1
A. Safe disposal requirements are technologically feasible and practical

Fortunatel y, there are alternatives to the current methods of disposal responsible for the damage detailed above. 42 U.S.C. §§ 6982(n)(5) directs EPA to study alternatives to current disposal methods, and these factors also compel subtitle C regulation of CCRs.

1. Safe disposal methods are available and technically feasible
EPA admits that improved disposal manageme nt practices, such as the installation of liners and groundwater monitoring, are indeed practical for CCR disposal. 2 Infact, the disposal practices that EPA requires in its subtitle C option are similar to the requirements under subtitle D for municipal solid waste landfills, which have been in effect since 1991. 3 The design standards for municipal solid waste landfills, like EPA’s proposed subtitle C rule, require the use of a composite liner, 4 leachate collection s ys tem, 5 groundwater monitoring, 6 run - on/runoff control sy stem, 7 fugitive dust control 8 and final impermeable cap. 9 Operating standards for municipal solid waste landfills are also similar to the proposed subtitle C requirements and include location restrictions, 10 corrective action, 11 and closure r equirements. 12 No new technologies need to be developed to satisfy

the requirement for installation of these basic landfill controls. Existing technologies have been in use for decades, and can easily be put to use in the CCR context. For the last ten y e ars they

have been applied to the much larger waste stream of municipal solid waste, which, at 253 million tons per y ear, dwarfs the CCR waste stream. 13 Furthermore, EPA estimates that there were roughl y 2,300 municipal solid waste landfills in operation i n 2000, a much larger universe of units on which to impose safeguards and permitting requirements. 14 In fact, in a few states that alread y require basic safeguards for CCR disposal, technologies such as liners, leachate collection sy stems, and groundwater monitoring have been applied successfully and without undue economic burden to the regulated industry or the state regulatory

program. 15

1 2 2010 Proposed Rule, at 75 Fed. Reg. at 35,156. 3 See Criteria for Municipal Solid Waste Landfills, 56 Fed. Reg. 51,016 ( Oct. 9, 1991) (codified at 40 C.F.R. Pt. 258). 4 40 C.F.R. § 258.40 5 Id. 6 40 C.F.R. § 258.51. 7 40 C.F.R. § 258.26. 8 40 C.F.R. § 258.24. 9 40 C.F.R. § 258.60 10 40 C.F.R. §§ 258.10

– 16. 11 40 C.F.R. § 258.58. 12 40 C.F.R. § 258.60. 13 See EPA, Summary of the Municipal Solid Waste Program, http://www.epa.gov/reg3w cmd/solidw astesummary.htm. How ever, the tonnage managed in landfills may be roughly the same, given the high recycling and combustion rates for MSW. 14 See Final Rule, Nonwastewat ers From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants, 70 Fed. Reg. 9144, 9146, available at http://www.epa.gov/wastes/laws

- regs/state/revision/frs/fr206.pdf. 15 See , e.g ., the Wisconsin Department of Natural Resources coal combustion waste regulatory program.104 2. The Capacity of Existing Subtitle C Landfills Is Not Relevant While it is clear that there are commonplace disp osal solution ( e.g. composite liners etc.) that would allow industry to compl y with EPA’s proposed subtitle C rule, industry spreads confusion by

arguing that subtitle C landfilling is not a viable alternative to current methods of disposal. Specifically , the argument is that subtitle C landfill capacit y is too limited to handle the disposal of large volumes of coal ash. While subtitle C hazardous waste landfill capacity is indeed limited, it is not the case that industry will have to send CCR to existing subtitle C facilities. There is no reason to believe that utilities will choose the expensive option of disposal in commercial subtitle C landfills when much less expensive disposal and reuse options will be available to them under the proposed regulatio ns. EPA alread y has come to the obvious conclusion that a subtitle C rule will not shift disposal patterns in a way that substantially increases the disposal of CCR in offsite commercial facilities. 16 EPA assumes, no doubt correctly , that landfills currently receiving CCRs will obtain interim status and subtitle C permits. Certainly , the long lead

- in time afforded b y the proposed subtitle C rule will provide ample time for industry

and state permitting authorities to adequatel y provide needed capacit y o n site or nearb y. 17 Generall y, after EPA lists a new hazardous waste, surface impoundments brought into the subtitle C program must retrofit or close within four ye ars. 18 EPA’s proposed rules for CCR offer an even more generous (and unnecessarily long) 19 gra ce period of seven ye ars. The proposed rules allow existing CCR surface impoundments to continue receiving CCR waste for five ye ars after the proposed regulations take effect, and they authorize an additional two y ears before closure. 20 EPA has emphasized that this grace period is sufficient to “close out existing units, and find or put in place new disposal capacity for these wastes

. 21 Moreover, as a practical matter, the grace period will extend even longer than seven ye ars because the realities of the s tate authorization process under RCRA will likely extend the compliance date. While federal regulations become effective six months after adoption, authorized states must go through the often lengthy process of adopting the regulations in order to impleme nt them. 22 EPA estimates it will take an additional two to eight ye ars for state regulations to become effective. 23 Thus, using a middle

- of

- the

- road estimate that it will generall y take about five years for state regulations to become effective, utilities will have more than ten years to continue disposing of CCR at existing surface impoundments. For instance, if EPA finalizes the RCRA rule for CCR in 2012, utilities could continue using existing CCR surface impoundments until 2022 . In other words, utilities would not be required to dispose of any waste at offsite or onsite landfills of any kind for a decade. Ten y ears is more than enough time for utilities to find or construct alternatives to existing subtitle C disposal faciliti es.

16 2010 Proposed Rule, 75 Fed. Reg. 35,138. 17 Id. 18 See id . at 35,177; see also RCRA § 3005(j); 42 U.S.C. § 6925(j). 19 See Appendix N

. 20 See 2010 Proposed Rule, at 35,176

– 77. 21 Id . at 35,178 (emphasis added). 22 See 2010 Proposed Rule, 75 Fed.Reg. at 35,179, 35,188. Only Iow a and Alaska are not authorized to run RCRA programs. 23 See id . at 35,179.105

Industry itself recognizes that compliance with new closure requirements is achievable within ten ye ars. 24 The proposed rules provide even greater concessions for the continued use of existing CCR landfills. Once the new regulations take effect, newl y constructed or expanded CCR landfills will have to comply with new liner and leachate collection and removal requirements. 25 Existing landfills, however, are exempt under the proposed regulations. 26 In deed, existing CCR landfills are authorized to co ntinue receiving CCRs in perpetuity , subject to minimal requirements such as groundwater monitoring. 27 Utilities can therefore continue using grandfathered CCR landfills for the foreseeable future in lieu of subtitle C facilities. Notably , the majority of utilities currently dispose of CCR waste in on

- site landfills. 28 If utilities were to construct or expand on

- site landfills, this would obviate the need to rel y on off

site subtitle C facilities. For example, under the proposed regulations, utilities c ould create new on - site landfill capacity

in conformance with new standards once existing capacit y is reached. Utilities have made no showing that it would be difficult or impractical to rely on new or expanded on

- site facilities. Finally , the subtitl e C regulations will lessen the volume of CCR waste that will require disposal. CCR waste can provide an affordable and effective substitute for a variet y of materials. 29 By

requiring CCR wastes to be disposed in a safer, more protective manner, disposal costs will increase, and this will prompt generators to take greater advantage of re

- use opportunities. 30 The anticipated increase in re

- use, and the corresponding decrease in disposal, is consistent with EPA’s findings as well as its experience with other hazardous materials. 31 EPA should not allow unsafe practices to continue based on the false premise that CCRs might overwhelm the capacity of existing subtitle C hazardous waste landfills. Existing subtitle C landfills are not the only option for CCR was te disposal in the short

- term or the long

- term. The utility

industry ’s argument that a subtitle C listing of CCR waste would create a crisis due to inadequate hazardous waste landfill capacit y is simply wrong. Accordingly, this issue is a red herring and should not affect EPA’s decision to finalize the proposed regulation of CCR as a special waste under subtitle C of RCRA.

24 See id . at 35,178 (“USWAG has argued strenuously against a closure requirement in the first place, and has asserted that, if such a requirement were imposed, industry would require ten years to comply.”); see also EOP Group, Inc., 2009, Cost Estimates for the Mandatory Closure of Surface Impoundments Used for the Management of Coal Combustion Byproducts at Coal

-Fired Electric Utilities (2009), at 3 (“[I]t is unreasonable to assume that the mandatory closure of all CCB surface impoundments could occur any faster than within ten years of promulgation of a mandatory closure rule.”) 25 See 2010 Proposed Rule, 75 Fed.Reg. at 35,175. 26 See id

. 27 See id. (providing that existing CCR landfills may continue receiving CCR waste but must meet groundwater mo nitoring, corrective action, and other subtitle C requirements). 28 See 2010 RIA , at 4. 29 See, e.g., id. at 149. 30 See id. at 157 (“In fact, EPA concludes that the increased costs of disposal of CCR under subtitle C of RCRA

. . . will actually increase their usage in non

- regulated beneficial uses, simply as a result of the economics of supply and demand.”). 31 See id . S ee als o 2010 Proposed Rule, 75 Fed.Reg. at 35,215.106

F. Analysis of the Costs of Responsible Disposal Confirms the Regulation under Subtitle C is Necessary and Appropriate The costs of responsible CCR disposal are in no way prohibitive. The RIA estimates that the engineering controls, land disposal restrictions, and ancillary requirements associated with federally enforceable Subtitle C standards would cost $1,474 million per year on an annualized basis. The electric power industry can easily

absorb these modest expenditures, which will be distributed among nearl y 500 facilities, and account for about 1% or less of the industry ’s annual operating cost. And even if all of these expen ses are passed along to consumers, the effect on electricit y rates would be negligible. Some power companies alread y face significant liability for the cleanup of CCR sites that are alread y badl y contaminated, or will be in the near future. As EPA has recognized, those liabilities are unavoidable and ought not to be charged to the rule, which is primarily designed to keep CCR damage from spreading even further. For that reason, it is far more important to accuratel y account for the benefits that woul d result from the relativel y small investment in prevention and cleanup that Schedule C standards would require. Each of these points is explained further below.

1. Schedule C proposal would have a negligible impact on operating revenues, electric ity prices, or availability of power Coal

- fired generation accounts for about 45% of US electricity generation, and has actuall y increased nearl y 9% (more than an y other source) in the 12 months ending in August of 2010, compared to the ye ar ending in August of 2009. 32 Operating costs for investor owned power plants exceeded $267 billion in 2008, according to the latest data available from the US Department of Energy

. 33 Coal plant operating costs could approach $120 billion, assuming they are proportio nate to their share of total generation. In that case, spending $1.5 billion to prevent spills and groundwater contamination would amount to a little over 1% of total operating costs for the sector, and that estimate is conservative, as it does not includ e operating costs for publicl y owned plants also subject to the rule. Even if coal plant operating costs are slightly lower, the rule would add little to what is alread y a very large base, and could be recovered from customers with little impact on rates (see below). These costs will certainly vary by plant, e.g., generators with large surface impoundments that must be dewatered and closed will pay more than those with secure dry landfills that could remain open under EPA’s Schedule C proposal. But ope rators sitting on large ash ponds have alread y reaped the benefit of this cheaper disposal option, so it is not unreasonable to expect them to bear a greater share of regulatory costs today

.

32 Energy Info. Admin., U.S. Dep’t of Energy, Electric Pow er Monthly, Executive Summary (Nov. 2010), available at http://www.eia.doe.gov/cneaf/electricity/epm/epm_sum.html. 33 Energy Info. Admin., U.S. Dep’t of Energy, Revenue and Expense Statistics for Major Investor

- owned Utilities, (Jan. 2010), available at http://www.eia.doe.gov/cneaf/electricity/epa/epat8p1.html.107

The estimated cost of the rule will have onl y a minimal impact on electricity rates, even in regions that are more dependent on coal

- fired power plants. The attached anal ys is by the Monitor Group of the likely impact of EPA’s Schedule C proposal found that even if all regulatory

costs were passed through to consumers , electricit y rates would rise between one half and one percent in the first y ear in coal

- dependent states like Indiana, Ohio, Colorado, Tennessee, Wisconsin, Minnesota, and Penns yl vania, and even less in other regions. 34 That one

–time adjustment amounts to less than a dollar per month per household, and is much less than the average rate increase of 3% in electricity prices over the past decade, and the even higher increases that have occurred more recently

. Not surprisingl y, given these minimal impac ts on operating cost and price, the CCR disposal methods required by Subtitle C would not affect reliability of the U.S. electrical grid. As noted elsewhere in our comments, a report issued by the North American Electric Reliability Corp. (NERC) specific ally assessed the extent to which a subtitle C rule would force retirements of existing plants. 35 Even under NERC’s worst

- case anal ys is, less than 0.4 gigawatts would be likely to retire. 36 Infact, NERC concludes that unless disposal costs are forced up to $1000 per ton and above, there would be little impact from EPA’s regulation of coal ash disposal. 37 Since hazardous waste disposal costs are currentl y about $70 per ton, it is extremely unlikel y that coal ash disposal, which requires fewer safeguards th an hazardous waste disposal, could approach even $100 per ton.

2. Cleanup costs are unavoidable Following the TVA Kingston spill in December of 2008, EPA evaluated CCR surface impoundments, and found that at least 49 of these had a “high hazard potentia l,” which means that a structural failure would likely cause loss of human life. 38 While a hazard potential rating does not measure the actual condition of the impoundment, the structural integrit y of 22 of 37 impoundments recentl y inspected b y EPA earned a “fair” or “poor” rating. 39 As noted in the RIA, TVA, Duke Power, and a number of other facilities have recently announced plans to phase out their ash ponds, and other companies are sure to follow. Dam safet y concerns are only one aspect of the problem. The USEPA has identified 67 CCR sites as either “actual” or “potential” damage cases, based on contamination of groundwater or surface water with toxic pollutants like arsenic and selenium. The Env ironmental Integrit y Project, Earthjustice and the Sierra Club have since submitted a detailed analysis, based on

34 See attached Pow er Point from Monitor Group, Impact of Regulation on Coal Combustion Waste: S ummary of Revie w and Analysis 6 (Sept. 23, 2010) (estimating a higher cost for Schedule C regulation prior to publication of proposal, but including some costs that electric generators have either already absorbed, or will incur in the future even in the absence of a new federal standard). 35 North American Energy Reliability Corp., 2010 Special Reliability Scenario Assessment: Resource Adequacy Impacts of Potential U.S. Environmental Regulations (Oct. 2010). 36 Id . at 21. 37 Id . at 22. 38 EPA, Fact Sheet: Coal Com bustion Residues (CCR)

– Surface Impoundments with High Hazard Potential Ratings, (updated Aug. 2009), available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccrs

- fs/. 39 EPA, Coal Combustion Residuals Impoundment Assessments Reports, avai lable at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm108

monitoring data obtained from state files, which identify 70 additional sites that meet the same criteria EPA used to define damage cases (the information has been submitted to the docket). Many of these sites actually

qualify as “open dumps” that are prohibited under federal law, and are therefore must be closed or cleaned up. Federal law defines an open dump as any waste disposal site that poses an unreasonable risk to human health or the environment; under part 257.3

- 4 of the federal solid waste rules (Subtitle D), a leaking landfill or impoundment is an open dump if it elevates arsenic, selenium, and certain other contaminants above primary drinking water standards (MCL ’s) in an aquifer that is or can be used for drinking water. 40 At least 40 of the 70 CCR sites examined in the EIP/Earthjustice/Sierra report have exceeded primary MCL’s defined in the rule, 24 of those within the last five ye ars (data submitted to the docket). If more up

- to

- date primary MCL standards were applicable instead, 50 sites would have alread y triggered the open dumping prohibition, 33 of those in the last five years. States may define an “alternate boundary ” ba sed on certain criteria, but our initial research indicates that almost none have done so. It should be noted that this analy sis is limited to sites in selected states for which reviewers were able to obtain groundwater monitoring data. These sites ar e candidates for closure, if they cannot be cleaned up, based on federal law enacted nearl y 30 ye ars ago. While EPA is prohibited from enforcing these requirements, and citizens have lacked the resources to do so, we do not think closure or cleanup costs that would be required to comply

with Subpart 257.3

- 4 ought to be treated as “new” or assigned to EPA’s proposed Schedule C option, simply because responsible parties have chosen to ignore the law for nearly three decades. When estimating the cost of S chedule C regulations, EPA has attempted to exclude “baseline” expenditures, including those for future cleanups that are likel y to happen an yw ay . We support the Agency ’s anal ys is, but recommend that EPA go further and determine which sites alread y violate the open dumping rules and which sites are likel y to, then evaluate the likely cost of either closing these sites, or cleaning them up to meet the standards of part 257.3

- 4. While some of these expenditures may have been anticipated in EPA’s analy sis, it is not clear that the Agency

looked at all pollutants on the Appendix Ilist in determining either how many sites required cleanup, or the scope of remediation required.

3. The failure to account for benefits The cost of EPA’s proposed Schedule C o ption is quite low, given that it would prevent catastrophic spills or damage to drinking water aquifers that are certain to accumulate in the absence of federally

enforceable standards. But as documented in comments submitted by Frank Ackerman and Liz St anton of the Stockholm Institute, EPA’s Regulatory I mpact Anal ys is falls woefully short of accounting for the benefits of the Subtitle C regulation. These missing benefits, which include non

- cancer health effects, natural resource damages, litigation and damage claims, and the replacement of drinking water supplies, are discussed by Ackerman and Stanton, and the discussion below is limited to several additional concerns not included in their review.

40 42 U.S.C. §§ 6907, 6945; 40 C.F.R. pt. 257.3

- 4.109

Recycling EPA’s Regulatory

I mpact Analy sis monetizes the annual “baseline” benefits of recy cling at more than $25 billion a y ear (Table 5C

- 5). At the urging of the Office of Management and Budget, EPA has included a scenario in which the “stigma” associated with Subtitle C would allegedl y cause these benefi ts to collapse, which tilts the playing field against the kind of standards needed to protect public health. We agree with EPA’s suggestion that responsible recy cling is much more likely

to expand if disposal costs increase, as they would under Subtitle C regulations, and do not agree there is an y reasonable basis for the so

- called stigma effect. The recy cling benefits claimed in EPA’s RIA are almost entirely illusory , as they

assume particulate matter emissions that do not exist or are already being eli minated under Clean Air Act rules, and energy

savings for cement kilns and wallboard manufacturers that are completel y disproportionate to the actual energy consumed in both sectors. Our proposed corrections are based on data from the USEPA, the Department of Energy , and the US Geological Survey , and are documented in the Ackerman/Stanton study , but offer the following additional comments here:
 Virtually

all of the claimed benefits from recy cling accrue from two applications, cement kilns and wallboard manufacturing. As indicated b y the attached chart, based on data from the American Coal Ash Association, CCR recy cling within these sectors has grown very

slowly or not at all since 2001, while lower value land

- based applications like structural fills have grown more rapidly . To the extent that EPA’s anal ys is assumes that all sectors would grow equally but for the “stigma effect” of Subtitle C, that is not supported by the historical data.

 The Agency

needs to be much clearer about the claimed “raw material” savings that result from CCR substitution in cement and wallboard manufacturing, as well as structural fills, and various land applications that is driving the real growth in CCR recy cling markets. For example, Column G of Exhibit 5C

- 1 suggests that recy cling ash to make clinker saves $80 a ton in raw materials, which seems high for the relativel y low cost feedstock that is otherwise used. Sy nthetic gy psum actually

cost slightly more than mined gy

psum in 2008, 41 and both cost less than $9 per ton, so the claimed raw material cost savings of $4.50 to $12 a ton in Exhibit 5C

- 1 are unlikely to be correct. Table 5C

- 1 of the RIA assumes annual savings of $60 million when CCR is used as road base, or about $40 per ton. But the crushed stone and sand and gravel that is normall y used for road base costs less than $10 per ton. 42 Table 5C

- 1 also estimates that the raw material cost of the aggregate replaced b y CCR is also close to $40 per ton, which also seems well above market rates.

41 USGS, Minerals Yearbook: Gypsum, at 33.1, and 33.6, tbl. 1 (Jul. 2010) [Advance Release]. 42 USGS, Minerals Yearbook: Crushed Stone, at 71.1, tbl. 1 (Mar. 2010), available at http://minerals.usgs.gov/minerals/pubs/commodity/stone_crushed/myb1

- 2008

- stonc.pdf.; USGS, Minerals Yearbook: Sand and Gravel (Construction), at 64.4, tbl. 1 (May 2010), available at http://minerals.usgs.gov/minerals/pubs/commodity/sand_&_gravel_construction/myb1

- 2008

- sandc.pdf.110

Some of the raw material savin gs in Exhibits 5C

- 1 and 5C

- 4 may include avoided transportation costs, but that is not explained in the RIA. And to the extent that reduced transportation costs make the difference, that may limit future opportunities for CCR that is generated too far fro m potential markets. Fugitive emissions from coal ash EPA’s Schedule C alternative includes fugitive dust controls and a requirement to cap and close CCR disposal sites. The Agency recognizes that these will likely reduce exposure among workers and near

by communities to particulate matter blown off exposed ash or sludge piles, or stirred up when CCR is transported to and from the disposal site. While only a small fraction of these releases may be comprised of fine particles (PM 2.5), it is important for EPA to monetize the value of reducing even the larger particles that can irritate the lungs and create a public nuisance for those living in proximity to these sites. In addition, EPA should determine the extent to which EPA’s rule will reduce exposure t o PM2.5, and monetize those benefits, which are valued at $486,312 per ton in Table 5C

- 5 of the RIA. The attached table shows 2008 fugitive PM emissions (unspeciated) from CCR transport, storage, disposal, or handing at Texas coal

- fired power plants, as reported to the state’s emission inventory . The data may overcount or undercount PM emissions for som e facilities, as it is compiled from summary

descriptions in the inventory that are not alway s clear. Reported emissions are based on “normal” operations, and therefore do not include much higher releases that may occur, e.g., during windstorms or very dry weather. But even small reductions in fine particles released from CCR sites could make a big difference to public health, e.g,, a 500 ton reduction nationwide would yield benefits of nearly a quarter of a billion dollars a y ear. EPA should arrive at a fair value for these and other benefits to public health and the environment that would result from the modest investment required under the Schedule C option. There is no evidence that the CCR disposal methods required b y subtitle C will adversel y impact the reliability

of the U.S. electric grid. A report issued by the North American Electric Reliability

Corp. (NERC) specifically assessed the extent to which a subtitle C rule would force retirements of existing plants. 43 NERC’s conclusions agree wi th EPA. Even under NERC’s worst

- case anal ys is, less than 0.4 gigawatts would be likely to retire. 44 Infact, NERC concludes that unless disposal costs are forced up to $1000 per ton and above, there will be little impact from EPA’s regulation of coal ash disposal. 45 Inview of the fact that hazardous waste disposal costs are currentl y about $70 per ton, it is extremely unlikel y that coal ash disposal, which requires fewer safeguards than hazardous waste disposal, could approach even $100 per ton. G. Analy sis of the impact of disposal methods mandated under the proposed subtitle C rule indicates that there will be no adverse impact on the use of coal and other natural resources. EPA concludes in the preamble that the disposal methods required under both options,

43 North American Energy Reliability Corp., 2010 Special Reliability Scenario Assessment : Resource Adequacy Impacts of Potential U.S. Environmental Regulations (Oct. 2010). 44 Id . at 21. 45 Id . at 22.111

subtitle C and D, “are not expected to impact the use of coal or other natural resources.” 46 EPA does point out, however, that an increase in beneficial use, which is predicted by EPA under subtitle C, will conserve the natural resources by avoidin g the use of virgin materials, such as gy psum, aggregate, and ingredients in Portland cement. 47
H. The Current and Potential Utilization of Coal Ash Favors Regulation under Subtitle C A subtitle C designation for coal ash will increase the flow of ash t o uses that are genuinely beneficial and prevent sham recy cling under the guise of beneficial use. Regulations that require responsible management of coal ash will increase disposal costs and create a powerful incentive for generators to divert as much of the waste stream as possible to beneficial uses. Opting for either of the weaker regulatory options (“D” or “D prime”) will dampen this economic incentive considerabl y. Industry insists that a “special waste” listing under subtitle C will stigmatize coa l ash and discourage beneficial use. However, there is no evidence to support the speculative argument that a hazardous waste label, much less a “special waste” label, would prompt market play ers including consumers to act against their economic (and envi ronmental) interests, particularl y if EPA is willing to cooperate with industry to educate the public about the environmental benefits afforded b y safe, encapsulated uses. Historicall y, even when EPA has subjected beneficial uses themselves to regulation

— which EPA is not proposing to do here

— beneficial use has onl y increased. There is no reason to believe that beneficial use will diminish under a rule that expressly exempts it from RCRA regulation. To the contrary , effective regulation may

be expecte d to decrease negative public perceptions that arise in response to the serious damage caused by unsafe coal ash disposal and most notably the disastrous TVA Kingston spill. In an y case, EPA cannot reasonabl y or legall y decline to establish the essential safeguards that are needed to address proven threats to human health and the environment in order to accommodate h ypothetical concerns about stigma. As Congress made clear, RCRA is intended first and foremost to protect human health and the environment. To the extent it seeks to encourage recy cling and reuse, it does so with the express intent of reducing the health and environmental threats posed by waste disposal. In short, safet y must trump stigma concerns. 1. Beneficial use will continue to increas e under subtitle C. Beneficial use of coal ash has steadily increased over the past decade, and it should increase at an even greater rate with the passage of a Subtitle C regulatory determination. For a comprehensive anal ys is, see Appendix B. There is a well

- established demand for coal ash that is put to beneficial use, as evidenced b y the annuall y increasing amount of coal ash that is beneficiall y used. See Table 5 (showing increased in beneficial use in every y ear for which there is data available). EPA’s 1999 Report to Congress 48 revealed that in 1997, only 29,176,482 tons of coal ash were reused. 49 In the intervening 11 years, the amount of coal ash reused has more

46 2010 Proposed Rule, 75 Fed. Reg. at 35156. 47 Id. 48 1999 Report to Congress v. 1& 2. 49 Id. at 3

- 36.112

than doubled. Similarly , the percentage of coal ash generated that was reused climbed from 26.8% in 1997 to 44.53% in 2008. 50 Looking at onl y the safe, encapsulated uses of coal ash us es that do not pose actual and potential dangers (see Section II.D.d., supra ), there is an upward trend that should become even more dramatic in the event EPA promulgates a Subtitle C rule for coal ash. For example, use of fly ash in concrete increased by 232,002 short tons between 2001 and 2008. See Attachment 15. Consequently , even if RCRA regulation stops the unsafe uses of coal ash that now are counted as beneficial uses, increase in the use of coal ash in truly beneficial applications would be expec ted to continue based on recent trends. Table 34. Annual Increases in Beneficial Use of Coal Ash 2001 to 2008 YEAR 2001 2002 2003 2004 2005* 2006 2007 2008 COAL ASH REUSE D (short tons) 37,119,3

21 45,523,2

56 46,384,4

05 49,089,8

18 49,612,5

41 54,203,1

70 56,039,0

05 60,593,6

60
% CHANG E FROM PRI OR YEAR N/A 22.6 1.9 5.8 1.1 9.3 3.4 8.1

Source: American Coal Ash Ass’n, Coal Combustion Product Production & Use Survey Reports 2001

–2008, available at http://acaa.affiniscape.com/display common.cfm?an=1& subarticlenbr=3. *Note: In 2005, no data was reported for any reuse in the “FGD/Other” category , so the total was marked zero, which means this number reflected on this chart is lower than the true total reused and that the percent change from the previ ous y ear is likely higher and the percent change to the following ye ar is likely

lower. Based on regulatory

experience, EPA has good reason to predict that beneficial use will increase at a greater and faster rate after promulgation of more stringent regulations under Subtitle C. Since 1980, when EPA first promulgated regulations that listed hazardous wastes pursuant to Section 3001 of RCRA, 51 industry has argued that the stigma of a listing would discourage beneficial reuse, and EPA has properl y rejected those unsubstantiated claims. Thus, in the preamble to the final 1980 regulations, EPA stated: EPA does not agree with the largel y unsubst antiated claims of commenters that controlling the use and recy cling of hazardous waste will necessaril y discourage bona fide, environmentally sound re

- use and reclamation activities . . .

50 Compare 1999 Report to Congress v. 1 &2 ., to American Coal Ash Ass’n, 2008 Coal Combustion Product (CCP) Production & Use Survey Report (2008), available at http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf.

51 42 U.S.C. § 6921.113

Commenters’ claims about the chilling effect of regulating recy cle and re

- use activities also seem somewhat exaggerated. In many cases, Federal or State regulation of these activities should legitimatize, not stigmatize, them in the ey es of the public and increase the flow of wastes to well

- operated facilities. 52
EPA’s stated position in 1980 has proven correct, as set forth in Appendix N, Comments of Rick Fortuna (detailing percentage increases in waste recy cling following EPA regulation). As EPA explains in the proposed rule, more stringent regulation has spurred inc reases in reuse for three related reasons: 1) increasing costs of disposal, but not recy cling, creates a greater economic incentive for generators to recy cle, i.e. recy cling becomes the cheaper option; 2) “ [t]he economic driver

— availability

of a lowcost, f

unctionally

equivalent or often superior substitute for other raw materials

—will continue to make [coal ash] an increasingl y desirable product; and (3 ) “material inevitabl y flows to less regulated applications,” which are less burdensome to those deciding the ultimate fate of the materials. 53 Thus, “EPA’s experience with the RCRA program indicates that industrial generators of RCRA

- regulated wastes are often able to increase recy cling and materials recovery

rates after a subtitle C regulation.” 54 There is n o reason for EPA to second

- guess its well

- founded conclusion in the proposed rule: In summary , based on our experiences, we expect that it will be more likely that the increased costs of disposal of CCRs as a result of regulation of CCR disposal under sub title C would increase their usage in non

- regulated beneficial uses , simply as a result of the economics of supply and demand. 55 This dy namic has play ed out several times over the past thirty y ears, and there is no evidence to suggest that the basic econom ic drivers will not be dispositive again the case of CCRs. See Appendix N.

b. The stigma argument is unfounded. While industry

argues that a stigma will overwhelm these powerful market forces, all of the available evidence supports EPA’s conclusio n that stigmatization of beneficial use is unlikely even if coal ash were listed as a “hazardous waste” as opposed to a “special waste.” EPA states that: EPA’s experience suggests that it is unlikely that a material that is not a waste in the first plac e would be stigmatized, particularl y when used in a consolidated form and while continuing to meet long established product specifications. In fact, EPA’s experience with past waste regulation, and with how hazardous waste and other hazardous materials sub ject to regulation under subtitle C are used and recy cled, suggests that a hazardous waste ‘‘label’’ does not impose a significant

52 U.S. EPA, Final Rule: Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed. Reg. 33,084, 33,092 (May 19, 1980) (to be codified at 40 C.F.R pt. 261). 53 2010 Proposed Rule, at 35,185

– 86. 54 Id. at 35,134. 55 Id. at 35,187 (emphasis added).114

barrier to its beneficial use and that non

- regulated uses will increase as the costs of disposal increase. 56 While industry disputes this conclusion, EPA should not give weight to speculative claims that a Subtitle C listing for coal ash when disposed will “stigmatize” safe reuses. There is no evidence that regulation has created any such stigma in the past, that it will creat e a novel stigma in the case of coal ash, or that any such a stigma would not be effectivel y addressed through simple incentives and public education. i. There is no historical example to support the stigma argument There is no historical evide nce that stronger regulation of wastes stigmatizes safe reuse; as discussed above reuse increases in response to regulation. EPA stated in the preamble that it “does not have sufficient information to conclude that regulation under RCRA subtitle C will st igmatize CCRs destined for beneficial use,” and there do not appear to be any examples of stigmatized subtitle C wastes that prove otherwise. 57 For this reason, EPA has requested information on “actual examples” where concerns about stigma effect were born out over time. 58 However, even the American Coal Ash Association (ACAA), “a trade organization devoted to recy cling the materials created when we burn coal to generate electricity ,” that proclaims to have as members the “world’s foremost experts on coal as h,” cannot produce an example. 59 Ina recent letter to EPA, ACAA conceded that: “Unfortunately we cannot find any

case history information on this subject.” 60

c. There are counter examples that discredit the stigma argument While there are no read y examples of stigma as a result of regulation under the RCRA program, there are important counter

- examples of the way in which RCRA regulation encourages beneficial use. At the outset, it is worth noting that over 1.78 million tons of hazardous waste s were recy cled in the United States in 2007 alone. 61 These wastes include electric arc furnace dust (“EAF” or “steel dust”), electroplating wastewater, chat, used oil, spent enchants, and spent solvents. None of these materials has suffered a diminution in reuse as a result of Subtitle C listing. For example, a high percentage of EAF is recycled precisel y because it was listed by

EPA as a hazardous waste under Subtitle C of RCRA when disposed. 62 As EPA has affirmed, “there is little doubt that without its regulation as a hazardous waste, a

56 Id. , at 35,186. 57 Id. , at 35,159. 58 Id. , at 35,222. 59 ACAA, http://www.acaa

- usa.org/ (last visited Nov. 12, 2010). 60 Letter from Thomas Adams, Exec. Dir., ACAA, to Mathy Stanislaus, Assistant Administrator, Office of Solid Waste & Emer gency Response, EPA, Re: Stigma Studies (Aug. 4, 2009) (EPA

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- 0017). 61 U.S. EPA, National Biennial RCRA Hazardous Waste Report (Based on 2007 Data), at 2

- 5 (2007), available at http://www.epa.gov/osw/inforesources/data/br07/national07.pdf (click on report). 62 2010 Proposed Rule, 75 Fed. Reg. at 35,186.115

significantl y greater amount of electric arc further dust would be diverted from recy cling to disposal in non

- hazardous waste landfills.” 63 EAF, listed as hazardous waste K061, is the b yproduct of steel mills captured through air pollution controls. Zinc concentrations in EAF dust are 15

– 30%, and lead and iron are also major constituents. 64 Nevertheless, EAF has been recy cled at a rate of 42

– 51%, 65 in produc ts ranging from roadbeds to cement. 66 Now, EAF is used so often in a variet y of applications that generation has not been able to keep up with increasingl y high demand. 67 In addition to the examples cited b y EPA, there are robust recycling markets for man y ty pes of electronic wastes containing listed pollutants at high enough quantities to qualify them as hazardous waste when disposed. For example, in 2005, more than 172,000 tons of electronics, consisting of CPUs, cathode ray tubes (CRTs), LCDs, noteb ook computers, and cell phones, were recy cled. 68 Similarly , in 2007, “approximately 414,000 tons of electronics were collected in the US for recy cling. 69 These high recy cling rates continue despite the fact that some of these electronics contain high level s of heavy metals and are listed as hazardous wastes when disposed. For example, although CRT glass (the video display components in twentieth century televisions) “ty

pically contains enough lead to require managing it as hazardous waste,” CRTs are routin el y rec ycl ed. 70 Also, as discussed below, it is worth noting that the encapsulated use of materials that will be deemed hazardous upon disposal, i.e. CRTs, does not discourage consumers from purchasing televisions and other electronics for use in the home. d. Coal Ash is more likely to be recycled than other subtitle C wastes Industry argues that coal ash is different from the other subtitle C wastes that are recy cled successfull y. We agree that coal ash is different but not for the reasons suggested b y industry . A Subtitle C listing is more likely to encourage recy cling of CCRs than other hazardous wastes because so much of CCR is generated every y ear. The high availability of coal ash and other

63 2010 Proposed Rule, at 35,186; see also Appendix N, Comments of Rich Fortuna

. 64 See EPA, Regulatory Impact Analysis for USEPA’s 2007 Supplemental Proposed Revisions to the Industrial Recycling Exclusions of the RCRA Definition of Solid Waste (EPA

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- 2007

- 0932

- 0010.29), at 35 (Jan. 22, 2007). 65 2010 Proposed Rule, at 35,186. 66 Tech Trak, “A Hungry New Competitor on the EF Dust Recycling Scene,” American Metal Market (Mar. 2008), av ailable at 49, 67 Id. at 35,186 &n.144. 68 EPA, Resource Conservation Challenge Update 3 (Mar. 2008), available at http://www.epa.gov/wastes/rcc/resources/rcc

- rpt3.pdf . Other reports by U.S. EPA had estimated that the amount of electronics recycled in 2005 was more than double this amount, placing the estimate at “ 345,000 to 379,000 tons.” EPA, Fact Sheet: Management of Electronic Waste in the United States (Apr. 2007), available at http://www.epa.gov/osw/conserve/materials/ecycling/docs/fact7

- 08.pdf

. 69 EP A, Reuse & Recycle

– eCycle, http://www.epa.gov/epawaste/partnerships/plugin/reuse.htm (last visited Nov. 14, 2010). 70 See “Fact Sheet: Management of Electronic Waste in the United States” (EPA530

- F

- 08

- 014) at 4 (Apr. 2007, rev. July 2008), available at http://www.epa.gov/osw/conserve/materials/ecycling/docs/fact7

- 08.pdf (reporting that “[i]n 2005, approximately 61 percent, or 107,500 tons, of CRT monitors and TVs collected for recycling were exported for remanufacture or refurbishment,” meaning that appro ximately 176,000 tons constituted 100 percent of CRT televisions and monitors collected for recycling).116

CCRs will make it cheaper than virgin materi als, driving down the costs of recy cled products and making them even more attractive to end users. As recy cled coal ash products out compete products made with virgin materials, the recy cling marker will continue to grow. Coal ash is the second largest industrial waste stream in the United States. 71 Therefore, it can be potentiall y “sold” to reuse manufacturers at low lost, for free, or even at a negative cost to reuse manufacturers (i.e., generators would pay reuse companies to take their coal ash for r euse). In contrast, virgin materials ty picall y require mining (as in natural gy psum) or other acquisition or extraction costs. This cheaper price of coal ash will incentivize its use and ensure the marketability

of the end product. Although utility and reuse industry commenters expressed concern that “stigma would alter consumer preferences thereb y decreasing end

- users’ willingness to pay

for products that include CCPs,” 72 the aggressively low cost of the product should overcome this concern if it exists.

e. No stigma attaches to a “Special Waste” Label To the extent that a hazardous waste listing would have an y chilling effect on legitimate beneficial uses

— which it should not

— EPA already has addressed the concern b y proposing to designate coal ash not as a “hazardous waste” but as a “special waste” under Subtitle C. 73 While industry argues that the hazardous waste label creates a negative public perception, the special waste label, even if it were literall y affixed to a product, cannot be expec ted to have a similar impact. Nor is it the case that a Subtitle C listing in itself, even without a “hazardous waste” designation, will create a stigma. The general public is not familiar with RCRA, much less Subtitle C. Nevertheless, industry insi sts that selection of EPA’s “C” option will be equivalent to a “hazardous waste” listing. On the one hand, the argument is that semantics matter enough to create a stigma and on the other hand, the “special waste” designation is dismissed as mere semanti cs. Industry

cannot have it both way s. Insofar as there is a potential stigma problem, it is largel y about semantics, and the “special” designation is a solution. To the extent the argument is about the perception of a sophisticated audience familiar wi th RCRA, the differences between a special waste listing and a hazardous waste listing are material. The designations are not interchangeable: EPA is proposing to define an entire new category of “special wastes” that include “an y of the following wastes that are managed under the modified subtitle C

71 Testimony of Lisa Evans, Attorney, Earthjustice, Before the Subcomm. on Energy & Mineral Res., Comm. on Natural Res., U.S. House of Representatives (June 10, 2008), available at http://www.earthjustice.org/library/legal_docs/evans

- testimony

- em rsubcom .pdf. 72 2010 Proposed Rule, at 35,186. 73 Long before EPA published the June 21, 2010 proposed rule, representatives from the beneficial reuse industry m et with and wrote to EPA to discuss fears that stigma would hurt their businesses under a Subtitle C designation. Although these parties failed to provide a single precedential case where such a stigma had occurred after even a hazardous waste listing, EPA agreed to delete the w ord “hazardous” from the Subtitle C designation (thereby using the authority afforded it in the Bevill Amendment to alter certain aspects of Subtitle C). See Docket EPA

- HQ

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- 0640 at www.regulations.gov for materials submitt ed by industry to EPA before the release of EPA’s co

- proposal on June 21, 2010; Letter from Thomas Adams, Exec. Dir., ACAA, to Mathy Stanislaus, Assistant Administrator, Office of Solid Waste & Emergency Response, EPA, Re: Stigma Studies (Aug. 4, 2009) (EP A

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- 0017).requirements,” and these requirements will be less stringent than the provisions applicable to

hazardous wastes in many respects. For all of these reasons, we agree with the Agency that “listing CCRs desti disposal as a special waste, rather than a hazardous waste could, in large measure, address potential issues of stigma.” 74

f. Potential stigma effects can be addressed with public education and incentives Any potential stigma effects that for instance, the stigma that may have attached in light of the well disaster

— can be addressed through proactive efforts to promote safe, encapsulated beneficial uses. Promotion and public education detailing the safety of recycled coal ash products could allay public concerns about the use of coal ash in products and affirmativel y raise the “green” profile of products such as coal ash concrete, which has a smaller carbon “footpri concrete made with virgin Portland cement. Public education about various aspects of hazardous waste recycling has been utilized for years with great success. For example, some programs simply educate the public about how to safely handle and re There are even a few existing programs that have recy cling and reuse educational materials specificall y addressing coal ash, and these programs can serve as an excellent model for future federal efforts. 76 Inthe meantime coal ash in products, 77 and there is no reason why the agency , the beneficial reuse industry , and conservation advocates cannot undertake additional public outreach and education efforts. In fact, industry

commenters make clear that public education is an effective tool to eliminate stigma. For example, one reuse company provided the following example ostensibly to show stigma, but what the example reall y illustrates is how “discussion and e allay expressed concerns about the use of coal ash: In early 2 010, during the design of a parking structure for a public transit authority o f suburban Minneapolis, SouthWest Transit of Eden Prairie, Minnesota, our client directed us to pr read y - mixed concrete to be used in the project. Specificall y cited were concerns regarding using a hazardous waste material, expressly F ly A sh for ready

74 2010 Proposed Rule, at 35,174. 75 See, e.g., County of Santa Clara, Department of Environmental Health, Household Hazardous Waste Program Hom e, available at http://www.sccgov.org/portal/site/deh/agencychp/?path=%2Fv7%2FEnvironmental%20Health%2C%20Department %20of%20%28DEP%29%2FHazardous%20Materials%20Compliance%20Division%2FHousehold%20Hazardous %20Waste%20Home

. 76 See, e.g., Wisconsin Dep’t Envtl. Resources, “B http://www.dnr.state.wi.us/org/aw /wm/solid/beneficial/ 77 Although the C2P2 website has been suspended from EPA’s w ebsite during the rulemaking process, EPA states that it will continue prom otion of uses deemed beneficial in the future. 2010 Proposed Rule, at 35,187.
117 requirements,” and these requirements will be less stringent than the provisions applicable to hazardous wastes in many respects. For all of these reasons, we agree with the Agency that “listing CCRs desti disposal as a special waste, rather than a hazardous waste could, in large measure, address
Potential stigma effects can be addressed with public education and incentives Any potential stigma effects that are unaddressed by the “special waste” designation for instance, the stigma that may have attached in light of the well

- publicized TVA Kingston can be addressed through proactive efforts to promote safe, encapsulated beneficial
and public education detailing the safety of recycled coal ash products could allay public concerns about the use of coal ash in products and affirmativel y raise the “green” profile of products such as coal ash concrete, which has a smaller carbon “footpri concrete made with virgin Portland cement. Public education about various aspects of hazardous waste recycling has been utilized for years with great success. For example, some programs simply educate the public about how to safely handle and re cy cle household hazardous wastes. There are even a few existing programs that have recy cling and reuse educational materials specificall y addressing coal ash, and these programs can serve as an excellent model for future

Inthe meantime , EPA plans to continue its promotion of the beneficial reuse of and there is no reason why the agency , the beneficial reuse industry , and conservation advocates cannot undertake additional public outreach and education efforts.

fact, industry

commenters make clear that public education is an effective tool to For example, one reuse company provided the following example ostensibly to show stigma, but what the example reall y illustrates is how “discussion and e xplanation” can allay expressed concerns about the use of coal ash: In early 2 010, during the design of a parking structure for a public transit authority o f suburban Minneapolis, SouthWest Transit of Eden Prairie, Minnesota, our client directed us to pr ohibit the use of Fl y Ash in an y of the mixed concrete to be used in the project. Specificall y cited were concerns regarding using a hazardous waste material, expressly F ly A sh for ready

County of Santa Clara, Department of Environmental Health, Household Hazardous Waste Program http://www.sccgov.org/portal/site/deh/agencychp/?path=%2Fv7%2FEnvironmental%20Health%2C%20Department %20of%20%28DEP%29%2FHazardous%20Materials%20Compliance%20Division%2FHousehold%20Hazardous

Wisconsin Dep’t Envtl. Resources, “B eneficial Use of Industrial By

- Products,” http://www.dnr.state.wi.us/org/aw /wm/solid/beneficial/ (last revised May 3, 2007). Although the C2P2 website has been suspended from EPA’s w ebsite during the rulemaking process, EPA states prom otion of uses deemed beneficial in the future. 2010 Proposed Rule, at 35,187. requirements,” and these requirements will be less stringent than the provisions applicable to
For all of these reasons, we agree with the Agency that “listing CCRs desti ned for disposal as a special waste, rather than a hazardous waste could, in large measure, address
Potential stigma effects can be addressed with public education

are unaddressed by

the “special waste” designation

— publicized TVA Kingston can be addressed through proactive efforts to promote safe, encapsulated beneficial
and public education detailing the safety of recycled coal ash products could allay public concerns about the use of coal ash in products and affirmativel y raise the “green” profile of products such as coal ash concrete, which has a smaller carbon “footpri nt” than concrete made with virgin Portland cement. Public education about various aspects of hazardous waste recycling has been utilized for years with great success. For example, some programs cy cle household hazardous wastes. 75 There are even a few existing programs that have recy cling and reuse educational materials specificall y addressing coal ash, and these programs can serve as an excellent model for future , EPA plans to continue its promotion of the beneficial reuse of and there is no reason why the agency , the beneficial reuse industry , and conservation advocates cannot undertake additional public outreach and education efforts.

fact, industry

commenters make clear that public education is an effective tool to For example, one reuse company provided the following example ostensibly xplanation” can

In early 2 010, during the design of a parking structure for a public transit authority o f suburban Minneapolis, SouthWest Transit of Eden Prairie, ohibit the use of Fl y Ash in an y of the mixed concrete to be used in the project. Specificall y cited were concerns regarding using a hazardous waste material, expressly F ly A sh for ready

- mixed

County of Santa Clara, Department of Environmental Health, Household Hazardous Waste Program http://www.sccgov.org/portal/site/deh/agencychp/?path=%2Fv7%2FEnvironmental%20Health%2C%20Department %20of%20%28DEP%29%2FHazardous%20Materials%20Compliance%20Division%2FHousehold%20Hazardous

Although the C2P2 website has been suspended from EPA’s w ebsite during the rulemaking process, EPA states prom otion of uses deemed beneficial in the future. 2010 Proposed Rule, at 35,187.118

concrete, on a public project. Only a fter prolonged discu ssion and explanation of the known behavior of these materials in read y - mixed concrete did the transit authority permit specification of CCRs for beneficial use. 78 This is a perfect example of alleged stigma being completely mitigated through explanation a lone by the reuse company

itself. Proof of safety

would be perhaps the most foolproof public relations tool to ensure consumer confidence in products containing coal ash. For example, EPA could issue guidance prescribing how utilities (at the time of generation) or reuse companies (after incorporation into the final product) should test materials with each new shipment (out or in, respectivel y) for leachability , off

- gassing, and/or other potential environmental or human health concerns applicable to th e t ype of use. Clear information for the public about what testing levels are considered safe alongside the testing results will effectivel y address consumer fears, if there are any . In addition, reuse of these products in government buildings, and conti nued incentives for use by standards

- setting groups such as the U.S. Green Building Council, will stimulate the market for coal ash products and ensure that an y stigma is quickly overcome. Extensive use of products containing coal ash in government buildi ngs and grounds would help assure the public that the products do not pose risks that are an y different in kind than products made with virgin materials. Furthermore, EPA’s encouragement of standards

- setting organizations to incentivize (through LEED points or otherwise) use of products containing coal ash would further help bolster public support for regular use of products containing coal ash.

g. Standards
- setting associations will not stigmatize coal ash products Standards

- setting associations alread y have indicated their willingness to approve the use of coal ash products. Professional organizations that set industry standards for performance, safet y, and environmental sustainability have decided to accept coal ash for uses that meet the defin ition of “beneficial reuse” according to EPA. For example, the United States Green Building Council (“USGBC”), the “[n]on

- profit organization dedicated to sustainable building design and construction” and creator of the LEED building sustainability rating sy stem 79 has alread y stated that an EPA Subtitle C designation would not alter their LEED standards. The USGBC has publicl y stated that “the issues encompassed in the two proposals will not directly cause an y changes to the LEED rating s ys tems.” 80 In making this determination, the USGBC recognized that “[u]nder both proposals, the Bevill exemption for beneficial use (such as concrete) would remain in place.” 81 This USGBC policy is extremel y advantageous to the reuse industry , because the LEED ratings are what determine whether a building is a certified green

78 Letter from Walker Parking Assoc. to U.S. EPA, Re: rcradocket@epa.gov, Attention Docket ID No. EPA

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–2 (Sept. 1 3, 2010). 79 U.S. Green Building Council Homepage, http://www.usgbc.org/ (last visited Nov. 14, 2010). 80 Letter from Scot Horst, Senior Vice President, LEED, U.S. Green Bldg. Council, Re: EPA Proposal for “Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Pow er Producers” and Effects on LEED (Aug. 27, 2010). 81 Id.119

building. USGBC’s statement means that, even with a Subtitle C designation, reuse of coal ash in beneficial uses would still earn builders the same L EED points that would be awarded absent a Subtitle C listing. In addition, the American Society for Testing and Materials (ASTM) addressed unclear language in a previous letter dated December 23, 2009 to clarify that a hazardous designation for coal ash would not cause ASTM to remove fl y ash from its co ncrete standard, 82 and that a hazardous designation would simply require that the standard be “revised to reflect this classification.” 83 ASTM did not say what the effect of a “Special Waste,” classification would be, but presumabl y it would cause at most only more modest revisions to the standard.

h. The beneficial reuse industry would continue to use coal ash even if it were lis ted as hazardous Many industry play ers engaged in recy cling coal ash into products have stated already that they would continue to use coal ash after a Subtitle C designation. In a survey conducted by the National Precast Concrete Association released o n September 1, 2010, 84 percent of precast concrete producers said they would continue to use fly ash even after a Subtitle C listing. 84 Eight y percent also believed EPA could reduce the impact of stigma even from a hazardous waste designation with easy me asures like providing education or requiring reuse in federal projects. 85 Similarly , a survey conducted by

the National Ready

Mixed Concrete Association of 1,500 members found that 69 percent of read y mix concrete producers will continue to use fl y ash eve n with a Subtitle C designation. 86 Concrete manufacturers are the largest beneficial user of fly ash, reusing 15.8 million tons of fly ash in 2008 alone. 87 The willingness of man y recy clers to continue using coal ash even after a hazardous waste listing suggests that other industry play ers are advancing groundless stigma arguments to avoid regulation. In an y case, the businesses that will continue to use coal combustion waste in their products will be motivated to undertake public education efforts of th eir own in the event they are genuinel y needed.

82 Contra 2010 Proposed Rule, 75 Fed. Reg. at 35,187 (stating “Recently, chairpersons of the [ASTM] International Committee C09, and its subcommittee, C09.24, in a December 23, 2009 letter indicated that ASTM w ould remove fly ash from the project specificati ons in its concrete standard if EPA determined that CCRs w ere a hazardous waste when disposed.” How ever, according to a recent letter from ASTM clarified that ASTM simply meant that standards wo uld have to be revised if coal ash was designated as hazardous wa ste under Subtitle C of RCRA. Letter from James A. Thomas, President, ASTM International, to U.S. EPA, Re; Hazardous Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities Do cket (June 26, 2010). 83 Letter from James A. Thomas, President, ASTM International, to U.S. EPA, Re: Hazardous Waste Management Sy stem; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities Docket (June 26, 2010). 84 M. Blastow

& D. Marsh, Precast Producer Survey, Concrete Products (Sept.1, 2010), available at http://www.concreteproducts.com/ready

- mixed/epa

- coal

- ash

- rule

- precast

- survey - 20100901/index.html

. 85 Id. 86 CP Staff, Ready Mixed Producer Survey, Concrete Products (Sept. 1, 2010), available at http://www.concreteproducts.com/ready

- mixed/epa

- coal

- ash

- rule

- ready

- mixed

- producer

- survey 20100901/index.html

. 87 Id.120 i. Consumers regularly purchase products that contain or are themselves hazardous wastes Finally , despite all indications that regulation under Subtitle C will encourage rather than discourage beneficial use of coal ash, industry argues that coal ash is different from all other listed wastes for two reasons. The first is that, unlike reuse of coal ash, other products that have been recy cled without facing a stigma require significant processing before reuse, such that “in virtually all of these recycled product situations, the product is readily distinguishable chemicall y and phy sically

from the hazardous waste used to produce the product.” 88 However, the same is true of the coal ash products th at will reach consumers ( e.g. wallboard and concrete). Because coal ash and other coal combustion wastes are incorporated into and encapsulated within these products, they

do not bear an y resemblance to the constituent fly ash or gypsum. Moreover, it i s not the case that all other recy cled waste products incorporate hazardous wasted in a ph ys icall y or chemicall y altered form. For example, when an old mercury

containing light bulb, such as a fluorescent or compact fluorescent light (CFL) bulb, is recy cl ed, the process is simple: crush the bulbs, separate the bulbs into their component parts (including mercury), and then distill the mercury to remove pollutants. 89 Then, 99.99% pure mercury is sold back to companies that put it right back into CFL s or othe r mercury - containing products, where it remains loose in the light bulb. In short, the recycled form of the mercury is precisely one of the forms that would otherwise be classified as hazardous waste, and it ends up in a product where it is much less safe ly encapsulated than coal ash in concrete. 90 The second argument industry makes is that other recy cled hazardous wastes are used in industrial settings, not residences. They state: “products from recy cled hazardous waste t ypically are utilized only

in industrial settings, and in situations where both the recycled product and the virgin product for which it substitutes are clearl y hazardous materials.” 91 This is wrong. People use products that incorporate hazardous wastes and products that are themselve s hazardous wastes (upon disposal) all the time and even in their homes. Indeed man y of these products are designed for household use. Mercury

- containing CFLbulbs are a prime example: “An estimated 4 billion household sockets in the United States [are] being filled with these energy efficient lighting options.” 92 Televisions and batteries are also good examples. Lead acid batteries are hazardous waste when disposed, but they are regularly

sold in cars purchased and maintained by individual citizens. No tably , lead acid batteries are “the most recy cled product in the U.S.,”

88 Letter from Richard Stoll, Attorney, Foley & Lardner, LLP, to Matt Hale, Dir., Office of Res. Conservation & Recovery, U.S. EPA, Re: Concerns Over “Stigma” for Coal Combustion Products, Doc. No. EPA

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- 0387.1, at 2 (Aug. 7, 2009) [hereinafter “Letter from Industry”]. 89 The Lamp Recycl ing Process, Bulbs.com, http://www.bulbs.com/recycle_process.aspx

. 90 Id. ; see also 40 C.F.R. §§ 261.24, 261.33 91 Letter from Industry, at 3. 92 Waste Management, Think Green from Home: CFLs Contain Mercury and Need to be Recycled, https://www.thinkgreenf

romhom e.com/SafeConvenient.cfm

.121

with more than 99% of batteries recy cled. 93 A “new” lead acid battery t ypi cally contains at least 60 to 80 percent recy cled lead. 94 EPA has itself provided a list of household pr oducts that would be or contain components that would be hazardous waste when disposed 95 :

 Airflow/fan limit controls

 Antiques

 Appliances (Electric)

 Appliances (Gas

- fired)

 Barometers

 Button cell batteries

 Clothes irons

 Electronics

 Gas flow regulators

 Heatin g and cooling s ys tems

 Jewelry

 Lamps/Light bulbs

 Li ght switches (Silent)

 Mercury

 Paint (L atex)

 Pesticides

 Plumbing

 Security

s ys tems

 Shoes

 Sporting Equipment

 Television Sets

 Thermometers

 Thermostats

 Tilt Switches. Additional examples of common household products that are or have components that are hazardous when disposed in certain circumstances but nonetheless have not been stigmatized in the reuse market include:

 mercury

light bulbs;
 saccharine;
 acetone (U002 ), or nail polish remover;
 1

- butanol (U031), a compound

93 David Bello, What’s the Most Recycled Product in the U.S.? , Scientific Am. (Apr. 18, 2010), available at http://www.scientificamerican.com/podcast/episode.cfm?id=whats

- the

- mo st

- recy cled

- product

- in

- 10

- 04

- 18

. 94 Battery Council International, Battery Recycling, http://www.batterycouncil.org/LeadAcidBatteries/BatteryRecycling/tabid/71/Default.aspx (2009). 95 U.S. EPA, Table of Products That May Contain Mercury and Recommended Management Options, http://www.epa.gov/osw/hazard/tsd/mercury/con

- prod.htm

. which has man y uses including a flavoring ingredient in a wide range of foods;

 methyl alcohol or methanol (U154);
 automotive products;
 toner cartridges;
 batteries;
 pharmaceuticals;
 paints; and
 home maintenance chemicals. See Appendix B for further anal ys is. Again, there is no evidence that stigma has affected the market for any of these every day products that are designed to be used in residential settings and even ingested in the case of saccharine. Beneficial uses involving coal ash would be no more vulner able to stigma than these other products given that it would be: (1) listed as a “special waste”; (2) fully encapsulated; and (3) present in building materials as opposed to products that are routinel y handled. For these and all of the other reasons stat ed above, the stigma arguments advanced by industry are baseless. 2. EPA Cannot Properly Base Its Listing Determination on Stigma Concerns Even if the stigma concerns raised b y industry were legitimate

—

which they are not

— they would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C. While the Bevill factors arguabl y require EPA at least to consider stigma, the Bevill factors do do not govern EPA’s final decision on its proposed rule. Regardless, EPA must make a decisio n that ensures protection of human health and the environment regardless of any potential stigma.

a. The Bevill factors do not govern EPA’s current proposal to list and promulgate regulations for coal ash. While the Bevill factors 96 are applic able to a threshold determination whether or not to regulate CCRs, the factors no longer appl y after EPA makes a decision that regulation is warranted. Thus, the actual listing of CCRs under subtitle C are governed by the hazardous waste listing criteris set forth at 40 C.F.R. § 261.11(a). Under the Bevill Amendment, EPA was directed to consider the eight study factors for two purposes: to make a Report to Congress, 97 and to determine whether regulation is warranted or not. 98 Congress did not direct EPA to use the Bevill factors when listing the waste or promulgating the regulations themselves. EPA alread y issued several Reports to Congress. 99 Furthermore, EPA already made the regulatory

determinations required b y the statute. First, EPA made a regulato ry determination in August of 1993 to exempt large volumes of coal combustion wastes generated at electric utilities

96 42 U.S.C. § 6982(n). 97 42 U.S.C. § 6982(n). 98 42 U.S.C. § 6921(c). 99 See, e.g., 1999 Report to Congress v. 1 &2

.123

and disposed of in monofills from hazardous waste regulation. 100 Then, in March of 2000, EPA issued a revised regulatory determination that all large

- volume wastes land

- disposed or disposed of in surface or underground mines (monofilled or co

- disposed with certain other wastes) would be regulated as hazardous waste under a contingent subtitle C listing. 101 Then, in May of 2000, EPA made another revised regulatory determination to regulate large volume coal ash disposed of or placed in mines under subtitle D (with beneficial uses still exempted). 102 With these Reports to Congress and regulatory determinations executed, EPA fulfilled all of its s tatutory

duties that involved consideration of the Bevill factors. While EPA may still revise its regulatory

determination, when it makes its ultimate listing decision, EPA is statutorily required to consider onl y the relevant factors for listing wastes under subtitle C or Subtitle D. 103 Consequently , the statutory factors set forth in the Bevill Amendment do not apply to EPA’s choice between “C” and “D” regulation. The D.C. Circuit’s decision in Hazardous W aste Treatment Council v. U.S.E.P.A. is directly on point. 104 There, the court held that EPA impermissibly considered stigma in deciding how to list recy cled use oil when it was only permitted to consider stigma for purposes of deciding whether section 6921 criteria were “applicab[le]” to that waste stream. 105 The controlling statute, the Used Oil Recy cling Act, 106 required EPA to “make a determination as to the applicability ” of recycled used oil to the criteria and regulations promulgated under Section 6921 “relating to the characteristics of hazardous wast es.” EPA was then required to report that determination to Congress. In making the applicability determination, Congress mandated that EPA “shall ensure that the recovery and reuse of used oil are not discouraged.” 107 Subsequently , after EPA had still f ailed to make a listing determination, the Hazardous and Solid Waste Amendments of 1984 108 were adopted as a “further prod” 109 to the Agency , requiring that EPA “shall propose whether to list or identify [recy cled used oil] as hazardous waste under Section 692 1 .” 110 When EPA then made its decision not to list, the D.C. Circuit

100 EPA, Final Regulatory Determination on Four Large

- Volume Wastes From the Combustion of Coal by Electric Utility Power Plants, 58 Fed. Reg. 42,466 (Aug. 9, 1993) (to be codified at 40 C.F.R. pt. 261). 101 EPA, Regulatory Determination on Wastes from the Combustion of Fossil Fuels (Mar. 5, 2000) (not cited in Federal Register, to be codified at 40 C.F.R. pt. 261) (also determining that beneficial uses would be exempted from regulation)., available at http://www.publicintegrity.org/assets/pdf/CoalAsh

- Doc7.pdf

. 102 EPA, Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214 (May 22, 2000) (to be codified at 40 C.F.R. pt. 261). 103 See 40 C.F.R. §§ 261.11(a), (c). Als o , If EPA chooses to designate coal ash as a “special waste,” it may also consider modifcations of various statutory requirements pertaining to landfills and surface impoundments. See 42 U.S.C. § 6924(x). 104 Hazardous Waste Treatment Council v. U.S. EPA, 8 61 F.2d 270 , 275 (D.C.Cir. Oct, 07, 1988) [ hereinafter HWTC ]

. 105 Id. at 272 (“Section 8 did not direct the EPA to list used oil, but merely to “determin[e]” whether used oil meets the statutory and regulatory criteria, and then report that determination to Congress. The Agency complied with section 8, reporting to Congress its determination that certain types of used oils should be listed as a hazardous wa ste because of their toxic constituents.”). 106 Used Oil Recycling Act of 1980 (UORA), 42 U.S.C. § 6935( a), at §§ 7 &8 (1982 & Supp. II 1984). 107 Id. 108 Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6935 (Supp. II 1984). 109 H.Rep.No. 198, pt. I, 98th Cong., 1st Sess. 64 (1983), U.S.Code Cong. & Admin.News 1984, 5576. 110 Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6935(b) (Supp. II 1984) (emphasis added).124

held that it was obliged to make its decision based not on the applicability criteria relevant to the report but instead “under 6921” itself. Once the reporting obligation was fulfilled, the applicability

factors were “dead.” 111 As the Court explained: “[o]nce the Agency had

. . . submit[ted] its report to Congress on January 16, 1981, section 8 had served its purpose and was without further effect. A fortiori, its proviso, which applied solel y to the Agency’s initial determination, died along with the rest of section 8.” 112 Here, the Bevill factors are similarly inapplicable to EPA’s final listing decision. EPA was subject to a Congressional reporting requirement for coal ash, and the r elevant statutory provision sets forth study factors but not listing factors. 113 While EPA must determine whether to promulgate regulations based on consideration of the Bevill factors, 114 once it has made the decision to regulate, the ordinary listing factors apply . This makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat RCRA’s overarching purpose to regulate coal ash less protectivel y than the statute and implementing regulations require. Because none of the relevant provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, EPA must make a final listing decision based on the regulatory

listi ng criteria, which do not include stigma or even encouragement of reuse as a factor. b. The Bevill factors do not require EPA to consider stigma in deciding whether regulation is warranted. Not only is EPA not permitted to consider stigma in de termining whether to list coal ash as a Subtitle C waste, the Bevill factors do not require EPA to consider stigma in making its threshold determination whether regulation is warranted. The Bevill factors are as follows:

(1) the source and volumes of s uch material generated per ye ar; (2) present disposal and utilization practices; (3) potential danger, if any , to human health and the environment from the disposal and reuse of such materials; (4) documented cases in which danger to human health or the environment from surface runoff or leachate has been proved; (5) alternatives to current disposal methods; (6) the costs of such alternatives; (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials. 115 None of these factors directs EPA to consider the impacts of regulation on beneficial use or reuse, much less potential stigma impacts. Unlike the statute at issue in Hazardous W aste

111 Id. at 275. 112 Id. ; see also Natural Resources Defense Council, Inc. v. U.S. E.P.A ., 25 F.3d 1063, 1067 (D.C. Cir, 1994) (adopting this same interpretatio n of the case). 113 42 U.S.C. § 6982(n). 114 42 U.S.C. § 6921(c). 115 42 U.S.C.A. § 6982(n).125

Treatment Council , which p rovided that EPA “shall ensure that the recovery and reuse of used oil are not discouraged,” 116 the Bevill study factors require onl y that EPA consider “the current and potential utilization of such materials.” Thus, there is no need for EPA to consider sti gma to determine whether regulation of coal ash is appropriate, and indeed, EPA’s previous studies of these factors in 1993 and again in 1999 did not even mention the word stigma. 117 In 2000, when EPA made y et another a determination (this time that regulation was warranted under Subtitle D), EPA considered stigma but admitted that it is unorthodox and in fact contrary

to the RCRA statute to make stigma a deciding factor. Thus, EPA admitted that “[ n ] ormally, concerns about stigma are not a deciding f actor in EPA’s decisions under RCRA, given the central concern under the statute for protection of human health and the environment .” 118 Nevertheless, EPA decided to justify its decision in large part on stigma, reasoning that: (1) Subtitle D would be “full y effective in protecting human health and the environment”; and (2) beneficial use play s “a large and salutary role

. . . for this waste.” 119 Inthe intervening ye ars since the 2000 regulatory determination, it has become apparent (1) that federally enforc eable regulation of coal ash is essential and that Subtitle D would not be fully protective of human health and the environment 120 and (2) that man y uses that were previously deemed “beneficial,” including structural fills, have now been proven to cause significant harm including proven “damage cases.” 121 Consequently , EPA cannot justify another decision to elevate stigma concerns over grave health and environmental concerns that mandate a Subtitle C designation. EPA is charged with protecting human health a nd the environment, and that is the lens through which EPA is directed to look at the Bevill study factors, including an y factor that arguabl y implicates stigma. Congress specifically instructed EPA to “submit a report on the adverse effects on human heal th and the environment , if an y, of the disposal and utilization” and that report is the document in which the Bevill factors come into play

. 122

c. EPA has fielded stigma concerns appropriately in the past. In the past, EPA has given little wei ght to stigma arguments where the public could be educated that uses in different settings can have different toxicities. Thus, in 1990, EPA caused seven ozone - depleting chemicals to be listed as “toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right

- to

- Know Act of 1986 (EPCRA)” despite concerns raised that the listing would stigmatize recy cling of these chemicals. 123 EPA explained that by

listing these chemicals as “toxic chemicals” it did not “contend” that these

116 Id. 117 See U.S. EPA, Report to Congress: Wastes from the Combustion of Coal from Electric Utility Plants (EPA/530

- SW

- 88

- 002 (Feb. 1998); U.S. EPA, Report to Congress: Wastes from the Combustion of Fossil Fuels (EPA 530

- R

99

- 010) (Mar. 1999). 118 U.S. EPA, Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,217 (May 22, 2000) (to be codified at 40 C .F.R. pt. 261). 119 Id. 120 See Section V, infra

. 121 See Section II.D.d., supra. 122 42 U.S.C. § 6982(n) (emphasis added ). 123 U.S. EPA, Final Rule: Ozone Depleting Chemicals; Toxic Chemical Release Reporting; Community Right

- To

Know; Addition of Chemicals, 55 Fe d. Reg. 31,594 (Aug. 3, 1990) (to be codified at 40 C.F.R. pt. 372).126

were “directly

toxic,” and it properly

assumed that the public was savvy enough to recognize that toxic pollutants in different scenarios and degrees could be more, less, or non

- toxic: EPA does not contend that these chemicals are directly toxic. EP A hopes that industry , government, and the public will recognize and consider differences in degree and t ype of toxicity of different chemicals when making decisions about those chemicals.” 124 EPA went on to explain that “where EPA believes that a chemical meets the statutory criteria for listing, it cannot choose not to list the chemical simply because its listing may

stigmatize the chemical. 125 Similarly , here, EPA cannot choose to avoid a Subtitle C listing on stigma grounds, and the public is capable of understanding that coal ash when dumped into unlined landfills and surface impoundments poses risks that do not pertain when it is put to a beneficial, encapsulated use. Where EPA has been willing to entertain stigma concerns, it has determined that it could “avoid conceivable stigmatization” by altering the name of the material when recy cled even when all announcement regarding permits for facilities managing these materi als were required to refer expressly

to “hazardous waste.” 126 EPA explained: To avoid conceivable stigmatization, EPA proposed that hazardous wastes that are to be recy cled be called “regulated recy clable materials.” Most comments favored this approach, and we are adopting it in the final rule, choosing the less cumbersome name “recyclable material.” As stated in the proposal, however, all Section 7004(b) announcements and notices regarding permits for facilities managing these materials must still refer t o hazardous waste. 127 Here, the special waste designation, which would apply to coal ash all the time, would go even further to address potential stigma concerns.

d. The courts disfavor stigma arguments. Finally , courts are understandably skeptical about stigma arguments. For instance, in 2005, the Ninth Circuit reversed a preliminary injunction granted by

the District Court of Montana (to enjoin implementation of a rule that would have reversed a ban on importation of cows from Canada following a m ad cow epidemic) because the preliminary injunction was based in part on an unsubstantiated “stigma” claim. The court found that: The record does not support the district court’s alarmist findings that the “irreparable economic harm” the district court foresaw from the stigma of Canadian beef will actually be fall the American beef industry

. Following the case

124 Id. at 31,596. 125 Id. 126 EPA, Final Rule: Hazardous Waste Management System; Definition of Solid Waste, 50 Fed. Reg. 614 (Jan. 4, 1985) (codified at 40 C.F.R. pts. 260, 261, 264, 265, &2 66). 127 Id. at 646.127

of BSE diagnosed in a Wa shington State cow in 2003, consumer demand for, and confidence in, American beef remained strong. According to USDA, American demand for beef in 2004 is estimated to have increased seven to eight percent over 2003 levels. Yet, Canadian beef was flowing into this country throughout 2004 under permits issued by U SDA. This evidence belies the district court's prediction of catastrophic injury to the U.S. beef industry

. 128 Similarly here, there is no reason to give credence to industry ’s “alarmist” stigma argum ents. 3. Subtitle C Regulation is Needed to Prevent Uses of CCR that Endanger Human Health and the Environment. While subtitle C will not discourage trul y beneficial uses for all of the reasons discussed above, it should have the salutary effect o f discouraging dangerous uses that are the functional equivalent of disposal. Many current reuses of CCW endanger, or threaten to endanger, human health and the environment; y et electric utilities and recy clers are increasingly rel yi ng on these riskiest “ reuses” in the absence of federal regulation. While some safe, encapsulated uses that do not allow for leaching of ash contaminants should be promoted, reuses that threaten to introduce toxic pollutants into the environment

— the uses falsely

masquerading as “beneficial”

— must be regulated pursuant to EPA’s Subtitle C “special waste” proposal. Of the 136 million short tons of coal ash generated in 2008, about 60.6 million short tons, or 44.5%, were “beneficially used,” according to the reuse industry

. 129 In fact, beneficial use increased 63% between 2001 and 2008. See Attachment 15. However, at least 21,967,519 tons, or over 36% of the coal ash reused in 2008, went to just two unsafe unencapsulated uses

— structural fills/embankments (11,501,247 short ton s) and mining applications (10,466,272 short tons). See Table 34. In fact, these two uses experienced the highest increases in coal ash (in tons) used between 2001 and 2008. Several of the remaining uses of coal ash are also either unencapsulated or hav e raised concerns with regard to leachability , as described infra.

128 Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Dep’t Agriculture, 415 F.3d 1078, 1104

– 05 (9th Cir. 2005) (internal citations omitted). 129 American Coal Ash Association, “Coal Combustion Product Production & Use Survey Report” (2008), http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf

.128

Table 36. Coal Combustion Product (CCP) Reuse Trends 2001 to 2008 CCP Categories CCP Utilization Totals 2008 CCP Utilization

Totals 2001* CCP Amount

Change 2001
- 2008 CCP Utilization %

Chan ge 2001
- 2008^ Concrete/ Concrete Products/ Grout (2001 includes Cement) 14,015,616 13,628,275 387,341 2.842 Blended Cement (2008 only) / Raw Feed for Clinker 4,198,198 1,226,678 2,971,520 242.241
Flow able Fill 93,132 811,142

- 718,010

- 88.518 Structural Fills 11,501,247 4,574,749 6,926,498 151.407 Road Base/ Sub
- base 1,802,025 1,675,785 126,240 7.533 Soil Modification /Stabilization 1,251,968 850,548 401,420 47.195 Mineral Filler in Asphalt 265,587 128,448 137,139 106.766 Snow and Ice Control 700,913 871,707

- 170,794

- 19.593 Blasting Grit/ Roofing Granules 1,637,867 1,530,028 107,839 7.048 Mining Applications 10,466,272 1,078,264 9,388,008 870.660 Gypsum Panel Products 8,533,732 6,224,872 2,308,860 37.091 Waste Stabilization/ Solidification 3,784,546 1,555,595 2,228,951 143.286 Agriculture 320,863 157,199 163,664 104.113 Aggregate (2008 only)* 901,462 1 901,461 90,146,100.000 Miscellaneous/Other 1,120,232 2,806,346

- 1,686,114

- 60.082 TOTALS 60,593,660 37,119,637 23,474,023 63.239 * Aggregate total in 2001 was listed as 1 instead of the correct number, 0, in order to roughly calculate the percentage of change from 2001 to 2008. ^ Percent change = ((y2
- y1) / y1)*100 Sources (adapted from): Am erican Coal Ash Ass'n, "Coal Combustion Product Production & Use Survey Report" (2008), http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf. Am erican Coal Ash Ass'n, "Coal Combustion Product Production & Use" (2001), http://acaa.affiniscape.com/associations/8003/files/2001_rev_svy_11
- 02.pdf. Furthermore, these heavily

- relied upon “reuses” have caused contamination of water sources. EPA stated in its May 2000 determination that commenters had failed to bring forth evidence of damage cases from reuses of coal ash. In 2010, however, EPA acknowledged that damage had occurred from formerl y - labeled “beneficial” reuses (e.g. Gambrills, Maryland) but nonetheless stated that regulation of even unencapsulated u ses was not warranted because the States were adequately

controlling the “environmental issues” associated with reuse. 130 EPA states that of the 27 proven and 40 potential damage cases identified b y EPA, unencapsulated fill projects have accounted for at least 7 proven and 1 potential EPA damage case. 131 EPA is failing to count one of the potential damage cases it has identi fied. Our anal ys is shows that EPA has identified two potential damage cased from unencapsulated fill projects

— K.R. Rezendes South Main Street Ash Landfill in Massachusetts (former sand and gravel quarry) and the Lemberger Landfill in Wisconsin (former gravel pit). See Table 35. When considered along with the

130 2010 Proposed Rule, at 35,161

– 62. 131 2010 Proposed Rule, at 35,143, 35,155 n.61 (including Pines, IN and the Chesapeake Golf Course in Chesapeake, VA).129

Environmental Integrit y Project, Earthjustice, and Sierra Club’s additional damage cases, 132 there are at least 18 damage cases from reuse of coal ash (excluding additional minefills, information on wh ich may

be found in Section II.D.e.) that have been identified in detail. See Table 36, below.

132 See Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (Aug. 26, 2010) (Jeff Stant, ed.), available at http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf ; and Env. Integrity Project & Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites ( Feb. 24, 2010) (Jeff Stant, ed.), available at http://www.environmentalintegrity.org/ne ws_reports/documents/OutofControl

Mount ingDamagesFromCoal9AshWasteSites.pdf

.130

Table 37. Damage Cases Caused By Reuse of Coal Combustion Waste (Excluding Minefills) No. State Facility Type of Reuse Source 1 IN Northern Indiana Public

Service Corp. Yard 520, Township of Pines (Proven) Construction fill,

roads, driveways EPA, Coal Combustion Waste

Damage Case Assessments (2007)

2 MA City of Beverly/Vitale

Brothers Fly Ash Pit (Proven) Former Sand and Gravel Mine EPA, Coal Combustion Waste

Damage Case Assessments (2007) 3 MA K.R. Rezendes South

Main Street Ash Landfill Former sand and gravel quarry EPA, Coal Combustion Waste

Damage Case Assessments (2007) 4 MI Lansing Board of Water &

Light North Lansing Landfill (Proven) Former Gravel Quarry Pit EPA, Coal Combustion Waste

Damage Case Assessments (2007)
5 VA Chisman Creek Disposal

Site (Proven) Former Sand and Gravel Pits EPA, Coal Combustion Waste

Damage Case Assessments (2007) 6 WI WEPCO Cedar

- Sauk

Landfill (Proven) Former Sand and Gravel Pit EPA, Coal Combustion Waste

Damage Case Assessments (2007) 7 WI WEPCO Highway 59

Landfill (Proven) Former Sand and Gravel Mine EPA, Coal Combustion Waste

Damage Case Assessments (2007) 8 WI WEPCO Port Washington

(Proven) Former Sand and

Gravel Quarry EPA, Coal Combustion Waste

Damage Case Assessments (2007) 9 WI Lemberger Landfill Former Gravel Pit EPA, Coal Combustion Waste Damage Case Assessments (2007) 10 MD Gambrills Sand and Gravel Quarry EPA’s Proposed Rule (2010)
11 VA Chesapeake's Battlefield

Golf Club Structural Fill EPA's Proposed Rule (2010)
12 IL Rocky Acres Structural Fill EI P & Earthjustice, Out of Control Report (Feb. 2010) 13 NC Swift Creek Structural Fill Site Structural Fill EI P & Earthjustice, Out of Control Report (Feb. 2010) 14 PA Bangor Quarry Quarry EI P & Earthjustice, Out of Control Report (Feb. 2010) 15 TN Trans

- Ash, Inc.

– CCW

Landfill Former Gravel Mine EI P & Earthjustice, Out of Control Report (Feb. 2010) 16 IL Jo liet 9 Lincoln Stone

Quarry Landfill Former Quarry EI P, Earthjustice, & Sierra Club, In Harm’s Way (Aug. 2010) 17 LA Big Cajun Barge Mooring Facility Out of Coal Ash EI P, Earthjustice, & Sierra Club, In

Harm’s Way (Aug. 2010) 18 OH Industrial Excess Landfill

Superfund Site Former Sand and Gravel Quarry EI P, Earthjustice, & Sierra Club, In Harm’s Way (Aug. 2010)131

Studies prepared for EPA have acknowledged the dangers some reuses can pose. Because coal ash contains potentially very high levels of toxic and (and possibly radioactive 133 ) pollutants, these pollutants can transfer to the products in which it is reused or into various environmental media in the reuse process. For example, a 2006 report entitled “A Study of Potential Effects of Market Forces on the Management of Hazardous Secondary Materials Intended for Recy cling,” states: [W]hile hazardous waste recy cling is not an inherentl y damaging activity , damages can result from it if recycling is practiced in a way that generates excessive social costs. A move from a sub

- optimal to an optimal amount of recy cling may

thus involve two different sets of activities. First would be a reduction in waste mismanagement that result from hazardous waste recy cling, which would increase the social benefits and lower the social costs of recy cling operations (e.g., reduce leakages, spills). Second would be cessation of activities that occur under the guise of recy cling but have little or no benefits and large costs, such as “sham recycling.” 134 The balance of this section will help prov ide information necessary for EPA to determine which current reuse practices fall in the latter category of offering little or no benefits and imposing large social and environmental costs.

a. Unencapsulated Uses Pose Similar Dangers to Unlined Disposal Units and Must Be Regulated Under Subtitle C. Unencapsulated uses of coal ash warrant stringent federal regulation under Subtitle C of RCRA because they

pose statistically

high risks of leachability of toxic pollutants and have alread y caused at least 18 damage cases throughout the United States.

i. Structural fills and all other large
- scale fill projects are dangerous and must be regulated. Structural fills were the second largest reuse of coal ash in 2008, and also experienced the largest increases i n uses of fl y ash, bottom ash, and boiler slag from 2001 to 2008 135

. However, the EPA has stated that CCW used for “unencapsulated, general fill” is unsafe and

133 See, e.g., U.S. EPA, RadTown USA, Coal

- Fired Power Plant Emissions, http://www.epa.gov/radtown/coal

plant.html ; Maria Hvistendahl, Coal Ash Is More Radioactive than Nuclear Waste , Scientific Am. (Dec. 17, 2007), available at http://www.scientificamerican.com/article.cfm?id=coal

- ash

- is

- more - radioactive

- than

nuclear

- waste ; U .S. Geological Survey, Radioactive Elements in Coal and Fly Ash: Abundance, Forms, and Environmental Significance (Fact Sheet FS

- 163

- 9 7) , available at http://pubs.usgs.gov/fs/1997/fs163

- 97/FS

163

- 97.html

. 134 U.S. EPA, Office of Solid Waste, A Study of Potential Effects of Market Forces on the Management of Hazardous Secondary Materials Intended for Recycling 9 (prepared by ICF International) (Nov. 21, 2006). 135 Compare American Coal Ash Association, “Coal Combustion Product Production & Use Survey Report” (2008), http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf , with American Coal Ash Association, "Coal Combustion Product Production & Use" (2001), http://acaa.affiniscape.com/associations/8003/files/2001_rev_svy_11

- 02.pdf

.132

does not constitute “beneficial” use

. 136 Specifically , EPA defines beneficial use to exclude large

- scale fill projects: Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an alternative material, conserving natural resources that would otherwise need to be obtained through pr actices such as extraction; and meets relevant product specifications and regulatory

s tandards (where these are available). CCPs that are used in excess quantities (

e.g., the field

- applications of FGD gypsum in amounts that exceed scientifically supported quantities required for enhancing soil properties and/or crop yields), placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, are excluded from this definition

. 137 Structural filling and other large

- scale filling is dumping in disguise, placing toxic pollutants in close proximity to groundwater. In fact, EPA’s Office of Solid Waste and Emergency

Response was recentl y rebuked b y the Office of the Inspector General for promoting structural fills and failing to disclose the dangers they pose on its website despite having evidence of the risks associated with these large scale fill projects including documented damage cases. 138 In fact, of the 27 proven and 40 potential damage cases identified b y EP A, unencapsulated large

- scale fill projects including structural fills and fill in sand and gravel quarries (see next section) have accounted for at least 7 proven EPA damage cases and 1 potential EPA damage case, including the Battlefield Golf Course fill in Chesapeake, VA, summarized below. 139 Inaddition, Commenters the Environmental Integrit y Project, Earthjustice, and the Sierra Club have identified still more damage cases from structural fills, including two mentioned below. Battlefield Golf Course in Chesapeake, Virginia: The Battlefield Golf Course was listed by EPA in its 2010 Proposed Rule as an example of a damage case that has emerged since its 2007 Damage Case Report. 140 Coal ash in structural fill projects are listed as “beneficial uses” in Virginia, which allowed Virginia Dominion Power to use 1.5 million cubic yards of fl y ash to contour this golf course without a liner. 141 EPA acknowledges that “concentrations of arsenic, boron, chromium, copper, lead and vanadium det ected in groundwater collected from on - site monitoring wells were considered to be significantly above background concentrations,” but listed this only

as a potential damage case. EPA claims “potential” was used because there were no exceedances of primary federal Maximum Contaminant L evels (MCL ) in residential

136 Proposed Rule, at 35,154. 137 Proposed Rule, at 35,129 (second emphasis added). 138 U.S. EPA, Office of the Inspector General, Early Warning Report: Website for Coal Combustion Products Partnership Conflicts with Agency Policie s , Report No. 11

- P

- 0002 (Oct. 13, 2010), available at http://www.epa.gov/oig/report s/2011/20101013

- 11

- P

- 0002.pdf

. 139 Proposed Rule, at 35,143, 35,155 n.61 (including Pines, IN and the Chesapeake Golf Course in Chesapeake, VA). 140 Proposed Rule, at 35,231. 141 Id

.133

wells. 142 EPA then goes on to state, however, that boron, “a leading indicator of fly ash migration,” was found in 25 residential wells, the secondary MCL for manganese was exceeded in 9 residential wells, and the “action level” for lead was exceeded in 6 residential wells. This last pollutant, lead, is on EPA’s list of “Primary ” Drinking Water Standards, so it is puzzling wh y this was not considered a proven damage case. Even though lead has an “ action level” listed instead of a traditional MCL , EPA’s standard states that “if more than 10% of tap water samples exceed the action level, water s ys tems must take additional steps.” 143 There were 55 residential samples taken, 144 so 6 samples with lead exce edances constitutes 10.9% of samples with exceedances, meaning the threshold for remediation was met. However, EPA simply attributed these many

exceedances to background without acknowledging that if these exceedances are from the golf course, which is c ertainly possible considering the high number of residential wells also spiking for boron, a known tracer pollutant for coal ash, this would constitute a proven damage case. Swift Creek Structural Fill, ReUse Technology, Inc./Full Circle Solutions, Inc., Rocky Mount, North Carolina: The Swift Creek Structural Fill accepted ash from six electric generating utility

power plants, and the off

- site contamination of groundwater from this site would meet EPA’s criteria for a proven damage case. For example, lea d was measured at more than twice the MCL in off

- site groundwater downgradient from the structural fill site, and arsenic and sulfate levels also exceeded MCLs in off

- site groundwater. In addition, arsenic, barium, lead, and mercury (primary pollutants), and sulfate (secondary pollutant) levels in on

site groundwater all exceeded MCL s, with lead concentrations were as high as 0.93 mg/L, more than 6 times the MCL , and arsenic concentrations were as high as 0.068 mg/L , nearl y 7 times the MCL

. 145 The State of North Carolina issued a notice of violation for improper waste placement in 2002. Groundwater monitoring conducted in 2004 (13 years after ash placement) detected the elevated pollutant concentrations, and a corrective action sy stem was subsequently insta lled in 2008. This is y et another example showing that structural fills must be stringentl y regulated, and that all unencapsulated “uses” previousl y or currently deemed beneficial must be subject to a strict monitoring sy stem and regulated as the disposal sites they are. Rocky Acres, Oakwood, Illinois : State testing at the Rocky Acres structural fill in Illinois showed that levels of lead, iron, and manganese exceeded state groundwater standards in two residential wells, prompting the Illinois EPA to tell residents to stop drinking their well

142 Id. at 35,231

– 32. 143 U.S. EPA, National Primary Drinking Water Standards ( EPA 816

- F

- 09

- 004 ) n.7 (last updated May 2009), available at http://water.epa.gov/drink/contaminants/upload/mcl

- 2.pdf

. 144 Tetra Tech EM Inc., Final Site Inspection for the Battlefield G olf Club Site, City of Chesapeake, Virginia 6 (Apr. 16, 2010) (prepared for U.S. EPA Region III), available at http://www.epa.gov/reg3hwmd/CurrentIssues/finalr

- battlefield_golf_club_site/11

- 9

- 10_redacted_DTN_0978_Final_Battlefield_SI_Report.pdf

. 145 Environmental Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites x iv, 4 6

– 49 (Feb. 24, 2010), available at http://www.environmentalintegrity.org/news_reports/documents/OutofControl

MountingDamagesFromC oalAshWasteSites.pdf

. See also Sierra Club, North Carolina Chpt., Unlined Landfills? The Story of Coal Ash Waste in Our Backyard (Apr. 7, 201), available at http://nc.sierraclub.or g/work/docs/FINAL_coal_ash_report.pdf

.134

water. 146 Levels of these three pollutants, lead, iron, and manganese, as well as arsenic, barium, nickel, and chromium were also measured in groundwater underneath the site at levels that exceed Illinois groundwater quality standards in 2009; and four of these metals

— arsenic, barium, chromium, and lead

— exceeded EPA’s primary MCL s. 147 These results of the state’s testing of the water at and around this site led IEPA to classify this site as an open dump, and the company ’s defense was that this was a “beneficial use project.” If future unencapsulated fill projects like this one are not regulated like disposal sites and are instead exempted from an y RCRA regulation (and also exempted from any monitoring requirements), the monitoring that was done at this site to reveal the pollutant exceedances would likel y never be done at future sites in most states. In sum, EPA’s decision to regulate structural fills and all other large

- scale fill projects like disposal sites is jus tified extensively in the literature on beneficial reuse and b y the damage cases that have occurred alread y from this unencapsulated “use.” ii. Sand and gravel pits and/or quarries Like structural fills, disposal in sand and gravel pits and quarries is an unencapsulated use with grave and previously underestimated risks to human health and the environment. There have alread y been at least thirteen damage cases caused b y disposal of coal ash in sand and gravel pits or former quarries that led to contamination of water sources and/or ecological damage. Due to the pervasive damage they have caused (summarized below), they must be regulated, as EPA has proposed, like disposal sites purs uant to Subtitle C of RCRA. BBBS Sand and Gravel Quarries in Gambrills, Maryland 148 : The pollution of groundwater and residential drinking wells at the sand and gravel quarries at in Gambrills, MD, verify that sand and gravel pits and quarries pose extremel y grave risks to human health and the environment and must be regulated, like disposal sites, pursuant to Subtitle C of RCRA. This site was classified b y EP A as a proven damage case after MCLs were exceeded in 34 residential wells “[arsenic (1), bery llium (1), cadmium (6), lead (20), 173 and thallium (6)]” and “SMCL s were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate (5)].” Constellation Energy , whose contractor dumped coal ash from the Brandon Shores power plant into the former gravel pit from 1995 to 2007, was fined $1 million through a consent agreement with Mary land Department of Environment for the contamination in 2007 and agreed to settle the civil case filed by affected residents for an additional $54 million. 149 City of Beverly/Vitale Brothers Fly Ash Pit: This unlined former sand and gravel mine was filled with fly

ash, which contaminated a surface water drinking source, groundwater above primary and secondary

MCL s, air quality , and was subject to an extensive history of

146 Environmental Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites xxiv, 16

– 18 (Feb. 24, 2010), available at http://www.environmentalintegrity.org/news_reports/documents/OutofControl

MountingDamagesFromCoalAshWasteSites.pdf

. 147 Id. 148 Proposed Rule, at 35,147. 149 The Baltimore Sun, Gambrills Residents, CEG Reach Water Settlement (Dec. 31, 2008), available at http://articles.baltimoresun.com/2008

- 12

- 31/news/0812300145_1_fly

- ash

- chess

- world

- constel lation

.135

adminis trative rulings. As EPA states “The case.

. . meets the criteria for a proven damage case for the following reasons: (1) Scientific

— (i) selenium and arsenic exceeded (health

- based) primary MCL s, and (ii) there is evidence of contamination of nearby wetlands and surface waters; and (2) Administrative

— the facility was the subject of several citations and the State has enforced remedial actions.” 150 This case demonstrates the multi

- media effects of coal ash disposal in abandoned sand and gravel pits. K.R. R ezendes South Main Street Ash Landfill, Freetown, Massachusetts: This coal ash monofill in a sand and gravel quarry caused on

- site selenium levels to exceed the primary MCLin groundwater, and is another example of why unencapsulated uses are not beneficia l and must not be exempted from federal regulation. 151 Lansing Board of Water & Light (LBWL) North Lansing Landfill, Michigan: This former gravel quarry

pit where coal ash was placed despite the fact that the operater was onl y licensed “for disposal of inert fill materials including soil, concrete, and brick” caused exceedances of the State health

- based standard for lithium off

- s ite and exceedances on

- site including exceedances of the MCLfor selenium. 152 Virginia Power Yorktown Power Station Chisman Creek Disposal Site, Virginia Disposal of coal ash in abandoned sand and gravel pits caused exceedances of the primary MCL for seleni um in residential wells off

- site; sulfate above the secondary MCL and vanadium were also found in high levels off

- site; arsenic, beryllium, chromium, copper, moly bdenum, nickel, vanadium, and selenium were also found “above background levels” in on

- site gr oundwater. 153
WEPCO Cedar
- Sauk Landfill, Wisconsin : Coal combustion waste placed in this abandoned sand and gravel pit caused selenium to exceed the MCLin groundwater and extensive vegetative (ecological) damage. 154
WEPCO Cedar
- Sauk Landfill, Wisconsin : Fly ash and bottom ash deposited in this former sand and gravel quarry caused boron to exceed health

- based standards and likely migrate off

- site. 155 Inaddition, this was deemed “one of the most seriously affected coal ash sites in the State” caused sulfat e, boron, manganese, chloride, and iron to exceed the State’s Enforcement Standards, and caused arsenic to exceed the State’s Preventive Action Level (PAL ) in nearb y private wells. WEPCO Port Washington Facility, Wisconsin : This site is an unlined former sand and gravel quarry

and is in close proximity to drinking water wells, and it caused an off

- site exceedance of a health

- based standard for selenium. 156

150 OSWER, U.S. EPA, Coal Combustion Waste Damage Case Assessments 14

– 15 (July 9, 2007) 151 Id. at 38

– 39. 152 Id. at 30

– 32. 153 Id. at 17

– 18. 154 Id. at 28

– 29. 155 Id. at 27. 156 Id. at 29

– 30.136

LEPCO Port Washington Facility, Wisconsin: Fly ash was dumped in this old gravel pit, which was permi tted as a sanitary landfill, and fly

ash and bottom ash were used for cover. The site caused the “seepage of landfill leachate onto adjacent propert y,” with VOCs found in residential wells off

- site and cadmium and lead found in off

- site river water. The s ite also caused contamination of on

- site groundwater with VOCs and inorganic constituents including arsenic, barium, chromium, cadmium, and lead. 157 RRI Energy’s Portland Generating Station, Bangor Ash Quarry Disposal Site, Pennsylvania 158 : Groundwater concentrations in downgradient wells at this quarry exceeded primary and secondary

MCL s for arsenic, aluminum, fluoride, boron, iron, manganese, sulfate, and total dissolved solids (TDS), and the site operator’s consultant conceded that the landfill is res ponsible for the degradation. In addition, two NPDES permitted outfalls discharged concentrations of boron, cadmium, hexavalent chromium, and selenium into Brush y Meadow Creek at concentrations notably higher than Pennsylvania’s surface water standards, the Water Quality Criteria Continuous Concentrations for Fish and Aquatic Life (CCC). For example, boron was measured from Outfall 001 at 86.6 mg/L , more than 54 times the state’s CCC of 1.600 mg/L. in addition, selenium was measured at 41.3 μg/L from this Outfall, almost nine times the PA CCC of 4.6 μg/L(adjusted for a hardness of 400). These discharges were not authorized by RRI ’s NPDES permit for this site. Trans
- Ash, Inc.

– CCW Landfill, TVA Johnsonville Plant, Tennessee : Coal ash was dumped into quarries at a former sand and gravel mine, causing exceedances of the primary MCLfor mercury

in residential wells, with mercury concentrations ranging from 0.011 to 0.013 mg/L

– 5.5 to 6.5 times higher than the primary MCL , as well as on

- site exceedances of the primary MCL s for arsenic, chromium, lead, and mercury

. 159 Industrial Excess Landfill Superfund Site, Uniontown, Ohio : This former sand and gravel pit has been designated a Superfund Site by the U.S. EPA, as there were exceedances of the MCL s for at least 10 pollutants

— antimony , arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, and thallium

— in off

- site residential wells (there was also evidence of migration of radionuclides and anthropogenic radioisotopes into nearb y residential areas ). 160 Joliet 9 Lincoln Stone Quarry Landfill, Illionois 161 : Midwest Generation bought out or replaced 18 off

- site drinking water wells contaminated with boron from CCW dumped in its unlined landfill and two unlined ponds built in a quarry . Groundwater moving off

- site became

157 Id. at 54. 158 Environmental Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites 85

– 88 (Feb. 24, 2010), available at http://www.environmentalintegrity.or g/news_reports/documents/OutofControl

MountingDamagesFromCoalAshWasteSites.pdf

. 159 Id. at 102

– 105. 160 Env. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment 132

– 143 (Aug. 26, 2010) (Jeff Stant, ed.), available at http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf

. 161 Id. at 41

– 47

.137

contaminated at levels 52 times over the MCL for cadmium. In August 2009, I EPA issued a Notice of Violation citing 50 exceedances of groundwater standards for arsenic, barium, copper, and moly bdenum. Arsenic has exceeded the MCL by up to 8.3 times and moly bdenum had exceeded the federal Lifetime Health Advisry by 70 times in 2 off

- site monitoring wells. These numerous examples of the harm caused b y unencapsulated “reuse” in sand and gravel pits and quarries, in addition to the numerous examples of harm caused by “reuse” as structural fills, demonstrate that these unencapsulated uses are merel y disposal in disguise, and must be regulated stringently under Subtitle C of RCRA to prevent the risks they pose of contaminating groundwater, surf ace water, and ecological s ys tems with heavy metals and other harmful pollutants. Other unencapsulated uses are similar in that they are not consolidated into a product and are not subject to requirements for composite liners or groundwater monitoring. Al l of these unencapsulated uses must be regulated pursuant to Subtitle C to ensure that these and other safeguards are required and federally enforceable. iii. Agricultural applications of coal ash can leach toxic pollutants into soils and crops. Agricultural applications of coal ash, including for nutrient addition and soil modification or stabilization, are unencapsulated uses and cannot be exempted from RCRA regulation as beneficial uses. Agricultural applications place the toxic constituents c ommonly found in CCRs in direct contact with soil, potentially allowing these constituents to be taken up by crops or to travel as runoff into nearby surface waters. In addition, the varying quantities of CCRs placed, the frequencies of placement, the sur face area of the fields, and the composition of the CCRs being applied to crops can pose varying degrees of danger to human health and the environment. Rather than leaving it up to industry to develop management standards 162 to regulate this extremely dange rous unencapsulated use, EPA must regulate it.

a. Background The potential dangers to human health and the environment from agricultural applications of fly ash are serious enough to warrant their strict regulation under Subtitle C of RCRA. The preambl e to the proposed rule notes that a risk assessment of certain agricultural uses of coal ash, conducted in 1999 for the May 2000 regulatory

determination (hereinafter, “1998 Risk Analy sis”), concluded that the risks posed to human health are “within the range” of EPA’s highest acceptable cancer threshold, 1×10 – 6 . This is presumably based upon the 1998 Risk Analy sis’s conclusion that “There were no exceedances for this scenario. Further, there were no risks in excess of 1E

- 7 nor an y HQ’s greater than 0.1.” EPA states: In 1999 EPA conducted a risk assessment of certain agricultural uses of CCRs, since the use of CCRs in this manner was considered the most likely t o raise concerns from a human health and environmental point of view. EPA’s risk assessment es timated the risks associated with such uses to be within the range of 1×10 – 6

. The results of the risk assessment, as well as EPA’s belief that the use of CCRs in agricultural settings was the most likely use to raise concerns, resulted in

162 Proposed Rule, at 35,162.138

EPA concluding th at none of the identified beneficial uses warranted federal regulation, because ‘‘we were not able to identify damage cases associated with these ty pes of beneficial uses, nor do we now believe that these uses of coal combustion wastes present a significant risk to human health or the environment.’’ (65 FR 32230, May 2 2, 2000.) EPA also cited the importance of beneficiall y using secondary m aterials and of resource conservation, as an alternative to disposal. 163 Thus, EPA decided in 2000 that no beneficial us es warranted regulation and all could claim the Bevill exemption from RCRA regulation. In the Proposed Rule, EPA again has proposed exempting agricultural uses from regulation, but EPA recognizes that the use of “excess quantities” of FGD gy psum in agricu ltural applications must be regulated like a landfill and will not meet the definition of “beneficial use.” 164 Specificall y, EPA states that “ CCPs that are used in excess quantities ( e.g., the field

- applications of FGD gypsum in amounts that exceed scientif ically supported quantities required for enhancing soil properties and/or crop yields)

. . . are excluded from this definition [of beneficial reuse ] .” 165 At the same time, whatever uses qualify as non - “excess” would be exempted from RCRA pursuant to the Bevill amendment. EPA would leave these agricultural applications of coal ash up to industry

standards without a regulatory backstop for unsafe applications. EPA provides only that that these uses “should be conducted with care, according to appropriate management practices, and with appropriate characterization of the material and the site where the materials would be placed.” 166 The regulated industry would be its own gatekeeper with regard to what management practices would be “appropriate.” Although EPA does state that it is formulating guidance for reuse of FGD gy psum in agriculture, 167 guidance is insufficient to ensure compliance before the crops grown in that gy psum soil enter the stream of commerce, and new research (see discussion infra ) concernin g agricultural uses makes identification of a “safe” level unlikely

. There are new data and analy ses on the leachability of pollutants in FGD gy

psum and fl y ash (two commonly

used ty pes of coal ash for agricultural uses) and the risks posed by these agr icultural applications (as well as b y other unencapsulated uses and even encapsulated uses, as set forth in the balance of this subsection). This new information reveals the high potential for leaching and plant uptake of toxic pollutants such as arsenic, selenium, and other heavy metals. Industry cannot be relied upon to undertake the investigations necessary to derive new test data, nor can industry

be relied upon to enforce against unsafe practices. The high leachabilit y of pollutants such as arsenic and cadmium from FGD gy psum and fl y ash, and the possibility that these leached metals would be absorbed b y crops or leached into groundwater or surface water makes plain the need for EPA to regulate these uses like disposal.

163 Proposed Rule, at 35, 154 (citing Ctr. for Envtl. Analysis, Research Triangle Institute, Draft Final Report; Non

- Groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2) (prepared for OS WER, EPA), available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm (hereinafter “1998 Risk Analysis”)). 164 Proposed Rule, at 35,154. 165 Id. 166 Proposed Rule, at 35,154. 167 Proposed Rule, at 35,162.139 1. New Data Available Since the May 2000 Determination and Even Since the Proposed Rule Reveal High Leachability of Pollutants from FGD Gypsum and Fly Ash When Applied to Soils. New data on the high leachability of toxic pollutants from coal ash, even in quantities that are not “exces s,” mandate that EPA prohibit this use in order to protect human health and the environment. Although EPA would regulate agricultural applications in “excess quantities,” “excess quantities” is defined as reuse quantities “greater than were necessary for a specific project.” 168 Testing performed by EPA and others has found that leachability of toxic pollutants from FGD gy

psum and fly

ash are higher than previously measured and that spreading coal ash onto soil and/or crops in particular is a method that can leach toxic pollutants. Thus, quantity is not the only

factor in determining toxicity of coal ash

– pH, frequency , accumulation, and other factors play

a critical role. Because agricultural applications can exceed thresholds for safety depending on a variet y of factors that may differ batch

- by

- batch, because over 320,000 short tons of coal ash is spread on crops every year, and because this application may increase toxicity

in crops that humans, especially children, ingest on a regular basis, EPA must re gulate all agricultural applications of coal ash pursuant to RCRA’s subtitle C. FGD gy psum, also known as “s ynthetic gypsum” or “scrubber waste,” is the byproduct of the use of FGD s ys tems or “scrubbers” to reduce emissions of air pollutants such as su lfur dioxide from the coal

- fired boiler exhausts. The scrubbing process, while reducing air pollutants, transfers these pollutants to the FGD waste, a form of coal ash. 169 Because FGD gy psum has the same chemical make up as mined gy psum

— calcium sulfide de hy drate, or CaSO 4 ·2H 2 O

— it has been used as a replacement for mined gy psum in many

applications, including use as an agricultural amendment. 170 Agricultural applications of FGD gy psum and fl y ash are common

— 320,863 short tons of coal ash were reused for “Agriculture” in 2008 alone, with FGD waste comprising 281,752 of those tons. 171 Furthermore, these agricultural applications of coal ash have increased by over 104% between 2001 (when 157,199 short tons were used) and 2008. See Table 1. FGD gy psum has se veral purported beneficial purposes when applied to soils, including: providing nutrients (such as calcium to crops with high calcium requirements, such as peanuts, or to provide sulfur to fertilize soil); conditioning the soil; remediating high sodium soi ls; and reducing migration of nutrients and sediments to surface water. 172 However, a non

- beneficial consequence of amending soils with FGD gy psum is that, in addition to the calcium, sulfate, and other pollutants

168 Proposed Rule, at 35,1 63

. 169 Proposed Rule, at 35,139. 170 See, e.g., U.S. EPA, Agricultural Uses for Flue Gas Desulfurization (FGD) Gypsum, Doc. No. EPA530

- F

- 08

- 009 (Mar. 2008). 171 See American Coa l Ash Association, “ Coal Combustion Product Production & Use Survey Report” (2008), http://acaa.affiniscape.com/associations/8003/files/2008_AC AA_CCP_Survey_Report_FINAL_100509.pdf , and Table 1

. 172 Id.140

that can be beneficial to soils in controll ed quantities, the toxic pollutants in the gy psum are also being absorbed b y the crops growing in those soils. 173

a. FGD Gypsum and Fly Ash Can Leach Toxic Pollutants At Much Higher Levels Than Previously Believed

. Underestimating Risks. EPA continues to rely upon studies that have underestimated the risks posed to human health and the environment to support its conclusion that agricultural applications should be afforded an exemption from regulation rather than regulated like other dangerous unencapsulate d uses. For example, EPA continues to cite to the 1998 Risk Analy sis as proof that agricultural applications do not pose risks higher than 1×10 – 6 despite the flaws in the study and despite new evidence calling that study ’s accuracy into question. For example, the 1998 Risk Analy sis states: Because the FBC waste material is directly a pplied to the agricultural field at prescribed rates and frequencies, the size of the field has no impact on the constituent waste concentration in the soil and subsequent i mpacted media. Itw as found that the variation in the size of the field had little impact on stream concentrations and fish ingestion risks. Therefore, size of the agricultural field was not varied. 174 This approach to field size is fundamentall y flawed. Inthe 1998 Risk Analy sis, EPA stated that using an “average” field size was similarly modeled for the Cement Kiln Dust Rule and went on to state without support that “prescribed rates and quantities” make field size irrelevant, even for “subsequent impac ted media.” C ITE ask L isa W Although the toxicity

characteristic is based upon concentration and therefore the concentration of runoff may not change based on increased field size, the total quantity of pollutants that flow as runoff from a field 100 time s the “average” field size can place 100 times quantity of pollutants into a receiving stream or lake. Deposition of these heav y metals in greater quantities enables greater bioaccumulation of heavy metals in aquatic species and up the food chain. Next , EPA assumed there was no risk posed from fugitive dust emissions from agricultural applications of coal ash. EPA stated that “[a] comparison of constituents and starting concentrations between CKD and FBC revealed that the FBC risks from inhalation woul d likely

be insignificant. Therefore, it was assumed that risks would be driven by other pathway s and thus inhalation risks were not evaluated for this anal ys is.” 175 EPA has now conducted new studies confirming that, in fact, “without fugitive dust controls , there could be exceedances of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter

173 NEED CITE. 174 Ctr. for Envtl. Analysis, Research Triangle Institute, Draft Final Report; Non

- Groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (F FC2) , at 13 (prepared for OSWER, EPA), available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm

. 175 Id. at 21.141

in the air at residences near CCR landfills.” 176 The surface area of fields where agricultural applications would be applied release fugitive dust just as landfills do, and EPA’s continued reliance upon the 1998 Risk Analy sis on this point ensures an underestimation of risk to environmental and human receptors. Furthermore, EPA has not revised its 1998 Risk Analy sis based on new data detailing leach rates from FGD gypsum and fly ash that are orders of magnitude higher than previously believed. See discussion infra and in section II.D.a. for a more detailed discu ssion these new risks. Disregarding dangers. Furthermore, EPA has disregarded its own research detailing the risks of using coal ash for agricultural amendments. For example, EPA’s 1998 Risk Analy sis itself states that “[a]pplication of the waste to agricultural lands as a soil amendment may provide risks from a variety of pathways .” 177 Nevertheless, EPA has not undertaken any meaningful assessment of risks associated with these pathways. A study more recent than EPA’s 1998 Risk Analysis concluded that a disadvantage of using coal ash as a soil amendment is that coal ash can have high levels of boron and metals and, specificall y, “ can leach [ selenium ] and [ arsenic ].” 178 The study further presented a critique of EPA’s assumption that industry will adhere t o management standards that promote low leachability

because large quantities of coal ash are inherentl y necessary to achieve the intended benefits of this use. Specifically , EPA’s 2007 study states that a disadvantage of using coal ash for soil amendment s is that: “ Large quantities [are

] generally necessary to achieve benefits ; Can have contaminants including Se, B, As and metals.” 179 In other words, “large” quantities are necessary to achieve the benefits of using coal ash for agricultural applications; y et “excess” quantities of coal ash in agricultural applications is the only trigger for disposal regulation under EPA’s proposed subtitle C rule. 180 If there is a “goldilocks” scenario between “large” quantities and “excess” quantities where agricultural ap plications are trul y beneficial, EPA has not discovered it, and neither has industry . Until there is scientifically credible data to suggest that there is a “just right” scenario, this extremely dangerous unencapsulated use according to Subtitle C of RCRA

. Improved leach tests. Recent studies based upon a pH

- sensitive leach test, namely the Leaching Environmental Assessment Framework (LEAF), reveal leach rates orders of magnitude higher than the rates suggested b y previous tests such as the TCL P test. 181 See Section II.D.a, supra, for a complete analy sis of the new leach test. EPA’s own study , Characterization of Coal

176 Proposed Rule, at 35,171. 177 Id. at 16

– 17. 178 U.S. EPA, The Use of Soil Amendments for Remediation, Revitalization, and Reuse 20 , 22 (Dec. 2007), available at http://www.epa.gov/tio/download/remed/epa

- 542

- r - 07

- 013.pdf (e mphasis added)

. 179 Id. at 22 (emphasis added). 180 Proposed Rule, at 35,129

. 181 See, e.g., U

. S

. EPA, Office of Research & Development, Characterization of Coal Combustion Residues from Electric Utilities

— Leaching and Characterization Data (EPA/600/R

- 09/151) ( Dec

. 2009 ), available at http://www.epa.gov/nrmrl/pubs/600r09151/600r09151.html ; and Susan A. Thorneloe et al., Evaluating the Fate of Metals in Air Pollution Control Residues from Coal

- Fired Power Plants, 44 Envtl. Sci. Technol. 7,351 (Aug. 31, 2010), available at http://pubs.acs.org/doi/pdfplus/10.1021/es1016558

.142

Combustion Residues from Electric Utilities

– Leaching and Characterization Data , 182 was released in December 2009 (six months after the Pro posed Rule was published in the Federal Register), showing drastically higher leach rates than the TCL P test previously relied upon b y EPA and industry . The results of EPA’s study showed that FGD gy

psum and fly

ash, the primary and secondary

t ype of coal ash used in agricultural applications, respectivel y, both leach toxic and other coal ash pollutants, including antimony , arsenic, boron, cadmium, chromium, moly bdenum, and selenium, at levels that greatl y exceed MCL s 183 : Table ES

- 3. Leach results for 5.4 ≤ pH ≤ 12.4 and at “own pH” from evaluation of twenty FGD gy psums. 184 Hg Sb As Ba B Cd Cr Co Pb Mo Se Tl Total in Material (mg/kg) 0.01

- 3.1 0.14

- 8.2 0.95

- 10 2.4

- 67 NA 0.11

- 0.61 1.2

- 20 0.77

- 4.4 0.51

- 12 1.1

- 12 2.3

- 46 0.24

- 2.3 Leach results (μg/L) <0.0

1

- 0.66 <0.3

- 330 0.32

- 1,200 30

- 560 12

-

270,000 <0.2

- 370 <0.3

- 240 <0.2

- 1,100 <0.2

- 12 0.36

- 1,900 3.6

-

16,000 <0.3

- 1,100 TC (μg/L) 200 5,000 100,000 1,000 5,000 5,000 1,000 MCL (μg/L) 2 6 10 2,000 7,000 DWEL 5 100 15 200 DWELL 50 2 Note: The shade is used to indicate where there could be a potential concern for a metal when comparing the leach results to the MCL, DWEL, or TC. Note that MCL and DWEL values represent well concentrations; leachate dilution and attenuation processes that would occur in groundwater before leachate reaches a w ell are not accounted for, and so MCL and DWEL values are compared to leaching concentrations here to provide context for the test results and initial screening. Table ES

- 2. Leach results for 5.4 ≤ pH ≤ 12.4 and at “own pH13” from evaluation of thirty

- four fly ashes. 185 Hg Sb As Ba B Cd Cr Co Pb Mo Se Tl Total in Material (mg/kg) 0.01

- 1.5 3

- 14 17

- 510 590

-

7,000 NA 0.3

-

1.8 66

- 210 16

- 66 24

- 120 6.9

- 77 1.1

-

210 0.72

- 13 Leach results (μg/L) <0.0

1

- 0.50 <0.3

- 11,000 0.32

- 18,000 50

- 670,000 210

-

270,000 <0.1

- 320 <0.3

- 7,300 <0.3

- 500 <0.2

- 35 <0.5

- 130,000 5.7

- 29,000 <0.3

- 790 TC (μg/L) 200 5,000 100,000 1,000 5, 000 5,000 1, 000 MCL (μg/L) 2 6 10 2,000 7,000 DWEL 5 100 15 200 DWEL 50 2 Note: The shade is used to indicate where there could be a potential concern for a metal when comparing the leach results to the MCL, DWEL, or TC. Note that MCL and DWEL values represent well concentrations; leachate dilution and attenuati on processes

182 Id. 183 The following tables and notes are found in U

. S

. EPA, Office of Research and Development, Characterization of Coal Combustion Residues from Electric Utilities

— Leaching and Characterization Data (EPA/600/R

- 09/151) , at xiv ( Dec

. 2009 ) (emphasis in original), available at http://www.epa.gov/nrmrl/pubs/600r09151/600r09151.html

. 184 Id. 185 Id.143

that would occur in groundwater before leachate reaches a well are not accounted for, and so MCL and DWEL values are compared to leaching concentrations here to provide context for the test results and initial screening. For FGD gy

psum, these results reveal that selenium leaches at up to 16,000 μg/L, 50 times the MCLand 16 times the threshold that would require this waste to be a characteristic hazardous waste based on toxicity (as listed in the TC row of each chart, 1,000 μg/L). 186 In additio n, thallium leaches at 1,100 μg/L, 550 times higher than the primary MCL ; cadmium leaches at up to 370 μg/L, 74 times higher than the primary MCL ; arsenic leaches at concentrations up to 1,200 μg/L, 120 times higher than the primary MCL ; and antimony

leach es up to 330 μg/L , 55 times higher than the primary MCL . FGD gy

psum leaches moly

bdenum at up to 1,900 μg/L , more than 45 times over the federal Lifetime Health Advisory and boron at up to 270,000 μg/L , also 45 times higher the federal Lifetime Health Advi sory . The results for fly

ash reveal that it would be characterized as a hazardous waste based on four individual pollutant leach rates. Specifically : arsenic leaches up to 18,000 μg/L, 1,800 times the MCLand 3.6 times the level needed to become a characteristic hazardous waste (5,000 μg/L); barium leaches from fly ash at up to 670,000 μg/L, 335 times th e MCL(2,000 μg/L) and 6.7 times the hazardous waste threshold (100,000 μg/L); chromium leaches at up to 7,300 μg/L , 730 times higher than the MCL(100 μg/L) and also exceeding the hazardous waste threshold (5,000 μg/L); and selenium leaches at up to 29,00 0 μg/L, exceeding the MCL of 50 by a factor of 580 and exceeding the hazardous waste threshold (1,000 μg/L) b y a factor of 29. 187 In addition, antimony

leaches at up to 1,833 times the MCL ; boron leaches at up to 38.5 times the DWEL ; cadmium leaches up to 6 4 times the MCL; lead leaches at up to more than 2.3 times the MCL ; moly

bdenum leaches at up to over 650 times the DWEL ; and thallium leaches at up to 395 times the MCL

. The carcinogenic, reproductive, gastrointestinal, and other impacts of these pollutants are well documented and acknowledged b y EPA. 188 b. The Toxic Pollutants That L each From Coal Ash Are Absorbed By

Crops Grown in the Coal Ash

- Amended Soils and Accumulate Up the Food Chain. Furthermore, these pollutants that leach from the coal ash used to amend soils are taken up by the crops grown in that soil. Researchers studying the effects of growing crops with coal ash constituting 5 to 20% of soil weight showed that the more coal ash was applied, the more arsenic and titanium were absorbed b y cro ps, with basil and zucchini exceeding toxic levels at above 6 parts per million. 189 Soil with coal ash at 1.1% soil weight, in contrast, increased tomato yi elds up to 70% and found no groundwater contamination or fertility decline in three ye ars.

186 See 40 C.F.R. § 261.64. 187 Id. 188 See, e.g., Proposed Rule, at 35,169

– 70. 189 Matthew Cimitile, “Is Coal Ash in Soil a Good Idea?” Scientific American (Feb. 6, 2009), available at http://www.scientificamerican.com/article.cfm?id=coal

- ash

- in

- soil

.144

Reuse o f other t ypes of coal ash such as fl y ash for agricultural amendments pose similar toxic risks to plants that absorb toxic pollutants along with the nutrients being absorbed from the soil: Plants growing on soils amended with fl y ash have been shown to b e enriched in elements such as As, Ba, B, Mo, Se, Sr, and V (Furr et al., 1977; Adriano et al., 1980). Although trace amounts of some of these elements are required for plant and animal nutrition, higher levels can be toxic. Highl y phototoxic elements oft en kill plants before the animals are able to accumulate large quantities of the element. 190 Furthermore, even though transfer of toxic pollutants higher up the food chain can be limited where plants die before being consumed, many common coal ash pollutants that do not immediately

kill plants when absorbed are nonetheless fatal to grazing animals upon ingestion of such plants. For example: Elements such as Se and Mo

. . . are not particularly t oxic to plants and may b e concentrated in plant tissue at lev els that cause toxicities in grazing animals. Soils amended with high rates of fly a sh may a ccumulate enough Mo to potentially cause mol ybdenosis in cattle (Doran and Martens, 1972; Elseewi and Page, 1984). 191 Even EPA’s 1998 Risk Analy sis, which EPA is n ow rel yi ng on for the proposition that agricultural applications do not require RCRA regulation, admitted that crops absorb the pollutants in from coal combustion wastes used as soil amendments: “Once applied to the agricultural lands, contaminants are tak en up by the plants grown on the amended soil . Wind erosion and runoff/erosion from the agricultural field to a nearby stream will also occur .” 192 EPA even included a picture of the fate of contaminants entering crops and nearb y streams 193 :

190 Md. Wasim Aktar, Pesticide Residue Laboratory, Dep’t Agricultural Chemicals, Bidhan Chandra Krishi Viswavidyalaya, Mohanpur

- 741252, Nadia, West Bengal, India, “Fly Ash Use in Agriculture : A Perspective,” in Geoffrey S. Ashworth & Pablo Azevedo , eds, Agric ultural Wastes 77

- 91 (2009)

. 191 Id. 192 Ctr. for Envtl. Analysis, Research Triangle Institute, Draft Final Report; Non

- Groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2), at 17 (prepared for OSWER, EPA ) (emphasis added) , available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm

. 193 Id.145

“Figure 4.2 Dep iction of Environmental Release and Transport for the Dewatered Surface Impoundment Scenario” (Where Ash from Dewatered Impoundment is Reused on Field) EPA further explained that “[c]rops on the agricultural field receive dry deposition of particles from the agricultural field as well as uptake of contaminant through the roots.” 194 Another more recent article states that “Negative aspects of agricultural CCP application include (1) excessive trace element loadings that may increase food chain metals (Peral ta

- Videa et al., 2009), (2) high soluble salt loadings that may reduce initial plant growth (Palumbo et al., 2004), and (3) toxic substances leaching into the groundwater (Singh and Paul, 2001).” 195 Given the extensive threats and potential threats posed b y reuse of FGD gypsum and other ty pes of coal ash for agricultural applications, and the proven migration of toxic pollutants from FGD gy

psum and fly

ash into crops and into receiving streams, EPA’s final rule for coal ash regulation cannot exempt all of these agricultural applications as “beneficial” uses.

ii. Snow and Ice Control Over 700,000 short tons of coal ash

— primarily

bottom ash but also 1,352 short tons of boiler slag

— went to “snow and ice control” in 2008 alone, 196 despite the fact that this is an unencapsulated use of coal ash that involves pouring loose coal ash onto roads to prevent skidding in place of fine aggregate. 197 Numerous commenters have expressed concern about this unencapsulated use being applied to roa ds in their communities, y et the record is devoid of studies demonstrating that this use, which enables bottom ash to be applied to roads and then to run off into stream s ys tems and groundwater, has been proven not to accumulate to

194 Id. at 22. 195 Sanchul Hwang et al., Phaselous vulgaris Growth u nder the Influence of Manufactured Coal Ash Aggregates, University of Kentucky Center for Applied Energy Research and the American Coal Ash Ass’n (2010), available at http://www.coalcgp

- journal.org

. 196 American Coal Ash Association, “Coal Combustion Product Production & Use Survey Report” (2008), http://acaa.affiniscape.com/associations/8003/f iles/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf

. 197 2010 Proposed Rule, at 35,163.146

concentrations that woul d exceed surface water quality standards or groundwater MCLs. Nor have studies been presented demonstrating that this use has been proven to be no more toxic than the materials being replaced (namely fine aggregate). This use places necessarily places coal ash (and its toxic constituents) into direct contact with snow and ice, so that it will melt and run off of roads and into water systems. There can be no liner sy stem, leachate collection sy stem, or other protection associated with this use. Further more, use of coal ash in short tons for this material declined almost 20% between 2001 and 2008. 198 Due to the obvious concerns that this unencapsulated use raises to communities that rely on the water sources into which this coal ash runs off, this use mus t be regulated under Subtitle C of RCRA and not given an exemption from RCRA regulation.

iii. Blasting Grit/Roofing Granules In 2008 alone, 1,637,867 short tons of coal ash, primarily boiler slag (1,486,316 short tons) and the balance fl y ash and bottom ash, were used for blasting grit/roofing granules, which represented an increase of over more than 7% compared to 2001, but a significant decrease from 1997 use of 2,448,330 tons. 199 This use replaces sand for sandblasting and roofing granules. 200 However, EPA and the National Institute for Occupational Safet y and Health (NIOSH) have found that blasting grit containing coal ash boiler slag can be hazardous to human health. 201 Traditional sand used as blasting grit/roofing granules has been shown to cause health risks, and alternative materials (such as recy cled glass) may pose lower risks. 202 Because of the great potential dangers caused by this use, it must not be excluded as a beneficial use. iv. Aggregate Aggregate is listed as a separate category by the ACAA but used primarily in other reuses such as road beds, asphalt, or concrete. Over 900,000 short tons of coal ash, primarily bottom ash (727,048 short tons) are incorp orated into aggregate. 203 There is little data available on the potential health and environmental hazards posed by coal ash in aggregate, and more study is needed before EPA can reasonabl y exempt this use as “beneficial.”

v. Excavation to allow more coal ash fill Commenters agree with EPA’s definition of “CCR landfills” to include the requirement that “[s]ites that are excavated so that more coal ash can be used as fill are also considered CCR

198 See Table 1

. 199 U.S. EPA, Report to Congress: Wastes from the Combustion of Fossil Fuels (EPA 530

- R

- 99

- 010) , at 3

- 36 (Mar. 1999). 200 Id. 201 See Paul J. Mellon, Jr., Novet as Solutions LLC, EPA Coal Combustion Residuals Public Hearings (Oct. 27, 2010) http://www.newageblastmedia.com/EPA%20CCR%20Pu blic%20Hearings_%20w%20pg%20no%20Knoxvil le%20TN%20Oct%2027%202010.pdf , and sources cited therein. 202 See, e.g. New Age Blast Media, http://www.newageblastmedia.com/

. 203 See Table 1

.147

landfills.” 204 Excavation of an existing site for placement of add itional ash must be treated like any other new placement of coal ash, especiall y due to the likely excess fugitive dust that would be releases and the coal ash

- laden waters that could run off an excavated site.

b. Some Encapsulated Uses Also Pose Potential Dangers. i. Raw Feed in Cement Coal ash used as raw feed for clinker or blended cement made up almost 7% of the coal ash that was reused in 2008. 205 However, the mercury emissions from using coal ash as feed for cement has been deemed by at least one state to negate the emissions benefits of installing FGD sy stems (“air pollution scrubbers”) created to reduce mercury emissions. The New York State De partment of Environmental Conservation has decided to disapprove this use as “beneficial” unless a case

- by

- case determination shows it is beneficial. The DEC found that: Mercury removed by

the coal plant air pollution control equipment will be concentrat ed in the [coal combustion fly ash]. If this CCFA is subsequently fed to a cement kiln, the temperatures found in the kiln will liberate the mercury from the CCFA and the environmental benefit of coal power plant emission control for mercury will have bee n negated. 206 These findings were recently corroborated b y an EPA study conducted to test volatilization of four metals

— mercury , arsenic, lead, and selenium

— in different reuse applications, including the production of cement clinker. The stud y, which tes ted many real coal ashes from several power plants, found that “virtually all of the metals tested were volatilized when exposed to a temperature of 1450 o C,” which is the temperature assumed to be achieved in a cement kiln. 207 To be clear, the finding was that virtually 100% of each pollutant volatized at that temperature and would be assumed to do the same in a cement kiln, making this use the most potentially toxic of the four reuses studied. The extremel y high likelihood of toxic heavy metals being 100% or almost 100% volatized when fed into a cement kiln for clinker production makes this an extremely dangerous reuse that must not be exempted as a beneficial use. ii. FGD gypsum in wallboard products Although widel y considered safe b y those in the beneficia l reuse industry and by government organizations, some studies are beginning to question whether “sy nthetic gy psum”

204 Proposed Rule, at 35,130

. 205 See Table 1

. 206 New York State Dep’t Envtl. Conservation, Division of Solid & Hazardous Materials, Fact Sheet: Coal Combustion Fly Ash As an Ingredient in Cement Manufacturing; Today’s Concrete Technology, “State to Ban Coal Fly Ash at Lafarge Ravena Cement Plant” (Dec. 7, 2009), available at http://www.todaysconcretetechnology.com/state

- to
- ban

- coal

- fly

- ash

- at
- lafarge

- ravena - cement
- plant.html

. 207 Susan Alice Thorneloe

- Howard , Principal Investigator, Office of Researc h & Development, U.S. EPA, Evaluating the Thermal Stability of Mercury and Other Metals in Coal Combustion Residues Used in the Production of Cement Clinker, Asphalt, and Wallboard ( EPA/600/R

- 09/152 ) 3

- 1 ( Dec. 2009) [hereinafter “Thorneloe

- Howard, Therm al Study ”], available at http://www.epa.gov/nrmrl/pubs/600r09152/600r09152.pdf

.148

wallboard may

cause elevated mercury

releases. FGD gy

psum panel products were the fourth

largest reuse of coal ash in 2008, with 8,533,732 short tons of FGD waste recy cled into panel products, representing more than a 37% increase from 2001. 208 However, one study found that flue gas desulfurization (FGD) gy psum plants can release 1,000 pounds of mercury annuall y or more, the equivalent of 1% o f mercury emissions. 209 These results may

not reflect the full extent of pollution that is at issue. An EPA study of volatilization of mercury , arsenic, lead, and selenium from FGD gy psum in wallboard found that the non

- mercury

metals are less likely

to volatize (and more likel y to be retained in the FGD gy psum), even during the kettle calcining process (the phase in wallboard production deemed most likely

to promote volatizing of metals). 210 However, depending on the temperature of the kettle calciner, th e study

found that mercury

could volatize at 9

–48% (first study) or 2

– 51% (study). 211 Given these serious concerns, more research must be conducted on this use before it is given the blanket exemption from regulation afforded b y the “beneficial use” exclusi on.

iii. Mineral filler in asphalt Using bottom ash (257,806 short tons in 2008) and a relativel y small amount of fly ash (7,781 short tons in 2008) as a mineral filler in asphalt is one of the less frequent uses tracked by the American Coal Ash Association, with only 265,587 short tons reused in 2008. 212 However, it is a potentially

dangerous practice. A study conducted by

EPA simulating manufacture of asphalt with coal ash found that mercury releases were a potential issue. Although some samples of coal ash from some power plants showed low mercury v olatilization in the process, another sample (from “Facility

B”) showed: [S]ignificant loss of Hg into the gas - phase as a result of exposure to the asphalt manufacturing conditions. Facility B is the only

facility included in this study

that has an in

- fur

nace SCR [selective catal yt ic reduction] design. This design ty pe necessitates that the fl y ash come in contact with the SCR cataly st surface regardless of whether ammonia is being injected or not. Further investigation of fly ashes from facilities with an in

- furnace SCR design is probably warranted. 213 The “significant” mercury volatilization ranged from 76.5% (SCR off) to 89.3% (SCR on). Consequently , asphalt manufacturing under certain circumstances does release high levels of mercury and should not be s ubject to a blanket exemption. iv. Concrete and bricks 1. Fly Ash

208 See Table 1

. 209 Jessica Marshall, USG, Fate of Mercury in Synthetic Gypsum Used for Wallboard Production Topical Report, Task 1 Wallboard Plant Test Results (Apr. 2005) (prepared for U.S. Dep’t Energy), available at http://www.netl.doe.gov/technologies/coalpower/ewr/pubs/USGTask1TopRpt_A113004.PDF

. 210 Thornloe

- Howard, Thermal Study, at 4

- 1 to 4

- 2. 211 Id. 212 See Table 1

. 213 Thornloe

- Howard, Thermal Study, at 4

- 1.149

In corporating fly

ash into concrete is considered the safest beneficial reuse by EPA, and we agree. In addition, using fl y ash in concrete affords other environmental benefits such as CO 2 emissions reductions. However, some studies have found evidence of leachability of metals from fly ash in concrete. For example, one study of fly ash concrete found that “[a]rsenic, and to a lesser extent Cu and Zn, were the onl y metals that showed an y significant leaching trends in the tests. Arsenic showed a correlation between the metal content in fl y ash and the concentrations of the metals leached from the fly ash concrete.” 214
2. Bottom Ash Bottom ash is less frequently used in concrete and less of ten tested for potential leachability

or other toxic pollutant

- related risks because it is a less desirable replacement for Portland cement in concrete due to its inferior strength. For example, a test of “Rockport bottom ash, when used alone as an aggreg ate, did not achieve the target strength requirements of 1000 psi in 3 day s.” 215 However, mixing the bottom ash with percentages of fl y ash 216 and other methods are leading to use of this product, in the amount of 720,948 short tons ash per ye ar for concrete/ concrete products/grout (although this use was down almost 59,000 tons as compared to 2001). 217 Levels of heav y metals in bottom ash have been tested to be detectable, “[t]he ashes were anal ys ed for the pres ence of Cr, Mn, Pb, Zn, Cu, Ni and Co and detecta ble levels of all were found in both fly

ash and bottom ash.” 218 The leachability of these pollutants from bottom ash in concrete must be analyzed to determine the relative dangers this use poses to human health and the environment.

v. Road base/sub
- base 1. Ri sks and Damage Case The use of bottom ash and other ty pes of coal ash for road base/sub

- base has been proven at one Superfund site to leach toxic pollutants. The use of coal ash for construction projects throughout the Town of Pines, Indiana, including a s uncovered roads, led to the town being declared a Superfund Site after levels of boron, moly bdenum, arsenic, and other metals were found in residential wells. 219 Despite this, an estimated 1,802,025 short tons of coal ash (primarily fly ash, contributing 1,027,568 short tons) were reused in 2008 alone, a 7.5% increase

214 Min

- Hong Zhang, Marcia C. Blanchette, & V. Mohan Malhot ra , Leachability of Trace Metal Elements from Fly Ash Concrete: Results from Column

- Leaching and Batch

- Leaching Tests, Materials Journal (Mar. 1, 2001), available at http://ww w.concrete.org/PUBS/JOURNALS/AbstractDetails.asp?ID=10196

. 215 Benjamin L. Phillips, et al., Evaluation of Processed Bottom Ash for Use as a Lightweight Aggregate in the Production of Concrete Masonry Products, University of Kentucky Center for Applied Ener gy Research, World of Coal Ash Conference (Apr. 11

– 15, 2005), available at http://www.flyash.info/2005/2phi.pdf 216 See, e.g., id. (explaining that 30% bottom ash mixed with fly ash could achieve product st andards). 217 See Table 1

. 218 Snigdha Sushil & Vidya S. Batra, Ctr. for Energy & Envt., Analysis of fly ash heavy metal content and disposal in three thermal power plants in India (June 12, 2006), available at http://flyashbricksinfo.com/construction/analysis

- of

- fly

- ash

- heavy

- metal

- content
- and

- disposal

- in

- three

the rmal

- power - plants

- in

- india.html

. 219 U.S. EPA, Region 5 Superfund, Town of Pines Groundwater Plume, http://www.epa.gov/R5Super/npl/sas_sites/INN000508071.htm

.150

from 2001 levels. 220 Due to the dangers posed to the Town of Pines, this is another use that requires more careful study

.

vi. Miscellaneous Certain other reuses in products would seem to pose obvious risks. 221 A Commonwealth of Pennsy lvania publication suggests that FGD gypsum “can be used by itself or in a mixture with natural gy

psum in manufacturing plaster of Paris, gy psum wallboard, roof tiles, cements, fillers for paper, paints, toothpaste , blackboard chalk, lipstick, Epsom salts, and man y, man y other products.” 222 Inncorporation of CCRs into toothpaste, Epsom salts, and lipstick warrant careful study

due to the potential for ingestion of harmful constituents. These uses should not be subje ct to a blanket exemption under subtitle C of RCRA.

c. Minefilling promotes leaching of toxic pollutants and cannot be exempted as a beneficial use As discussed in further detail infra , minefilling is another unencapsulated use that poses human health and e nvironmental risks. Minefilling was deemed unsafe when the National Academ y of Sciences found in 2006 that “ the presence of high contaminant levels in many CCR leachates may create human health and ecological concerns at or near some mine sites over the long term .” 223 Furthermore, in 2007, the Clean Air Task Force found that 2/3 of 15 Pennsylvania minefills examined had degraded surface and/or groundwater. 224 Nonetheless, minefilling constituted the third highest source of CCW “reuse” in 2008 and represented the largest increase in tons “reused” from 2001 to 2008. See Table 2. Despite the grave risks posed by minefilling, EPA has decided not to regulate minefills at all, allowing these poorly

- disguised dumps to continue receiving in excess of 10 million short tons of coal ash. Minefilling is akin to dumping without sa feguards like a liner, and, accordingl y must be regulated like a landfill according to Subtitle C of RCRA. The following section will discuss minefilling in further detail.

d. Unsafe reuses are increasing, and will continue to do so unless they are exempted from the definition of “beneficial use.” Unfortunatel y, unsafe reuse practices have been increasing. For example, “mining applications”

— the controversial practice of mine filling that can place toxic constituents in direct contact with the water table

— has increased b y over 9 million tons, or 870.66%, between 2001

220 See Table 1. 221 See, e. g., Ecohaus, http://www.ecohaus.com/C

- 715/squak+mountain+stone ; Hubpages, http://hubpages.com/hub/Earth_Friendly_Countertops ; a nd HGTV Pro, http://www.hgtvpro.com/hpro/di_kitchens/article/0,,hpro_20172_3456203,00.htm

. 222 Bureau of Topographic & Geologic Survey, P a. Dep ’ t Conservation & Natur al Res ., Pennsylvania Geology, vol. 39, at 10 (Winter 2009) (John A. Harper,ed.), available at http://www.dcnr.state.pa.us/topogeo/pub/pageolmag/pdfs/v39n4.pdf

. 223 Comm. on Mine Placement of Coal Combustion Wastes, National Academy of Sciences, Managing Coal Combustion Residues in Mines 4 (2006) (emphasis in original). 224 Jeff Stant, Clean Air Task Force, Impacts on Water Quality from Placement of Coal Combustion Was te in Pennsylvania Coal Mines vi (July 2006).151

and 2008. 225 Similarly , dumping in structural fills increased 150%, from 4.57 million tons in 2001 to 11.5 mill ion tons in 2008. 226 In addition, a recent article co

- authored by EPA staff explains that increasing air pollution controls in the coming ye ars will cause more coal ash to be generated and cause the coal ash to be more highly concentrated with toxic pollut ants, making coal ash increasingl y more toxic. The article explains that the “annual amount of coal combustion residues (CCRs) generated is expected to grow with increasing demand for electricit y and the resulting coal consumption” and further explains: With the promulgation of the U.S. EPA’s Clean Air Interstate Rule (CAIR) (3

- 5), over half of the U.S. coal

- fired capacity i s projected to be equipped with SCR and/or FGD technology

b y 2020 (5, 6). The current practice of seasonal use of postcombustion NOx control will likely be extended to year - round implementation. Ina ddition, coal

- fired power plants, the largest source of anthropogenic Hg emissions in the U.S. (7), will likely e xpand the use of activated carbon injection (ACI) (8

- 10) to reduce Hg stack e missions. Changes in APC technologies will result in a greater amount of residue generated for each unit of electricity p roduced and an overall increase in the total content of Hg and other hazardous air pollutants in fly a sh, FGD residues, and other APC residues (3, 8). The mobility o f metals may

b e altered as a result of changes in material pH, carbon and chloride content, and interaction with the broader class of coal combustion residues (CCRs), for example, py ritic coal rejects from coal washing or hi gh

- sulfur coal rejects (11

- 14). A lso, APC residues may b e comanaged with residues, boiler slag, bottom ash, and other wastes from electric utilities (11, 15). Emerging APC technologies are likel y to create new APC residues to be managed such as spray dry e r ash or spent sorbents from Hg or postcombustion NOx control technology (11). 227 The same EPA stud y acknowledges that there are advantages to reusing coal ash but only “as long as evaluation approaches are in place to ensure that one environmental release (i.e., air emissions from power plants) is not being traded for another (i.e., leaching of metals from coal ash through land disposal or use in engineering and commercial applications).” 228 We agree. Although some reuses have positive environmental benef its, that is not reason to exempt all reuses from disposal regulations as “beneficial uses.” Onl y the reuses that are not more toxic

225 Compare American Coal Ash Association, “Coal Combustion Product Production & Use Survey Report” (2008), http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf , with American Coal Ash Association, "Coal Combustion Product Production & Use" (2001), http://acaa.affiniscape.com/associations/8003/files/2001_rev_svy_11

- 02.pdf

. 226 Id. 227 Susan A. Thorneloe , EPA, et al., Evaluating the Fate of Metals in Air Pollution Control Residues from Coal

Fired Power Plants, 44 Envtl. Sci . Technol. 7,351 , 7,351 (Aug. 31, 2010), available at http://pubs.acs.org/doi/pdfplus/10.1021/es1016558

. 228 Id.152

than the virgin materials they are replacing and which have benefits including CO 2 emissions reductions should be deemed beneficial. Notabl y, only a small number of reuses have been demonstrated to have positive CO 2 reduction benefits

— replacing Portand cement with fl y ash, and using fl y ash in brick. EPA should not allow other more dangerous uses ride on the coattails of c oncrete and bricks.

C. EPA’s definition of beneficial use is overly broad EPA’s proposed definition of beneficial reuse must be refined and narrowed in order to avoid present and future promotion of unsafe reuses. EPA must revise the definition to exclud e from the definition some uses that have proven dangerous; to require more research before some other uses can claim the total regulatory exemption; and to require ongoing research to ensure the continued safety

of beneficial uses. The definition of bene ficial use proposed by EPA is overly broad. It would allow uses that have been shown to pose environmental and human safety risks to claim the benefit of a total regulatory exclusion, and it fails to provide a regulatory backstop for “beneficial uses” that are later shown to be unsafe due to increasing coal ash toxicity , availability

of new testing procedures, or other factors. EPA’s broad current definition of “beneficial use” is: Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an alternative material, conserving natural resources that would otherwise need to be obtained through practices such as extraction; and meets relevant product specifications and regulatory

s tandards (where these are available). CCPs that are used in excess quantities ( e.g., the field

- applications of FGD gy psum in amounts that exceed scientifically

s upported quantities required for enhancing soil properties and/or crop yi elds), placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, are excluded from this definition. 229 This definition fails to exclude: 1) excessive applications/use of coal ash in the reuse method as would be determined b y EP A; 2) applications with higher contaminant levels than the virgin materials they

are replacing; or 3) uses that have been documented to be dangerous in EPA and other reports. For example, without EPA’s express exclusion of structural fills and other large

- scale fill projects from the definition of beneficial use, these uses would have been easily exempted from regulation as “beneficial uses,” as they would have met EPA’s 3

- pronged definitional test. The fact that EPA had to specifically single out ex cessive agricultural FGD applications, fill in sand and gravel pits, and large

- scale fill projects from the definition of beneficial use shows that EPA’s definition is too broad to ensure that unsafe uses are regulated like disposal units. EPA must defin e “beneficial use” more narrowl y: (1) to provide clear mechanisms for regular and long

- term EPA

- mandated monitoring and anal ys es of beneficial uses using the best available testing methods; and (2) to allow for future disapprovals of reuses if and when new

229 Proposed Rule, at 35,129

– 30.153

data reveal previously

unknown risks. The extent of the dangers posed by many products may not y et be known due to unavailability of data, imperfect anal ys es, or failure to test products in a manner that reliably

detects leachabilit y, off

- gassing, or oth er potential dangers. Without a clear federal definition of beneficial reuse in place, state determinations as to what is “beneficial use” will vary widely , potentially

leaving citizens in some states disproportionately

more vulnerable to damage from un safe reuses. A report co

- authored b y EPA acknowledges that “[c]urrrentl y, there is wide disparity among the states as to how to establish if potential beneficial use applications are protective of human health and the environment.” 230 Further, standards

- setting organizations should not be entrusted with determining nation

- wide standards certain reuses. This is especially a concern considering the large quantities of coal ash produced and reused each y ear that have been deemed unsafe b y EPA but which nonethe less have product standards promoting them b y these professional organizations.

II. CCR IS PROPERLY REGULATED AS A HAZARDOUS WASTE UNDER SUBTITLE C OF RCRA. A. CCR meets the definition of hazardous waste under section 1004(5) of RCRA . Pursuant to Section 1004(5) of RCRA, the term “hazardous waste” means

a solid waste, or combination of solid wastes, which because of its quantity , concentration, or ph ys ical, chemical, or infectious characteristics may

— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or dis posed of, or otherwise managed. 231 According to section 3001(b)(1) of RCRA, the Administrator has the duty to promulgate regulations that identify

the characteristics of hazardous waste and that list particular hazardous wastes that fall within the meaning of section 1004(5). 232 Further, the Administrator has the dut y to revise such criteria and regulation from time to time, as may be appropriate

. 233 Inaddition, section 3001(b)(1) states that the Administrator

[S]hall also identify

o r list those hazardous wastes which shall be subject to the provisions of this subtitle solely b ecause of the presence

230 Susan A. Thorneloe, EPA, et al., Evaluating the Fate of Metals in Air Pollution Control Residues from Coal

Fired Power Plants, 44 Envtl. Sci. Technol. 7,351, 7,351 (Aug. 31, 2010), available at http://pubs.acs.org/doi/pdfplus/10.1021/es 1016558

. 231 42 U.S.C. § 6902(5). 232 42 U.S.C. § 6921(b)(1). 233 Id.154 in such wastes of certain constituents (such as identified carcinogens, mutagens, or teratagens) at levels in excess of levels which endanger human health. 234
Co al combustion residues, because of their quantity , concentration, and chemical characteristics, may

cause or significantl y contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness and may pose a sub stantial present or potential hazard to human health or the environment when improperl y treated, transported or disposed of, or otherwise managed. 235 Clear and convincing evidence of the ability of CCR to cause or significantly

contribute to an increase in m ortality or illness is demonstrated by aggressive leaching of arsenic and other dangerous contaminants from the ash. The ability of CCR to cause substantial harm to human health and the environment is found in the reports completed b y EPA, EPA’s Office of Research and Development, and numerous public interest groups. 236 Man y of the findings of these reports have alread y been discussed in detail in these comments. Further evidence supporting a hazardous waste listing is discussed below. B. CCR meets the regul atory criteria for hazardous waste set forth in 40 C.F.R. § 261.11(a)(3). In making listing determinations under subtitle C of RCRA, the Agency must consider the listing criteria set out in 40 C.F.R.§ 261.11. The relevant portion of the criteria directs EPA to list a solid waste as a hazardous waste only if: [i]t contains any

of the toxic constituents listed in appendix VIII and, after considering the following factors, the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed. 237 Sections 261.11(3)(i) through (xi) list the eleven factors that EPA must consider. 238

234 Id. 235 See 42 U.S.C. § 6902(5). 236 See U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); Kosson D., F. Sanchez, P. Kariher, L.H. Turner, R. Delapp, P. Seignette. 2009. U.S. EPA, Characterization of Coal Combustion Residues from Electric Utilities Using Multi

- Pollutant Control Technology

– Leaching and Characterization Data (EPA

- 600/R

- 09/151) Dec 2009, http://www.epa.gov/nrmrl/pubs/600r09151 /600r09151.html ; Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010). See U.S. EPA 1998, ‘‘Draft Final Report: Non

- groundwater Pathw ays, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2)’’ (June 5, 1998), www .epa.g ov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf); U.S. EPA 2002, ‘‘Constituent Screening for Coal Com bustion Wastes,’’ October 2002, Document ID No, EPA

– HQ

–RCRA

– 2006

– 0796

– 0470); U.S. EPA, ‘‘Human and Ecological Risk Assessment of Coal Combustion Wast es’’ (April 2010) ; and U.S. EPA 2010, ‘‘Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills. 237 40 C.F.R. § 261.11(a)(3). 238 40 C.F.R. § 261.11(a)(3)(i)

– (xi).155

In the preamble for the prop osed rule, EPA considered the eleven factors in making the proposed special listing decision and definitivel y concluded that CCR met the criteria for listing. 239 First, EPA identified numerous appendix VIII toxic constituents present in coal ash, namely antimony , arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, mercury , nickel, selenium, silver and thallium. 240 EPA next pointed out that the eleven factors are addressed in EPA’s four risk assessments for CCR241 and that EPA’s 2010 risk assessment “correlates closely

with the listing criteria in EPA’s regulations.” 242 Infact, EPA states that nine of the eleven factors set forth in section 261.11(a)(3) were addressed in the 2010 Risk Assessment, specifically

factors (i) through (viii) and (x). 243 EP A states unequivocally that its four risk assessments support a finding that coal ash meets the criteria set out at 40 C.F.R. § 261.11(a)(3) for listing a waste as hazardous. 244 We concur with this conclusion, and further we reiterate that EPA’s risk assess ments in many significant way s underestimate the risk posed b y the appendix VIII toxic constituents. See section III.C.2, infra. In addition, for all eleven factors, EPA provides substantial justification in the preamble that CCR meets the regulatory criteria and that its decision making process comports with past listing decisions and agency guidance on ap plication of the criteria. We agree with EPA’s assessment. For the same eleven factors, nevertheless, we provide comment when we find that EPA’s anal ys is failed to reference additional relevant evidence supporting a listing decision. 245

1. The nature of the toxicity presented by the constituent. In the preamble EPA identifies numerous appendix VIII metals that are constituents of concern associated with CCR. EPA states in the preamble:

239 74 Fed. Reg. 35166. 240 Id. 241 See U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); Kosson D., F. Sanchez, P. Kariher, L.H. Turner, R. Delapp, P. Seignette. 2009. U.S. EPA, Characterization of Coal Combustion Residues from Electric Utilities Using Mu lti

- Pollutant Control Technology

– Leaching and Characterization Data (EPA

- 600/R

- 09/151) Dec 2009, http://www.epa.gov/nrmrl/pubs/600r09151 /600r09151.html ; Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010); U.S. EPA 1998, ‘‘Dr aft Final Report: Non

- groundwater Pathw ays, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2)’’ (June 5, 1998), www .epa.gov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf); U.S. EPA 2002, ‘‘Constituent Screening for Coa l Com bustion Wastes,’’ October 2002, Document ID No, EPA

– HQ

–RCRA

– 2006

– 0796

– 0470); U.S. EPA, ‘‘Human and Ecological Risk Assessment of Coal Combustion Wastes’’ (April 2010) ; and U.S. EPA 2010, ‘‘Inhalation of Fugitive Dust: A Screening Assessment of the R isks Posed by Coal Combustion Waste Landfills. 242 74 Fed. Reg. 35166. 243 Id. As for the two remaining factors, the factor set forth in Section 261.11(a)(3)(ix) applies to damage cases, which were not addressed in the EPA’s risk assessment but are addressed b y EPA in a separate report and in the preamble and factor (xi) that allows EPA to consider other factors, as appropriate. 244 Id. 245 In July 2009, Earthjustice and numerous other environmental organizations submitted a petition for rulemaking pursuant to Section 7004 of RCRA to list CCR as a hazardous waste. We incorporate the data presented in that petiti on by attaching the petition to these comments as Attachment 8

. Earthjustice, Sierra Club, Environmental Integrity Project, et al, Petition for Rulemaki ng Pursuant to Section 7004(a) of the Resource Conservation and Recovery Act Concerning the Regulation of Coal Combustion Waste and the Basis for Reconsideration of the 2000 Regulatory Determination Concerning Wastes from the Combustion of Fossil Fuels, fi led July 10, 2009.156

“Based on the information in ASTDR’s Tox FAQs, EPA’s I RI S sy stem an d TOXNET, the Agency

believes that the metals identified [in CCR] are sufficiently toxic that they

are capable of posing a substantial present or potential hazard to human health and the environment when improperly treated, stored, transported, disposed of

, or otherwise managed.” 246 Specificall y, EPA lists a summary of the adverse health impacts for numerous appendix VIII metals commonly

found in coal ash, including antimony , arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, mercury , nickel, se lenium, silver and thallium. EPA’s 2010 Risk Assessment found that man y of these constituents presented risks above the risk criteria in one or more situations. In fact, arsenic was estimated in the risk assessment to pose extremely high risk when co

- dis posed with coal refuse in an unlined surface impoundment. To reiterate, EPA found this risk to be 1 in 50, representing a risk 2000 times the “point of departure” for listing a waste as hazardous. 247 It is worth noting that in section III.C.2.a. of these comments, we provide evidence that the risk from arsenic was considerable underestimated. Further in section III.C.2.b., we note that the risk assessment underestimated the risk from lead. It is also worth noting that the risk assessment likely

underesti mated the leaching potential of CCR because it did not base predicted leaching on the data resulting from the Office of Research and Development’s (ORD) 2006, 2008 and 2009 reports. 248 Consequently , if EPA were to re

- examine the threat posed by the appendix VI II contaminants, in light of the new arsenic cancer slope and the ORD’s leaching data, it is likely

that the threat from toxic constituents in CCR would be even higher than currentl y documented. In addition, it is also worth noting that coal combustio n residues may contain a variet y of additional toxic constituents listed in appendix VIII such as dioxins and poly cy clic aromatic hy drocarbons (PAHs). 249 The presence particularl y of PAHs in CCR may pose risk to human health and the environment. PAHs form during the combustion of coal and adsorb onto fl y ash particles. 250 Lastl y, CCRs contain many other potential harmful constituents that are not listed in Appendix VIII. These constituents will be discussed in more detail in subsection (xi), below.

246 75 Fed. Reg. 35168. 247 Id. 248 See EPA, Office of Research and Development, Characterization of Coal Combustion Residues from Electric Utilities Using Wet Scrubbers for Multi

-Pollutant Control (July 2008), available at http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf EPA, Office of Research and Development, Characterization of Mercury

- Enriched Coal Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control , EPA

- 600/R

- 06/008 (Feb. 2006), available at http://www.epa.gov/nrmrl/pubs/600r06008/600r06008.pdf EPA, Office of Research and Development, Characterization of Coal Combustion Residues from Electric Utilities

— Leaching and Characterization Data (EPA/600/R

- 09/151) at ii (Dec. 2009), availa ble at http://www.epa.gov/nrmrl/pubs/ 600r09151/600r09151.html. 249 Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81

– 104 (2006), available at http ://books.nap.edu/catalog.php?record_id=11592#toc at 33. 250 Id.157 2. The conc entration of the constituent in the waste. EPA concludes in the preamble that the twelve appendix VIII metals “are contained in CCRs at relatively

high concentrations, such that if CCRs were improperl y managed, they could leach out and pose a substantial present or potential hazard to human health or the environment when improperl y treated, stored, transported or disposed of or otherwise managed.” 251 EPA points out that the findings of the 2010 Risk Assessment confirm this finding. EPA also notes that thes e metals are present at man y of the damage case sites and states that this further supports the substantial hazard they pose to health and the environment when mismanaged. 252 We concur in EPA’s finding that the concentrations of appendix VIII metals in CCR pose a substantial present and potential hazard. In Appendix F to these comments, we indicate the presence of these constituents, often in high concentrations, at each of the 137 damage cases documented b y EPA in their Damage Case Assessments 253 and b y Envi ronmental Integrit y Project, Earthjustice and Sierra Club in their damage case reports. 254 Utility industry defenders argue that coal ash is just like dirt. Yet, this couldn’t be farther from the truth. Although CCR has some constituents in commo n with some soils, their concentration, availability and behavior differs radically from ordinary

dirt. In the 2006 National Resource Council (NRC) Report on coal combustion residues, the NRC provides a table comparing the concentration in CCR of five app endix VIII metals with the mean concentrations of those same constituents in soil and source coal. 255 The NRC found that the concentrations of arsenic, cadmium, lead, mercury and selenium in CCR are far greater than in soils or source coal. The NRC also fo und that boron concentrations were much higher in CCRs than in the other media. The NRC table is reproduced on the following page.

251 75 Fed. Reg. 35169. 252 Id. 253 See U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage C ase Assessments (July 9, 2007). 254 See Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 2010). 255 Nat’l Research Council, Nat’l Academies, Managing Co al Com bustion Residues in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc at 36.Concentration in CCR of five appendix VIII metals3. The potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in paragraph (a)(3)(vii) of this section. The toxic constituents in CCR migrate into the environment via multiple pathway s when mi smanaged. Both EPA and NRC acknowledge that contaminants from CCR have the potential to migrate to drinking water supplies, surface water bodies, or biota at unacceptable concentrations, thereb y creating risks to human health and the environment. 256 EPA exp lains in the preamble that its 2010 Risk Assessment used fate and transport models to assess the migration of CCR’s toxic constituents through different exposure pathway s to predict the risk to human health and the environment. EPA concludes that its risk assessment indeed demonstrates that CCRs have the potential to present a hazard to human health and the environment well above both a 1 x 10 - 4 to 1 x 10 - 6 cancer range and an HQ of 1, the benchmarks of hazardous waste listing. 257 EPA summarizes its finding s in the preamble for migration via ingestion of groundwater, consumption of recreationally caught fish, ecological exposure via surface water, and particulate matter inhalation. In this section, we augment the information presented b y EPA and suggest add itional pathways through which the toxic constituents in coal ash will migrate.

a. Groundwater pathway EPA describes the predicted risks to human health via the ingestion of groundwater contaminated b y antimony, arsenic, barium, cadmium chromium, lead, nickel and thallium. The highest risk found b y EP A was from arsenic when CCRs and coal refuse were disposed in unlined surface impoundments

— resulting in a cancer risk of 2 in 100. However, as explained earlier in these comments, the results in the risk assessme nt were based on models of CCR management units that underestimated the migration potential of CCR constituents from landfills and surface impoundments. 258 Thus the cancer risks and hazard potentials found by EPA are likely to be greater than estimated in the 2010 Risk Assessment. Most of the 137 damage cases involve the migration of appendix VIII constituents to groundwater. 259 Appendix F describes the scope of this migration at the damage cases involving groundwater contamination. 260 Inmany instances the le vel of constituents in the groundwater far exceed drinking water standards and the constituents in the groundwater travel far from the disposal site. Data indicate that appendix VIII constituents have migrated from unlined landfills,

256 Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc at 50 and 75 Fed. Re g. 35170. 257 75 Fed. Reg. 35170. 258 See Section III.C., infra

. 259 See U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010). 260 See Appendix F.160

surface impoundments and fill sites, clay

- lined landfills and surface impoundments, and even sites that purportedly

have a sy nthetic liner. 261 The prevalence of unlined CCR disposal sites both wet and dry

greatl y facilitates the migration of metals from CCR. The table below, s ummarizing the data in Appendix F, indicates the number of appendix viii constituents found in the 137 damage cases.

Param eter EPA a Dam age Cases Out of

Control b Dam age Cases In Harm's

Way c Dam age Cases Antimony 1 2 0 Arsenic 27 20 16 Barium 1 4 2 Beryllium 3 1 0 Cadmium 14 5 7 Lead 9 11 10 Mercury 0 2 2 Nickel 3 1 3 Selenium 16 4 9 Silver 0 0 4 Thallium 1 3 1 Vanadium 2 1 1 Zi nc 3 1 1

a: U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007)
b: Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010) c: Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 201 0). EPA must also consider the evidence, amassed over the last ten ye ars b y its Office of Research and Development, that the leaching of toxic constituents from CCR is much greater than previously

known. The studies documenting this aggressive leaching b ehavior are discussed in both in EPA’s preamble to the proposed rule 262 and section III.C.1, supra . Given the demonstrated propensity of toxic constituents, such as antimony , arsenic, barium, cadmium, chromium, moly

bdenum, selenium and thallium, to leach from CCR, it necessary to ensure that the waste is isolated from groundwater. The common failure to successfully isolate the waste

-- and, in fact, the intentional disposal of coal ash into water tables, significantly aids the migration of appendix VIII contaminants, as well as other constituents harmful to health and the environment. As discussed in s ection III.B.2, supra , 30 of 37 states examined place no

261 See U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010). 262 75 Fed. Reg. 35139

- 35142161

restrictions with regard to the location of coal ash surface impoundments and 16 of the 37 states place no restriction on the location of ash landfills with respect to the water table. When one combines the propensity for appendix VIII constituents to leach from CCR when in contact with water, particularl y under conditions of changing pH 263 and the prevalence of unlined and poorl y lined disposal units, it is clear that CCR poses “a substantial pres ent or potential hazard to human health or the environment when improperl y treated, stored, transported or disposed of or otherwise managed.”

b. Consumption of recreationally caught fish EPA found in its 2010 Risk Assessment that unlined and clay

- lined surfac e impoundments co - disposing of CCR and coal refuse presented a risk of cancer from arsenic in recreationall y caught fish above the benchmark, as did unlined surface impoundments containing CCR alone. Hexavalent selenium was estimated to result in exposure s at least 3 times the reference dose and 2 times the reference dose from unlined and clay

- lined surface impoundments, respectivel y. Numerous damage cases have documented the issuance of state selenium fish advisories as a result of selenium migrating from CCR disposal sites into aquatic environments. At the following six damage case sites, fish were found with dangerously high selenium levels: Martin Creek Reservoir, Texas; Brand y Branch Reservoir, Texas; Welsh Reservoir, Texas; Savannah River Project, So uth Carolina, Belews Lake, North Carolina; and Hy co Lake, North Carolina. 264 At Belews Lake, selenium contamination caused widespread extirpation of at least 16 of the 20 fish species in the lake. 265 Again, these documented cases of high selenium content in f ish are likel y to be the tip of the iceberg. Man y states do not test fish frequently for exposure. In addition, new information has come to light from scientists studying the aftermath of the TVA spill in Kingston, Tennessee. The research indicates that impact to fish has been underestimated. 266 Inaddition, a recent peer

reviewed stud y of the TVA spill area at the 18

- month mark concludes that sediments and the pore water in those sediments remain highl y contaminated with arsenic and selenium. 267 The long

- term presence of these high levels of metals raises great concern for the future health of the aquatic community

in the Emory

River. This study

is attached as Appendix H to these comments.

263 EPA, Office of Research and Development, Characterization of Coal Combustion Residues from Electric Utilities

— Leaching and Characterization Data (EPA/600/R

- 09/151) at ii (Dec. 2009), availab le at http://www.epa.gov/nrmrl/pubs/ 600r09151/600r09151.html. 264 US EPA, Coal Combustion Waste Damage Case Assessments, July 9, 2007. 265 See damage case documentation in U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessmen ts (July 9, 200 7); Envtl. Integrity Project et al., In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010) at 213

- 217. 266 Tuberty, Shea, PhD.. The Dirty Side of Clean Coal Assessing the Kingston TVA Fly Ash Disaster , 2010. 267 Ruhl, Laura, Avner Vengosh, Gary Dwyer, Heileen Hsu

- kim, Amrika Deonarine. The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey, Environmental Science and Technology, in press.162 c. Ecological exposure EPA also describes in the preamble the high d egree of ecological risk from exposure to selenium, silver, nickel, chromium, arsenic cadmium, barium, lead and mercury from coal ash. 268 To describe ecological harm, EPA points to numerous studies documenting damage to ecos ys tems, including death, genetic d eformities and injury to reproduction sy stems of aquatic organisms in water bodies contaminated b y coal ash surface impoundments. 269
EPA’s 1998 “Non

- Groundwater Pathway s, Human and Ecological Risk Analy sis for Fossil Fuel Combustion Phase 2” (hereinafter 199 8 Risk Assessment) and 2010 Risk Assessment, however, understate ecological risk. The 2010 Risk Assessment relies entirely on groundwater as the source of selenium for the surface water pathway model. Groundwater is one component of that pathway , and it s hould be assessed, but focusing solel y on one component overlooks the dominant and more important direct surface leachate/slurry water route of exposure, which has been the primary

cause of major damage cases. Although EPA indicates that this concern was addressed in the 1998 Risk Assessment , which considered direct exposure to surface impoundments, the 1998 anal ys is was restricted to “terrestrial receptors that obtain food and prey from the surface impoundments and excluded aquatic receptors living in the water column because surface impoundments are not intended to be a habitat for aquatic species.” 270 Thus, the 1998 Risk Assessment completely excludes downstream transport of contaminants from impoundments and the associated exposure of fish and wildlife. Yet, it is this downstream transport pathway

that has led to the most serious damage cases. All of the interconnected parts of a water

- based exposure pathway must be considered together as a h ydrological unit in order for a selenium risk assessment to be realistic. EPA’s 1998 and 2010 anal ys es fail to do this and, thereby, substantially underestimate ecological risk. While EPA's explanation of its position provides a brief mention of "studies that illustrate the impact of CCRs on aquatic organisms in w ater bodies near CCR impoundments," 271 and lists three examples (Leml y 1993, Sorensen et al. 1982, 1988), there is, in fact, a substantial body of literature to show the overwhelming importance of downstream transport and exposure and poisoning of fish and w ildlife outside of CCR management units. 272 There have also been significant public health issues associated with this downstream transport of CCR contaminants. We believe it is imperative for EPA to recognize and utilize this body of scientific evidence. A list of relevant studies is attached to these comments as Attachment 5.

268 75 Fed. Reg. 35171. 269 Id. 270 U.S. Envtl. Prot. Agency , ‘‘Draft Final Report: Non

- groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2)’,’ (June 5, 1998), Docket ID No. F

– 1999

–FF2P

–FFFFF, www.epa.gov/osw/nonhaz/industrial/ sp ecial/fossil/ngwrsk1.pdf. 271 75 Fed. Reg. 35172. 272 See Studies of Ecological Impacts from Release of Appendix VIII Constituents from Coal Combustion Residues, appended to these comments as Attachment 5

. Note that this list of studies was compiled for just 10 CCR surface im poundm ent damage cases (Belew s, Hyco, Mayo, Martin, Welsh, Brady, Gavin/Amos, Savannah River, Gibson, Oak Ridge) out of several dozen known to exist, and thus it does not in any way represent a full list of the relevant reference documents available

.163

The National Research Council also examined the ecos ys tem damage from coal ash contaminants in their 2006 report. The NRC includes a summary of those adverse impacts in Chapter Fou r of their report, attached to these comments in its entirety in Attachment 6. In sum, the NRC states: As a consequence of CCR disposal in surface impoundments, contaminants have been found to accumulate in the tissues of organisms utilizing the impoundme nts or downstream habitats. Contaminants originating in CCRs enter food chains by a variet y of mechanisms. These mechanisms include direct uptake b y plants, epithelial accumulation by organisms in contact with the sediments and/or porewater (e.g., benthi c invertebrates), and direct sediment ingestion by grazing (e.g., amphibian tadpoles) or dabbling wildlife (e.g., waterfowl). Uptake of some contaminants can be high, exceeding the concentrations known to be toxic to many organisms. 273 Specificall y, the NRC identifies diverse ph ys iological injuries to organisms from exposure to CCR that harm growth, survival and reproductive success. The NRC points out that young fish and amphibians are particularl y vulnerable to CCRs, that predators feeding on fish and amphibians from CCR disposal sites are also at risk of tissue damage, and most importantly , that reproductive failure has repeatedl y been observed in organisms exposed to CCRs or CCR effluent. Decades of study of fish populations in North Carolina and Texa s suggest that selenium from CCRs is readily

accumulated in reproductive tissues and subsequently transferred to offspring. 274 According to the NRC, from an ecological perspective, the greatest concerns regarding CCRs are not the effects on individual organisms, but the impacts on the integrity of populations and communities. 275 Changes in zooplankton and benthic invertebrate community composition have been observed in waters receiving CCR effluent from surface impoundments, as well as in experimental settings. Similarly , the diversity and density

of macroinvertebrates have been adversel y affected in streams receiving surface impoundment effluent. Such changes in invertebrate composition can have widespread environmental implications, including changes i n nutrient and energy

cy cling and effects on predatory organisms that depend on invertebrates as a food source. In addition to these studies documenting ecological harm, our own damage case record is rife with additional examples of the migration of toxic constituents from CCRs into aquatic environments when mismanaged. Appendices F and I of these comments describe numerous additional sites where ecosy stems were harmed.

273 Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residu es in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc

. at 74. 274 Id. at 75. 275 Id . at 76.164 d. Particulate matter inhalation Although EPA’s 2010 Risk Assessment did not consider ris k from inhalation of fugitive dust at coal ash disposal and reuse sites, EPA did conduct a screening level anal ys is of fugitive dust at coal ash landfills (discussed in these comments at section III.C.2.e., supra .) EPA explains in the preamble that it det ermined that without fugitive dust controls, there could be exceedances of the National Ambient Air Quality Standards for fine particulate matter in the air at residences near coal ash landfills. This risk and actual examples of injury are described more fully in the above

- referenced section of these comments. In sum, serious harm to human health and the environment from migration of appendix VIII constituents in coal ash is demonstrated in EPA’s risk assessment and screening documents and documented in th e 137 damage cases. Yet, we must again emphasize that migration of coal ash constituents is certainly occurring at hundreds of additional dump sites throughout the United States. The frequency

and scale of coal ash mismanagement

— its disposal in unlined qu arries, ponds, pits and mines and its abundant use as fill in wetlands and over shallow aquifers

– ensures the migration of toxic constituents from CCR at many other sites, not y et documented. Despite the lack of data at these mostly unmonitored sites, EP A must consider the great potential for harm that this widespread mismanagement poses to human health and the environment.

a. The persistence of the constituent or any toxic degradation product of the constituent. We note that the scientific literature confirms that several constituents in CCR are toxic, persistent (maintain their concentration in sediments and do not degrade into less toxic by products), and bioaccumulative. Among these are selenium, 276 mercury , lead, chromium, cadmium, copper, nickel, zi nc, silver, and arsenic. The toxicity and bioaccumulation of these elements in aquatic life, especiall y fish, has been well known for man y ye ars, and has been summarized repeatedl y. For example, texts by Sorensen (1991), 277 Newman and McIntosh (1991), 278 and Di Giulio and Hinton (2008) 279 are just three of many examples of these literature summaries. In fact, all the appendix VIII constituents are persistent and subject to migration in groundwater in solution attached to colloidal particles through a process c alled facilitated transport (Puls et al., 1991). 280 Two examples of the persistence of groundwater contamination at CCR disposal sites are the Montville, Connecticut and Venice, Il linois sites. 281 At the Montville site, disposal of CCR stopped in 1971, y et a lmost 40 y ears later the concentrations of arsenic in a monitoring well is more than 20 times the MCL . At the Venice site, more than 30

276 See economic analysis of damage cases in Appendix I, attached to these comments. 277 Sorenson, E.M.B. 1991. Metal Poisoning in Fish. CRC Press, Boca Raton, FL. 278 Newman, M.C., and A.W. McIntosh. 1991. Metal Ecotoxicology Concepts and Applications. Le wis Publishers, Chelsea, MI. 279 Di Giulio, R.T., and D.E. Hinton. 2008. The Toxicology of Fishes. CRC Press, Boca Raton, FL. 280 Puls, R.W., R.M. Pow ell, D.A. Clark and C.J. Paul. 1991. Colloidal

- Facilitated Transport of Inorganic Contaminants in Ground Water: Part II. Colloida l Transport. EPA/600/M

- 91/040.

281 See Appendix F165

ye ars after disposal, an arsenic contaminant plume extends 400 feet east of the old ash ponds with concentrations as hi gh as 3.8 times the MCL. 282

b. The potential for the constituent or any toxic degradation product of the constituent to degrade into non
- harmful constituents and the rate of degradation. In the preamble, EPA states that the twelve appendix VIII toxic constituents of concern, antimony , arsenic, barium, bery llium, cadmium, chromium, lead, mercury, nickel selenium, silver and thallium, “do not decompose or degrade with the passage of time.” 283 Thus these constituents pose a substantial present or potential hazard to human health or the environment when improperl y treated, stored, transported or disposed of or otherwise managed because “these toxic metals will persist in the environment for very long periods of time, and if they escape from the disposal site, will co ntinue to provide a potential source of long

- term contamination.” 284 Certainly the recent report indicating the continuing presence of high concentrations of arsenic and selenium in the river sediments and pore water of the Emory River illustrates the long

- term threat posed b y CCR releases (see Appendix H). 285

c. The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems. At least five of the appendix VIII constituents, arsenic, cadmium, lead, mercury and seleni um, readil y bioaccumulate in aquatic ecos ystems and at levels that are toxic for fish (Sorenson, 1991). 286 Selenium leaching from CCR tends to be in the form of, or readil y becomes transformed into, selenates and selenites, which are highl y toxic because th ey are readily assimilated by

organisms. Appendix Ito these comments contains considerable detail describing the harm to aquatic ecos ystems arising from selenium contamination from CCR disposal sites at the Belews Lake, Roxboro, and May o sites in North C arolina; the Gavin site in Ohio; and the Martin Lake and Welsh sites in Texas.

a. The plausible types of improper management to which the waste could be subjected. The absence of state and federal regulations mandating basic safeguards for coal ash disposal and reuse has resulted in mismanagement of this waste on a scale that far exceeds all other industrial solid waste streams, save mining waste. The 141 million tons of coal ash generated annuall y is over 23 times larger than the entire universe of hazardo us waste generated each ye ar in the U.S. 287 Yet the majority of states do not require safeguards fundamental to the safe storage or disposal of CCR. The extent of the failure of states to require basic safeguards is

282 Id. 283 75 Fed. Reg. 35169. 284 75 Fed. Reg. 35169. 285 Ruhl, Laura, Avner Vengosh, Gary Dwyer, Heileen Hsu

- kim, Amrika Deonarine. The Environmental Impa cts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey, Environmental Science and Technology, in press. 286 Sorenson, Elsa M. 1991. Metal Poisoning in Fish. CRC Press. 287 75 Fed. Reg. 35172.166

described in detail in section III.B.of these comments. In the absence of regulations, the utility industry has built a fleet of aging, leaking, and unstable dumps. Not only are these units subject to catastrophic collapse, as occurred at the TVA Kingston plant, these units are also likel y to allow deadl y contaminants to seep, leak and blow into our groundwater, surface water and air. The lack of regulations has also lead to dangerous dumping of millions of tons of CCR directly into groundwater in quarries and mines each ye ar. To qualify

for listing, section 261.11(c)(viii) only requires the showing of “ plausible ty pes of improper management to which the waste could be subjected.” (Emphasis added.) For coal ash, this criterion is exceeded b y leaps and bounds

—EPA has not only documented a nat ionwide inventory

of CCR dumps where the waste is currently being mismanaged, it has documented a continuing trend of mismanagement, evident in damage cases and newl y permitted units without basic safeguards. 288 The failure of states to regulate “beneficial” reuse of CCR, particularly as structural fill, has also lead to widespread “improper management.” The potential harm and actual damage caused b y CCR reuse is described in detail in preceding sections of these comments. Given the quantity of CCR generate d annuall y, the lack of regulations, and the pressure to dispose of large amounts of CCR at the lowest possible cost, the scenarios of plausible mismanagement become unimaginable. If a U.S. utility can use 1.5 million tons of CCR to build a golf course

-- the same CCR that caused arsenic contamination at the plant site

- over a shallow aquifer, currentl y used as drinking water for residents surrounding the site, any use , no matter how dangerous, must be considered “plausible.” 289 EPA acknowledged several mismanagement scenarios and modeled such scenarios (with the exception of reuse) in its 2010 Risk Assessment , resulting in the finding of human and ecological risk exceeding, often significantly , the Agency ’s risk benchmarks. For the purpose of evaluating this listing factor, improper management of CCR can be defined as management that causes a “substantial present or potential hazard to human health or the environment.” The following t ypes of mismanagement, common to past and current CCR disposal and reuse, h ave been found b y EPA and the NRC to present “substantial present or potential hazard.” The list below is by

no means exhaustive. For additional examples of actual improper management that have caused a substantial present or potential hazard, EPA must con sult the 137 cases of damage discussed in section III.D. and in Appendix F.
i. Unlined and clay
- lined CCR surface impoundments As described in EPA’s 2010 Risk Assessment , disposal of coal ash in unlined and clay

lined surface impoundments, particularl y when coal ash is co

- disposed with coal refuse, results in risk to human health well above EPA’s benchmarks for numerous appendix VIII constituents, including arsenic, cadmium, lead, and selenium. In addition, boron, cobalt, moly bdenum, and

288 See , for example, Holcomb Landfill, Holcomb, KS (unlined landfill permitted in 2007) and units described in DOE/EPA Report, described in detail in Section X of these comments. 289 Cite to preamble discussion of B attlefield golf course and see also http://hamptonroads.com/2009/08/law suit

claims

- dominion

- saw - golf

- course - coal

- ash

- dump and http://hamptonroads.com/2009/05/dominion

- kept

- 7y ear secret

- fly

- ashs

- environmental

- risks.167

ni trate/nitrate also showed elevated risk. The table below provides the elevated risks for these contaminants for CCR disposed in unlined and clay

- lined surface impoundments. 290

290 See, for additional detail, Environmental Integrity Project and Earthjustice, Coming Clean: What the EPA Knows about the Dangers of Coal Ash, May 2009. Available at http://www.earthjustice.org/sites/default/files/library/reports/final

- coming

- clean

- ejeip

- report

- 20090507.pdf

.Chemical Unlined Units Clay-Lined Units Potential health Risks Conventional CCW Arsenic (cancer risk) 1 in 500 1 in 1,111 Nausea; Vomiting; Diarrhea; Cardiovascular Effects; Encephalopathy; Dermal Effects; Peripheral Neuropathy; Skin, Bladder & Lung cancer Nitrate/nitrite (MCL) 20 10 Methemoglobinemia, infants are particularly vulnerable Molybdenum 8 5 Fatigue; Headaches; Joint Pains
Boron 7 4 Stomach, Intestines, Kidneys, Liver and Brain Damage; Death; Negative Effects on Male Reproduction Selenium 2 1 Dizziness; Fatigue; Respiratory Effects; Selenosis (Hair Loss; Nail Brittleness; Neurological Abnormalities) Lead (MCL) 3 0.7 Learning Disabilities; Kidney, Blood, and Nerve Damage; Children are especially vulnerable to Lead exposure

Codisposed CCW and Coal Refuse Arsenic (cancer risk) 1 in 50 1 in 143 Nausea; Vomiting; Diarrhea; Cardiovascular Effects; Encephalopathy; Dermal Effects; Peripheral Neuropathy; Skin, Bladder & Lung cancer Cadmium 9 3 Diarrhea; Stomach Pains; Severe Vomiting; Bone Fracture; Reproductive Effects; Nerve Damage; Immune System Damage; Psychological Disorders Cobalt 8 3 Vomiting and Nausea; Vision Problems; Heart Problems; Thyroid Damage Lead (MCL) 9 1 Learning Disabilities; Kidney, Blood, and Nerve Damage; Children are especially vulnerable to Lead exposure Molybdenum 3 2 Fatigue; Headaches; Joint Pains Table A: Surface Impoundments: Highest Health Risks (Groundwater to Drinking Water) 90th Percentile HQ or Cancer Risk Value 1 2

1 Values are HQs for all chemicals except arsenic; arsenic values are cancer risk. 2 The Hazard Quotient ( HQ ) is the ratio of the exposure estimate ( dose of contaminants ) to a “no adverse effects level” considered to reflect a “safe” environmental concentration or dose

. Sources: U.S. Envtl. Prot. Agency (EPA), Human and Ecological Risk Assessment of Coal Combustion Wastes (released as part of a Notice of Data Availability) (Aug. 6, 2007) (draft), Table 4-7, Page 4-14 (does not include data on composite-lined units); and U.S. Department of Health and Human Services, Agency for Toxic Substances & Disease Registry, "Frequently Asked Questions About Contaminants Found at Hazardous Waste Sites" <http://www.atsdr.cdc.gov/toxfaq.html>. Elevated risks for contaminants for CCR disposed in unlined and clay
- lined surf ace impoundmentsChemical 90th Percentile HQ 1 Pathway Receptor Lead 200 ingestion spotted sandpiper Arsenic 100 ingestion spotted sandpiper Cadmium 20 direct contact sediment biota Table D: Surface Impoundments: Highest Ecological Risk (Groundwater to Sediment)

1 The Hazard Quotient (HQ) is the ratio of the exposure estimate to an effects concentration considered to represent a "safe" environmental concentration or dose. Values greater then 1 are indicative of risk to human health. Source: U.S. Envtl. Prot. Agency (EPA), Human and Ecological Risk Assessment of Coal Combustion Wastes (released as part of a Notice of Data Availability) (Aug. 6, 2007) (draft), Table 4-15, Page 4-23. EPA’s 2010 Risk Assessment also identified ecological risks greatl y exceeding EPA’s benchmark HQ of 1. The table below shows the HQ at 200, 200, and 20 for the Appendix VIII constituents; lead, arsenic and cadmium, respecti vely

.

From EPA’s 2009 Information Collection Requests (I CR), the Agency estimates that there are approximately

629 surface impoundments at 158 plants in 35 states. 291 EPA, however, does not know exactly

how many

of these ponds are unlined because the IC R did not request information regarding liners. EPA relies on a 1995 voluntary industry survey that indicates 74 percent of all surface impoundments built in 1995 or before are unlined. 292 According to EPA’s database of 629 impoundments, 587 coal ash pon ds were built in or before 1995. Therefore, b y EPA’s estimation, approximately 434 of the nation’s 587 operating surface impoundments are unlined. One can assume that many of the 42 impoundments built after 1995 do not have liners, because not all states require liners. Based on the DOE/EPA 2006 report, EPA does know that 18 of the 42 surface impoundments were permitted between 1994 and 2004. 293 Of these units, all have some kind of liner, although it appears that only 1 or at most 9 have composite liners. 294 The report also found that at least half of the 18 new ponds have onl y cla y or a single liner

— and both are inadequate to prevent migration of contaminants and sufficientl y reduce risk. 295 Only a small percentage of the lined surface impoundments will have c omposite liners, because onl y four states require composite liners. 296 The age of the impoundments is also a factor determining whether the dump will be lined, since older impoundments are less likel y to have safeguards. As has been noted earlier, EPA’s data reveal that the largest and highest coal

291 See In formation Request Responses from Electric Utilities, Database of Survey Responses, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey2

- 8

- 17

- 10.pdf

. 292 65 Fed. Reg. 32216. Because this survey was voluntary, one can assume th at the utilities responding to the survey are those that employ more safeguards. Thus reliance on the voluntary survey may cause EPA to overestimate the use of liners. 293 U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Waste Management at Landfills and Surface Im poundments, 1994

– 2004 (Aug. 2006) at 33. This report did not track new surface impoundments that were not permitted. These units are likely not to have the same level of safeguards as permitted units. 294 Id. 295 Id . at 34. 296 See Table 9, Section III., supra.170

ash ponds are also the oldest. 297 Because EPA has estimated the percentage of lined facilities built before 1995, that date is used as a cut

- off for estimating the presence of liners at the largest and highest dam s. Based on EPA’s finding that 74 percent of the ponds built before 1995 will be unlined:

 Of the 81 coal ash impoundments that are over 100 acres, 79 were built before 1995.

 Of the 35 ponds larger than 200 acres, all were built before 1995.

 Ninety

- six percent of the 50 high hazard dams were built before 1995.

 Eight y - six percent of the 72 significant hazard dams were built before 1995. Thus, when one adopts the best case scenario that only 74 percent of older units are unlined, it is obviou s that the great majority of the tallest and highest capacity coal ash impoundments

– arguabl y the most dangerous units

-- are unlined. Further, according to the 2010 Risk Assessment , EPA found only “the composite

- lined units ... effectivel y reduced risks fro m all pathways and constituents below the risk criteria.” 298 Therefore, since the great majority of surface impoundments, especiall y the larger ponds and higher dams, are unlined, the “plausible mismanagement” of CCR in ponds is a certaint y and, as EPA has c alculated, the risk is great that appendix VIII constituents will migrate from the inadequatel y lined ponds. In addition to the fact that the majority of CCR surface impoundments are unlined or inadequatel y lined, it must be noted that the majority of thes e ponds also do not have groundwater monitoring or leachate collection sy stems. In 2000, EPA estimated that 62% of operating surface impoundments did not have groundwater monitoring. 299 In formation in EPA’s 2006 report indicates that even for the nation’s newest permitted surface impoundments, a substantial percentage of ponds (46 percent) have no requirement in their permit to conduct groundwater monitoring. 300 Inaddition, the report also found that only 19 percent of the permits for the newl y permitted surface impoundments contained groundwater protection standards. 301 Thus the risk posed to health and the environment by the hundreds of unlined and inadequately

lined CCR surface impoundments is conflated b y the absence of monitoring systems that might ident ify the release of contaminants before they reach and harm human and aquatic receptors.

297 See Envtl. Integrity Project and Earthjustice, Coming Clean: What EPA Knows About the Dangers of Coal Ash (May 200), Attachments 1, 2 and 3. 298 75 Fed. Reg. 35144. 299 65 Fed. Reg. 32216. 300 U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Waste Management at Landfills and Surface Im poundments, 1994

– 2004 (Aug. 2006) at 30. 301 Id. Groundw ater protection standards are contaminant concentrations in groundw ater that cannot be exceeded. They can include primary and se condary drinking water standards, background concentration levels, and preventive action limits.171

Lastl y, surface impoundments, of course, also pose significant harm from spills, both large and small. Section VI.A, infra , discusses the frequency of spills, the agi ng universe of ponds, and the fact that many were not designed, constructed or built by professional engineers.
ii. Sand and gravel pits and quarries Although disposal of CCR in sand and gravel pits is a common method of disposal, the risk of harm from this practice is high and the damage well documented. Eight of EPA’s 27 proven damage cases involved dumping of CCR in sand and gravel pits. 302 The NRC specificall y identified the danger of placing CCR in sand and gravel quarries in its 2006 report because of the high permeability of the strata underlying the CCRs and the depth of the water table. 303 The NRC explains: CCR placement in sand and gravel mines has resulted in environmental impacts at CCR landfills in several localities including Wisconsin, Virginia, and Massachusetts. EPA concluded that at each of these sites the permeable nature of the underl yi ng substrate allowed CCR constituents to leach into ground

- and surface waters. Shallow water tables aggravate the problem by enhancing the interaction of water with the CCRs and increasing the likelihood of leachate reaching the water table. For example, EPA concluded that the shallow water table at the Faulkner Landfill in Maryland was at least partl y responsible for the contamination of groundwater that ev entuall y resurfaced and impacted nearb y wetland and stream communities. 304 Despite the known risk of dumping coal ash in quarries, this practice is allowed in most states that generate CCR and in at least one state, Iowa, it is a favored method of disposal. 305 Because man y states consider the filling of quarries with ash a “beneficial” use, most states to not regulate the practice. 306 Most often sand and gravel pits are filled under the guise of “structural fill” projects. 307 These reuse sites are very rarel y lin ed or monitored. Because these units fly under the radar, it is not known how much coal ash has been dumped in pits and quarries or where these dumps are located.

302 U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); at 8

- 10. 303 See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc

. at 71. 304 Id. 305 Pla ins Justice, Iowa Coal Combustion Waste Disposal Report, (November 2007), available at http://plainsjustice.org/coal

- com bustion

- wa ste

- report/

. Attached as Attachment 11 to these comments

. 306 See , e.g., The Massachusetts Solid Waste Act, Chapter 111, s. 150A, specifically exempts coal ash from solid wa ste regulations. The use of coal ash as fill or for any commercial or industrial purpose (or when stored for such use) does not need approval from the local board of health and is not regulated by the Department of Environmental Protection. 307 See , e.g., the Copicut Road Project in Freetow n, Massachusetts described in EPA’s Coal Combustion Waste Dam age Case Assessments at 38.172 iii. Unlined CCR landfills EPA estimates that there are over 337 currentl y operating CCR landfi lls. 308 However, EPA has few data on the exact number, location or design of these landfills. EPA’s failure to issue an Information Collection Request to obtain such information has resulted in the need to extrapolate from a limited dataset, collected from a voluntary survey conducted in 1994 by

the Electric Power Research Institute. 309 This survey indicated that 43% of all CCR landfills built before 1995 (approximately 300) were unlined (approximately 129 units). 310 Between 1994 and 2004, 38 permitted landfi lls were built or expanded, and 37 of these landfills were lined. 311 Thus approximately

39% of operating landfills are currently unlined. However, EPA has acknowledged that all liners are not created equal. Based on the findings of EPA’s 2010 Risk Assessm ent , the Agency concludes that onl y a composite liner for CCR landfills offers sufficient protection. Although EPA has not gathered information on the universe of hundreds of older landfills, the DOE/EPA 2006 Report does provide some information concernin g the 37 landfills permitted between 1994

- 2004

— and this information is not reassuring. Of the 37 permitted landfills documented in the report, approximately 40% either had no liner (1 landfill), a single liner (4 landfills) or a clay liner (11 landfills). 312 None of these liners would reduce risks below EPA’s benchmark values. Furthermore, CCR landfills often lack groundwater monitoring s ys tems. Again, EPA has few data on the exact number that employ this safeguard. The fact that 30 of 37 states, as descr ibed in section III.B.2, supra , do not require groundwater monitoring at landfills ensures that many operating units are not monitored. Thus, as with CCR ponds, releases from such landfills are not likely

to be discovered in a timely manner, and consequently the risk that those releases will harm human health or the environment is significant.
iv. CCR landfills operated without daily cover to control fugitive dust. As described above, EPA published in 2009 a screening assessment of the risks posed by coal combustion waste landfills entitled “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by

Coal Combustion Waste L andfills.” The screening asses sment acknowledges significant potential harm from fugitive dust. Specificall y, fugitive dust from coal ash landfills can readily

exceed the national ambient air quality standards (NAAQS) for levels of particulate matter in the air. Yet, as described in more detail in section III.B.2, supra , 30 of 37 top CCR

generating states do not require dail y cover to control fugitive dust at coal ash landfills. In addition, 36 of 37 states do not require measures at coal ash ponds to control dust. 313 The lack of

308 2010 RIA at 34. 309 RIA at 37. 310 65 Fed. Reg. 32216. 311 U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Waste Management at Landfills and Surface Im poundments, 1994

– 2004 (Aug. 2006) at 33. This report did not track new landfills that did not require permits These dumps are likely not to have the same level of safeguards as permitted units. 312 Id. 313 See Table 14 in section III.B.2, supra.173

fugi tive dust controls places residents near the dump sites at great risk. 314 Harmful levels of fugitive dust are not onl y a problem at coal ash disposal sites. At coal ash reuse sites, such as structural fill projects where large amounts of ash are placed, f ugitive dust from dumping operations can also create dangerously unhealthy

conditions. 315 Because beneficial use of ash is unregulated in most states, very few regulations require the suppression of airborne ash at fill projects. Yet use of coal ash as str uctural fill is the fastest growing and the second largest reuse application in the U.S. In 2008, the American Coal Ash Association (ACAA) reported 11.5 million tons of ash were used in fill and embankment projects. 316 The ACAA also reported that minefilli ng was the third largest application at over 10 million tons a ye ar. 317 Fugitive dust is also a common problem at minefill sites, both at the site itself and during transport of the ash to the mine.

v. CCR surface impoundments over 25 years old and not design ed, constructed or built by professional engineers The vast majority

of CCR impoundments (approximately 490 of 629 dams in the survey results) 318 were commissioned prior to 1985. These nearl y 500 aging coal ash impoundments pose more than “plausible” scenarios of improper management that pose substantial hazards to health and the environment. As discussed above, these ponds are less likely to hav e liners (almost none will have a composite liner) and groundwater monitoring. In addition, older dams are far less likel y than newer dams to be designed by a professional engineer (P.E.). Onl y about 66 percent of dams built before 1985 were designed by a P.E.; as were only 55 percent of the 242 dams built prior to 1975, and only 30 percent of the 90 dams built before 1965. Older dams are also likely

to be larger and higher. And predictably , these older, larger, higher, unlined and unmonitored impoundme nts are substantially more likely

to have problems. Of 40 dams with a history of leakage, 33 (83 percent) were commissioned prior to 1985, and two

- thirds (22) were commissioned prior to 1975. vi. CCR landfills and surface impoundments located in unsafe locati ons EPA’s Regulatory

I mpact Anal ys is survey ed the location of 495 coal

- fired power plants to determine the number of plants located in seismic and karst zones. Due to lack of information, the RIA did not similarl y quantify the number of CCR disposal uni ts in proximity to the water

314 See , for example, Testimony of Gayle Queen before the House of Representative Subcommittee on Energy and Environment, De cem

ber 10, 2010. Ms. Queen testified “Because of the coal ash, I have trouble breathing. I am not a smoker. My doctor has told me I have the lungs of an 80 year old w om an because of breathing in the coal ash.” 315 See , for example, Testimony of Robyn Pierce before the House of Representative Subcommittee on Energy and Environment, December 10, 2010. Ms. Pierce testified: For 5 years hundreds of truckloads of coal ash were dumped daily in our community. We've since learned those same truck drivers and were required to have haz

- mat licenses, and w ore masks and protective clothing yet our children unknowingly played outside amongst this dangerous dust. Neighbors recall coming home and finding layers of gray chalky residue on vehicles and pool surfaces. None of my neighbors had any inkling of the dangers we were being exposed to. 316 American Coal Ash Association. 2008 Coal Combustion Product (CCP) Production & Use Survey Report. http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf

. 317 Id. 318 “Approximately” because precise data w as not available for all of the impoundments in EPA’s survey.174

table, wetlands and floodplains, locations that also pose a substantial risk of contaminant migration. EPA found that of 495 plants, 151 plants were located within one mile of a seismic zone and 138 plants within 1 mile of a k arst zone (177 plants are located within three miles of a karst zone). 319 Construction of coal ash surface impoundments and landfills in active earthquake and unstable karst zones places human health and the environment at great risk. 320 Yet of 25 state regu lations reviewed in 2000 by EPA, onl y two states have location restrictions in seismic impact areas for surface impoundments, and only eight states have location restrictions in seismic impact areas for landfill. Similarly , onl y five states had location r estrictions in unstable (karst) areas for surface impoundments, and only 12 states have location restrictions in unstable areas for landfills. 321 The absence of regulations preventing the siting of CCR landfills and impoundments in dangerous locations expos es the likelihood of plausible improper management that presents a substantial present or potential hazard to human health or the environment

. For the other dangerous locations not quantified by EPA, regulatory restrictions are indeed inadequate to prev ent mismanagement and protect human health and the environment from substantial present or potential hazards . For the very dangerous practice of placing CCR in or near the water table, onl y five states of the 25 state regulations reviewedhave location res trictions below the natural water table for surface impoundments and only eight states have restrictions on placing coal ash below the natural water table in landfills. For floodplains, of the 25 state regulations reviewed, only eight states have location restrictions in floodplains for surface impoundments and 20 have location restrictions in floodplains for landfills. L astl y, for placement of CCR in wetlands, only five states have location restrictions in wetlands for surface impoundments and 17 states that have location restrictions in wetlands for landfills.

. vii. CCR disposal in coal mines The danger posed b y disposal of CCR in active and abandoned coal mines is described in detail in section VIII of these comments. The huge volume dumped in mines every ye ar without adequate safeguards has contaminated groundwater and surface water at numerous sites throughout the U.S. 322 The lack of regulations controlling this dumping ensures continued damage from placement of CCR directly into groundwater and the conti nued substantial present or potential hazard to human health or the environment at the mine sites. We believe EPA has a duty under RCRA to regulate this disposal practice instead of passing the buck to the Interior Department.

319 2010 RIA at 72. 320 At least two of EPA’s damage cases occurred as a result of karst sinkholes, including the 2002 release of 2.25 gallons of ash and water when a sinkhole developed in an impoundment that eventually reached four acres in size at Georgia Pow er’s Plant Bow en , Cartersville, GA. 75 Fed. Reg. 35237. See also , the TVA Colbert Fossil Fuel Plant in Alabama where the disposal area had been subject to collapse into a karst sinkhole. See EPA, Coal Combustion Waste Damage Case Assessments, July 2007 at 42. 321 2010 RIA at 47 322 See Clean Air Task Force, Impacts of Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines , July 2008 and Earthjustice, Waste Deep: Filling Mines with Ash is Profit for Industry, But Poison for People, February 2009.175 viii. The quantities of the waste g enerated at individual generation sites or on a regional or national basis. As described earlier in these comments, generation of CCR by coal

- burning electric utilities in 2008 exceeded 141 million tons, and this amount is growing each y ear. 323 Annual gener ation is expected to reach 175 million tons by 2015. 324 As this waste stream grows in quantity , it is also becoming more toxic and therefore more dangerous. 325 While the enormous tonnage represented b y annual national generation is important, an examination o f state CCR production is critical for assessing “the present and potential hazard” for this listing factor. As described in detail in section III.B.2, the top 12 CCR

- generating states have some of the least protective regulatory

schemes. When consideri ng this factor, EPA should also consider the impact of CCR generation at individual power plant sites. Because of the large quantities of CCR that may be generated at individual plants and the length of time that a plant may have been generating the waste , it is common for older plants to have built up very large quantities of CCR disposed onsite. Approximately

70 percent of U.S. power plants dispose of CCR onsite. 326 A large (2000 MW) plant is capable of producing approximately 1 million tons of CCR per y e ar. Over the course of 50 y ears, 50 million tons may be disposed at some sites. I f this waste was not properl y and securel y disposed, there is very likely to be contamination of groundwater, surface water and air at these sites. The continued generation and disposal of large quantities of CCRs at sites where enormous volumes are alread y disposed and the environment is alread y compromised deserves special attention because these sites may be particularly

vulnerable. At these sites such disposal, and the addition of toxic constituents that the additional disposal represents, poses a substantial present or potential hazard to human health or the environment.
ix. The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituents. In man y places in these comments, we describe the nature, severit y and scope of damage to human health and the environment from mismanagement of CCRs. Section III.D, supra , describes the 1 37 damage cases that have been documented by EPA and public interest groups. The reports referenced in that section provide much additional detail concerning the nature of the contamination. Certainly the litany of documented damage must lead EPA to conc lude that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

323 See section X, supra. EPA, 324 Id. 325 See section x, supra, for detailed information concerning changes to the waste stream as a result of Clean Air Act requirements. 326 75 Fed. Reg. xx176 x. Action taken by other governmental agencies or regulat ory programs based on the health or environmental hazard posed by the waste or waste constituent. Both state regulatory

agencies and EPA have taken actions to address CCR contamination at numerous sites where damage has occurred from the release of toxic c onstituents. The table below lists many of these actions. While the large number of contaminated sites has led to some state and federal intervention, it must be emphasized that effective and timel y state and federal actions are the exception rather than the rule. One cannot conclude from the listing of a government response in the table below that the response effectivel y and comprehensively addressed the CCR release noted. Each listing is an indication only that a governmental action was taken. The ex istence of these actions, which include the listing of CCR dumps on the Superfund National Priority L ist, alternative superfund actions, state superfund cleanups and federal and state enforcement orders, reinforce the fact that the waste is capable of posi ng a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.State Site Owner Action Taken (Y/N) Source

IN Town of Pines: Yard

520 L andfill Site (Brown’s Landfill) Northern Indiana Public Service Corp. (NI PSCO) (Federal Action) EPA and the responsible parties signed an Administrative Order of Consent effective January 2003 under CERCLA to cover costs of connec ting the affected areas to cit y water and to complete an RI/FS at the site. (USEPA 2003a). 1

KY East Bend Scrubber

Sludge Landfill Cinergy (State Action) According to the DEP, there were on

site exceedances of non

- health

- based standards for total dissolve d solids, iron, and sulfate at this site. The State has taken regulatory action based on these exceedances. 1

MA Salem Acres South Essex Sewerage District (Federal Action) The site has been placed on the NPLlist, and EPA signed a Consent Order with the owner to clean up the lagoons 1

MD Gambrills Fill Site Constellation Energy (State Action) Clean Up Actions, Put on Public Water, Constellation has had to Pay Fines. 1

MD Morgantown

Generating Station Faulkner Off

- site Disposal Facilit y PEPCO (State Action) Remedial measures at the site included closure and capping of older units, installation of liners in newer units, installation of a slurry wall to prevent ground wate r migration, and sequestration of

py rites. 1

ND R.M. Heskett Station Montana

- Dakota Utilities (State Action) According to the NDDOH, the State required the compan y “... to install ground water monitoring wells and implement a closure plan. 1178

State Site Owner Action Taken (Y/N) Source
ND W.J. Neal Station

Surface Impoundment Basin Electric Power Cooperative (State Action) The State required closure of the facility

. 1
PA PPLMartins Creek

Power Station PPLGeneration, LL C (State Action) State enforcement action taken b y PA DEP in response to spill including a fine. 1
TN Kingston Power Station Tennessee Valley Authority (Federal Action) Federal clean up action under CERCLA ongoing. 1

VA Battlefield Golf Course Dominion (Federal Action) There has been a preliminary investigation by EPA of the fill under Superfund. Dominion has committed to provide a public w ater line costing approx. $6 million to the residents. 1
WI Cedar

- Sauk Landfill WEPCO (State Action) The State required remedial action. 1

WI Dairyland Power

Cooperative E.J. Stoneman Generating Station Ash Disposal Pond DTE Energy (State Action) The State required closure of the facility

. 1

WI Pulliam Ash Disposal

Site Wisconsin Power Supply Co. (WPSC) (State Action) 1994, WDNR required an investigation

of the ground water contamination and an upgrade of

the monitoring network. 1

WI WIPower & Light Co

Nelson Dewey Generating Station Alliant Energy (State Action) As a result of the various PAL and ES exceedances, the State required a ground water investigation, and the facility took action to remediate ground water contamination and prevent further

contamination. 1179

State Site Owner Action Taken (Y/N) Source

SC SCE&G Wateree

Station In cluded in Site Column (State Action) DHEC cited the plant for violations of state groundwater standards in 2001 2
IL Joliet 9 Edison International dba Midwest Generation (State Action) Multiple state actions taken 3
OH Uniontown Hy man Budoff / Merle & Charles Kittinger (Federal Actions) Numerous Actions taken 3

Citation Key 1 EPA Damage case a 2 Out of Control b 3 In Harm's Way c a: U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments (July 9, 2007); b: Envtl. Integrity Project and Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010) c: Envtl. Integrity Project et al., In Harm’s Way: Lack o f Federal Coal Ash Regulations Endangers Americans and their Environment (August 26, 2010).xi. Such other factor s as may be appropriate.

The 137 damage cases and risk assessments also found excess risks for human and ecological receptors from non

- appendix VIII constituents of CCRs. 327 These constituents include aluminum, boron, chloride, cobalt, copper, fluoride, iron, lithium, manganese, moly bdenum, nitrate/nitrite, strontium, sulfate, vanadium and zinc. 328 All of these constituents pose health threats that are documented b y the Agenc y for Toxic Substances and Disease Registry (ATSDR) ToxFAQs, the EPA Integrated Risk Information Sy stem (I RI S), and the Toxicology

Data Network (TOXNET) of the National Institutes of Health. While EPA notes that these constituents do not provide an indepe ndent basis for listing CCRs pursuant to section 261.11, the Agency

“finds their presence in the damage case and risk assessment results to be relevant to the listing decision because of the potential to cause additive or sy nergistic effects to the Appendi x VIII constituents.” 329 We concur, but posit that health impacts from the above constituents should be considered whether or not they act sy nergistically

with appendix VIII constituents. As seen in the ATSDR and EPA profiles, these constituents pose sever e health impacts independentl y as well. A table listing the presence of these contaminants at the 137 damage cases can be found in Appendix F.

III. REGULATION OF COAL ASH UNDER SUBTITLE D OR SUBTITLE D PRIME OPTIONS WOULD FAIL TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT For all of the reasons set forth above, EPA can and must regulate CCRs under subtitle C of RCRA. EPA’s alternative proposal to regulate under subtitle D embodies a dangerous policy that would leave pressing health and environmental threats unaddressed. It is also fatally flawed as a matter of law. A. EPA’s Subtitle D Criteria Do Not Comply With The RCRA Standard For Such Criteria Under Section 4004(a).
One of the options presented in EPA’s co

- proposal is regulation of coal ash under RCRA sub title D pursuant to sections 1008(a), 2002, 4004, and 4005(a) of RCRA. 330 Under this approach, coal ash would remain classified as a non

- hazardous RCRA solid waste, and EPA would develop national minimum criteria governing disposal facilities. Such a rule would not regulate the generation, storage, treatment or transport of coal ash prior to disposal. 331 Because of the limited scope of subtitle D authority , the rule would not require permits, nor could EPA

327 75 Fed. Reg. 35173 328 Id. 329 75 Fed. Reg. 35173. 330 42 U.S.C. §§ 6907(a), 6912, 6944 and 6945(a). 331 75 Fed. Reg. 35 , 124

.181

enforce the requirements. Instead, onl y the states or citizens could enforce the requirements under RCRA citizen suit authority pursuant to section 7002. 332 Section 4004(a) of RCRA provides that EPA shall promulgate regulations containing criteria for determining which facilities shall be classified as san itary landfills and which shall be classified as open dumps. These criteria constitute the subtitle D regulations for disposal of non

hazardous solid waste. 333 Section 4004(a) establishes the standard for these criteria as follows; [a]t a minimum, such cr iteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility

. 334 Thus EPA’s propos ed regulations under subtitle D must ensure that there will be “no reasonable probability

of adverse effects on health or the environment” from the disposal as coal ash in landfills and surface impoundments. As explained below, EPA’s proposed subtitle D r egulations fall far short of the standard of ensuring no “reasonable probability” of harm. Therefore this proposed option would be illegal if promulgated. B. Many States Are Unlikely To Adopt Subtitle D Criteria
Overarchingl y, there is no subtitle D criter ia that can ensure “no reasonable probability

of adverse effects on health or the environment from disposal” of coal ash and other CCRs. Decades of failure b y state regulatory agencies to regulate the disposal of these wastes in an y reasonably effective m anner make this clear. In addition, any argument in favor of subtitle D regulation ignores the states’ collective failure to enforce the subtitle D criteria that was promulgated b y EP A over three decades ago in 1979. 335 Section III.B.2, supra, describes the failure of states to enforce the subtitle D open dumping criteria found in sections 247.3

- 3 and 257.3

- 4. 336 The open dumping criteria found in these provisions are exceedingl y straightforward. For example, for the key groundwater protection standard in section 257.3

- 4, a violation occurs when the groundwater exceeds a specified MCL bey ond the solid waste boundary of a coal ash dump. Yet at site after site where contaminated groundwater tripped the standard, for thirty years the states declined to enfor ce this regulation.

332 42 U.S.C. § 6972. 333 As EP A explains: Under RCRA 4005(a), upon promulgation of criteria under 1008(a)(3), any solid waste management practice or disposal of solid waste that constitutes the ‘‘open dumping’’ of solid w aste is prohibited. The criteria under RCRA 1008(a)(3) are those that define the act of open dumping, and are prohibited under 4005(a), and the criteria under 4004(a) are those to be used by states in their planning processe s to determine which facilities are ‘‘open dumps’’ and which are ‘‘sanitary landfills.’’ EPA has in practice defined the tw o sets of criteria identically. See, e.g., Criteria for Classification of Solid Waste Disposal Facilities and Practices, 44 FR 53438, 53438

– 39 (Sept. 13, 1979). 75 Fed. Reg. 35192. 334 42 U.S.C. § 6944(a)

. 335 Criteria for Classification of Solid Waste Disposal Facilities and Practices, Final Rule, 44 Fed. Reg. 53438, (September 13, 1979). 336 40 C.F.R. §§ 257.3

- 3 and 257.3

- 4.182

In the present proposed rule, EPA has proposed a complicated scheme involving certifications by

“independent professional engineers” who must determine if technical design standards are met, alternate performance standards are adhered to, proper notifications submitted, adequate demonstrations made, and ultimately , if statistically significant contamination is detected. To determine compliance with the proposed regulations, state regulators must evaluate this avalanche of compl ex certifications. Given the complete absence of state oversight of the existing subtitle D criteria, it is unreasonable for EPA to credit the viability of this scheme. EPA cannot reasonably rel y on states to verify

extensive paperwork fueled by “self

- implementing regulations” and “independent” engineers working for the regulated parties in order to enforce the criteria effectivel y

 especially

given state funding constraints. Second, EPA itself admits that in most cases, states will do no such thing. In the preamble, EPA comments that the considerabl y lower cost for subtitle D regulations in comparison to subtitle C results from a difference in the expected compliance rate, not from a difference in required engineering controls. EPA states “[t]he main di fferences in cost are based on the assumption that there will be less compliance or slower compliance under a RCRA subtitle D option. 337 Remarkably , EPA methodically calculates the estimated magnitude of this noncompliance, and it is substantial. As spelle d out in EPA’s Regulatory

Impact Analysis with great specificit y, EPA anticipates that only 52 percent of the coal ash in the U.S. will be generated in states that will adopt and enforce the subtitle D criteria. By

EPA’s count, over 67 million tons of tox ic ash will escape regulation each year, and this waste is generated in states with the highest disparity in race and income of residents living near coal ash dumps. With only 48 percent of coal ash generated in the U.S. disposed in states willing to adop t or enforce the regulations, it is impossible to meet the statutory standard of “no reasonable probability of adverse effects on health or the environment from disposal of solid waste.” 338 Without criteria being adopted and enforced, the statutory distinct ion between allowable sanitary landfills and prohibited open dumps becomes meaningless. In fact, EPA has greatly underestimated projected state noncompliance. Applying EPA’s own y ardstick that states not currentl y requiring groundwater monitoring at surface impoundments “would not change their practices simpl y because EPA issued national rules,” 339 the correct calculation of the percentage of coal ash in states without such regulatory

requirements is 76 percent, not 52 percent. Thus it becomes even more unreasonable to adopt the proposed subtitle D option. Lastl y, as EPA knows, subtitle D regulations are not federally enforceable. EPA cannot leave unmotivated states and private citizens to undertake the extraordinarily resource - intensive task of enforc ing the subtitle D criteria through citizen suit litigation. Given the overwhelmingly widespread damage that is occurring as a result of unsafe

337 75 Fed. Reg. 35139. EPA states, “The main differences in cost are based on the assumption that there will be less compliance or slower compliance under a RCRA subtitle D option. 338 42 U.S.C. § 6944(a). 339 RIA at 124.18 3

disposal across the country , it would be impossible to achieve effective enforcement at the scale that is neede d through private actions. The inevitable outcome of “D” regulation is unchecked damage to human health and the environment in violation of RCRA. C. The Proposed Subtitle D Regulations Are Significantly Weaker Than

Existing Subtitle D Regulations Even if i t were appropriate to regulate CCRs under subtitle D

 which it certainly is not

 EPA’s proposed subtitle D scheme is even less stringent than the existing subti tle D criteria that now appl y to CCR disposal. In other words, EPA’s proposed D option would make the current untenable situation even worse. In two determinations, EPA admits that the current regulatory scheme is inadequate to compl y with section 4004(a) criteria and that additional regulations under subtitle D are warranted. However, the regulat ory scheme EPA proposes eliminates the few key protections that apply

now
. The groundwater protection provision currentl y applicable to coal ash, section 257.3

- 4, requires utilities to close dumps that contaminate groundwater with arsenic, selenium, lead, cadmium and other common coal ash constituents. According to the regulations, a dump that contaminates groundwater is an open dump, and open dumps are simply prohibited and must be closed. 340 EPA’s proposed regulations provide far less protection to groundwater. First, EPA has entirel y removed the groundwater protection requirement from the current scheme. 341 Section 257.3

- 4 no longer applies to coal ash dumps. Under EPA’s new scheme, such dumps can release deadl y contaminants into groundwater, and th ese dumps remain in compliance until there is a “statistically significant” increase in a listed parameter that is voluntarily reported b y the operator of the dump to the state. Worse still, the operators do not have to monitor for the toxic constituents that are common at coal ash dumps, namel y any of the heavy

metals such as arsenic, cadmium, chromium, lead, mercury , nickel or selenium. Even when a statistically

significant exceedance is found by the operator to occur, there is no requirement to close the dump. Rather the operator must simply increase the extent of its monitoring. Only after finding that the dump is indeed contaminating groundwater must something be done. However, all that is required is that the utility develop an assessment of cor rective measures within 90 day s of providing notice that contamination is occurring. Following the assessment, the utility must implement a corrective measure of its choosing. There is no state or federal oversight to ensure that the compan y moves quickl y enough or resolves the problem in the end. Lastl y, EPA is proposing another fundamental change in the subtitle D regulatory scheme that will significantly weaken groundwater protection. Section 257.3

- 4(a) currentl y prohibits the contamination of an aq uifer, defined as “ a geologic formation...

340 40 C.F.R. § 257.3

- 4 and 42 U.S.C. § 6 945(a) . See also discussion in Section III.B.2, supra. 341 75 Fed. Reg. 35240. See proposed 40 C.F.R. § 257.40.184

capable of yi elding usable quantities of ground water to wells or springs.” 342 EPA proposes to replace “usable quantities” with “significant quantities.” 343 This change removes protection from those communities that d epend on groundwater for drinking or agricultural use, who may not have access to a public water s ys tem, but whose use may not meet the impermissibly vague standard of “significant.” An examination of EPA’s damage case list, as well as the additional site s documented b y public interest groups, reveals man y dump sites where coal ash contamination poisoned a relatively small cluster of residential wells. EPA’s proposed regulation allows these communities’ water to be poisoned with no legal recourse. Such d isregard for the safet y of small communities certainl y does not establish a “reasonable probably of no adverse impact on health” and is prima facie unlawful. D. The Proposed Subtitle D Regulations Do Not Protect Health or the Environment The following defic iencies certainly do not comprise a comprehensive list of subtitle D’s failure to protect human health or the environment to the standard of section 4004(a). For the reasons discussed above, we do not believe EPA has the discretion under RCRA to implement a subtitle D option. However, we comment on specific major aspects of the subtitle D scheme below. We also submit comments to the record on particular aspects of the proposed subtitle D (and subtitle C) schemes in Appendices I, M, and N. 1. Subtitle D Regulations Cannot Impose Land Disposal Restrictions EPA asserts that it does not have authorit y to impose land disposal restrictions (“LDR”) under subtitle D, and therefore cannot impose a ban on surface impoundments. EPA argues that the pra ctical effect of its requirement that all surface impoundments have composite liners under subtitle D is to force the phase out of all existing noncompliant ponds. However, wet storage of coal ash, even in units with a composite liner, pose a far greater risk of harm to human health and the environment than dry disposal of ash in an engineered landfill. Allowing this dangerous disposal to continue fails to establish a reasonable probability that there will be no adverse impact on heath or the environment, as required b y section 4004(a). Further, liner or no liner, wet storage of coal ash poses unacceptable risks of catastrophic collapse. Such risks are avoided when the waste is dry disposed. In section VII of these comments, we discuss the inherent dan ger of coal ash impoundments and explain why

the proposed regulatory

scheme that incorporates MHSA requirements is still insufficient. Catastrophic failure is an avoidable risk posed by an outdated and unnecessarily

hazardous method of disposal that must be phased out. Failure to do so, fails to establish a reasonable probability that there will be no adverse impacts on heath or the environment.

342 40 C.F.R. § 257.3

- 4(c)(1). 343 40. C.F.R. § 257.40(b).185 2. Subtitle D Standards Cannot Require Owners and Operators of Coal Ash Disposal Facilities to Maintain Financial Assurance EPA’s proposed subtitle D standards do not include an y requirement for owners or operators of coal ash disposal facilities to maintain financial assurance (demonstrate adequate financial resources) sufficient to cover closure, post

- closure care, necessary clean up and liability from facilit y operations. Yet according to EPA, financial assurance requirements “protect public health and the environment by promoting the proper and safe handling of hazardous materials and protecting against a liabl e part y defaulting on closure or clean

- up obligations.” 344 The absence of financial assurance can “place the public at risk because of the potential financial inability to close or clean up the site.” 345
Furthermore, according to the EPA, “having the financ ial wherewithal to perform closure and/or cleanup is critical to protecting human health and the environment from toxic and hazardous waste and substances that are polluting the land, air, and water.” 346 The EPA explains that “financial responsibility requi rements achieve this protection by : (1) promoting the proper handling of hazardous and toxic waste and substances; (2) ensuring that funds will be available to address contamination; (3) preventing the shifting of clean

- up costs from the responsible part y to the taxpay er or other parties; and (4) making facilities and land available to the public for reuse.” 347
EPA considers financial assurance regulations an essential component of its hazardous waste compliance program, as evidenced b y EPA’s 2003 “Enforceme nt Alert,” which specificall y addresses RCRA financial assurance requirements. 348 The Alert called financial assurance requirements a “fundamental compliance obligation” and stated the “failure to compl y with financial assurance requirements puts human health and the environment at risk.” 349
At least one court has recognized the important role play ed b y financial assurance regulations in forcing waste

- handling facilities to employ better operation and management practices. In Safety

-Kleen, Inc., (Pinewood) v . Wyche , the Court held that the South Carolina hazardous waste facility

financial assurance regulations (equivalent to the federal RCRA regulations) were exempt from the federal bankruptcy law’s automatic stay

because the requirements were part of the State’s “police and regulatory power.” 350 The Court of Appeals

344 U.S. EPA, Compliance and Enforcement National Priority: Financial Responsibility Under Environmental Laws, 1 (2005). 345 Id. at 2. 346 Id. 347 Id. 348 U.S. EPA, Office of Regulatory Enforcement, Enforcement Alert, Vol. 6, No. 2 (April 2003). 349 Id. 350 274 F.3d 846, 865 (4 th Cir. 2001). The Court explained: The incentive for safety is obvious: the availability and cost of a bond w ill be tied directly to the structural integrity of a facility and the soundness of its day

- to

- day operations. When the EPA promulgated it s financial assurance regulations..., it spelled out how the regulations would promote environmental protection at active hazardous waste facilities. Specifically, the EPA emphasized that the financial assurance requirements would give186

found that financial assurance regulations serve the primary purpose of deterring environmental misconduct by

promoting the safer design and operation of hazardous waste facilities.
Furthermore, in a federal register notice last January , EPA set forth in detail the rationale behind imposing financial assurance requirements on the electric utility sector. 351 In that notice, EPA acknowledged that the electric power generation, transmissio n and distribution industry was “the sector reporting the second

- largest quantity of on

- site release of hazardous substances.” 352 Specificall y, EPA noted that this sector reported 161 million pounds of on

- site releases of hazardous substances or approximately 7.5 percent of the total on

- site releases of hazardous substances b y U.S. industry reporting to TRI. Of this total, 93.8 percent (or approximately

150 million pounds) was released from fossil fuel electric power generation, primarily

to land , with additional on

- site releases to air and surface water. 353 In addition to the enormous volume of releases from coal

- fired power plants, EPA pointed to the severit y of the damage resulting from releases of hazardous substances and the high cost of cleanup. EPA described the numerous documented damage cases, including four National Priority L ist sites. 354 The Agency noted The severit y of the consequences impacting public health and the environment as a result of releases and exposure of hazardous substan ces posed b y the Electric Power Generation, Distribution, and Transmission industry is evident in the large costs associated with past and estimated future costs necessary to protect public health and the environment through what are often extensive and lo ng - term remediation efforts. That is, these facilities release hazardous substances which have, in some instances, resulted in contamination that requires long

- term management and treatment. Remediation of these sites, therefore, has been quite costly

. 355
D espite the Agency ’s acknowledgement that financial assurance requirements are essential to public health and safet y, these requirements are entirely absent from EPA’s subtitle D regulations. In fact, EPA asserts that it lacks the authority under subtitle D to require an y financial assurance.
landfill owners and o perators “an incentive to locate, design, and operate facilities to minimize closure and post

closure costs” and to “improve operating procedures and reduce the risk of accidents.” Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities; Financial Requirements, 47 Fed. Reg. 15032, 15044

- 45 (Apr. 7, 1982) ... To put it more bluntly, sloppy “design and operating procedures ... are more likely to be avoided” with the financial assurance requirements and the r esulting incentive to reduce bond costs. 351 75 Fed. Reg. 816. 352 Id. at 821. 353 Id. at 829. 354 Chisman Creek, VA; Salem Acres, MA; Lemberger Landfill, WI and US Department of Energy Oakridge Reservation, TN. 355 75 Fed. Reg. 829

- 30.187

Finally , it must be noted that the failure to require financial assurance has real

- world consequences. On January 26, 2010, Perry County Associates, LLC and Perry

- Uniontown Ventures I, LLC, the permittee and owner of the Arrowhead Landfill, respectivel y, filed for Chapter 11 bankruptcy

reorganization. 356 The Arrowhead Landfill is the repository for the 3 million tons of coal ash that was removed from Kingston, Tennessee following the 2008 TVA disaster. The Arrowhead L andfill has been the object of citizen suits for violation of the Clean Air Act, the Clean Water Act and RCRA as a result of the coal ash disposal. 357 Infact, on July 14, 2010, EPA sent the Arrowhead Landfill a Letter of Concern following an inspection of the facility , requesting that the landfill owner take steps to comply with numerous Clean Water Act provisions. 358 The proximity of residences in Uniontown, Alabama to the enormous ash disposal operation at the Arrowhead Landfill raises substantial concerns for the health of the community

. Insum, the inabilit y to properl y operate and maintain a coal ash disposal facility, including executing safe closure and post

- closure care, will greatl y endanger the residents of Uniontown, Alabama, as well hundreds of other communities located near coal ash dumps. Certainly the failure of subtitle D standards to require any financial guarantees is a clear violation of the standards set forth in section 4004(a) of RCRA.

3. Subtitle D Regulations Cannot Establish “Cradl e to Grave” Requirements EPA’s proposed subtitle D scheme does not establish “cradle to grave” requirements. The proposed criteria does not address the generation, storage, treatment or transport of coal ash prior to disposal. The handling of ash prior to disposal, however, can and does harm human health and the environment. In sections III.C.2.e, supra, these comments discuss the risk posed by fugitive dust that often occurs during storage and transport of coal ash. Failure to address these risks to a ir, groundwater, soil, and surface water from ash handling fails to establish a reasonable probability that there will be no adverse impacts on heath or the environment.

4. The Proposed Subtitle D Standards Do Not Require A Solid Waste Operating Permit And T herefore Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment.

356 In re Perry Uniontown Ventures I, LLC, Nos. 10

- 00275 and 10

- 00276 (Bankr. S.D. Ala. filed Jan. 26, 2010). 357 Thirty

- four residents filed suit against the landfill operator, Phill

- Con Services, LLC. Abrahams v. Phill

- Con Services, LLC, No. 2:10

- cv - 00326 (S.D. Ala. filed June 25, 2010). Sixty

- fo ur residents also filed a state lawsuit for damages and injunctive relief in state court. Abrahams v. Phill

- Con Services, LLC, No. CV

2010

- 21 (Perry County Cir. Ct. filed June 21, 2010), removed to Bankruptcy Court as Abrahams v. Phill

- Co n Services, LLC (In re Perry Uniontown Ventures I, LLC) , Adv. Proc. No. 10

- 00075 (Bankr. S.D. Ala. filed July 20, 2010). See letter from David A. Ludder to Gw endolyn Keyes Fleming, Regional Administrator, U.S. Environmental Protection Agency, Region 4 dated October 2010, attached to these comments as Appendix L

. 358 Letter from Christopher L. Plymale, Chief, East NPDES Enforcement Section, Water Protection Division, US Environmental Protection Agency, Region 4 to Eddie Dorsett, President, Phill

- Con Services, July 14, 2010.188

Solid waste operating permits are critical to ensuring coal ash disposal facilities design, construct, operate and close their waste facilities safely . Permits are important because they

can dictate the use of specific operating practices and control technologies that may be essential for minimizing releases. Permits also provide an important enforcement vehicle, as well as a pr ocess by which the public can be informed and participate in the siting, operation and closure of the waste disposal unit. The inability to require solid waste permits for all coal ash disposal facilities is a significant and dangerous gap in EPA’s propos ed subtitle D scheme. The existence of this critical gap fails to establish a reasonable probability that there will be no adverse impacts on health or the environment.

5. Subtitle D Standards Cannot Address Facility
- Wide Pollution And Historic Dumping And Therefore Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment. The absence of facility

- wide corrective action standards is a fatal flaw in EPA’s proposed subtitle D regulations. Given the magnitude of historic dumping on power plant properties, it is a gross oversight not to require an investigation of all onsite disposal facilities, both operating and retired. Section III.C.2.h. supra, discusses the substantial risks posed by

retired dumps. The absence of a requirement in the subtitle D scheme to address this risk fails to establish a reasonable probability that there will be no adverse impact on heath or the environment.

6. Subtitle D Standards Cannot Require Utilities to Identify Current and Past Disposal Units And Therefore Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment. With the listing of coal ash as a hazardous waste, utilities and landfill owners must comply with secti on 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). 359 Section 103(c) requires coal ash generators, past or present owners of disposal facilities, and some transporters to notify the EPA of the existence of facili ties where coal ash has been disposed, specifying the amount to be found there, and any known, suspected, or likely release from the site. Given the dearth of data on where and how billions of tons of coal ash have been disposed over the last six decades, it is essential for the protection of health and the environment to collect such information. In a 1993 Department of Energy report, the Department found that there are 759 retired coal ash disposal units with a cumulative total of 1 billion tons of wast e, but no information is available on where those units are located or the conditions of the disposal. 360 Id entification of hundreds of historic dump sites will undoubtedly help to safeguard water supplies, especiall y since most older dumps are unlined and thus more likely to release harmful contaminants. Without this information, subtitle D fails to establish a reasonable probability

that there will be no adverse impact on health or the environment.

359 42 U.S.C. §9603(c). 360 ICF Resource, Inco rporated, Coal Combustion Waste Management Study, prepared for U.S. Department of Energy (February 1993), Docket ID No.: EPA

- HQ

- 2006

- 0796.189 7. Subtitle D’s Reliance On Independent Professional Engine ers In Lieu Of Government Oversight To Guarantee Regulatory Compliance Cannot Establish A Reasonable Probability That There Will Be No Adverse Impacts On Human Health Or The Environment. Subtitle D relies almost entirely on the existence of “independent p rofessional engineers and hy drologists” to evaluate a utility ’s compliance with subtitle D criteria and inform the state in a timely

and effective manner when problems arise. Subtitle D relies on utility consultants to design an effective monitoring progr am, to notify the state when groundwater monitoring reveals contamination, to design remedial actions, and to certify that cleanup has been successful. However, at numerous sites, the performance of experts working for utility companies or private landfil l owners has not alway s been timel y, forthright or in the public interest. The questionable conduct of “independent” professional engineers and hy drologists at three recent coal ash contamination sites was revealed in court filings. At the Colstrip, Mont ana site, the Town of Pines Superfund Site in Indiana and the Battlefield Golf Course in Virginia, 361 experts, working for and with the utilities, attempted to hide or obscure evidence of contamination from state regulators. While this behavior may not be r epresentative of the consulting industry , there is ample evidence that such behavior does exist and that it causes harm to health and the environment. In fact, the existence of “independent” professional engineers knowledgeable about the threats posed b y the unstable dam at the TVA plant in Kingston should be reason enough to reject this untenable scheme. If independent consultants could be trusted to make the disclosures necessary to protect human health and the environment, such consultants would have disclosed the danger of a blowout in Tennessee to the State or federal government well before it occurred. In view of subtitle D’s complete reliance on “independent” professional engineers for ensuring compliance with man y critical parts of the regulation s, this scheme fails completely to establish the probability

that there will be no adverse impact on health or the environment. E. EPA’s Subtitle D Prime Criteria Do Not Comply independent With The RCRA Standard For Such Criteria Under Section 4004(a).
Under EPA’s subtitle D prime option, existing surface impoundments would not have to close or install composite liners but could continue to operate for their “useful” life. 362 For all the reasons stated above, the subtitle D prime option is arbitrary, capri cious and in violation of RCRA. Furthermore, its provision allowing the continued operation of unlined impoundments is unlawful for the reasons specified in Section VIII, supra. Continued operation of unlined surface impoundments, in many instances, pose s the threat of imminent and substantial endangerment of human health or the environment,

361 See Fentress Families Trust v. Dominion Virginia Power , No. CL09

- 710 (Va. Cir. Ct.); Sears v. Virginia Electric & P ower Co. , No. Cl09

- 001914 (Va. Cir. Ct). 362 75 Fed. Reg. 35134.190

and thus is prohibited under section 7002(a)(1)(B) of RCRA. 363 A detailed discussion of the present threats posed by surface impoundments is found in prior sections of these comments and in the expert reports attached as Appendices I, M and N. In addition, these comments address the need for EPA to use its authority pursuant to section 7003(a) of RCRA to address coal ash impoundments that are posing a threat of imminent and substantial endangerment. 364

VI. EPA FAILED TO COMPLY WITH EXECUTIVE ORDER 12898 BY FAILING TO IDENTIFY AND ADDRESS SIGNIFICANT DISPARATE IMPACTS OF THE SUBTITLE D OPTION
Under Executive Order 12898, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionatel y high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low

- income populations. 365 While EPA performed an environmental justice anal ys is on the current impact of coal ash disposal nationally and found disparate impacts, the Agency did not examine the effect of choosing one regulatory option over another. The decision before EPA is not whether to regulate co al ash, which assuredl y affects low

- income populations disproportionately . The instant decision is whether to regulate the toxic waste under subtitle C or subtitle D of RCRA. EPA must therefore identify any disproportionate impact on minority and low

- inc ome populations that results from this choice . According to the Executive Order, if disparate impacts are identified, EPA must address those impacts. Most importantly, the Agency must make achieving environmental justice a factor in its decision to choos e one option over the other. By

EPA’s own admission, coal plants

— which are usually

accompanied b y coal ash ponds and dry

coal ash landfills

— are disproportionately located in impoverished areas. Earthjustice’s own environmental justice anal ys is of the n ational rule also found disparate impact. Our anal ys es agree that almost 70 percent of ash ponds in the United States are in areas where household income is lower than the national median. 366 We also found that, of the 181 ZIP codes nationall y that contain coal ash ponds, 118 (65.19 percent) have above

- average percentages of low

- income families. 367 Given the serious health threats posed by coal ash, it is

363 42 U.S.C. § 6972(a)(1)(B). 364 42 U.S.C. § 6873(a). 365 Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low

-Income Populations (59 F ed. R eg. 7629, Feb

. 16, 1994). See also Interim Guidance on Considering Environmental Justice During the Development of an Action (July 2010) (http://www.epa.gov/environmentaljustice/resources/policy/considering

- ej

- in

- rulemaking

- guide

- 07

- 2010.pdf. 366 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3)

- Sam ple Data, All 5

- Digit ZIP Code Tabulation Areas (860), Table P53 "Median Household Income in 1999 (Dollars)", available at http://factfinder.census.gov/servlet/DCSubjectKeyw ordServlet?_ts=307978361769. 367 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3)

- Sam ple Data, All 5

- Digit ZIP Code Tabulation Areas (860), Table P76 "Family Income in 1999" (downloaded June 23, 2009), available at http://factfinder.census.gov/servlet/DownloadDatasetServlet?_lan g=en&_ts=263843114140. “Lo w - incom e” defined as earning less than $20,000 annually. ZIP codes containing coal ash ponds compared to a national mean percent “low

- incom e” of 12.61%, calculated based on the “Family Income in 1999” dataset; United States191

particularl y troublesome that coal ash impoundments are disproportionatel y located in low

income communi ties, where residents are more likely to rely on groundwater supplies and less likely to have access to medical insurance and care. Yet even more striking and disturbing environmental justice implications are found when the predicted impact of EPA’s subt itle D option is considered. Using EPA’s data, this disparity is significantl y worse in states that are not expected to adopt stricter standards for coal ash regulation should EPA choose to regulate coal ash under the weaker, non

- mandatory Subtitle D sche me. The states that are not expected to adopt new controls face a greater disparate impact among low

- income communities than the country as a whole. In these states, minority and child populations also carry

an unfair share of the burden of coal ash disp osal. 368 Using the same method of environmental justice anal ys is used by EPA, we also found that the race and income disparity is especiall y problematic in certain geographic areas, such as EPA Region 4. 369 In sum, at the heart of EPA’s environmental justice anal ys is must be an evaluation of the impact of each of the two regulatory options on vulnerable populations. Most importantly , it is essential that EPA examine the impact of its proposed subtitle D option. As explained in detail in section III.B.1.f, s upra , EPA predicts under subtitle D a dramatic drop in the level of industry compliance in specific states . Using EPA’s own prediction of which states will not adopt the subtitle D guidelines

—

which states will eschew the minimum federal guidelines for coa l ash disposal facilities in their state

— it is cry stal clear that poor communities and communities of color are left out in the cold. The contrast between the two options is stark, as described below. EPA must reject a disparate impact on vulnerable popu lations and promulgate a subtitle C rule, which ensures protection of all communities equally in all 50 states. F. EPA’s Regulatory Impact Analysis Found Environmental Justice Implications. According to the EPA’s own environmental justice anal ys is for the p roposed coal ash regulations, the my

riad risks of coal ash “may have a disproportionatel y higher effect on low

income populations.” 370 In the 2010 RIA , EPA used 2000 Census data to determine if minority and low

- income populations are disproportionately repr esented, as compared to state and national percentages, in ZIP Code Tabulation Areas (ZCTAs) containing electric utility plants. EPA found, by

three separate measures, that low

- income populations near plants slightly exceed statewide and national averages. Two out of three of these measures found that minority
Envir onmental Protection Agency (U.S. EPA). Database of coal combustion waste surface impoundments (2009). Information collected by EPA from industry responses to Information Collection Request letters issued to the companies on March 9, 2009. Sufficient data to determine ZIP code Census Data was available for 511 of the nation’s 584 known coal ash impoundments. Many impoundments are adjacent to one another surrounding generating facilities, and are listed with identical geographic coordinates in the EPA data

—hence why only 181 ZIP codes contain 511 ash impoundments. 368 “Minority” defined as non

- white, calculated by subtracting “white population” from “total population” for each Census geography. 369 EPA Region 4 includes Alabama, Florida, Georgia, Kentucky, Missi ssippi, North Carolina, South Carolina, Tennessee and six Tribes. 370 Environmental Protection Agency, 40 C

. F

. R

. Parts 257, 261, 264, 265, 268, 271 and 302, Proposed Rules, Hazardous and Solid Waste Management System; Identification and Listing of Special Wa stes; Disposal of Coal Com bustion Residuals from Electric Utilities,” 418.192

populations near plants are lower than state and national averages, while a third measure found a very slight excess of non

- white individuals near plants. EPA anal yz ed ZCTA census data in three way s: (a) by calculating what ratio of plants are in ZCTAs whose percent minority or povert y rate exceeds statewide percentages; (b) b y calculating minority

and poverty

rates for all people in ZCTAs containing plants in a given state, and comparing these aggr egations with statewide percentages; and (c) b y aggregating all plant

containing ZCTA Census data nationall y, and comparing it with national averages. 371 The first method of comparison showed that 52 percent of plants have low

- income populations above their statewide benchmarks. The second method of comparison found that 62 percent of states have higher povert y rates near plants than statewide. Finally, povert y population near plants nationally (12.9 percent) exceeded the national average percent pove rt y (11.9 percent), b y 8 percent. All three measures demonstrated a disproportionate representation of low

- income individuals near plants. In view of the national disparit y found by EPA, a federal coal ash rule that applies equally in all states is necess ar y to alleviate the disparate impacts of ash disposal under the present patchwork of state laws. G. Environmental Justice Impacts Compel EPA To Select the Subtitle C Regulatory Option. The two options for regulation of coal ash are totally different in term s of projected impact. Under the stronger subtitle C option, EPA retains enforcement authority , and the regulatory

scheme is mandatory

in every state. In contrast, under the weaker subtitle D scheme, EPA issues “guidelines” that are not federally enforce able and that states may choose not to adopt. EPA predicts that subtitle D will allow a continuation of the current state

- to

- state inequality in coal ash regulation and, in fact, lists 30 states that it predicts will not adopt the federal guidelines as law. EPA identifies these states by their decades of poor regulation of pre

existing coal ash disposal units. 372 Comparing these two groups of states (states that will adopt federal guidelines and states that won’t), it is possible to measure the impact on p oor and minority communities if EPA picks the “weaker” subtitle D option. While EPA found that coal ash regulation raised broad environmental justice issues, the Agency never calculated the difference in impact between the two options it proposed. Yet th e difference is dramatic. EPA’s selection of subtitle D would have a much greater disproportionate impact on poor and minority communities. Communities living near coal plants in the states that will not implement subtitle D are more likely to be impover ished, non

- white, and to contain a larger

- than

- average child population . In other words, a weak EPA rule would apply new safeguards for coal ash regulation in states where coal ash presents a relativel y small, or even non

- existent, environmental justice p roblem, while failing to add protections in states where environmental justice communities are heavily impacted b y coal ash disposal. Demographic Groups Surrounding Coal
- Fired Electric Utility Plants

371 Id. 372 See discussion in Section III.B.2.f, supra and Table 28 listing states that will not adopt the subtitle D regulations.193

Demographic Group Demographic Statistics

Comparison Met hod Subset A States Expected to Implement Subtitle

- D Requirements (17 states) Subset B

States Not Ex pected to Implement Subtitle

- D Requirements (30 states) Below Povert y Line To national average +2% +13%

To expected state avg. +8.5% +28.0%
Minority To national average

- 35% +5%

To expected state avg.

- 16.4% +23.0%

Child To national average

- 2% +9%

To expected state avg. +1.2% +9.2%
The above chart compares demographic characteristics near coal plants with national and statewide average demographics to determine whether environmental justice communities are disproportionately

affected by

coal ash production and disposal. The analy sis, prepared by Michael Patoka of the Center for Progressive Reform at the Universit y of Maryland School of Law, uses the same method that EPA used when performing its own environmental justice anal ys is for the proposed coal ash rule. Mr. Patoka’s anal ys is, however, distinguishes between states that are expected to implement subtitle D requirements, should EPA adopt this non

federally enforceable option, and states that EPA has predicted will not adopt subtitle D requirements. It shows far worse disparate impacts in the latter. The percent of the population living near coal plants on an income below the pover ty level (“povert y population”) exceeds the national average b y 2 percent in states that are expected to adopt new controls, and by 13 percent in states that are not. By this measure, the harm to poverty populations is 6.5 times more disproportional in st ates that will not adopt new controls. The povert y populations near plants exceed their respective statewide averages b y 8.5 percent in states that are expected to adopt new controls, and by 28 percent in states that are not. By this measure, the harm is 3.3 times worse in states that are not expected to adopt new controls. The minority

populations near coal plants are 5 percent higher than the national average and 23.5 percent higher than their respective statewide averages in states that are not expected to adopt new controls under subtitle D. This pattern is reversed in s tates that are expected to adopt new controls. In those states, the minority populations are 35 percent lower than the national average and 16.4 percent lower than their respective state averages. The child population exceeds statewide averages by 9.2 pe rcent in states that are not expected to adopt new requirements, but by 1.2 percent in states that are. The harm to children is 7.7 times more disproportional in states that will be left out of regulatory improvements under subtitle D.194

EPA has identified the five states with the largest disparities in poverty , minority , and child populations near coal plants. For poverty , the states with the worst disparities are Mississippi, Alabama, I llinois, New Jersey , and Connecticut. For minorit y populations, the f ive states are Connecticut, Arizona, Oregon, Tennessee, and Kansas. For child populations, the five are Oregon, Hawaii, New Mexico, Arizona, and California. All of these states are expected not to adopt subtitle D requirements. 373 Clearly , disparate impac ts of coal ash disposal would be far worse for poor, minority , and child populations under the subtitle D regulatory option. EPA must avoid this outcome by promulgating a mandatory national rule under subtitle C. H. Regional Differences In The Environmental Justice Impact of Coal Ash The disproportionate impacts of coal ash disposal are worse in states that are not expected to adopt new controls under a subtitle D regulatory framework, but other geographic trends also show that the environmental injustices of coal ash are not shared equally throughout the United States. The environmental justice trend for coal ash is especiall y magnified in EPA Region 4. Throughout EPA Region 4, coal

- fired utility plants are sited in areas with disproportionately high pove rty and minority

populations

—

particularl y when compared to national averages, but also when compared to state averages. Vulnerable populations are therefore unfairly impacted by

the production and storage of toxic coal ash. For example, Mississippi and A labama are the two states in the nation with the worst disproportionate impact for populations living below the poverty line and Tennessee is among the top five with the worst disproportionate impact to minorities. 374 The greatest disparity

in Region 4 as compared to the nation as a whole is in regards to minority populations. Nationally , the minorit y population surrounding coal

- fired utility plants is 13 percent lower than the national average percent minority population of 24.9 percent. In EPA Region 4, the minorit y population near coal plants

— 30.0 percent

— is 21 percent higher than the national average. The minority populations near coal plants in Region 4 also cumulatively exceed their respective state averages b y 19 percent. In a few particular state s, this metric soars far higher than 19 percent. For example, in Alabama, the minority population near coal plants is 46 percent higher than in the state as a whole; in Mississippi it is 34 percent higher; and in Tennessee there is nearl y twice as high a share of non

- white individuals living near coal plants as would be expected given the state average (an 89 percent exceedance).

373 See U.S. EPA, Regulatory Impact Analysis for EPA’s Pr oposed Regulation of Coal Combustion Residues Generated by the Electric Utility Industry, Office of Management and Budget (OMB) Review Draft 148

- 65 (2009), available at http://www.regulations.gov/search/Regs/home.html#document

. Detail?R=0900006480a51278 at 224

- 25, 235

- 36. 374 See U.S. EPA, Regulatory Impact Analysis for EPA’s Proposed Regulation of Coal Combustion Residues Generated by the Electric Utility Industry, Office of Management and Budget (OMB) Review Draft 148

- 65 (2009), available at http://www.regulations.gov/search/Regs/home.html#document

. Detail?R=0900006480a51278, 224

- 225.195

The burden of coal ash storage and, ultimatel y, the threat of contamination

— borne unequally by povert y populations nationwide

— have a more dramatic disproportionate impact in Region 4. The national average percent povert y population is 11.9 percent. 375 Near coal plants nationwide, the povert y rate is 12.9 percent, or 8 percent higher than the national average. In Region 4, the po vert y rate near coal plants is 14.9 percent, a figure which exceeds the national average b y 25 percent. As with the minority population, the poverty

population is particularly concentrated near coal plants in Alabama, Mississippi, and Tennessee. In Alabama and Mississippi, the poverty

rate near coal plants is more than twice the national average. At 24.5 percent; near coal plants in Alabama, the poverty rate is 106 percent higher than the national average; and at 26.5 percent in Mississippi, it is 115 pe rcent higher than the national average. Finally , the povert y rate near coal plants in Tennessee exceeds the national average b y 41 percent. The maps below show the correlations between povert y rates and coal ash impoundment siting in Alabama and South Car olina. Povert y rates are shown by Census Tract. All areas where the poverty rate exceeds the national average are shown in blue. 376

375 Id. 376 Poverty rates in these maps were calculated by dividing the population living below the poverty line in each geography by the “population for whom poverty status has been determined” therein. This method yielded a calculated national poverty rate of 12.38%. In the EPA’s RIA and in the other analyses discussed in these comments, the national poverty rate w as given as 11.9% because these analyses calculat ed the poverty rate by dividing the population living below the poverty line by the total population in each geography.196197

Outside of Region 4, disparate impacts are also particularl y dramatic in Louisiana, Arizona, and New Mexico. In Loui siana, shown in the map below, the three coal ash ponds are all in environmental justice communities. The poverty rate near coal ash ponds in L ouisiana is about twice the national average, while the percent non

- white population is 87 percent higher than the national average. In Arizona and New Mexico, also shown below, the povert y rates near ash ponds exceed the national average b y 52 percent and 225 percent, respectivel y. The two ash ponds in New Mexico area in areas with a combined percent non

- white po pulation of 93 percent, or about four times the national average and three times the statewide average. 377

377 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3)

- Sam ple Data, All Census Tracts, "Individual Poverty in 1999" received via emai l from Professor Paul Mohai, University of Michigan, on Jun. 4, 2010.198199

Federal regulation of coal ash is necessary in part because, under the mélange of current state regulations, minority and low

- income populations, particularly in a handful of states, face unfair exposure to the risks of coal ash. Most notoriously , the Arrowhead Landfill in Perry County , Alabama has been poster child for environmental justice impacts. Perry County is the dumping ground for million s of tons of ash recovered after the TVA ash spill in Kingston, Tennessee in December of 2008. The ash flowing into this low

- income and predominantly African American community at a rate of about 8,500 tons per day contains dangerous levels of arsenic, le ad, and other heavy metals. 378 The landfill is located in a Census tract with a 33 percent povert y rate and a 62 percent non

- white population. 379 Itis also located in a state with absolutely

no regulations applying to coal ash disposal. Under its subtitle D rule, EPA predicts none will be forthcoming. For Perry County , the news is very bad

—the owner of the Arrowhead Landfill has filed for bankruptcy , the landfill permit requires no monitoring for common coal ash contaminants, and the state allows the owner to use ash as dail y cover. Federal regulation under subtitle C would ensure that the burdens of coal ash disposal, exemplified by Perry County , are more fairl y shared and, when encountered, protections are consistentl y applied. It is clear that environmental justice impacts are much greater under subtitle D than subtitle C and that these impacts are incompatible with protecting human health and achieving both the goals of Executive Order 12898 and the goals of RCRA. EPA therefor e must select the subtitle C regulatory

option, and must ensure that federal regulation of coal ash disposal alleviates existing environmental injustice.

IV. PROPOSED SUBTITLE C REGULATIONS MUST BE STRENGTHENED

A. EPA’s Proposed Extenuated Phase
- out Of Surface Impoundments Under Subtitle C Is In Violation Of RCRA §3004(x) RCRA 3004(x) provides that modification of 3005(j) standards must “assure the protection of human health and the environment.” 380 The Agency ’s p roposal to utilize 3004(x) authority to modify

the four

- year grace period for compliance with minimum technology requirements does not adequatel y protect human health and the environment. This extension is therefore in violation of RCRA and EPA should thus maintain the current four

- ye ar period. Promulgation of a rule under the authorit y of subtitle C will lead to the eventual phase

out of surface impoundments. 381 This phase

- out is based on application of minimum technology

378 Shaila Dewan, “Clash in Alabama Over Tennessee Coal Ash,” New York Times , 29 Aug. 2009, available at http://www.nytimes.com/2009/08/30/us/30ash.html

. 379 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3)

- Sam ple Data, All Census Tracts, "Individual Poverty in 1999" received via email from Professor Paul Mohai, University of Michigan, on Jun. 4, 2010; U.S. Census Bureau, Census 2000 Summary File 3 (SF 3)

- Sam ple Data, All Census Tracts, "Race" received via email from Professor Paul Mohai, University of Michigan, on Jun. 4, 2010

. 380 42 U.S.C. § 6924(x). 381 U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35177 (Jun. 21, 2010)

.200

requirements of RCRA 3005(j), whic h operators will be either incapable of meeting or, for financial reasons, will chose not to meet. 382 The Agency predicts that operators will consequently close existing surface impoundments. 383 When a surface impoundment becomes newl y subject to Subtitle C regulations, provisions of RCRA 3005(j) grant impoundment operators a four

- ye ar grace period in which to close or upgrade an impoundment. 384 The grace period begins with the effective date of the new rule, six months after promulgation. EPA’s proposal cons iders extending the traditional four

- year exemption. 385 Under the proposal the Agency

would permit impoundments to continue receiving coal ash for five y ears and would provide an additional two y ears before final closure. 386 This creates a seven

- ye ar grace p eriod from the time that states are authorized to implement the pertinent provisions of RCRA. 387 EPA recognizes that states can take from two to eight years to adopt the laws and regulations necessary

to gain the necessary

RCRA authorization. 388 This range, in combination with the proposed seven

- ye ar exemption, creates a 9 to 15 y ear period in which surface impoundments will continue to pose substantial human health and environmental risks. If EPA were to maintain the current four ye ar period, operators would still be granted six to 12 years to phase

- out their impoundments. Given the extremely long timeframe provided under the default rules, this additional extension is not justifiable. The Agency

has considered several factors that it presents as justificat ions for extending the default period. For instance, EPA states that it will be necessary for utilities to convert form wet to dry

ash handling, “which cannot necessarily be accomplished within four y ears.” 389 EPA expresses further concern about the need for facilities to seek permits to govern replacement impoundments for currently co - mingled non

- hazardous wastewaters. 390 These factors do not support a modification for several reasons. First, a four

- year period for dry conversion is an absolute minimum and i s practicall y very unlikely. Accounting for the state authorization process, utilities will have closer to six years, the low

- end estimate, for conversion. Taking a more moderate estimate, accounting for the date of promulgation, the grace period, and state authorization, operators may not have to complete a dry conversion or new impoundment permitting until 2021, hardly a pressing timeline for utilities or state permitting agencies.

382 75 Fed. Reg. 35177. 383 75 Fed. Reg. 35177. 384 42 U.S.C § 6925(j)(6); 40 CFR § 268.1 4. 385 75 Fed. Reg. 35178. 386 75 Fed. Reg. 35178. 387 75 Fed. Reg. 35179. 388 75 Fed. Reg. 35179. 389 75 Fed. Reg. 35178. 390 75 Fed. Reg. 35178.201

Even if EPA is persuaded that the conversion and permitting pressures may pose impediments in certain instances, the extended timeline is not appropriate because narrower methods are available and more protective of human health and the environment. The Agency solicits comment on the option of further extending the timeline o n a case - by

- case basis where nine to 15 y ears is insufficient. In order to comply with the 3004(x) and “assure the protection of human health and the environment”, EPA must maintain the default, four

- year grace period and should adopt provisions for case

- by

- case anal ys is of extensions where problems with permitting or technical difficulty

make compliance impossible within the six to 12 window. The Agency

has explicitly

recognized the risk of old, poorly designed and poorly maintained ash surface impoundme nts. The Agency identifies the human health and environmental dangers posed by their continued operation. Yet, the Agency is proposing to permit their continued operation through the end of the next decade. Rather than establishing a long and risky

exempti on based on untested possibilities, EPA must maintain the current period and permit extensions only when operators have demonstrated in inability to comply

with the minimum technology

requirements of 3005(j). Any other option creates an unacceptabl y long grace period that does not protect human health and the environment as required by 3004(x). C. The Exemption for Ongoing State Or Federal Cleanups Is Overly Broad EPA proposes to exempt from subtitle C listing “coal combustion residuals that are . . . generated from clean

- up activities that are conducted as part of a state or federall y required clean

- up that commenced prior to the effective date of this rule.” 391 The basis of this exemption is sound, but without refinement, the exemption is far too broad because it does not properl y distinguish between the unique nature of the cleanup process itself and ash that is merel y the b yproduct of the cleanup process. This exemption is based on EPA’s understanding that ongoing cleanups involve administr ative agreements that dictate specific remedies, goals and timelines that consider human health and the environment “based on conditions at the site .” 392 Any established goals and site

specific plans might be upset by application of hazardous waste regulatio ns. 393 This rational is appropriate for onsite cleanup actives, but it does not establish a sound basis for exempting all ash that is generated as part of the cleanup. That is, EPA must distinguish between onsite cleanup “activities” and final disposal of as h generated b y t hose activities. As stated, the proposed language exempts waste generated from ongoing cleanup activities. This language should be modified to exempt ash that is handled, treated, transported or stored as part of an ongoing cleanup activit y . However, ash that is generated from cleanup activities (i.e., ash that is dredged from waterway s or otherwise collected during cleanup) and is destined for final disposal must be covered b y the provisions of subtitle C. EPA has not distinguished waste that is generated by the cleanup process from ash generated directl y b y coal combustion. L ikewise, the ash that is generated from cleanup activities and is destined for final disposal is not burdened with the same site

- specific characteristics as the cleanu p activities

391 75 Fed. Reg. § 35254. 392 75 Fed. Reg. § 35183 (emphasis added). 393 Id.202

themselves. In other words, while cleanup may be unique to the location, the waste that is collected as part of that cleanup is simply ash destined for final disposal and that final disposal is not unique to the ongoing and site

- specific cleanup. Given this crucial differentiation between cleanup activities and the waste generated from those activities, EPA should narrow the proposed exemption such that disposal and offsite transportation of ash from cleanup projects are covered b y the special waste provisions of subtitle C. This would provide for coverage of both onsite and offsite disposal because that disposal is distinct from the cleanup activities. It would, however, still exempt all onsite handling other than final disposal and would, the refore, largel y impact only disposal but not the unique remedies, goals and timelines of ongoing cleanup projects.

V. EPA SHOULD USE RCRA §7003 TO ADDRESS THE IMMINENT AND SUBSTANTIAL HAZARD POSED BY OLD AND INADEQUATELY DESIGNED SURFACE IMPOUNDMENTS The nationwide inventory of currently

operating surface impoundments includes a considerable number of decades

- old impoundments that pose serious risks of collapse and groundwater contamination because they were not properl y designed and are not properl y maintai ned. The best

- case scenario under EPA’s current proposal would allow these precarious impoundments to continue operating for seven ye ars after promulgation. 394 Because even Subtitle C does not provide for rapid closure and remediation of the most dangerous impoundments, EPA should utilize its authority under RCRA §7003 to effect the closure or clean

- up of the most perilous surface impoundments. 395 Section 7003 of RCRA provides broad authority for EPA to issue administrative orders or commence judicial actions where handling of a solid waste creates “an imminent and substantial endangerment to health or the environment...” 396 This clause has been broadl y interpreted to grant enforcement authorit y when there is an actual, threatened or potential harm, 397 when present conditions indicate a future risk, even if the harm may not manifest for some time, 398 and when there is a reasonable concern that health of the environment may be seriously harmed. 399 After the devastating collapse of the Kingston impoundment in 2008, and th e growing evidence of groundwater contamination at impoundments across the country, 400 EPA should

394 U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35178 (Jun. 21, 2010). 395 42 U.S.C § 6973. 396 Id , . 397 United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994). 398 United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994). 399 United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4 th Cir. 1997). 400 See, e.g. , Environmental Integrity Project and Earthjustice, “Out of Control: Mounting Damages from Coal Ash Waste Sites”, Feb. 24, 2010; Environmental Integrity Project, Earthjustice and Sierra Club, “ In Har m’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment”, Aug. 26, 2010.203

recognize that unregulated impoundments pose an imminent harm to human health and the environment. EPA should further act pursuant to section 7003 to safeguard communities from further groundwater contamination from unlined ponds and from another collapse at a poorl y designed and maintained impoundment. A. Surface Impoundment Ratings Indicate A Probability Of “Substantial Endangerment”

To commence action under section 7003 EPA must find a substantial endangerment. Substantial endangerment arises when there is a reasonable cause for concern that human health or the environment may

be seriousl y harmed. 401 EPA has compiled hazard ratings for 200 of the 629 known surf

ace impoundments throughout the country

. 402 While these hazard ratings do not address potential for harm, the ratings do directl y account for the substantiality of the harm. A high hazard rating represents a probable loss of human life should the impoundment fail. 403 A significant hazard rating represents a possibility of environmental damage. 404 Thus, all impoundments with high and significant hazard potential should be considered as posing a substantial degree of endangerment for purposes of action under §70 03. Of the 200 reporting impoundments, 121 rate as high or significant hazards. 405 EPA should begin with these 121 impoundments, review the imminence of the hazards posed and where the hazard is, in fact, imminent, EPA should utilize setion 7003 to remedy the endangerment or close the impoundment. B. Surface Impoundment Design And Monitoring Failures Indicate An “Imminent Endangerment”
EPA must also base a section 7003 action on the imminence of endangerment. Danger is imminent if present conditions indicate a future risk, even if the harm may not be realized for ye ars. 406 Inother words, there need not be an emergency to find imminent endangerment. 407 There is no objective rating s ys tem, such as the hazard potential ratings, to easily identify those impoundment s that are most likely to endanger health and the environment through

401 United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4 th Cir. 1997). 402 EPA, Infor ma tion Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 403 U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 21, 2010). 404 U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from E lectric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 21, 2010). 405 EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 406 United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994). 407 United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985)204

structural failure or groundwater contamination. However, several known factors can help assess the potential for impoundment failure or contamination and therefore the imminence of endangerment. First, one can look to the design, constriction, monitoring, age and height of an impoundment to help determine whether the impoundment has a risk of failure. 408 Second, the presence of a liner is a simple indicator of the imminence of groundwater contamination. 409

408 409 See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010) (Repeating that there are high potential risks associated with unlined and even clay lines surface im poundm ents.)High and significant hazard ponds without professional engineer design, constriction or monitoring.Of the 121 identified ponds with high or significant hazard potential, 24 were not

designe d by

a professional engineer and 15 of these 24 ponds were likewise not constructed and are not now monitored by a professional engineer. 410 This means that at a minimum there are 15 ponds, listed in Table X, that pose a threat to human life or the environme nt but their structural stability is not monitored by

a professional engineer to assure that they do not manifest their hazard potential. Moreover, these 15 hazard ponds were neither designed nor constructed with the expertise, oversight or input of a prof essional engineer. These ponds that present the most substantial endangerment may not be properl y designed and constructed and they are not regularl y monitored b y an expert in structural engineering. A number of these ponds are more than a half

- century

- ol d, and the very newest is a quarter century old. 411 These impoundments are built as high as 126 feet above the ground, they cover a total of more than 756 acres and contain almost 20,000 acre

- feet of toxic slurry

. 412 This combination of factors presents a very clear, imminent and substantial endangerment to surrounding communities at risk from structural failure with a resulting flood possibly more substantial than Kingston in terms of human lives and the environment, and this say s nothing of the health and environmental dangers posed by the subtler, but equally

important threat posed by groundwater contamination. C. Groundwater Contamination Presents A Substantial And Ongoing Danger
EPA has demonstrated that exposure to coal ash constituents through groundw ater pathway s presents a serious human health endangerment. 413 When a surface impoundment operates with a clay

liner

—EPA has questioned the efficacy of clay liners

— or with no liner at all, the potential human harm is much more imminent and substantial. 414 As E PA has alread y stated, “unlined or clay

lined waste management units [] result in risks greater than the risk criteria of [1 in 5,000] for excess cancer risk to humans or a [hazard quotient] greater than 1 for noncancer effects to both humans and ecologica l receptors...” 415 For most of the 629 surface impoundments, EPA does not know whether a liner is present. However, for about 150 ponds, information on liner status is available from the 1995 EPRIComanagement Study . Presently , EPA estimates that approximately 74 percent of the

410 EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 411 EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 412 EPA, Information Request Responses from Electric Utilities, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm. 413 See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Dispo sal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010). 414 See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010). 415 See U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Util ities , Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010).207

nation’s surface impoundments are unlined. 416 EPA’s health review demonstrates that each and every one of these ponds poses a real endangerment. The known damage cases and proven likelihood of groundwater contamination from unl ined or clay

- lined impoundments demonstrates imminent harm and certainly , the heightened risk of cancer from these impoundments raises a reasonable concern for human health, amounting to a substantial endangerment. These human health and environmental ri sks from unlined or insufficientl y lined impoundments, combined with the 137 known groundwater damage cases compiled by EPA and by Environmental Integrity

Project, Earthjustice and Sierra Club, present EPA with another imminent and substantial hazard that EPA should address under the immediate authority of section 7003 rather than the delay ed closure date presented in the proposed rule. Should EPA ultimately

promulgate rules under the authority of RCRA subtitle C, the risks from unstable and unlined impoundments will eventually be diffused. However, given the long lead

- time for full applicability of subtitle C to coal ash impoundments, it is important that EPA use all available authority to address the threat of another impoundment failure or growing groun dwater contamination. RCRA §7003 provides a strong basis for closure

— or, at the very least, remediation

— of the most perilous ponds. Section 7003 authorizes EPA to take action against any solid waste handling that presents “an imminent and substantial en dangerment to health or the environment.” 417 Courts have broadl y interpreted this language to grant authority whenever there is reasonable cause for concern that present site conditions may harm human health or the environment, either immediatel y or in the f uture. 418 There can be no doubt that, at a minimum, there are 21 identified ash impoundments without proper design, construction or monitoring and 137 cases of groundwater contamination that EPA must consider for section 7003 action. VI. EPA MUST REGULATE MIN EFILLS AT LEAST AS STRINGENTLY AS OTHER CCR DISPOSAL SITES
As discussed above, CCR’s toxic contaminants, including arsenic, cadmium, chromium, lead, selenium, and thallium, can readily pollute streams and drinking water. These chemicals can result in a number of health effects in humans, including neurological damage, cancer, and reproductive failure, as well as widespread ecos ys tem damage. The risks are even greater when CCR is disposed of in mines, a practice which is already widespread and growing. Yet there are no federal regulations controlling this practice, and EPA has postponed consideration of the minefilling issue. Indeed, minefills are expressly excluded from the scope of EPA’s proposal for regulation of CCR under RCRA.

416 U.S. EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities , Regulatory Impact Analysi s , Appendix K1. 417 42 U.S.C. 6973. 418 United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994); United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4 th Cir. 1997).208

Federal regulations are needed to ensure that essential safeguards are in place before an y more CCR is disposed of in coal mines. These safeguards must ensure that companies reveal the toxicity of the waste they are dumping, identify sources of groundwater and surface water that are susceptible to contamination from the dumping, and prohibit the disposal of waste directl y into groundwater. Federal regulations must also require long

- term, comprehensive monitoring for pollution from the dumping, and ensure that mine owners are h eld financially responsible for cleanup. Because state regulations uniformly fail to require these safeguards, EPA must start regulating CCR in minefills without delay , and it must promulgate standards at least as protective as those it adopts for other d isposal sites. EPA must ensure full protection of human health and the environment under Subtitle C of RCRA for all communities affected b y the disposal of CCR. A. Enormous Quantities of CCR Are Already Being Dumped in Mines. In 2006, the American Coal Ash A ssociation claimed that 43 percent of nearly 125 million tons of CCR was “recy cled”, 419 leaving about 71 million tons of coal ash to be disposed of, much of which ended up in unlined and unmonitored waste ponds, landfills and mines. While industry

estimates that the amount of CCR being disposed in active or abandoned mines is only about 1.5 million tons, this is a gross underestimate. 420 A conservative estimate is that at least 4 times that amount, about 6 million tons, is dumped every y ear in Pennsylvania mi nes alone. 421 Based on mine disposal rates in Penns yl vania, West Virginia, Indiana, Ohio, Illinois, Texas, North Dakota, South Dakota and New Mexico, plus conservative estimates of mine disposal in eight other coal basin states, approximately 24 to 25 milli on tons of CCR, or 20 percent of generation, are minefilled each ye ar. It is difficult to convey

the sheer scale of these minefills. The Springdale Pit in Tamaqua, Pennsylvania is a good example. The pit is 700 feet deep, 3,000 feet long, and 1,500 feet wide, large enough to fit nearl y 80 football fields. Before an environmental group appealed the permit for this site, Pennsy lvania regulators had issued a permit that would have allowed up to 59 million tons of CCR and sludge to be dumped into this one g iant pit. The scale of the Springdale Pit is not an anomaly . In northern New Mexico, for instance, two power plants together have disposed of about 100 million tons of coal ash in two surface coal mines about 10 miles apart on either side of the San Ju an River. 422 Similarly , in western Pennsylvania, the owners of the Champion Coal Refuse Disposal Site are seeking to mine waste

419 American Coal Ash Association (2007). Coal Production Products Production and Use Survey, 2006. http://www . acaa - usa.org/ associations/8003/files/2006_ CCP_Survey_(Final

- 8

- 24

- 07).pdf. 420 Id

. 421 Clean Air Task Force, Impacts of Water Q uality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines, September 2007. www.catf.us

. 422 Public Service New Mexico’s San Juan Generating Station and Arizona Public Service’s Four Corners Pow er Plant, both located near Farmington, NM, dispose of approximately a million tons of coal combustion waste annually in the San Juan Mine and Navajo Mine, respectively. Both mines are active coal mines located near the pow er plants. This estimate is based on testimony of Public Service New Mexico, Arizona Public Service, and BHP Minerals at hearings of the National Research Council’s Committee on Mine Placement of Coal Combustion Wastes, December 6 and 7, 2004. Farmington, New Mexico.209

coal for a new waste coal

- burning power plant. 423 Their permit would authorize the dumping of up to 87 million tons of CCR on a site that is surrounded by people relying on private drinking water wells. 424
B. Minefilling Increases The Risk Of Harm From CCR. The unique geologic characteristics of mines maximize the risk of contamination from coal ash dumping. Mining breaks up solid rock laye rs into small pieces, called spoil. Compared to the flow through undisturbed rock, water easil y and quickly infiltrates spoil that has been dumped back into the mined

- out pits. Fractures from blasting become underground channels that allow groundwater to flow rapidly offsite. Because mines usually excavate underground aquifers, the spoil fills up with groundwater. Unlike engineered landfills

– which are lined with impervious clay

or s ynthetic membranes and are required b y law to be situated above water tables

– coal ashdumped into mine pits continually leaches its toxic metals and other contaminants directl y into the groundwater that flows through and eventually leaves the site. Furthermore, as a practical matter, dumping large quantities of CCR directly into water tables in highl y fractured sites under massive quantities of mine overburden makes the prospect of cleaning up resulting contamination far more daunting than halting leakages from conventional landfills and ash ponds. Promoters of mine filling argue that dumping alkaline CCR into coal mines will neutralize the acidic runoff that results from mining. But the facts show that minefilling is not a solution to acid mine drainage. Under pressure from electric utilities, many states have wron gl y defined the dumping of CCR in coal mines as a “beneficial use” or “recy cling” of an industrial waste and exempted the practice from all solid waste regulations. 425 Yet minefilling is far from beneficial use or recy cling. In a multi

- ye ar stud y of fiftee n coal ash minefills in Pennsy lvania, researchers found that CCR made the water quality worse at ten of the sites, and acidit y actually increased over time. 426 At the remaining five sites, there was not enough monitoring data to determine whether adverse impacts were caused b y t he coal combustion waste. A review of the permits revealed that:

 Levels of contaminants, including aluminum, arsenic, cadmium, chloride, chromium, lead, manganese, nickel, selenium, and sulfate, increased in groundwater and/or surfac e water after coal ash was dumped in the mines.

423 Board of Supervisors of Robinson Township, Washington County, Pennsylvania. In re: Conditional Use Application And Major Land Development Application Of Champion Processing, Inc. (“Champion Processing” And Robinson Pow er Company, LLC (“Robinson Pow er”) Decision, Findings Of Fact And Concl usions Of Law, September 11, 2006. 424 Id. 425 U.S. EPA (2002). Mine Placement of Coal Combustion Waste, State Program Elements, Final Draft, December 2002. 426 Clean Air Task Force, Impacts of Water Quality from Placement of Coal Combustion Waste in Pennsylvani a Coal Mines, September 2007. Executive Summary. www.catf.us

.210

 Contaminants increased from background concentrations (measured after mining) to levels hundreds to thousands of times above federal drinking water standards.

 Pollution was found downstream from coal ash di sposal areas and sometimes well outside the boundary

of the mines. Promoters of minefilling fail to recognize that chemical conditions at these sites change over time, and that coal combustion waste contains high levels of man y different heav y metals and other toxic trace elements, each of which can leach into water under different chemical conditions, particularl y when the water has a changing pH. Under alkaline conditions, some metals do not dissolve in water, but others do. Under acidic conditions, the situation reverses; metals that were previously immobile when the site was alkaline now dissolve into the water. Minefill permits routinely ignore the tendency

of some metals in ash to leach into water under neutral to higher pH and thus completely overlo ok the potential of CCR to contaminate groundwater. Examples of metals that leach into water as pH increases from acid into neutral ranges include arsenic, selenium, antimony , hexavalent chromium, vanadium, moly bdenum and boron. 427 Multiple researchers hav e documented that a greater number of toxic trace elements leach in greater amounts in the changing pH of mine waters that varies from acidic to alkaline. 428 These findings have also been confirmed b y monitoring data from ash minefills. 429 Furthermore, at mo st eastern mines, there is much more acidit y than can be buffered b y the alkalinity

of the ash. Eventually

the ash loses all of its alkalinity and is acidified. As the pH of the ash falls and the water flowing through the ash becomes more acidic, metals s uch as cadmium, copper, lead, manganese, nickel, and zinc will leach into the water. 430 Ashes from a “fluidized bed combustor” (FBC), a t ype of power plant boiler that can burn practically an y ty pe of fuel, will become acidic in acid mine drainage without c ontinual addition of alkaline material, with the result that the concentration of metals increases bey ond the amounts originall y contained in the acidic drainage. Other chemical reactions involving major constituents in mine water and ash such as iron and sulfate further complicate the picture, making it hard to predict when metals will leach based purely on the pH of the initial CCR. Thus, rather than cleaning up the water, CCR disposal is increasing the total amounts of toxic metals in mines and generat ing more contamination from those metals than ever occurred from the acid mine drainage alone.

427 Pennsylvania Department of Environmental Protection, Coal Ash Beneficial Use in Mine Reclamation and Mine Drainage Remediation in Pennsylvania, December 2004. Chapter 9, Figure 9.37, page 284. 428 Stewart, B.R., 1996. The influence of fly ash additions on acid mine drainage production from coarse coal refuse. PhD. Dissertation. Virginia Polytechnic Institute and State University, Blacksburg, VA. pages 195

- 198; Sk ousen, Jeff & Bhumbla, D.K. , Metal Release From Fly Ash Upon Leaching with Sulfuric Acid or Acid Mine Drainage, National Meeting of the American Society for Surface Mining and Reclamation, St. Louis, MO, May 16

- 21, 1998; McDonald, Louis M. and Simmons, Je nnifer. Effects of Large

- Scale CCB Applications on Groundwater: Case Studies, Final Report, April 15, 2004, CBRCE

- 37, page 6. The complete report can be view ed at the Combustion By products Recycling Consortium Web site at http://wvwri.nrcce.wvu.edu/cbrc

. 429 Clean Air Task Force, Impacts of Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines, September 2007. Chapter 3. www.catf.us. 430 Id

.211

The following few examples illustrate the severity of the problems associated with disposing of coal ash at mine sites: At the McDermott Mine in Cambria County , Pennsylvania, waste coal ash contaminated surface and groundwater with toxic levels of cadmium, selenium, sulfate, manganese and other pollutants. Billed as “alkaline addition” to clean up “preexisting pollution” from acid mine drainage, the Penns yl vania Department of Environmental Protection permitted the dumping of approximately

316,000 tons of CCR at the 73

- acre surface mine from 1996

- 2004. The coal ash failed, however, to stop the acid mine drainage. Instead, pollution rose precipitously , ren dering offsite water unfit for human consumption and forcing the abandonment of a spring used as a drinking water source. After CCR disposal, cadmium and selenium appeared in the groundwater and surface water at levels toxic to humans and aquatic life. N either of these contaminants had been detected before ash disposal. Cadmium jumped to nearl y 14 times the drinking water standard in groundwater and increased in surface water to nearl y 4 times the drinking water standard and 76 times the water qualit y st andard. Selenium, a pollutant that is extremely toxic to aquatic life, was measured at a seep at the property boundary at nearl y 4 times the drinking water standard and more than 36 times the water qualit y standard. At a deep mine discharge 800 feet bey o nd the property

boundary , selenium increased to levels exceeding water quality standards, with the highest measurement 14 times the standard. In addition to threatening human health, these toxic levels of cadmium and selenium are discharging in volumes of water exceeding 100 gallons per minute into a small stream that has limited ability to absorb this pollution. Equally extreme consequences have resulted from the disposal of CCR at western mine sites as well. Near the San Juan Mine in Farmington, New Me xico, the Shumway Arroy o has long served as a source of drinking water for area residents and their livestock. Since the late 1980s, however, fort y million tons of coal combustion waste from the San Juan Generating Station have been dumped in the San Juan Mine. As a result, the shallow groundwater and surface water in the Shumway Arroy o have been poisoned and can no longer be used as drinking water. Concentrations of lead, selenium, arsenic, cadmium, and boron have risen above drinking water standards i n the shallow gravel aquifer underneath the arro yo. Sulfates in the aquifer have reached 55,000 milligrams per liter (mg/L) at the boundary of the mine, 220 times the secondary

drinking water standard. The level of total dissolved solids in the groundwat er, an indicator of all pollution dissolved in water, now exceeds 80,000 mg/L, 160 times the federal standard. The polluted water from the Shumway Arroy o eventually

flows to the San Juan River, a source of drinking water for thousands. This is not the fi rst time water has been severely contaminated by coal ash dumped by

the San Juan Generating Station. In the 1970s, high levels of sulfate, pH, metals, and other pollutants caused serious damage to neighboring ranchers. As a result, the power plant owners paid millions of dollars to settle claims for cattle and sheep killed and families made sick by drinking the Shumway ’s contaminated water. In 1984, an EPA enforcement action forced the owners to line the plant’s ash disposal sites. Ironically , even though the ponds were lined, the dumping of coal combustion waste in unlined sites accelerated when the plant owners subsequently

required their primary

coal supplier, the neighboring San Juan Mine, to backhaul more of their coal ash to the mine’s pits. Since 1987, the San Juan Mine has been filling more than 20 pits with CCR, each ranging from a few acres to hundreds of acres in size. Large unlined212

pits, nearly

200 feet deep and 300 feet wide, are now filled with concentrated, battleship

- sized tonnages of caus tic fl y ash and scrubber sludge. Because the pits are located above the arro yo, CCR continues to poison the groundwater. C. Recent Trends Are Making The Problem Worse. Some states have actually encouraged industry practices that increase the risk of exposure to CCR disposed in mines. “Remining” at abandoned mine lands is booming in eastern coalfields. At remining sites, operators excavate waste coal piles and coal left from the previous mining operation. These materials are burned in a fluidized bed combus tion (“FBC”) power plant. State regulators, particularl y in Pennsylvania, activel y encourage remining of waste coal on abandonedmine lands, which has led to the proliferation of FBC waste coal burning plants at mine sites. The problem is that FBC plants p roduce huge amounts of waste

– about 4 times more CCRper megawatt of electricity than conventional coal burning plants. 431 This is because the ash content of waste coals is two to three times higher than the parent coals, and because limestone is injected i nto the combustion process to capture emissions of sulfur dioxide. In Penns yl vania, FBC power plants produce onl y 8 percent of the electricity generated in the state, but ash from FBC plants makes up over 60 percent of the CCR produced b y all of the state ’s power plants. 432 In addition, FBC coal combustion waste is highly concentrated with mercury . Accordingto an industry survey of different coal ty

pes, waste bituminous coal contains 4 times more mercury than ordinary

bituminous coal. 433 CCR is also becoming more toxic as an indirect result of increasingl y stringent air pollution control regulations. As better air pollution controls are implemented, more particulates and metals are captured in the ash instead of being emitted through the smokestack. In a 200 6 report, EPA found that, when activated carbon injection was added to a coal

- fired boiler to capture mercury

emissions, the resulting waste leached selenium and arsenic at levels sufficient to classify

the waste as “hazardous” under RCRA. 434 Specificall y, EPA found that arsenic leaches as high as 100 times its maximum contaminant level (MCL ) for drinking water and selenium leaches at levels up to 200 times its MCL. EPA concluded that the tendency of coal ash from these t ypes of boilers to leach toxic arseni c and selenium should require site

- specific evaluation of CCR disposal sites. 435

431 Pennsylvania Department of Environmental Protection, Coal Ash Beneficial Use in Mine Reclamation and Mine Drainage Remediation in Pennsylvania, December 2004. Chapter 1. 432 U.S. Department of Energy, 2002. Energy Information Administration. These values were predicted using the actual tonnage of coal burned by an FBC boiler and a PC boiler in Pennsylvania during 2006. http://www.eia.doe.gov/cneaf/electricity/page/eia906_920.html

. 433 40 Waste coal contains, on average 0.4 p pm of mercury compared to 0.1 ppm of mercury, on average, in bituminous coal. Electric Power Research Institute. An Assessment of Mercury Emissions from U.S. Coal

- fired Power Plants . EPRI, Palo Alto, CA: 2000. 1000608. 434 U.S. EPA (2006). Characterization of Mercury

- Enriched Coal Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control. EPA/600/R

- 06/008. ( January). 435 Id

.213

In a follow

- up study

in 2007, EPA tested the leaching characteristics of solid waste from a boiler with a wet scrubber for sulfur dioxide and mercury control. EPA found that the CCR from this boiler similarly leached metals at levels significantl y higher than their MCL s. 436 Italso leached large amounts of boron and barium far above RCRA’s hazardous waste threshold (100 times the MCL ). Levels of concern for mol ybdenum, cadmium, and lead were also found. D. EPA Has Extensively Studied The CCR Problem, But Taken Little Action.

EPA’s own anal ys es of how CCR behaves in unlined disposal sites predict that some metals will migrate and contaminate nearb y groundwater to levels extremel y dangerous to people. In 2007, EPA published a draft risk assessment that found extremely high risks to human health from the disposal of coal ash in waste ponds and landfills. 437 According to EPA, the excess cancer risk for children drinking groundwater contaminated with arsenic from CCR disposal in unlined ash ponds is estimated to be as high as 9 in 1,000

— 900 times higher than EPA’s own goal of reducing cancer risks to less than 1 in 100,000. 438 In fact, in calculating this risk estimate for ash ponds, EPA assumed that the ash pond would be above the local water table. Because CCR in mines is in direct contact with the groundwater, residents living near minefilling sites could be at even higher risk. CCR also threatens human health through airborne pathway s. Coal ash and scrubber sludge that dries out in uncovered mine pits becomes airborne on windy day s. The high pH of the ash, the extremely

small size of the particles, and the toxic metals contained in the ash all present health hazards to nearb y communities. 439 In addition to health risks, scientists have also been documenting environmental degradation near CCR disposal sites for decades. Impacts include the leaching of toxic substances into soil, drinking water, lakes and streams; damage to plant an d animal communities; and accumulation of toxins in the food chain. 440

436 U.S. EPA, Office of Research and Development. “Evaluating the Fate of Metals from Management of Coal Com bustion Residues from Implementation of Multi

- pollutant Controls at Coal

- fired Electric Utilities,” Presentation for 32nd Annual EPA

- A&WMA Information Exchange. December 4, 2007. 437 2010 Risk Assessment

. 438 Id. 439 Aranyi, C. et al. (1979). Cytotoxicity to alveolar macrophages of trace metals adsorbed on fly ash. Envr. Res. 20, 14

- 23; Chauhan et al. (1989). Induction of pulmonary and hepatic cytochrome p

- 450 species by coal fly ash inhalation in rats. Toxicology, 56, 95

- 105; Smith et al. (1999). Interleukin

- 8 levels in human lung epithelial cells are increased in response to coal fly ash and vary with the bioavailability of iron, as a function of particle size and source of coal. American Chemical Society, October 199 9; Srivastava et al. (1984). Distribution of metals of inhaled fly ash in various organs of rats at various periods after exposure. Environmental Science Health, A19(6), 663

- 677. 440 Adriano, D.C., Page, A.L., Elseewi, A.A., Chang, A.C., Straughan, I.R. (1 980). Utilization and disposal of fly ash and other coal residues in terrestrial ecosystems. Journal of Environmental Quality, 9: 333; Carlson, C.L., Adriano, D.C. (1993). Environmental impacts of coal combustion residues. Journal of Environmental Quality, 22: 227

- 247; U.S. Environmental Protection Agency, “Damage Case Assessment under RCRA for Fossil Fuel Combustion Wastes,” dated August 2006. This assessment recognizes 24 proven damage cases and 39 “potential” damage cases. Dam age cases are CCR disposal sites that show evidence of groundwater and/or surface contamination.214

Disposal of CCR has contaminated water supplies and damaged life and the environment at more than 70 sites across the nation. Most CCR disposal sites are not even monitored, and EPA rea dil y admits that damage and threats to human health from this waste are likely to be far more widespread than currently documented. 441 Although EPA has acknowledged the need for protections, 442 it has not y et issued any regulations for controlling the disposa l of CCR at minefills. E. CCR Is Not Being Adequately Regulated. Despite the well

- established toxicity of CCR, there are no adequate federal regulations in place to protect human health and the environment. In 2000, EPA concluded that federal safeguards were needed for minefilling, particularly because of the potential for groundwater contamination. 443 Yet EPA has failed to fulfill its promise to develop these regulations. Although EPA has jurisdiction over all waste disposal under RCRA, EPA decided to cede regulation of coal combustion waste disposal in active mines to the Office of Surface Mining. In 2006, a panel of scientists appointed by the National Academies of Sciences (NAS), directed EPA to exercise its expertise and collaborate with the U.S. De partment of Interior’s Office of Surface Mining (OSM) to develop national minefill regulations. 444 Despite this directive, EPA refused to become actively involved and deferred entirely to OSM, an agency lackinginstitutional experience in waste management. OSM has allowed dumping of coal ash in active mines to grow unchecked in state after state without any

federal intervention, and OSM also does not intend to change the status quo, despite the explicit recommendation of the National Academies of Sciences. 445 Indeed, in March 2007, OSM announced in an Advance Notice of Proposed Rulemaking that it merely intends to rely on the existing authority of the Surface Mining Control and Reclamation Act (SMCRA), even though SMCRA clearly does not require the necessary s afeguards. 446 Lastly , even if OSM were to regulate the dumping of coal ash in active coal mines, the disposal of ash in abandoned mines would still not be subject to such regulations, because SMCRA does not govern abandoned mines. Since there are currently no federal standards, responsibility for protecting the public from exposure to CCR falls to the states, but their efforts to date have been grossl y inadequate. As detailed above, man y state regulatory agencies actuall y encourage industry practices that

441 U.S. EPA (2007) Human and Ecological Risk Assessment of Coal Combustion Wastes, August, 6, 2007 (draft). 442 Clean Air Task Force, Impacts of Water Quality from Placement of Coal Combust ion Waste in Pennsylvania Coal Mines (September 2007). Chapter 3 at 33, 214. www.catf.us. 443 Id

. 444 National Academies Press. Managing Coal Combustion Residues in Mines. Committee on Mine Placement of Coal Combustion Wastes, National Research Council. Available at http://www.nap.edu/catalog/11592.html. 445 Office of Surface Mining, Western Region. Guidance on Disposal of Coal Combustion Byproducts in the Western United States when OSM Western Region is the Regulatory Authority. Approved February 6, 2001. http://www. wr cc.osmre.gov/CCBguidance.html

. 446 Office of Surface Mining Reclamation and Enforcement, “Advanced Notice of Proposed Rulemaking on Placement of Coal Combustion Byproducts in Active and Ab andoned Coal Mines,” 72 Fed Reg, 12026, March 14, 2007.215

increase human exposure to coal combustion waste. For example, West Virginia promotes the burning of waste coal and allow mine dumping to be classified as a “beneficial” use with few restrictions. No state, with the exception of Kentucky and recentl y, Pe nns ylvania, provides the safeguards recommended by the National Academies of Sciences for coal combustion waste minefilling. All other states fail to protect coalfield communities by neglecting to follow the most basic tenets of safe waste management, inc luding requiring strict separation of waste from water, long term groundwater monitoring, and bonds to ensure sufficient funds to clean up contamination if it occurs. While all coal

- producing states prohibit the unregulated disposal of soda cans and banan a peels (i.e., household trash) in mines, none, save Kentucky , impose similar safeguards when toxic ash is dumped in a mine. Unlike the financial assurance posted b y landfills, mine bonds typicall y do not include funds for remediating groundwater contamin ation. These bonds are released to the mine operators as soon as they have revegetated the mine surfaces, long before contamination from CCR is discovered. When contamination does occur, there is no money left to pay

for cleanup. As a result, the true co st is shifted from power plants and mine operators to host communities and taxpay ers who must pay for cleaning up wastes that will remain chemically active for decades and will threaten water resources in perpetuity

. According to federal law, municipal waste landfills are subject to requirements for engineered liners and covers, extensive monitoring, corrective action standards, and financial assurance. Most CCR minefills are subject to none of these requirements. Consequently , enormous quantities of t oxic industrial waste are being dumped directl y into groundwater without any

site

- specific evaluation, monitoring, or cleanup requirements. EPA’s lack of action to control the hazards posed by minefilling is egregious. Uncontrolled dumping of CCR into gro undwater in coal mines violates the basic prohibitions in RCRA against open dumping. EPA’s failure to regulate CCR has resulted in weak or nonexistent state standards. Some 23 states even have a provision in their law that prohibits the state from having stricter waste standards than federal law, meaning that without federal regulation, there will be no regulation of CCR beyond the inadequate and unenforceable provisions there are now. 447
F. EPA Has The Tools And The Duty To Minimize The Risk From Coal Combus tion Waste at Mine Sites.
In 2006, at the request of Congress, the National Academies of Sciences conducted a study of the health, safety , and environmental risks associated with using coal combustion waste for reclamation in active and abandoned coal m ines. The National Academies of Sciences concluded that disposing of CCR in mines can cause unacceptable harm if it is not carriedout under minimum federal safeguards set forth in enforceable regulations

. 448 For coal ash that is

447 U.S. EPA (2002). Mine Placement of Coal Combustion Waste, State Program Elements, Final Draft, December 2002. 448216

placed in mines, the Nationa l Academies of Sciences stated that new regulations should address both active and abandoned mines and that federal regulations must ensure that:

 Coal combustion waste is fully tested (or “characterized”) to determine its hazardous characteristics and its potential to leach toxic chemicals;

 Disposal sites are full y characterized (i.e. investigated to determine the quality and location of groundwater, groundwater flow paths, the potential for coal ash to react with minerals or groundwater, etc.);

 Coal ash contact with water must be minimized;

 Site

- specific management plans are implemented at all disposal sites;

 Monitoring is designed to detect movement of coal combustion waste contaminants;

 Site

- specific performance and clean up standards are establishe d;

 Deeds record and full y disclose that coal combustion waste was disposed at the mine site;

 Bonds or other mechanisms address clean up of groundwater from coal combustion waste disposal. 449 Lastl y, the National Academies of Sciences report stated that th e public should be activel y involved in developing these regulations, commenting on proposed permits, and enforcing them at mine sites. Federal regulations are needed to ensure that common sense safeguards such as placement above water tables, adequate mo nitoring, and clean up standards are employ ed in every state. EPA is the federal regulatory agency charged with protecting human health and the environment from the mismanagement of industrial wastes. The evidence of harm caused by minefilling is compelli ng and warrants immediate action by EPA to establish protective and enforceable national standards that follow the recommendations of the National Academies of Sciences. The true cost of minefilling lies in the heav y toll it takes on the health and enviro nment of the communities near coalfields. Man y of these communities are populated by low

- income residents whose health is alread y compromised b y the effects of coal mining. 450 These communities should not now be dumping grounds for toxic coal combustion was te. The residents who live downhill, downstream, and downwind of our nation’s coal mines deserve better.

449 National Academies Press. Managing Coal Combustion Residues in Mines. Committee on Mine Placement of Coal Combustion Wastes, National Research Council. Available at http://www.nap.edu/catalog/11592.html. 450 58 Hendryx, M. and M.M.Ahern (2008). Relations between health indicators and residential proximity to coal mining in West Virginia. A mer. J. Pub. Health, Vol. 98, No. 4, 669

- 671.217

Justice, fairness and common sense dictate that citizens living near a coalfield deserve the same protections as people living elsewhere. X. REGULATION OF CCR UNDER SECTION 4010(C) OF RCRA IS NOT A LEGITIMATE REGULATORY OPTION. The utility

industry has repeatedl y urged EPA to rely on Section 4010(c) of RCRA as the foundation of its regulatory program for coal ash. 451 Industry representatives contend that regulations promulgated under this framework would be “equall y protective” as compared to regulations promulgated under Subtitle C, and that such regulations would be “federally enforceable.” 452 Neither assertion is c orrect, as discussed further below. Even more importantly , however, the utility

industry ’s proposal overlooks the fact that states would be able to opt out of the entire program simply by prohibiting facilities within their borders from accepting hazardou s waste from small quantity generators. By

doing so, states would eliminate the facilities’ potential for handling exempt hazardous waste and thereb y make the program inapplicable. This result exposes the fundamental absurdit y of industry’s argument th at EPA should address the serious hazards posed by CCR by regulating it only

indirectly

through a regulatory framework that is dependent upon the incidental presence or absence of an entirely different waste stream. The absurdity is compounded b y industry ’s suggestion that EPA should disingenuousl y treat CCR

– the main target of the regulation

– as non - hazardous even though there is ample evidence that CCR is hazardous in and of itself. In light of these glaring flaws in industry ’s proposal concerning S ection 4010(c), EPA should not give this option any serious consideration. A. Purpose and Historical Context of Section 4010(c) When Congress enacted RCRA in 1976, its “overriding concern” was to address the “clear danger to the health and safet y o f the population and to the quality of the environment” posed by hazardous waste. 453 Congress acknowledged that it was entering an area that had “traditionally

been considered the sphere of local responsibility .” 454 Nevertheless, Congress moved ahead because , in the absence of a federal regulatory framework, hazardous wastes were being “disposed of in ponds or lagoons or on the ground in a manner that result[ed] in substantial

451 See, e.g., Dan Riedinger, USWAG, “Comments of the Utilities Solid Waste Activities Group,” at 2

- 3 (submitted to EPA during public meeting in Louisville, KY, Sept. 28, 2010); Jim Roew er, USWAG, “Comments of th e Utilities Solid Waste Activities Group,” at 2

- 3 (submitted to EPA during public meeting in Denver, CO, Sept. 2, 2010); Meeting Material Provided to OMB During Meeting on April 2, 2010, at 4 (author unspecified; appears to have been written by one or more industry representative in attendance at meeting, namely Meg Hunt for Edison Electric Institute, Jim Roew er for Utility Solid Waste Activity Group (USWAG), Richard Meiers for Duke Energy, and Douglas Green for Venable LLP/USWAG), available at http://www. whitehouse.gov/omb/2050_meeting_04022010/

. 452 See, e.g., Roew er, USWAG Comments, Sept. 2, 2010, at 3. 453 See H.R. Rep. No. 94

- 1491(I), 1976 USCCAN 6238, 6241 (Sept. 9, 1976). 454 Id . at 6240.218

and sometimes irreversible pollution of the environment” and often presented “serio us danger to human life.” 455 By 1980, EPA had achieved progress in controlling hazardous waste through its Subtitle C regulations, but Congress remained concerned about the estimated 40 million tons per y ear that were still “escaping control through various loopholes.” 456 One important loophole was the exemption for “small quantity generators.” 457 An estimated 4 million tons of hazardous waste was “escaping effective control through this exemption,” and it was being disposed of into sanitary landfills and sew ers, even though “[n]either of these t yp es of facilities [was] suited to the disposal or treatment of toxic organics or metals.” 458 Since regulatory controls for such facilities were “either nonexistent or far less restrictive than those governing hazardous waste disposal facilities, environmental and health problems caused b y Subtitle D facilities [were] becoming increasingl y serious and widespread.” 459 In response to this problem, Congress added Section 4010(c) to the RCRA statute as part of the 1984 amendm ents. 460 This provision required EPA to revise its criteria for states to use in determining whether solid waste management practices were lawful (sanitary landfills) or unlawful (open dumps). 461 More specificall y, the provision required EPA to revise its criteria for facilities that “may

receive hazardous household wastes or hazardous wastes from small quantity generators,” i.e., “facilities potentially receiving such wastes. 462 According to the statute, “[a]t a minimum,” the new criteria “should require gro und water monitoring as necessary to detect contamination, establish criteria for the acceptable location of new or existing facilities, and provide for corrective action, as appropriate.” 463 Insum, the basic purpose of 4010(c) was to provide at least some minimum protection against health and safet y risks resulting from the disposal of hazardous waste that is exempt from Subtitle C wherever there is a possibility that such disposal might occur. As a first step, EPA revised its criteria for municipal sol id waste landfills in 1991 to incorporate the protections specified in 4010(c). 464 EPA delay ed promulgating similar regulations for other t yp es of solid waste landfills, but eventually , in response to litigation, EPA promulgated criteria for non

- municipal s olid waste landfills in 1996. 465 Despite the statute’s

455 Id . at 6241. 456 H.R. Rep. No. 98

- 198(I), 1984 USCCAN 5576, 5578 (June 9, 1983). 457 See id. 458 Id

. 459 H.R. Conf. Rep. No. 98

- 1133, 1984 USCCAN 5649, 5688 (Oct. 3, 1984). 460 See Pub.L. 98

- 616, 98 Stat. 3267, Title III § 302(a)(1) (Nov. 8, 1984)

. 461 See 42 U.S.C. § 6949a(c) (citing 42 U.S.C. §§ 6907(a)(3) and 6944(a)). 462 42 U.S.C. § 6949a(c)(1). 463 Id. 464 See generally 40 C.F.R. Part 258, 56 Fed. Reg. 50978 (Oct. 9, 1991) (specifying location restrictions, facility design and operating criteria , ground

- water monitoring requirements, corrective action requirements, financial assurance requirements, and closure and post

- closure care requirements for municipal solid w aste landfills)

. 465 See generally 40 C.F.R., Part 257, 61 Fed. Reg. 34252 (July 1 , 1996); Sierra Club v. EPA , 992 F.2d 337 (D.C. Cir. 1993); EPA, Office of Envtl. Policy and Assistance, RCRA/CERCLA Div. (EH

- 413), Environmental Guidance Regulatory Bulletin: Standards for Non

-Municipal, Non

-Hazardous Waste Disposal Units Receiving Hazar dous Wa stes from Conditionally Exempt Small Quantity Generators (CESQGs) (eff. Jan. 1, 1998).219

reference to facilities “potentially receiving” exempt hazardous waste, EPA’s current regulations are onl y applicable to facilities that actually “receive” small

- quantit y generator waste. 466
B. Section 4 010(c) Is Not a Legitimate Regulatory Option for CCR Because States Can Opt Out of the Entire Program. The utility

industry is asking EPA to regulate CCR by expanding the universe of facilities regulated under 4010(c) bey ond those actuall y receiving hazar dous waste from small quantity generators to encompass those with the potential to receive such waste as well. 467 The underlying premise is that CCR disposal facilities are now, and will remain, “solid waste management units that ... may receive CESQG hazardous wastes.” 468 A closer inspection reveals that this premise is fundamentally flawed and that many

CCR facilities could escape regulation if EPA adopts a program based on 4010(c). Since 4010(c) does not apply where there is no “potential” for disposal of hazardous waste from small quantity generators, a regulatory program adopted under 4010(c) would not apply where facilities are legally forbidden from accepting such waste under state laws or regulations more stringent than federal requirements. States wishing to protect utilities from regulatory

burdens could simply

establish prohibitions on the ability of CCR facilities to accept this waste and thereb y opt out of the entire program either on a state

- wide basis (through laws or regulations) or on a facility

- by

- facilit y basis (through permitting). This is much more than a theoretical concern. States routinely engage in this ty

pe of action in the air pollution context. In order t o protect facilities from the regulatory burdens associated with the new source review program (such as the requirement to apply “best available control technology ”) or the burdens associated with the hazardous air pollutant program (such as the requirement to apply

“maximum achievable control technology ”), states frequentl y issue “sy nthetic minor” permits. 469 Such permits impose legal restrictions designed to ensure that a facility ’s emissions will remain below the threshold levels that would trigger the re gulatory requirements. 470 Courts have upheld this practice as lawful even where the restrictions are enforceable onl y b y states and not by EPA. 471

466 See 40 C.F.R. §§ 257.1(a), 257.5(a)(1). See also 40 C.F.R. § 258.2 (defining a municipal solid w aste landfill unit as a facility that actually “receives household waste” and defining “household waste” to mean “any solid waste ... derived from households” regardless of whether such waste demonstrates haz ardous characteristics). 467 See Material Provided to OMB During April 2, 2010 Meeting, at 4; Roewer, USWAG Comments, Sept. 2, 2010, at 2. 468 Material Provided to OMB During April 2, 2010 Meeting, at 4 (emphasis added). 469 See, e.g., Clean Air Council, T he Small Business Guide to Key Federal and State Air Regulations , at 12, available at http://www.cleanair.org/Air/SmallBusinessGuide.pdf; U.S. Air Force, Title V / Synthetic Minor Permit Guide , available at http://www.afcee.brooks.af.mil/products/air/flowcharts/TitleVSyntheticMinorPermits/docs/Title%20V_Synthetic%2 0Minor%20Permits.pdf

. 470 See id. 471 See,e.g., National Mining Ass’n v. EPA , 59 F.3d 1351 (D.C. Cir. 1995), reh’g denied (Sept. 21, 1995) (hazardous air pollutant program); Clean Air Implementation Project v. EPA , 1996 WL 393118 (D.C. Cir. 1996) (Title V program, unreported); Weiler v. Chatham Forest Products, Inc. , 392 F.3d 532 (2d Cir. 2004) (new source review/preconstruction permitting program).220

This approach has some intuitive appeal in the air pollution context, but it leads to perverse consequences in the waste context. First, when states and facilities work together to establish legal restrictions that will avoid regulatory burdens, these efforts are generally consistent with the overall goal of the applicable law because they cap the very

ty pe of pol lution that is of concern at a de minimis level. By contrast, state efforts to help CCR facilities avoid 4010(c) requirements would eviscerate the very purpose of the program. State rules would prohibit CCR facilities from accepting hazardous waste from small

- quantity generators, and this would leave enormous quantities of CCR, the waste stream of concern, completely unregulated. Second, EPA has established the relevant air pollutant thresholds based on findings that each threshold represents a de minimi s quantity of pollution. In the waste context, however, it is the RCRA statute that establishes the applicability of the 4010(c) program based on a facility ’s “potential” to receive small

- quantity generator waste. As a result, instead of exercising contr ol through the setting of upper limits, EPA would have no ability to prevent states from opting out of the 4010(c) program after they take steps to eliminate this “potential.” Another reason the threat is real is that states home to powerful coal intere sts have alread y expressed strong opposition to the kinds of regulatory measures for CCR that would be necessary to fully protect human health and the environment. For instance, the Indiana Department of Environmental Management has denied that CCR shares the “harmful characteristics” of other ty pes of hazardous waste, and it has urged EPA to weaken its proposed Subtitle D standards to allow CCR to be placed below the water table. 472
C. Even Where States Do Not Opt Out, A Program Based On 4010(c) Would Not Ensure Adequate Protection. Industry further contends that EPA regulations under 4010(c) would be adequately stringent. Unfortunatel y, there can be no assurance that this will be true. On the contrary , since any regulatory

program based on 4010(c) wou ld depend on the presence of hazardous waste from small

- quantity

generators, the applicability of controls for individual facilities as well as the adequacy of the state program as a whole would have to be judged primarily by reference to whether they

are sufficient to address the threats posed by the small

- quantity

generators’ waste. 1. CCR Hazard Irrelevant to Applicability of 4010(c) to Individual Facilities The Environmental Defense Fund v. City of Chicago case is instructive concerning the applica bility of waste management obligations. 473 The case involved the City’s operation of a modern waste

- to

- energy

incinerator facility , and the central question was whether the ash residue resulting from the burning of household and non

- hazardous commercial was te should be regulated as non

- hazardous solid waste under Subtitle D or as hazardous waste under Subtitle C. In the face of conflicting interpretations from EPA, the court concluded that the ash residue was legally exempt from regulation under Subtitle C. Accordingl y, despite toxicity testing in which

472 See Thomas W. Easterly, Commissioner IDEM, State of Indiana Comments on Hazardous Waste Management System (Oct. 22, 2010), available at http://www.uswag.org/pdf/2010/CCR%20Comments/IDEM10222010.pdf

. 473 EDF v. City of Chicago , 77 F. Supp. 419 (N.D. Ill. 1989).221

29 of 32 samples of the ash residue exceeded hazardous waste toxicity thresholds for lead and cadmium, the court held that the facility would not be subject to Subtitle C regulation as long as it could demon strate compliance with the other prerequisites for the household waste exclusion. 474 In order to qualify for the statutory exemption, the City would have to show onl y that the facility

(i) in fact receives and burns onl y household and non

- hazardous commerci al or industrial waste, (ii) does not accept an y listed hazardous wastes, and (iii) follows appropriate procedures to ensure that hazardous wastes are not received or burned at the facility

. 475 Similarly , judgments about whether a particular CCR disposal fa cility is governed by

a state’s ordinary

solid waste management program (under 40 C.F.R. Part 256 guidelines or state law only) or the enhanced criteria under 4010(c) for facilities accepting hazardous waste from small

- quantity

generators (40 C.F.R. Parts 257 and 258) would turn on whether the facility has the potential to accept any household or small

- quantity generator waste. In addition to the possibility

of state restrictions eliminating this potential, as discussed above, 4010(c) would not apply where practical impediments make it impossible for a facility to accept hazardous waste, e.g., the facility

has already

been capped, or the facility is in a remote area far from an y source of hazardous waste. Just as the toxicity of the ash residue was irrele vant in the EDF v. City of Chicago case, factual information relating to CCR, such as the toxicity of the CCR waste, the quantity of such waste, and the sufficiency of protective measures would have no bearing on this determination, no matter how compellin g the situation. 2. CCR Hazards Irrelevant to EPA Determinations Regarding Adequacy of State Programs At a broader level, if EPA adopts the 4010(c) approach, EPA would be forced to judge the “adequacy ” of state solid waste management plans in a similarly strained fashion. 476 EPA’s final rule would have to classify CCR as non

- hazardous waste, ye t it would be founded on EPA’s anticipation and assumption that such waste would be regulated more stringently than ordinary solid waste by

virtue of being co

- dis posed at facilities with the potential to accept hazardous waste from small

- quantity generators. If, however, states were to later preclude such co

- disposal and regulate each waste stream separatel y (i.e., regulate CCR as ordinary solid waste), this would be consistent with EPA’s findings and classification of CCR, and EPA would not be in a position to object. 3. Legal Framework Does Not Ensure Sufficient Stringency of 4010(c) Regulations Even assuming states could not opt out of 4010(c) regulations for CCR, it is unlikely that a regulatory

program under this authority would be sufficientl y stringent or protective. If EPA wanted to pursue the 4010(c) approach, this “would likely require a supplemental proposal” since neither alternative i n EPA’s pending proposal is based on 4010(c). 477 In crafting a new proposal, the legal framework would make it difficult for EPA to promulgate a robust and stringent rule.

474 See id. at 424

- 25. 475 See 42 U.S.C. § 6921(i). 476 42 U.S.C. § 6945(c)(1)(C). 477 Roew er, USWAG Comments, Sept. 2, 2010, at 3.222

One important factor is that states do not have to adopt regulations as stringent as the federal guidelines. While Subtitle C requires state hazardous waste programs to be “equivalent to the Federal program,” 478 the 4010(c) program only requires state programs to be “adequate.” 479 Furthermore, 4010(c) significantl y weakens the standard fo r classifying a facility as a sanitary

landfill rather than an open dump. Under the general standard, a facilit y can avoid open dump status “only

if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility .” 480 The need to show “no reasonable probability

of adverse effects” is a very protective standard. It reinforces the presumption against open dumping, places the burden on the facility to demonstrate the lack of adverse effects, and focuses entirely on health and the environment. In contrast, under 4010(c), the criteria for avoiding open dump status are “those necessary to protect human health and the environment.” 481 The “necessary to protect” language creates a presumption favoring non regulation with the burden on EPA to demonstrate the necessit y of its criteria, and it suggests a far less ambitious goal of avoiding significant or substantial harm, which is a far cry from a mandate to avoid any reasonable probability of any adverse effects. Moreover, under 4010(c), EPA “may take into account the practicable capability of such facilities.” 482 There is no provision for cost or practicability considerations under Subtitle C, and this is for good reason. 483 Although it is unlikely EPA could promulgate a rule that completely failed to provide for groundwater monitoring, siting restrictions, and corrective action since these are specificall y mentioned in the statute, 484 EPA would still be under tremendous pressure to weaken its standards in light of practicability considerations. 485 Indeed, EPA’s regulations for non - municipal solid waste disposal facilities reflect the impact of such pressure and illustrate the limited scope, caveats, escape hatches, and other provisions favorable to industry that are the end result of 4010(c)’s relatively weak standards and concern for practicability and cost. The following are just a few examples:

 Location Restrictions

– The 4010(c) regulations governing the siting of non

- municipal solid waste facilities only require consideration of issues relating to wetlands and floodplains. 486 EPA has not required consideration of seismic/fault issues, nor has it prohibited siting of facilities in salt dome formations, salt bed formations, underground

478 42 U.S.C. § 6926(b). 479 Id . § 6945(c)(1)(C). 480 42 U.S.C. § 6944(a). 481 42 U.S.C. § 6949a(c)(1). 482 Id

. 483 See 42 U.S.C. § 6926. 484 Cf. Sierra Club v. EPA , 992 F.2d 337 (D.C. Cir. 1993) (concluding EPA did not have authority to exempt small landfills from the groundwater monitoring requirements of 4010(c)). 485 Cf. Whitman v. American Trucking Ass’ns, Inc. , 531 U.S. 457, 469 (2001) (explaining that, for purposes of setting nat ional ambient air quality standards (NAAQS), consideration of costs was “full of potential for canceling the conclusions drawn from direct health effects,” and this was an important factor in the Court’s decision prohibiting EPA from considering costs). 486 See 40 C.F.R. § 257.8(a).223

mines or caves, a ll of which would be important in siting decisions for hazardous waste facilities under Subtitle C. 487

 Groundwater Monitoring

– Under 4010(c), EPA has given states broad discretion to decrease the presumptive 30

- ye ar groundwater monitoring period whenever the “owner/operator demonstrates that a shorter period of time is adequate to protect human health and the environment and th e Director approves the demonstration.” 488 The Subtitle C groundwater protection provisions are much more extensive and protective in that they must include a sufficient number of wells placed in locations and depths that satisfy detailed criteria, adequate casings, comprehensive sampling and analy sis procedures, and meet numerous other requirements. 489

 Corrective Action

– EPA has authorized states to allow a facility to forego remediation if the owner/operator demonstrates that remediation is “not necessary” based on risk and practicabilit y considerations. 490 Here again, the corrective action program under Subtitle C is more comprehensive and protective as seen, for instance, in the dut y of owners/operators to “prevent hazardous constituents from exceeding their respective concentration limits at [a specified] compliance point by removing the hazardous waste constituents or treating them in place.” 491

 Detection Monitoring

– EPA has also given states broad leeway to relax federal detection monitoring procedures , such as by providing that a State (1) “ may delete any of the appendix I... monitoring parameters for a unit if it can be shown that the removed constituents are not reasonably expected to be contained in or derived from the waste contained in the unit;” (2) “ may establish an alternative list of indicator parameters for a unit, in lieu of some or all of the constituents in appendix I ... if the alternative parameters provide a reliable indication of releases from the unit to the ground water ...;” and (3) may relax the minimum number of sampling events from twice to once a year. 492 The detection monitoring program under Subtitle C is more comprehensive and protective, including, for example, an obligation to “monitor for indicator parameters ..., waste cons tituents, or reaction products” as specified b y the Regional Administrator and in accordance with detailed procedures and statistical anal ys is methods. 493

 Recordkeeping

– For purposes of 4010(c), EPA only requires recordkeeping for information “as it become s available” including “any ” documentation generated under various provisions of the 4010(c) regulations. 494 EPA has also authorized States to “set alternative schedules for recordkeeping and notification requirements,” except for

487 See id . § 264.18. 488 Id . § 257.21(e). 489 See id . § 264.97, .99. 490 Id . § 257.27(e). 491 Id . § 264.100(b). See generally id. at .100, .101. 492 Id . § 257.24(a), (b) (emphasis added). 493 Id . § 264.98. 494 See id . § 264.30(a).224

records relating to notifi cations of neighbors regarding off

- site migration of contaminants. 495 Under Subtitle C, however, most records must be kept for a minimum of five ye ars, and certifications must be retained until facility closure. 496 Aside from these areas, many other aspects of the Subtitle C program create a far more comprehensive and protective regime for managing hazardous waste than EPA’s current 4010(c) regulations for non

- municipal solid waste management facilities, including: land disposal restrictions; 497 facility

desig n/construction requirements, 498 including liners for surface impoundments and landfills; 499 manifest s ys tem/cradle

- to

- grave responsibility for hazardous wastes; 500 closure and post

- closure requirements; 501 financial assurances; 502 export/import restrictions; 503 the “d erived

- from” rule/mechanism for managing leachate; 504 stricter controls on reuse/recy cling; 505 emergency preparedness, prevention, and response; 506 and personnel training. 507
D. Regulation of CCR Facilities Under 4010(c) Would Not Be Enforceable By EPA. The inadequacy

of the 4010(c) standards would be compounded by the lack of federal enforceability . Industry

representatives have frequently suggested that 4010(c) regulations would be “federally

enforceable,” 508 but these assertions are simply not accurate. Most federal environmental statutes provide for concurrent authority of EPA and states to enforce applicable requirements on a day

- to

- day basis, including obligations set forth in regulations, permits, compliance orders, and the like. 509 EPA can t ypicall y initiate judicial proceedings for civil penalties, criminal sanctions, and injunctive relief based on violations of these provisions, and EPA generally possesses broad authority to issue administrative compliance orders, conduct inspect ions, compel document and data disclosure, and require

495 See id

. § 264.30(c). 496 See id. § 264.73. 497 See 42 U.S.C. § 6924(d) et seq. 498 See id. § 264.19 and 264.31. 499 See id. § 264.221, .301. 500 See id. §§ 263.20

- .44, 263.10

- .22, 264.70

- .77. 501 See id. § 264.110

- .120. 502 See id. § 264.140. 503 See id. § 262.50

- .60, .80

- .89. 504 See id. § 261.3(c)(2)(i). 505 See id. §§ 261.3(c)(2)(i), 261.4. 506 See id. § 264.30

- .56. 507 See id. § 264.16. 508 See, e.g., Roew er, USWAG Comments, Sept. 2, 2010, at 2; Reidinger, USWAG Comments, Sept. 28, 2010, at 2

- 3. 509 See, e.g., Clean Air Act, 42 U.S.C. §§ 7413, 7414, 7416, 7477; Clean Water Act, 33 U.S.C. §§ 1318, 1319, 1369, 1370.225

monitoring. 510 The hazardous waste program of RCRA grants EPA a similar array of authorities. 511 The 4010(c) context, however, represents a sharp departure from this ty pical enforcement scheme. In a state with an “adequate program,” EPA has no authority to inspect facilities, issue compliance orders, initiate judicial proceedings for civil or criminal penalties, or otherwise enforce violations of permits, regulations, orders, or other applicable requirem ents. 512 These fundamental enforcement tools only become available to EPA after it makes an affirmative finding that the state “has not adopted an adequate program.” 513 This is an enormous obstacle to federal enforcement. It requires, not only a lengthy pub lic process, but also resources and willingness on the part of EPA to take responsibility for implementing and enforcing an entire state’s waste management program, or potentiall y the programs of multiple states. Because of these hurdles and resource cons traints, it is virtually unheard of for EPA to withdraw its approval or delegation of an y state regulatory program under an y of the federal environmental laws. EPA’s ability

to step in and enforce waste management requirements onl y after the total failure of a state program is essentially meaningless in terms of day

- to

- day enforcement activities. EPA has no mechanism for investigating potential violations at a particular facility , compelling an y particular facility

to comply

with its regulatory

and permitting obligations, or penalizing such a facility for its noncompliance. E. “Imminent and Substantial Endangerment” Actions Are Not An Adequate Substitute for EPA Enforcement Authority. RCRA does grant both citizens and EPA authority to sue for “immin ent and substantial endangerment” (ISE) caused by solid or hazardous waste. 514 In dustry groups have suggested that these provisions provide sufficient authorit y to address the threats posed by CCR and that, as a result, it is not necessary

for EPA to design ate and regulate CCR as a hazardous waste. These arguments are entirel y without merit. RCRA is a preventative statute, and these reactive provisions were never intended to serve as the backbone of a management program for a dangerous waste. Nor, as a pr actical matter, could citizens and EPA feasibly employ these provisions to prevent coal ash from harming the public and the environment. The hazards of coal ash cannot reasonably be addressed through reactive litigation approaches. What is needed is a co mprehensive regulatory program for coal ash under EPA’s existing Subtitle C authority

.

510 See generally id. 511 See 42 U.S.C. §§ 6927 (inspections), 6928 (compliance orders, civil penalties, criminal penalties). See also § 6929 (retention of state authority). 512 See 42 U.S.C. § 6945(c(2)(A). 513 Id

. 514 See 42 U.S.C. §§ 6972, 6973. RCRA § 7002(a)(1)(B) authorizes citizen suits against parties contributing to “the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous w aste which may present an imminent and substa ntial endangerment to health or the environment” 42 U.S.C. § 6972(a)(1)(B) (em phasis added). 514 RCRA § 7003(a) authorizes the EPA Administrator, “upon receipt of evidence” of such imminent and substantial endangerment, to file suit and issue “orders . . . n ecessary to protect public health and the environment.” 42 U.S.C. § 6973(a).226

Furthermore, RCRA is a proactive statute d esigned primarily to address risks from wastes before they

become a problem through comprehensive regulation. 515 Courts have rep eatedl y explained that “RCRA is preventative in nature

– ‘it attempts to deal with hazardous waste before it becomes a problem by establishing minimum federal standards . . . and the permitting of facilities . . . .” 516 The I SE provision is RCRA’s “only tool” for addressing unsound past disposal practices, 517 and the statute as a whole is intended to deal with disposal practices and sites before problems emerge. The legislative history

of RCRA clearly

demonstrates that the ISE provisions are supplemental to a comprehensive, proactive federal regulatory s ys tem for hazardous wastes. Both provisions were included in the Senate bill that ultimately became RCRA from its first introduction, 518 along with regulatory authorit y over hazardous wastes. 519 Thus, from the outset, Congress envisioned both an EPA

- administered federal regulatory s ys tem and supplementary authority for EPA to take emergency action and for citizens to enforce RCRA should EPA fail to do so. 520 While legislative history

discussing these provision s during the initial passage of RCRA is sparse, it is clear that the I SE provision was understood as an “emergency authority .” 521 The imminent hazard provision in RCRA was modeled on a similar provision in the Clean Air Act and Clean Water Act, both statute s with comprehensive regulatory s ys tems. 522 The legislative history

of 1984 amendments is more explicit about the supplementary status of these provisions. While the amendments substantially expanded these provisions

— authorizing citizen suits to enjoin I SE situations under section 7002, and broadening the scope of

515 RCRA stands in sharp contrast to rem edial statutes such as the Comprehensive Environmental Response, Com pensation, and Liability Act ( CERCLA ), 42 U.S.C. § 9601 et seq. 516 S.C. De

p’t of Health &Envtl. Control v. Commerce & Indus. Ins. Co. , 372 F.3d 245, 256 (4th Cir. 2004) (quoting Envtl. Tech. Council v. Sierra Club , 98 F.3d 774, 779 (4 th Cir. 1996) (emphasis added). S ee B.F. Goodrich Co. v. Murtha , 958 F.2d 1192, 1202 (2d Cir. 1992) ( explaining that “RCRA is preventative; CERCLA is curative.”); U.S. v. E.I. du Pont de Nemours &Co., Inc. , 341 F. Supp. 2d 215, 237 (W.D.N.Y. 2004) (noting “RCRA was designed to address present and prospective threats”). Congress has also noted that “RCRA is basically a prospective statute.” Report on Hazardous Waste Disposal, Subcomm. on Oversight & Investigations, Comm. on Interstate & Foreign Commerce, 96th Cong, 1st Sess., H.R. C OMM
. P RI NT 96 IFC

- 31, at 31 (Sept. 1979)

. 517 S.C. Dep’t of Health & Envtl. Control , 37 F.3d at 256. 518 How ever, as discussed below , the original version of RCRA did not authorize citizen suits on ISE grounds, but only for violations of RCRA requirements. ISE citizen suits w ere subsequently authorized by HSWA. 519 See S. 2 150, 94th Cong., 1st Sess. (July 21, 1975); Pub. L. No. 94

- 580, § 7002

– 7003, 90 Stat. 2795, 2825

– 26 (Oct. 21, 1976). 520 Legislative history predating S. 2150, the bill that became RCRA, reinforces that these supplemental provisions were intertwined with comprehensive hazardous waste regulation. S. 2150’s imminent hazard provision (in a som ewhat different form) originated in a bill from the 93rd Congress that did not pass prior to adjournment. See S. 1086, 93rd Cong., 1st Sess. (Mar. 6, 1973), at 18, 23. Like S. 2150, S. 1086 proposed a comprehensive federal regulatory system. In contrast, competing bills from opponents who favored federal assistance or research, rather than federal regulation, did not contain ISE provisions. Such provisions have never been alternatives to comprehensive regulation but rather companions to it. 521 See S. REP
. N O
. 94

- 988, 94th Cong., at 16 ( June 25, 1976). 522 See id. at 16, 18.227

section 7003 523

— the legislative history of these amendments is explicit that both provisions are “an alternative and supplement to other remedies.” 524 The sponsor of the expanded citizen

- suit pro vision, Senator George Mitchell, was equally explicit: “Ireiterate: These amendments are a supplement to, and not a substitute for Government action.” 525 Inone citizen suit under section 7002, the Supreme Court similarly observed that “[c]hief responsib ility for the implementation and enforcement of RCRA rests with the [EPA] Administrator,” reinforcing the limited role of citizen suits in only

“some circumstances.” Meghrig v. KFC W estern, Inc. , 516 U.S. 479, 483 (1996). These straightforward statements clarify that sections 7002 and 7003 serve to buttress, not replace, proactive EPA regulation under Subtitle C. Nothing in the legislative history supports industry ’s contention that citizen suits and I SE actions alone can adequatel y address the risks of hazardous substances such as coal ash. None of Congress’ proposed bills ever severed these provisions from comprehensive regulatory schemes, nor did an y m ember of Congress ever speak out against this dual sy stem as redundant or unnecessary . The drafters of RCRA and HSWA clearl y did not view these provisions, standing alone, as adequate to protect public health and the environment. The history

of ISE suits in the courts makes clear that the financial and evidentiary burdens placed on plaintiffs will gener ally be bey ond the means of citizen groups. And, even EPA, with its greater resources, cannot reasonably be expected to prosecute every potential I SE case, or even obtain evidence sufficient to prove imminent and substantial endangerment without the monit oring and data collection requirements that only a full regulatory program can provide. Citizen suits under section 7002 are a singularly inadequate method for protecting the public and the environment from the threat of substances like coal ash. The f irst limitation on the effectiveness of such suits is the significant cost

— in time, money , and effort

— to an y citizen in bringing suit. These costs are substantial not only for the advocacy

organizations perhaps best equipped to bear them, but especial ly for individuals who may be most directly affected b y dangerous conditions. Second, citizen plaintiffs are subject to certain limitations that are not imposed on EPA. 526 Third, plaintiffs may not be able to establish the requisite causal

523 See Pub. L. No. 98

- 616, §§ 401

–402, 98 Stat. 3221, 3268 (1984). 524 See Report of the Comm. on Env’t and Public Works, S. REP
. N O
. 98

- 284, 98th Cong., at 57, 59 (Oct. 28, 1983, Calendar No. 500) (emphasis added). 525 130 C ONG
. REC
. 20,815 (1984). See also id . at 30,696 (statement of Sen. George Mitchell) (referring to the provision as “an important and necessary supplement to EPA’s efforts” (emphasis added)); H.R. REP
. N O
. 98

- 198, at 53 (“[T]his expansion of the citizens suit provision will complement , rather than conflict with, the Administrator’s efforts to eliminate threats . . . .”) (emphasis added). The House Committee on Interstate and Foreign Commerce reflected a similar understanding of citizen suits as a “stop

- gap” measure by quoting with approval the following in a discussion of federal facility regulation: “[A] citizen suit provision . . . provides a “second line” of enforcement by non - Federal officials or interested citizens. These citizen suit provisions are valuable for plugging holes that develop in a Federal enforcement program. However, they should not be relied upon as a primary source of surveillance and enforcement . . . .” H.R. REP
. N O
. 94

- 1491, 94th Cong., 2d Sess., at 50 (quoting report accompanyin g Administrative Conference of the United States, Recommendation 75

- 4, reprinted with modifications at William R. Shaw, The Procedures to Establish Compliance by Federal Facilities with Environmental Quality Standards, 5 Envtl. L. Rep. (Envtl. Law Inst.) 5 0,224 (1975)). 526 See 42 U.S.C. § 6972(b); see also H.R. C ONF
. REP
. N O
. 98

- 1133, at 117

– 118 (Oct. 3, 1984) (describing how citizen suit provision was continually narrow ed during legislative process through increasing limitations on its use).228

links to obtain a preliminary injunction in these lawsuits, allowing producers of harmful wastes to continue their conduct for the duration of the trial. 527 Lastl y, despite arguabl y quite imminent risks from coal ash impoundments discovered through inspections conducted of all “high” and “significant” hazard dams in 2009, EPA has failed to issue enforceable administrative orders and instead has had to rel y on purel y voluntary “action plans” for utilities that fail to protect the public and the environment. Despite evidence of significant problems resulting in “poor” ratings at six high hazard dams, EPA did not proceed under the ISE provision.. Clearly , secti ons 7002 and 7003 cannot, on their own, provide sufficient authority to respond to the risks posed by coal ash

— nor were these provisions ever intended to serve such a purpose. Instead, these provisions are merely supplementary

to the comprehensive, and proactive, regulatory

scheme established b y Subtitle C of RCRA. While citizen suits and emergency

response authorities do have a supplementary role to play

in the regulation of hazardous wastes such as coal ash, they are merel y reactive and cannot adequat ely protect public health and the environment. Industry ’s contentions to the contrary are without merit.

XI. SECTION 6971(E) OF RCRA HAS NO APPLICATION TO EPA’S RULEMAKING In its comments to EPA’s June proposal, the U.S. Chamber of Commerce takes iss ue with the EPA’s supposed failure to compl y with certain emplo yee protection provisions of RCRA. 528 At the outset, we note that the Chamber of Commerce’s comments cite the wrong section of RCRA, but assume that the Chamber of Commerce intended to invoke se ction 6971(e). 529 Regardless of technical citation issues, reliance on section 6971(e) is misplaced. The Chamber of Commerce argues that EPA has not evaluated “the potential loss or shifts in employ ment that may

result from administration or enforcement of the proposed rules.” 530 However, this complaint rings hollow when the provision is read alongside the pertinent statutory language. Section 6971(e) calls for “continuing evaluations of the potential loss of shifts of employ

ment which may

result from the a dministration or enforcement of [RCRA ] ”; 531 it does not require evaluations of potential effects of proposed rules. The statute’s command that

“ continuing evaluations” be conducted underscores the fact that this provision applies to the ongoing administrati on and enforcement of RCRA, not to an isolated rulemaking event. The Chamber of Commerce provides no support for its claim that EPA’s current rulemaking triggers this section. Instead, it offers onl y conclusory statements

— e.g. , “the statutory command is clear

527 See, e.g. , Att’y General of Okla. v. Tyson Foods, Inc. , 565 F.3d 769, 777 (10th Cir. 2009) (upholding district court’s denial of preliminary injunction because plaintiff “fail[ed] to establish a causal link” betw een defendant’s actions and bacterial contamination). 528 Letter from William L. Kovacs, Senior Vice President, U.S. Chamber of Commerce, to U.S. EPA, 2

- 4 (Nov. 19, 2010) ( available at www.regulations.gov (Document ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- ****)). 529 42. U.S.C. § 6871( e). 530 Id . at 4. 531 42 U.S.C. § 6971(e) (emphasis added).229

and direct” 532

— in support of its argument. Because section 6971(e) has no bearing on these rulemaking proceedings, this section of the Chamber of Commerce’s comments have no validity

.
XII. CONCLUSION For all of the reasons set forth above, we respectfully request that EPA regulate CCRs under subtitle C of RCRA. We thank y ou for y our consideration of these comments.

532 Letter from William L. Kovacs, Senior Vice President, U.S. Chamber of Commerce, to U.S. EPA, 4 (Nov. 19, 2010) ( available at www.regulations.gov (Document ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- ****)).