area having a 2% or greater probability that the maximum expected horizontal acceleration, 

expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 50 years. 

Maximum horizontal acceleration in lithified earth material means the maximum expected 

horizontal acceleration at the ground surface as depicted on a seismic hazard map, with a 98% or 

greater probability that the acceleration will not be exceeded in 50 years, or the maximum 

expected horizontal acceleration based on a site-specific seismic risk assessment. For units 

located in seismic impact zones, as part of any demonstration, owners and operators should 

include: (1) a determination of the expected peak ground acceleration from a maximum strength 

earthquake that could occur in the area; (2) a determination of the site-specific seismic hazards 

such as soil settlement; and (3) a facility design that is capable of withstanding the peak ground 

acceleration. Seismic designs broadly should include a response analysis to quantify the 

demands of earthquake motion on facility structures (landfills, surface impoundments, liners, 

covers, leachate collection systems, surface water handling systems), liquefaction analyses of 

both waste and foundation soils to evaluate stability under seismic loading, and a slope stability 

and deformation analyses. 

Section 4.4.4.5 - EPA seeks comment and data on whether 200-foot buffer zone from faults 

should be greater for CCR SIs, especially from faults that have experienced displacement 

during Holocene Epoch (35200, 35223)

Total Number of Submissions: 4

Total Number of Comments: 4

Comment Number: EPA-HQ-RCRA-2009-0640-06260-75

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A 200-foot buffer from a fault that displays Holocene displacement is not necessarily protective 
85

from a geological standpoint for two reasons: 1) The assumption that a fault that displays 

Holocene displacement is capable of future movement and one that does not display Holocene 

displacement is not capable of future movement is not easily defensible. 2) Faults are not simple, 

easily defined planes; rather, they are complex zones of fracturing and displacement. If any 

component of a particular fault zone exhibits Quaternary or Holocene displacement, the entire 

fault zone should be considered capable of displacement in the future. Such seismic issues 

should be taken into consideration regarding the construction of sensitive facilities.

Response: EPA agrees with the commenter’s statement that faults are not easily defined planes, 

but complex zones of fracture and displacement, and in the preamble to this final rule the 

Agency has clarified its definition of fault to incorporate new technical information. The 

Agency has also redefined the setback distance to 60 meters (200 feet) from the outermost 

damage zone of a Holocene fault. EPA believes this distance will provide an adequate margin of 

safety to protect the facility from displacements due to surface faulting and any associated 

damage because 60 meters typically covers the zone of deformation where the ground may be 

bent or warped as a consequence of fault movement. By including this as a siting requirement 

for new units the risk of rupture of the unit, including any liner and leachate collection systems, 

due to surface faulting will be minimized.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-9

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

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

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Fault buffer zones. 

EPA is proposing a 200-foot buffer zone between CCB facilities and faults that have experienced 

displacement during the Holocene Epoch. [Footnote 47: 75 Fed. Reg. 35128, 35200 (June 21, 

2010).] EPA does not explain the basis for requiring a 200-foot setback distance. Southern 

Company concurs that siting a facility directly on top of an active fault is not advisable. 

However, we believe that an across-the-board, uniform 200-foot offset distance fails to account 

for regional and site-specific variations in the nature of faulting. Some faults may produce 

ground motions that are different in nature or more destructive to nearby CCB facilities than 

others. Given the variations in geology across the United States, EPA should consider sitespecific analysis of this issue and allow a qualified design professional to certify safe operation 

of CCB facilities that are located less than 200 feet from a fault. [Footnote 48: A publication by 

the USGS entitled Data for Quaternary faults, liquefaction features and possible tectonic features 

in the Central and Eastern United States, east of the Rocky Mountains, lists a summary of 
86

Quaternary faults, none of which occurs within the service territory of Southern Company 

subsidiaries.]

Response: In the preamble to this final rule the Agency has clarified its definition of fault to 

incorporate new technical information. The Agency has also redefined the setback distance to 60 

meters (200 feet) from the outermost damage zone of a Holocene fault. The Agency believes it is 

best to restrict new CCR landfills and surface impoundments, and all new extensions, to 

locations no less than 60 meters from the outermost damage zone created by an active fault. 

EPA believes this distance will provide an adequate margin of safety to protect the facility from 

displacements due to surface faulting and any associated damage because 60 meters typically 

covers the zone of deformation where the ground may be bent or warped as a consequence of 

fault movement. Also, in this finalized rule, a seismic impact zone has been defined as an area 

having a 2% or greater probability that the maximum expected horizontal acceleration, expressed 

as a percentage of the earth’s gravitational pull (g), will exceed 0.10 g in 50 years. Maximum 

horizontal acceleration in lithified earth material means the maximum expected horizontal 

acceleration at the ground surface as depicted on a seismic hazard map, with a 98% or greater 

probability that the acceleration will not be exceeded in 50 years, or the maximum expected 

horizontal acceleration based on a site-specific seismic risk assessment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06313-58

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It is apparent from the Root Cause Analysis of the failure of the TVA Kingston impoundment 

and aspects of the PPL Martins Creek Basin 1 selenium case that there is a seriously deficient 

appreciation of the peculiar physical properties of coal fly ash in impoundments, the importance 

of the internal structure of the ash bodies in those impoundments to internal water flows, 

pressures and stability, and the consequent mechanical fragility of “wet stacks” of coal fly ash. 

Above grade impoundments are totally dependent on the structural integrity of the dams which 

restrain them, but those dams are likely under more substantial pressure loads than dams 

restraining similar heights and volumes of water. Above grade impoundments in areas subject to 

substantive seismic movement or vibration are dangerous in proportion to their ash stack heights. 

Anytime there is evidence of excessive pressure build up in or around any sampling points or 

dam structures, the impoundment in question should be immediately taken out of use until 

pressures can be relieved and provisions made to assure they will not redevelop. Again in the 

TVA Kingston case disclosed documents clearly showed these conditions arose and were never 

effectively addressed resulting in the catastrophic failure of the impoundment. The dimensions 

and history of that impoundment indicated that due to the probable internal structure of the ash 

fill, it may well have been that effective corrective measures would have been beyond economic 

or technological reach. Similar above ground impoundments in seismically active areas can be 
87

expected to fail at considerably lower heights than the  ̃65 feet above grade height where the 

TVA Kingston failure occurred. The 200-foot setback seems inadequate. 

Response: EPA agrees that facilities in sensitive areas such as fault areas or seismic impact 

zones need to be cognizant of conditions that could lead to excessive pressure buildup or 

otherwise impact structural integrity of CCR surface impoundments or CCR landfills. In this 

final rule the Agency has clarified the definition of fault zone to specify a setback distance of 60 

meters from the outermost damage zone. A setback distance of 60 meters (200 feet) from the 

outermost damage zone of a Holocene fault will provide an adequate margin of safety to protect 

the facility from displacements due to surface faulting and any associated damage because 60 

meters typically covers the zone of deformation where the ground may be bent or warped as a 

consequence of fault movement. By including this as a siting requirement for new units the risk 

of rupture of the unit, including any liner and leachate collection systems, due to surface faulting 

will be minimized. Regardless, existing CCR surface impoundments located in seismic impact 

zones must make a demonstration, certified by a professional engineer, that all containment 

structures, including liners, leachate collection systems, and surface water control systems, are 

designed to resist the maximum horizontal acceleration in lithified earth material from a probable 

earthquake. 

Section 4.4.4.6 - EPA solicits comment on extent to which facilities could comply with 

proposed performance standards that facilities must meet in order to site a new LF or SI or 

a lateral expansion with placement above water table or in wetlands, unstable areas (i.e., 

poor foundation conditions, areas susceptible to mass movement, karst terraces), fault 

areas, or seismic impact zones (35198, 35223)

Total Number of Submissions: 19

Total Number of Comments: 21

Comment Number: EPA-HQ-RCRA-2009-0640-03444-33

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

Location Restrictions (P. 35241)

Rule as proposed

Sec. 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must 

be constructed with a base that is located a minimum of two feet above the upper limit of 

the natural water table.

(b) For purposes of this section, natural water table means the natural level at which water 

stands in a shallow well open along its length and penetrating the surficial deposits just 

deeply enough to encounter standing water at the bottom. This level is uninfluenced by 

groundwater pumping or other engineered activities.
88

For the geological conditions encountered in Kansas, and the location restrictions currently in 

Kansas solid waste regulations for siting all solid waste landfills, including Subtitle D municipal 

solid waste landfills, this proposed language is confusing and contradictory. Kansas requests this 

section to be modified to read as follows:

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of five feet above the upper limit of the 

uppermost aquifer as defined in proposed regulation 257.40 and certified by a qualified 

groundwater scientist, professional geologist, or professional engineer.

Response: Under § 257.60(a) EPA is requiring new CCR landfills, existing and new CCR 

surface impoundments and all lateral expansions to be constructed with a base that is located no 

less than 1.52 meters (five feet) above the uppermost aquifer. In § 257.60(a) the term 

uppermost aquifer has the same definition as under the general provisions of § 257.40: the 

geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers 

that are hydraulically interconnected with this aquifer within the facility’s property boundary. 

This definition includes a shallow, deep, perched, confined or unconfined aquifer, provided it 

yields usable water. Although EPA originally proposed that all CCR surface impoundments be 

located ‘....above the upper limit of the natural water table’, the Agency is today amending this 

requirement and replacing ‘water table’ with ‘uppermost aquifer’ to make it consistent with the 

way natural underground water sources are described elsewhere in the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-10

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

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

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Karst and other geological circumstances. 

Any number of less-than-ideal geological circumstances may be present at the site of a CCB 

facility. It is not possible, necessary, or advisable for EPA to issue centralized, prescriptive 

requirements that seek to identify every potential issue and impose a predetermined federal 

solution. Rather, the CCB facility owner must undertake site-specific investigations and make 

professional judgments as to what design and engineering responses may be best suited to 
89

provide for proper facility performance with an appropriate margin of safety. 

Before a Southern Company subsidiary builds a new CCB facility, soil and, if present, rock 

borings are conducted in order to determine the subsurface conditions within the planned 

footprint of the disposal facility and to determine the engineering parameters of potential backfill 

materials. Poor foundation conditions are typically addressed by either removal-andreplacement, in-situ soil improvement methods, grouting into rock, or other methods. Southern 

Company performs extensive studies to avoid active karst areas and has spent up to $1 million

per site in such investigations in the past. Again, Southern Company has applied these practices 

notwithstanding the absence of federal regulatory requirements.

Response: While EPA appreciates the commenter’s assertion that the company has spent 

extensive resources on site investigations, current information suggests these practices are not 

required in all States nor are they consistent nationwide. As discussed extensively in the 

preambles to the proposal and this final rule, EPA has established a factual record demonstrating 

that the specific location restrictions in the final rule are necessary for CCR disposal units 

(landfills and surface impoundments), to ensure that there will be no reasonable probability of 

adverse effects on health or the environment. These are minimum national performance 

standards for new CCR landfills and other CCR disposal facilities located in sensitive areas. For 

most location restrictions facilities need to either demonstrate that the CCR disposal unit meets 

the performance standard that serves as the alternative to the prohibition, retrofit the unit so that 

it can meet the performance standard, or close.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-11

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

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

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

b. Siting Issues Associated with Wetlands Should Be Addressed Through the Wetlands Program. 

Any new CCB disposal facilities, or expansions of existing facilities, must obtain a Clean Water 

Act (“CWA”) Section 404 permit if impacts to wetlands or jurisdictional waters are anticipated. 

The Section 404 process and the associated environmental review pursuant to the National 

Environmental Policy Act are sufficient to address impacts to wetlands, including consideration 

of other reasonable sites and facility configurations, alternatives that may allow avoidance of 

wetlands, and appropriate mitigation requirements. EPA states that its wetlands location 

restrictions are “consistent with regulatory provisions currently governing the CWA 404 

program.” [Footnote 49: 75 Fed. Reg. at 35200.] However, it is more accurate to state that the 

requirements unnecessarily overlap with the requirements of the wetlands program as well as 
90

other environmental restrictions such as effluent discharge limits. Adding a wetlands review only 

duplicates the requirements of the Section 404 process. That raises the possibility of differing 

and even conflicting requirements imposed through two separate processes to address exactly the 

same issues at exactly the same facility. Accordingly, to address impacts to wetlands, any 

location restrictions should only require that the facility obtain a wetlands permit if required to 

do so pursuant to CWA Section 404. 

It is common to site power plants near rivers to provide a source of fresh water for steam and to 

allow barge transportation of fuel. That is a matter of operational necessity. Wetlands are also 

often present near rivers. When it is necessary for a plant to develop or expand CCB disposal 

facilities, the Section 404 process is the appropriate vehicle to address any possible impacts to 

wetlands. EPA should not attempt to use location disposal restrictions under RCRA to prejudge 

or second-guess what requirements may or may not be appropriate to preserve and expand 

wetlands areas. 

Any existing facilities presumably either predate the wetlands program, received a valid 

wetlands permit, or did not impact wetlands. None of these circumstances provides cause for 

EPA today to impose retroactive wetlands requirements. To the extent an existing facility is 

located near wetlands, any potential impact is more than adequately addressed by other elements 

of the new CCB program, including groundwater monitoring, effluent discharge limits, and 

structural integrity inspections and standards

Response: In support of the provisions finalized under RCRA subtitle D in this rule, EPA is 

citing several damage cases, including 30 cases of “proven” damage to the environment that 

involve aquatic disposal of CCRs, 14 of which involve impacts to wetlands from release of 

CCRs. In addition, other federal laws may be applicable in siting a CCR disposal unit in a 

wetland. These include: Sections 401, 402, and 404 of the Clean Water Act; the Rivers and 

Harbors Act of 1989; the National Environmental Policy Act; the Migratory Bird Conservation 

Act; the Fish and Wildlife Coordination Act; the Coastal Zone Management Act; the Wild and 

Scenic Rivers Act; and the National Historic Preservation Act. The use of a wetlands location 

for a CCR disposal unit may also require a permit from the U.S. Army Corps of Engineers. To 

the extent these are applicable, compliance with these RCRA criteria does not alleviate the need 

to comply with these other federal requirements, and the owner or operator of the facility 

remains responsible for ensuring compliance with all applicable Federal and state requirements. 

Comment Number: EPA-HQ-RCRA-2009-0640-06411-9

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.2.1

Comment Excerpt Text:

The Department feels strongly that its implementation of the RCRA Subtitle D program over the 
91

past 20+ years more than demonstrates the adequacy of Alabama's Solid Waste program. Under 

our State statutory authority and the associated regulations, ADEM implements a program that 

meets, and in some ways, exceeds the technical and administrative requirements of both the 

existing Subtitle D regulations as well as the proposal.

For example, under the proposed Subtitle D option, new and laterally expanded CCR landfills 

and surface impoundments would be required to be constructed " . . . a minimum of two feet 

above the upper limit of the natural water table. " (See p. 35241, §257.60(a)) Under ADEM's 

Solid Waste program regulations, groundwater elevation measurements must be taken during a 

specified time of the year and disposal facilities must be designed and constructed so that the 

bottom elevation of the liners shall be a minimum of five feet above the highest measured 

groundwater level. (ADEM Admin. Code r. 335-13-4-.11(2)) 

Response: EPA appreciates that the commenter feels strongly about the adequacy of Alabama’s 

RCRA Subtitle D program. However, as stated in the preamble to this final rule, these finalized 

regulations exist independent of any applicable state criteria, and do not constrain or direct state 

action. In response to comments EPA is today finalizing a minimum buffer above the uppermost 

aquifer at five feet instead of two feet, because at least six States, including Alabama, consider 

five feet between the base of the surface impoundment and the top of the uppermost aquifer to be 

a minimum distance that is protective of human health and the environment.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-51

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.2

Comment Excerpt Text:

The location requirements of placement within 2 feet of the top of the water table on p. 35199 of 

the preamble would prohibit new landfills and surface impoundments within 2 feet of natural 

water table. We object to this requirement, as it would affect designs for zone of saturation 

landfills and gradient control systems, which utilities have successfully designed and operated in 

Wisconsin. 

Wisconsin rules (technical requirements in NR 504.06(4) and definition in NR 500.03(263), Wis. 

Adm. Code) allow the use of zone of saturation landfills, which have a long history of use in 

high-clay soil environments in portions of the State. Both clay-lined and composite-lined landfill 

designs have been approved and successfully constructed and operated for many years. This is 

the sort of design that should not be banned because they provide for efficient use of space and 

favorable hydrogeologic formations, in parts of the State where landfill designs above the zone 

of saturation are not practical. This also an example where a Sub D approach is better, as our 
92

plan review staff are familiar with both technical requirements and geological requirements for 

this type of design and can tailor our regulations to individual site conditions. 

Response: As stated in the preamble to this final rule, these regulations exist independent of any 

applicable state criteria, and do not constrain or direct state action. EPA understands that in some 

regions (such as areas of Florida or Wisconsin) it will be difficult or impossible to meet the 

distance buffer requirement above the uppermost aquifer given the hydrogeologic conditions. 

The Agency, however, has damage case evidence that implicates designs that have sited CCRs 

below the zone of saturation, and failure of some compacted clay liners, in-situ clay liners and 

single membrane liners at CCR disposal facilities. To be most protective, EPA believes that CCR 

surface impoundments should not be sited in sensitive locations. And even though costs are not 

relevant in determining the appropriate criteria under §4004(a), the risks from these units absent 

the five foot buffer between the base and uppermost aquifer being promulgated today far 

outweigh the costs of requiring surface impoundments to close or retrofit. 

Comment Number: EPA-HQ-RCRA-2009-0640-06529-38

Organization1:NiSource Corporate Services

Commenter1: Dale A. Helmers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Placement Above Water Table (40 C.F.R. § 257.60)

For many years, landfills have been permitted, successfully operated and constructed in areas 

below the natural water table. This section should allow for the construction of a CCR landfill or 

surface impoundment below the water table if it meets certain performance standards. In 

addition, a determination of a site’s “natural” water table is arbitrary. It is subject to broad 

interpretation by permitting process stakeholders. For example, the definition of natural water 

table does not factor in the hydraulic conductivity of the soil. This could limit the ability to 

excavate in areas of extensive natural low permeability clay. It is also unclear how areas of 

artesian zones would be affected by this definition. Furthermore, it is likely impossible to 

determine the natural water table in areas where pumping or other activities that influence the 

water table have been underway for many years

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some 

commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, 

etc.) that influence the location of the groundwater table making it difficult to determine the 

“natural” level. We have considered other definitions and in today’s final rule have changed the 

criteria to replace “a base that is located above the upper limit of the natural water table” with “a 

base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments 

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six

States consider five feet between the base of the surface impoundment and the top of the 
93

uppermost aquifer to be a minimum distance that is protective of human health and the 

environment. To take into consideration the possibility of such large seasonal fluctuations, EPA 

is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the 

upper limit of the aquifer must be made at a point nearest to the natural ground surface to which 

the aquifer rises during the wet season. The Agency believes that today’s finalized definition of 

“uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter 

than “seasonal high ground water table” because it is more clearly defined. In developing a 

groundwater monitoring program, it is important for an owner/operator to consider seasonal or 

temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost 

aquifer A owner/operator should determine not only the location of water resources, but the 

sources and source patterns that contribute to or affect groundwater patterns below the regulated 

site.

Comment Number: EPA-HQ-RCRA-2009-0640-06532-32

Organization1:Southern Illinois Power Cooperative

Commenter1: Leonard F. Hopkins

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Placement Above Water Table (40 C.F.R. § 257.60)

For many years, landfills have been permitted, successfully operated and constructed in areas 

below the natural water table. This section should allow for the construction of a CCR landfill or 

surface impoundment below the water table if it meets certain performance standards. In 

addition, a determination of a site’s natural water table is arbitrary. It is subject to broad 

interpretation by permitting process stakeholders including project advocates, regulatory 

agencies, and project opponents. For example, the definition of natural water table does not 

factor in the hydraulic conductivity of the soil. Furthermore, it is likely impossible to determine 

the natural water table in areas where pumping or other activities have been underway for many 

years

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some 

commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, 

etc.) that influence the location of the groundwater table making it difficult to determine the 

“natural” level. We have considered other definitions and in today’s final rule have changed the 

criteria to replace “a base that is located above the upper limit of the natural water table” with “a 

base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments 

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six 

States consider five feet between the base of the surface impoundment and the top of the 

uppermost aquifer to be a minimum distance that is protective of human health and the 

environment. To take into consideration the possibility of such large seasonal fluctuations, EPA 

is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the 
94

upper limit of the aquifer must be made at a point nearest to the natural ground surface to which 

the aquifer rises during the wet season. The Agency believes that today’s finalized definition of 

“uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter 

than “seasonal high ground water table” because it is more clearly defined. In developing a 

groundwater monitoring program, it is important for an owner/operator to consider seasonal or 

temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost 

aquifer. An owner/operator should determine not only the location of water resources, but the 

sources and source patterns that contribute to or affect groundwater patterns below the regulated 

site. 

Comment Number: EPA-HQ-RCRA-2009-0640-06846-7

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.2

Comment Excerpt Text:

o In Part 257.60(a) EPA is requiring new CCR landfills, surface impoundments and lateral 

expansions be constructed with a base located a minimum of two feet above the natural water 

table. This requirement will not work in Florida since in many areas the water table is located 

within two feet of the ground surface. The Department believes that if properly designed and 

constructed liner systems are built for these disposal areas, then the ground water will be 

protected. The Department recommends that this rule be changed to clarify that the liner system 

for the disposal area cannot be constructed in contact with the water table unless a demonstration 

can be provided that the liner system will not be damaged.

Response: EPA understands that in some regions (such as areas of Florida or Wisconsin) it will 

be difficult or impossible to meet the distance buffer requirement above the uppermost aquifer 

given the hydrogeologic conditions. The Agency, however, has damage case evidence that 

implicates designs that have sited CCRs below the zone of saturation, and failure of some 

compacted clay liners, in-situ clay liners and single membrane liners at CCR disposal facilities. 

To be most protective, EPA believes that CCR surface impoundments should not be sited in 

contact with the water table And even though costs are not relevant in determining the 

appropriate criteria under §4004(a), the risks from these units absent the five foot buffer between 

the base and uppermost aquifer being promulgated today far outweigh the costs of requiring 

surface impoundments to close or retrofit. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-35

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive
95

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2

Comment Excerpt Text:

Presented below are the locational criteria utilized in NDEQ’s permit program as excerpted from 

the regulations. NDEQ notes that EPA’s proposed locational criteria are similar to NDEQ’s and 

believes these criteria are protective of the environment.

“002 Locational Criteria. New fossil fuel combustion ash disposal areas and lateral expansions of 

existing fossil fuel combustion ash disposal areas shall be located in accordance with the 

standards as described in this section. The application shall include documentation verifying that 

the fossil fuel combustion ash disposal area complies with the following.

002.01 A fossil fuel combustion ash disposal area shall not be located in an area where the 

Department finds that the solid waste activities will have a detrimental effect on the waters of the 

state based on the following criteria:

002.01A Current and projected use of water resources in the potential zone of influence of the 

site;

002.01B Ground water elevation and proposed separation between the lowest point of the lowest 

cell and the predicted maximum water table elevation; areas having high ground water tables 

may be restricted to landfill operations which will maintain a safe vertical distance between 

deposited refuse and the maximum water table elevation;

002.01C Potential interrelationship of the local aquifers, and surface waters based on historical 

records or other sources of information; and

002.01D Background and initial quality of water resources in the potential zone of influence of 

the site.

002.02 The application shall include, a description of the:

002.02A Soil and bedrock to a depth adequate to allow evaluation of the water quality protection 

provided by the soil and bedrock;

002.02B Potential for leachate generation, and of pollution of the waters of the state;

002.02C Ground water condition, including ground water flow below and adjacent to the 

proposed facility, with an appraisal of the effect of the facility on ground water and surface 

waters;

002.02D Name of and distance to nearby surface waters; and

002.02E Land use and population density of the proposed facility and of the area surrounding the 

facility within one mile of the facility boundaries.
96

002.03 No person shall locate a fossil fuel combustion ash disposal area within one thousand 

(1,000) feet from the nearest edge of an existing right-of-way of any state, interstate or federal 

highway unless the active area is screened by natural objects, plantings, fences, or other 

appropriate means so as to not be visible from such highway.

002.04 Floodplains. A new fossil fuel combustion ash disposal area, or a lateral or vertical 

expansion of these facilities, shall not be located in a 100-year flood plain, unless the owner or 

operator can demonstrate that the disposal area will not restrict the flow of the 100-year flood, 

reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste 

so as to pose a hazard to human health and the environment.

002.05 Wetlands. A new fossil fuel combustion ash disposal area or lateral expansion shall not 

be located in wetlands.

002.06 Unstable areas. An owner or operator of a new fossil fuel combustion ash disposal area, 

existing fossil fuel combustion ash disposal area, or lateral expansion located in an unstable area 

shall demonstrate in the permit application that engineering measures have been incorporated 

into the facility's design to ensure that the integrity of the containment systems of a fossil fuel 

combustion ash disposal area will not be disrupted.

002.06A An owner or operator shall consider the following factors, at a minimum, when 

determining whether an area is unstable:

002.06A1 On-site or local soil conditions that may result in significant differential settling;

002.06A2 On-site or local geologic or geomorphologic features; and

002.06A3 On-site or local human-made features or events, both surface and subsurface.

002.06A4 For purposes of this section,

002.06A4(a) "Unstable area" shall mean a location that is susceptible to natural or humaninduced events or forces capable of impairing the integrity of some or all of the facility structural 

components responsible for preventing releases from the facility. This term may include poor 

foundation conditions, areas susceptible to mass movements, and Karst terranes.

002.06A4(b) "Poor foundation conditions" shall mean those areas where features exist which 

indicate that a natural or human-induced event may result in inadequate foundation support for 

the structural components of a solid waste management facility.

002.06A4(c) "Areas susceptible to mass movements" shall mean those areas of influence (i.e., 

areas characterized as having an active or substantial possibility of mass movement) where the 

movement of earth material at, beneath, or adjacent to the solid waste management facility, 

because of natural or human-induced events, results in the down slope transport of soil and rock 

material by means of gravitational influence.
97

002.06A4(c)(1) Areas of mass movement include, but are not limited to, landslides, avalanches, 

debris slides and flows, soil fluction, block sliding, and rock fall.

002.06A4(d) "Karst terranes" shall mean areas where karst topography, with its characteristic 

surface and subterranean features, is developed as the result of dissolution of limestone, 

dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes 

include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind 

valleys.”

Response: EPA appreciates receiving this information regarding NDEQs regulations and permit 

program. However, EPA has made no final determination regarding the adequacy of state 

programs. As stated in the preamble, this final rule imposes no requirements on States to adopt 

these regulations, to develop a permit program, or submit a program covering these units to EPA 

for approval, as subtitle D of RCRA does not provide EPA such authority. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-31

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Proposed Regulation 40 CFR 257.6: Due to fluctuations in groundwater levels that in many 

geological settings can exceed 10 feet over the course of the year, the proposed 2’ minimum 

buffer between the base of the liner and the top of the water table is considered to be 

insufficiently protective. It is recommended that: 

1. The minimum vertical separation be at least 3 feet from the base of the liner components; and 

2. The distance should be measured from the top of the maximum anticipated occurrence of 

groundwater, based on observation of the water table at the site for a specified time such as at 

least a year, geological observations of the formation, and observation of water level fluctuation 

in wells screened in the same formation and in a similar hydrologic setting, where available. 

Response: As explained in the preamble, under finalized § 257.60(a) EPA is requiring new CCR 

landfills, existing and new CCR surface impoundments and all lateral expansions to be 

constructed with a base that is located no less than 1.52 meters (five feet) above the uppermost

aquifer. The Agency recognizes that local site-specific hydrogeologic conditions within the 

aquifer may cause the natural groundwater table to exceed five feet and vary as much as ten feet. 

To take into consideration the possibility of such large seasonal fluctuations, EPA has changed 

the definition of “uppermost aquifer” to specify that the measurement of the upper limit of the 

aquifer must be made at a point nearest to the natural ground surface to which the aquifer rises 

during the wet season. The finalized definition of “uppermost aquifer” will encompass large 
98

seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” 

because it is more clearly defined. 

Comment Number: EPA-HQ-RCRA-2009-0640-08225-18

Organization1:Minnesota Power (ALLETE)

Commenter1: Michael G. Cashin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Water Table Offset and Wetland Requirement, Engineering Standard Alternative. EPA should 

provide for an engineering standard that can be met by facilities that, due to location specific 

considerations, would seek to continue operation without satisfying water table offset or 

wetlands requirements. For example, liner conditions (e.g. clay), hydrological conditions and 

monitoring well analysis should be able to provide a sound science means for variances, that are 

protective of the environment, from water table offset or wet land requirements. 

Response: Since this rule is self-implementing it lacks the oversight provided by a permit 

program. Because of the lack of oversight controls, the EPA has chosen not to include 

provisions for waivers or variances in this final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-41

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

Rule as proposed Sec. 257.60 Placement above the natural water table. 

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must 

be constructed with a base that is located a minimum of two feet above the upper limit of 

the natural water table. 

(b) For purposes of this section, natural water table means the natural level at which water 

stands in a shallow well open along its length and penetrating the surficial deposits just 

deeply enough to encounter standing water at the bottom. This level is uninfluenced by 

groundwater pumping or other engineered activities. 
99

Ohio EPA believes this proposed rule will make it impossible to site a coal combustion residual 

(CCR) landfill or surface impoundment in Ohio. Ohio EPA recommends the proposed rule be 

changed to forbid the siting of a CCR landfill anywhere where the bottom of the CCR landfill 

liner would be within less than 5 feet of the uppermost aquifer. 

The proposed rule requires placement of a CCR landfill or surface impoundment “with a base 

that is located a minimum of two feet above the upper limit of the natural water table.” The 

upper limit of the natural water table is usually within two feet of the ground surface during the 

spring over much of Ohio. This is particularly true of areas with glacial clay drift deposits (about 

50% of the state). In areas with no glacial drift (about 30% of the state), the upper limit of the 

natural high water table is expressed in seepage and spring discharges along hill slopes. This 

leaves areas that while having upper limits of the natural high water table below two feet of the 

ground surface also have vulnerabilities to ground water contamination (i.e. sand and gravel 

deposits, karst areas, etc.). 

The focus of this requirement should not be on the natural water table but instead on the 

uppermost aquifer. This is the resource that can provide water for public and private water 

supplies. The natural water table can be an expression of the uppermost aquifer but usually is an 

expression of seasonally saturated low permeability sediments such as clayey glacial drift. These 

low permeability sediments do not produce enough water to qualify as an aquifer under the 

proposed rules let alone provide enough water for a private or public water supply. 

Ohio has had a requirement for 19 years for landfills disposing of Flue Gas Desulfurization 

(FGD) sludge to maintain 5 feet of separation from the bottom of the landfill liner to the 

uppermost aquifer. This separation distance has proven protective of the aquifer, while allowing 

flexibility in where such landfills can be located.

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some 

commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, 

etc.) that influence the location of the groundwater table making it difficult to determine the 

“natural” level. We have considered other definitions and in today’s final rule have changed the 

criteria to replace “a base that is located above the upper limit of the natural water table” with “a 

base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments 

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six 

States, including Ohio, consider five feet between the base of the surface impoundment (or 

landfill) and the top of the uppermost aquifer to be a minimum distance that is protective of 

human health and the environment. However, to take into consideration the possibility of such 

large seasonal groundwater fluctuations, EPA is finalizing a change to the definition of 

“uppermost aquifer” to specify that measurement of the upper limit of the aquifer must be made 

at a point nearest to the natural ground surface to which the aquifer rises during the wet season. 

The Agency believes that today’s finalized definition of “uppermost aquifer” encompasses large 

seasonal variations, and is a more appropriate parameter than “seasonal high ground water table” 

because it is more clearly defined. 
100

Comment Number: EPA-HQ-RCRA-2009-0640-09239-64

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Placement Above Water Table (40 C.F.R. § 257.60)

For many years, landfills have been permitted, successfully operated and constructed in areas 

below the natural water table. This section should allow for the construction of a CCR landfill or 

surface impoundment below the water table if it meets certain performance standards. In 

addition, a determination of a site's "natural" water table is arbitrary. It is subject to broad 

interpretation by permitting process stakeholders. For example, the definition of natural water 

table does not factor in the hydraulic conductivity of the soil. This could limit the ability to 

excavate in areas of extensive natural low permeability clay. It is also unclear how areas of 

artesian zones would be affected by this definition. Furthermore, it is likely impossible to 

determine the natural water table in areas where pumping or other activities have been underway 

for many years.

Response: EPA agrees that it is prudent to clarify the definition of natural water table. As some 

commenters noted, there are many factors (hydrologic and geologic settings, nearby pumping, 

etc.) that influence the location of the groundwater table making it difficult to determine the 

“natural” level. We have considered other definitions and in today’s final rule have changed the 

criteria to replace “a base that is located above the upper limit of the natural water table” with “a 

base no less than 1.52 meters (five feet) above the uppermost aquifer”. In response to comments 

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six 

States consider five feet between the base of the surface impoundment and the top of the 

uppermost aquifer to be a minimum distance that is protective of human health and the 

environment. To take into consideration the possibility of such large seasonal fluctuations, EPA 

is finalizing a change to the definition of “uppermost aquifer” to specify that measurement of the 

upper limit of the aquifer must be made at a point nearest to the natural ground surface to which 

the aquifer rises during the wet season. The Agency believes that today’s finalized definition of 

“uppermost aquifer” encompasses large seasonal variations, and is a more appropriate parameter 

than “seasonal high ground water table” because it is more clearly defined. In developing a 

groundwater monitoring program, it is important for an owner/operator to consider seasonal or 

temporal variations in groundwater flow patterns that contribute to fluctuations in the uppermost 

aquifer A owner/operator should determine not only the location of water resources, but the 

sources and source patterns that contribute to or affect groundwater patterns below the regulated 

site. 

Comment Number: EPA-HQ-RCRA-2009-0640-09282-14

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews
101

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Distance to Groundwater: 

§257.60 Placement above the natural water table (a) should read: 

“(a) New CCR landfills and lateral expansions and New CCR Surface impoundments and lateral 

expansions must be constructed with a base that is located a minimum of twofour feet above the 

upper limit of the natural water table.”

The above clarifies that lateral expansions of landfills must meet the standard, and that the 

distance from the liner to the upper limit of the natural seasonal high water table should be 

increased from two feet to a minimum of four feet, as is required in North Carolina. 

Response: In response to comments, in this finalized rule §257.60(a) has been modified as 

follows:

§ 257.60 Placement above the uppermost aquifer.

(a) New CCR landfills, existing and new CCR surface impoundments, and all lateral 

expansions of CCR landfills and CCR surface impoundments must be constructed with a base 

that is located no less than 1.52 meters (five feet) above the upper limit of the uppermost aquifer.

EPA is today finalizing this minimum buffer at five feet instead of two feet, because at least six 

States consider five feet between the base of the surface impoundment and the top of the 

uppermost aquifer to be a minimum distance that is protective of human health and the 

environment. In this final rule the Agency is also replacing ‘water table’ with ‘uppermost 

aquifer’ to make it consistent with the way natural underground water sources are described 

elsewhere in the rule. EPA is finalizing a change to the definition of “uppermost aquifer” to 

specify that measurement of the upper limit of the aquifer must be made at a point nearest to the 

natural ground surface to which the aquifer rises during the wet season. The Agency believes 

that today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, 

and is a more appropriate parameter than “seasonal high ground water table” because it is more 

clearly defined.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-20

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
102

Other Sections: 4.7

Comment Excerpt Text:

Section 257.60 Proposed Rule

Sec. 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of two feet above the upper limit of the natural 

water table.

(b) For purposes of this section, natural water table means the natural level at which water stands 

in a shallow well open along its length and penetrating the surficial deposits just deeply enough 

to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or 

other engineered activities.

This proposed language is confusing. We believe that the maximum seasonal high water table is 

a threshold that can be measured through indicators such as soil morphology or field 

measurements and the use of the maximum seasonal high water table is an appropriate measure 

of the upper limit of the natural water table. We request this section to be modified to read as 

follows:

Sec. 257.40- include a new term and definition- "Maximum seasonal water table" means the 

highest level of a saturated zone (the apparent or perched water table) over a continuous period 

of more than two weeks in most years, but not a permanent water table.

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of two feet above the maximum seasonal 

water table as defined in proposed regulation 257.40 and certified by a qualified groundwater 

scientist, professional geologist, or professional engineer.

Response: In this final rule EPA has changed the criteria to replace “a base that is located above 

the upper limit of the natural water table” with “a base no less than 1.52 meters (five feet) above 

the uppermost aquifer”. In response to comments EPA is today finalizing this minimum buffer 

at five feet instead of two feet, because at least six States consider five feet between the base of 

the surface impoundment and the top of the uppermost aquifer to be a minimum distance that is 

protective of human health and the environment. In this final rule the Agency is also replacing 

‘water table’ with ‘uppermost aquifer’ to make it consistent with the way natural underground 

water sources are described elsewhere in the rule. Moreover, EPA is finalizing a change to the 

definition of “uppermost aquifer” to specify that measurement of the upper limit of the aquifer 

must be made at a point nearest to the natural ground surface to which the aquifer rises during 

the wet season. The Agency believes that today’s finalized definition of “uppermost aquifer”

encompasses large seasonal variations, and is a more appropriate parameter than “seasonal high 

ground water table” because it is more clearly defined.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-28

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles
103

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

Pg. 35241, Section 257.60: The definition of “natural water table” should be clarified. As 

written, a natural water table could not be specified with any degree of certainty in many parts of 

Arizona due to long-term and seasonal changes in water levels caused by groundwater pumpage 

and artificial and natural recharge. The proposed definition could potentially be a constantly 

moving target for regulators since water levels in some areas fluctuate significantly in short time 

periods depending on seasonal pumpage for irrigation and other groundwater uses.

Response: EPA agrees that it is prudent to clarify the definition of ‘natural water table’. As 

some commenters noted, there are many factors (hydrologic and geologic settings, nearby 

pumping, etc.) that influence the location of the groundwater table making it difficult to 

determine the “natural” level. We have considered other definitions and in today’s final rule have 

changed the criteria to replace “a base that is located above the upper limit of the natural water 

table” with “a base no less than 1.52 meters (five feet) above the uppermost aquifer”. In 

response to comments EPA is today finalizing this minimum buffer at five feet instead of two 

feet, because at least six States consider five feet between the base of the surface impoundment 

and the top of the uppermost aquifer to be a minimum distance that is protective of human health 

and the environment. To take into consideration the possibility of such large seasonal 

fluctuations, EPA is finalizing a change to the definition of “uppermost aquifer” to specify that 

measurement of the upper limit of the aquifer must be made at a point nearest to the natural 

ground surface to which the aquifer rises during the wet season. The Agency believes that 

today’s finalized definition of “uppermost aquifer” encompasses large seasonal variations, and is 

a more appropriate parameter than “seasonal high ground water table” because it is more clearly 

defined. In developing a groundwater monitoring program, it is important for an owner/operator 

to consider seasonal or temporal variations in groundwater flow patterns that contribute to 

fluctuations in the uppermost aquifer A owner/operator should determine not only the location of 

water resources, but the sources and source patterns that contribute to or affect groundwater 

patterns below the regulated site.

Comment Number: EPA-HQ-RCRA-2009-0640-09880-15

Organization1:FirstEnergy Corporation

Commenter1: Michael L. Horvath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3.1

Comment Excerpt Text:

VII. Incorporation of Seismic Performance
104

16. EPA intends to incorporate seismic performance in section 257.63 of the proposed rule. One 

alternative suggested by EPA is the use of seismic impact zones. A second alternative suggests 

adopting criteria of the National Earthquake Hazards Reduction Program (NEHRP) of the U.S. 

Geological Survey, which was used to develop national seismic hazard maps. It appears the 

horizontal acceleration expressed as 0.01g in 250 years in the agency's first approach closely 

matches the 2% ground motion probability in 50 years that the seismic maps are based upon. 

Considering both standards are established for a hazard level intended to meet building codes for 

occupied buildings, these levels appear to be overly protective for engineered landfills and 

surface impoundment dams, which already contain significant factors of safety in their designs. 

It is also important to consider that a seismic event could pose different types of harm from a 

well constructed wet disposal facility than from an equally well constructed dry disposal facility. 

While a release from a dry disposal site could do some repairable damage on the disposal site 

property, a release from a wet disposal site could have higher potential for off-site damage. Thus, 

FirstEnergy recommends that different seismic parameters be established for dry vs. wet disposal 

facilities as follows:

• New dry disposal landfill seismic location criteria established not to exceed 20% ground 

motion probability in 50 years

• New wet disposal landfill seismic location criteria established not to exceed 10% ground 

motion probability in 50 years

Response: While EPA agrees that seismic hazards posed by facilities could be different on a 

site-specific basis, the commenter has not provided information to support either the claim that 

the seismic performance standard is overly protective for engineered landfills and surface 

impoundment dams, or the claim that wet CCR disposal facilities should have more stringent 

seismic performance requirements than dry CCR disposal facilities. While new CCR units could 

be designed with static factors of safety, without the provisions of this rule those units located in 

seismic impact zones still might not be designed to withstand seismic stresses.

Section 4.4.4.7 - EPA solicits comment on necessary costs to retrofit CCR disposal units to 

meet proposed performance standards on siting facilities with placement above water table 

or in wetlands, unstable areas (i.e., poor foundation conditions, areas susceptible to mass 

movement, karst terraces), fault areas, or seismic impact zones (35198, 35223)

Total Number of Submissions: 8

Total Number of Comments: 8

Comment Number: EPA-HQ-RCRA-2009-0640-06018-5

Organization1:Indiana Department of Environmental Management (IDEM)

Commenter1: Thomas W. Easterly

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
105

Other Sections: 4.4.4.6

Comment Excerpt Text:

One of the examples of a discrepancy between the proposed Subtitle D approach for CCRs and 

MSWLFs is a requirement of placement of CCRs above the water table, which is not a 

requirement for MSWLFs. 

Response: While EPA in its approach to this final rule drew heavily on 40 CFR Part 258 

standards for MSWLFs, there is no statutory requirement that the two rules have equivalent

standards. In developing today’s finalized standards, it is sufficient for EPA to establish a factual 

record demonstrating that the specific location restrictions in the final rule are necessary for CCR 

disposal units (landfills and surface impoundments), as a class, to ensure that there will be no 

reasonable probability of adverse effects on health or the environment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-77

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Most ash landfills and surface impoundments in Kentucky should be able to meet the standards 

for existing facilities. Some lateral expansions of existing surface impoundments would probably 

not meet the above the groundwater table requirement, and might have to close instead. 

Kentucky does not have data on costs to retrofit CCR disposal units to meet the standards.

Response: The Agency appreciates this information from the State of Kentucky on the costs to 

meet the finalized performance standards in this final rule. If a CCR surface impoundment does 

have to close due to a lack of disposal capacity, the facility may be eligible, in certain 

circumstances, for an extension of time to find additional capacity before it must begin closure of 

the unit. 

Comment Number: EPA-HQ-RCRA-2009-0640-06541-4

Organization1:Large Public Power Council (LPPC)

Commenter1: Brian H. Moeck, LPPC Environmental Task Force

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As a threshold matter, it should be noted that the retrofit requirement is tantamount to ordering 

the closure of all existing CCR surface impoundments, because retrofitting is neither realistic nor 
106

practical. In order to retrofit an existing CCR surface impoundment, a facility would either have 

to suspend the generation of electricity, or find replacement capacity to manage the CCRs that 

would be generated during the retrofit process. Even assuming that sufficient space, meeting all 

siting criteria, is available for construction of the replacement capacity, the facility would still 

have to apply for and receive applicable permits for it. Finally, assuming that the facility 

successfully navigates that time-consuming and uncertain process, and then constructs a new 

CCR surface impoundment meeting all liner and stability requirements, there would no longer be 

any reason to retrofit the older unit. Instead, it would be closed. With respect to EPA’s rationale 

for imposing a retrofit requirement under Subtitle D, it would appear that EPA is relying on its 

analysis of CCR “damage cases” and on its quantitative groundwater risk assessment. Id. at 

35202. LPPC respectfully submits that even assuming such information is sufficient to support 

EPA’s preventative approach to the prospective construction of new CCR surface 

impoundments, it does not justify the retroactive application of those requirements to all existing 

CCR surface impoundments – including those that do not present any real threat of 

contamination (for example, because of their location, or because they have liners) – particularly 

when the effect of that retroactive application would be to force the closure of the affected units

Response: EPA disagrees with the commenter’s assertion that the Agency should not apply 

location restrictions to existing surface impoundments or landfills. In the proposed rule 

preamble, EPA explained the rationale for applying today’s provisions to existing CCR surface 

impoundments, and the commenters have submitted nothing to rebut that rationale. Thus, EPA 

maintains its determination that application of the location standards to existing CCR surface 

impoundments is necessary to achieve the standard in section 4004(a). Absent the location 

restrictions being promulgated, the risk of impacts to human health and the environment from the 

rapid and catastrophic destruction of CCR surface impoundments sited in these sensitive areas 

would exceed acceptable levels. In developing the finalized requirements the statute does not 

permit the Agency to consider the costs.

Comment Number: EPA-HQ-RCRA-2009-0640-07799-2

Organization1:Municipal Electric Authority of Georgia (MEAG Power)

Commenter1: Brad Spooner

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA’s proposal that existing CCB surface impoundments must be retrofitted under the Subtitle 

D approach is not a realistic or practical option. There is no discussion in the record of EPA’s 

rationale for imposing such a requirement under the Subtitle D approach, nor is it supported by 

any comprehensive cost-benefit analysis. To the contrary, the available information in the record 

demonstrates that a retrofitting requirement under Subtitle D is unnecessary.

Response: EPA disagrees with the commenter’s assertion that the finalized provisions under 

Subtitle D requires a facility to retrofit an existing CCR surface impoundment. As stated in the 

preamble of the proposal, and finalized today, these location restrictions mean that facilities need 
107

to either demonstrate that the surface impoundment meets the performance standard that serves 

as the alternative to the prohibition, retrofit the unit so that it can meet the performance standard, 

or close. In developing the finalized requirements the statute does not permit the Agency to 

consider the costs.

Comment Number: EPA-HQ-RCRA-2009-0640-08270-2

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1 5.4.1 5.5.2 9.3.8 9.4.7

Comment Excerpt Text:

In addition to the active CCR landfill at NOlihshore Mining, Cliffs also purchased a mine during 

2001 that was in bankruptcy that included a captive coal-fired power plant with a CCR landfill 

that was closed and reclaimed in 1994 and undergoing post closure monitoring with a series of 

groundwater monitoring wells. Over fifteen years of monitoring data clearly demonstrates that 

the landfill is not resulting in a negative impact to the groundwater. Should EPA decide to 

retroactively designate the CCRs in this landfill and the SBP landfill as hazardous waste, it 

would cost several tens of millions of dollars to excavate, transport, and dispose of the CCRs in a 

Subtitle C hazardous waste permitted facility with no environmental benefit. To the contrary,

shipment of the CCRs to a currently permitted hazardous waste facility would needlessly 

consume landfill space that would more appropriately be used for disposal of truly hazardous 

wastes that would, in fact, result in environmental hmm if not disposed in such a landfill. 

Response: As explained is this finalized rule, the Agency believes coal ash disposal is 

appropriately handled using its Subtitle D authorities. Therefore, the commenter is not required 

to incur costs to transport CCR wastes to a hazardous waste permitted facility.