1

A. Safe disposal requirements are technologically feasible and practical

Fortunately, 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 management practices, such as the installation of 

liners and groundwater monitoring, are indeed practical for CCR disposal.2 In fact, 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 1991.3The design 

standards for municipal solid waste landfills, like EPA’s proposed subtitle C rule, require the use 

of a composite liner,4leachate collection system,5groundwater monitoring,6run-on/runoff control 

system,7fugitive dust control8and final impermeable cap.9 Operating standards for municipal 

solid waste landfills are also similar to the proposed subtitle C requirements and include location 

restrictions,10corrective action,11and closure requirements.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 years they have been applied to the much larger waste stream of municipal solid 

waste, which, at 253 million tons per year, dwarfs the CCR waste stream.13 Furthermore, EPA 

estimates that there were roughly 2,300 municipal solid waste landfills in operation in 2000, a 

much larger universe of units on which to impose safeguards and permitting requirements.14 In

fact, in a few states that already require basic safeguards for CCR disposal, technologies such as 

liners, leachate collection systems, 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/reg3wcmd/solidwastesummary.htm. However, the tonnage managed in landfills may be 

roughly the same, given the high recycling and combustion rates for MSW.

14 See Final Rule, Nonwastewaters 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 disposal solution (e.g. composite liners etc.) 

that would allow industry to comply 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 capacity 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 regulations. EPA already 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 by the proposed subtitle C rule will provide 

ample time for industry and state permitting authorities to adequately provide needed capacity on 

site or nearby.

17

 Generally, after EPA lists a new hazardous waste, surface impoundments 

brought into the subtitle C program must retrofit or close within four years.18 EPA’s proposed 

rules for CCR offer an even more generous (and unnecessarily long)19grace period of seven 

years. The proposed rules allow existing CCR surface impoundments to continue receiving CCR 

waste for five years after the proposed regulations take effect, and they authorize an additional 

two years 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 years 

because the realities of the state 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 implement them.22 EPA estimates it will take an additional two to eight years for state 

regulations to become effective.23 Thus, using a middle-of-the-road estimate that it will 

generally 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 years is more than enough 

time for utilities to find or construct alternatives to existing subtitle C disposal facilities. 

 

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 Iowa 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 

years.24

The proposed rules provide even greater concessions for the continued use of existing 

CCR landfills. Once the new regulations take effect, newly 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 Indeed, existing CCR 

landfills are authorized to continue 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 rely on offsite subtitle C facilities. For example, under the proposed regulations, utilities could create new 

on-site landfill capacity in conformance with new standards once existing capacity 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 subtitle C regulations will lessen the volume of CCR waste that will require 

disposal. CCR waste can provide an affordable and effective substitute for a variety 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 waste 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 capacity 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 

monitoring, 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. See also 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 nearly 500 facilities, and account for about 1% or less of the industry’s annual 

operating cost. And even if all of these expenses are passed along to consumers, the effect on 

electricity rates would be negligible. 

Some power companies already face significant liability for the cleanup of CCR sites that 

are already badly 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 

accurately account for the benefits that would result from the relatively 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, electricity prices, or availability of power

Coal-fired generation accounts for about 45% of US electricity generation, and has 

actually increased nearly 9% (more than any other source) in the 12 months ending in August of 

2010, compared to the year 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 proportionate 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 include operating costs for publicly 

owned plants also subject to the rule. Even if coal plant operating costs are slightly lower, the 

rule would add little to what is already 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 operators sitting on large ash ponds have 

already 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 Power 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 only a minimal impact on electricity rates, even 

in regions that are more dependent on coal-fired power plants. The attached analysis 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, electricity rates would rise between one half 

and one percent in the first year in coal-dependent states like Indiana, Ohio, Colorado, 

Tennessee, Wisconsin, Minnesota, and Pennsylvania, 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 surprisingly, given these minimal impacts 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) specifically assessed the extent to which a subtitle C rule would force retirements 

of existing plants.35 Even under NERC’s worst-case analysis, less than 0.4 gigawatts would be 

likely to retire.36 In fact, 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 currently about $70 per ton, it is extremely unlikely that coal 

ash disposal, which requires fewer safeguards than 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 potential,” 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 integrity of 22 of 37 

impoundments recently inspected by 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 safety 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 Environmental Integrity 

Project, Earthjustice and the Sierra Club have since submitted a detailed analysis, based on 

 

34 See attached Power Point from Monitor Group, Impact of Regulation on Coal Combustion Waste: Summary of 

Review 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 Combustion 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, available at

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm
108

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 years (data submitted to the 

docket). If more up-to-date primary MCL standards were applicable instead, 50 sites would 

have already triggered the open dumping prohibition, 33 of those in the last five years. States 

may define an “alternate boundary” based on certain criteria, but our initial research indicates 

that almost none have done so. It should be noted that this analysis is limited to sites in selected 

states for which reviewers were able to obtain groundwater monitoring data. 

These sites are candidates for closure, if they cannot be cleaned up, based on federal law 

enacted nearly 30 years 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 Schedule C regulations, EPA has attempted to exclude 

“baseline” expenditures, including those for future cleanups that are likely to happen anyway. 

We support the Agency’s analysis, but recommend that EPA go further and determine which 

sites already violate the open dumping rules and which sites are likely 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 analysis, it is not clear 

that the Agency looked at all pollutants on the Appendix I list 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 option 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 Stanton of the Stockholm Institute, EPA’s Regulatory Impact Analysis 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 Impact Analysis monetizes the annual “baseline” benefits of recycling at more 

than $25 billion a year (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 allegedly 

cause these benefits 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 recycling is much 

more likely to expand if disposal costs increase, as they would under Subtitle C regulations, and 

do not agree there is any reasonable basis for the so-called stigma effect.

The recycling benefits claimed in EPA’s RIA are almost entirely illusory, as they assume 

particulate matter emissions that do not exist or are already being eliminated under Clean Air Act 

rules, and energy savings for cement kilns and wallboard manufacturers that are completely 

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 recycling accrue from two applications, 

cement kilns and wallboard manufacturing. As indicated by the attached chart, based 

on data from the American Coal Ash Association, CCR recycling 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 

analysis 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 

recycling markets. For example, Column G of Exhibit 5C-1 suggests that recycling 

ash to make clinker saves $80 a ton in raw materials, which seems high for the 

relatively low cost feedstock that is otherwise used. Synthetic gypsum actually cost 

slightly more than mined gypsum 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 normally 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 by 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 savings 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 from 

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 nearby 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 to 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 some facilities, as it is 

compiled from summary descriptions in the inventory that are not always 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 year. 

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 by subtitle C will adversely 

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 with EPA. Even under NERC’s 

worst-case analysis, less than 0.4 gigawatts would be likely to retire.44 In fact, 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 In view of the fact that hazardous waste disposal 

costs are currently about $70 per ton, it is extremely unlikely that coal ash disposal, which 

requires fewer safeguards than hazardous waste disposal, could approach even $100 per ton.

G. Analysis 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 avoiding the use of virgin materials, such as 

gypsum, 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 to uses that are 

genuinely beneficial and prevent sham recycling 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 considerably. Industry insists that a “special waste” listing under subtitle C 

will stigmatize coal 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 players including consumers to act against their economic (and environmental) 

interests, particularly if EPA is willing to cooperate with industry to educate the public about the 

environmental benefits afforded by safe, encapsulated uses. Historically, even when EPA has 

subjected beneficial uses themselves to regulation — which EPA is not proposing to do here —

beneficial use has only 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 expected 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 any case, EPA cannot reasonably or legally decline to establish the essential

safeguards that are needed to address proven threats to human health and the environment in 

order to accommodate hypothetical 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 recycling and reuse, it does so with the express intent of reducing the health and 

environmental threats posed by waste disposal. In short, safety must trump stigma concerns.

1. Beneficial use will continue to increase 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 analysis, see Appendix B. There is a well-established demand for coal ash that is 

put to beneficial use, as evidenced by the annually increasing amount of coal ash that is 

beneficially used. See Table 5 (showing increased in beneficial use in every year for which there 

is data available). EPA’s 1999 Report to Congress48 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 only the safe, encapsulated uses of coal ash uses 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 expected 

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 

PRIOR 

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/displaycommon.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 previous year is likely higher and the percent change to the 

following year 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 properly rejected those unsubstantiated claims. Thus, 

in the preamble to the final 1980 regulations, EPA stated: 

EPA does not agree with the largely unsubstantiated claims of commenters that 

controlling the use and recycling of hazardous waste will necessarily 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 recycle 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 eyes 

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 recycling following EPA regulation).

As EPA explains in the proposed rule, more stringent regulation has spurred increases in 

reuse for three related reasons: 1) increasing costs of disposal, but not recycling, creates a greater 

economic incentive for generators to recycle, i.e. recycling becomes the cheaper option; 2) “[t]he 

economic driver—availability of a lowcost, functionally equivalent or often superior substitute 

for other raw materials—will continue to make [coal ash] an increasingly desirable product; and 

(3) “material inevitably 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 recycling 

and materials recovery rates after a subtitle C regulation.”54 There is no 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 subtitle C would increase their usage in non-regulated beneficial uses, 

simply as a result of the economics of supply and demand.55

This dynamic has played out several times over the past thirty years, and there is no 

evidence to suggest that the basic economic 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 conclusion 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 place would be stigmatized, particularly 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 subject to regulation under subtitle C are used and 

recycled, 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 create a novel stigma in the 

case of coal ash, or that any such a stigma would not be effectively addressed through simple 

incentives and public education. 

i. There is no historical example to support the 

stigma argument

There is no historical evidence 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 

stigmatize 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 

recycling the materials created when we burn coal to generate electricity,” that proclaims to have 

as members the “world’s foremost experts on coal ash,” cannot produce an example.59 In a 

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 ready 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 wastes were recycled 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 precisely 

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 & Emergency Response, EPA, Re: Stigma Studies (Aug. 4, 2009) (EPA-HQ-RCRA-2009-0640-0017).

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

significantly greater amount of electric arc further dust would be diverted from recycling to 

disposal in non-hazardous waste landfills.”63 

EAF, listed as hazardous waste K061, is the byproduct 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 recycled at a rate of 42–51%,65 in products 

ranging from roadbeds to cement.66 Now, EAF is used so often in a variety of applications that 

generation has not been able to keep up with increasingly high demand.67 

In addition to the examples cited by EPA, there are robust recycling markets for many 

types 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, notebook computers, and cell phones, 

were recycled.68 Similarly, in 2007, “approximately 414,000 tons of electronics were collected 

in the US for recycling.69 These high recycling rates continue despite the fact that some of these 

electronics contain high levels of heavy metals and are listed as hazardous wastes when 

disposed. For example, although CRT glass (the video display components in twentieth century

televisions) “typically contains enough lead to require managing it as hazardous waste,” CRTs 

are routinely recycled.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 recycled 

successfully. We agree that coal ash is different but not for the reasons suggested by industry. A 

Subtitle C listing is more likely to encourage recycling of CCRs than other hazardous wastes 

because so much of CCR is generated every year. 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-HQ-RCRA-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), 

available 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 EPA, 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 approximately 176,000 tons constituted 100 percent of CRT 

televisions and monitors collected for recycling). 
116

CCRs will make it cheaper than virgin materials, driving down the costs of recycled products and 

making them even more attractive to end users. As recycled coal ash products out compete 

products made with virgin materials, the recycling marker will continue to grow.

Coal ash is the second largest industrial waste stream in the United States.71 Therefore, it 

can be potentially “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 reuse). 

In contrast, virgin materials typically require mining (as in natural gypsum) 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 thereby 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 any chilling effect on legitimate 

beneficial uses — which it should not — EPA already has addressed the concern by 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 literally affixed to a product, cannot be expected 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 insists 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 

semantics. Industry cannot have it both ways. Insofar as there is a potential stigma problem, it is 

largely about semantics, and the “special” designation is a solution. To the extent the argument 

is about the perception of a sophisticated audience familiar with 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 “any 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-emrsubcom.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 

met 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 word “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-RCRA-2009-0640 at www.regulations.gov for materials submitted 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) (EPA-HQ-RCRA-2009-0640-0017).
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 affirmatively 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 recycling and reuse educational materials 

specifically addressing coal ash, and these programs can serve as an excellent model for future 

federal efforts.76 In the 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 really illustrates is how “discussion and e

allay expressed concerns about the use of coal ash: 

In early 2010, during the design of a parking structure for a public transit 

authority of suburban Minneapolis, SouthWest Transit of Eden Prairie, 

Minnesota, our client directed us to pr

ready-mixed concrete to be used in the project. Specifically cited were concerns 

regarding using a hazardous waste material, expressly Fly Ash 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 

Home, 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 website during the rulemaking process, EPA states 

that it will continue promotion 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 affirmatively 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 recycle household hazardous wastes.

There are even a few existing programs that have recycling and reuse educational materials 

specifically addressing coal ash, and these programs can serve as an excellent model for future 

In the 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 really illustrates is how “discussion and explanation” can 

allay expressed concerns about the use of coal ash: 

In early 2010, during the design of a parking structure for a public transit 

authority of suburban Minneapolis, SouthWest Transit of Eden Prairie, 

Minnesota, our client directed us to prohibit the use of Fly Ash in any of the 

mixed concrete to be used in the project. Specifically cited were concerns 

regarding using a hazardous waste material, expressly Fly Ash 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, “Beneficial 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 website during the rulemaking process, EPA states 

promotion 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 destined 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 affirmatively raise the “green” 

profile of products such as coal ash concrete, which has a smaller carbon “footprint” 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 

cycle household hazardous wastes.75

There are even a few existing programs that have recycling and reuse educational materials 

specifically 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 2010, during the design of a parking structure for a public transit 

authority of suburban Minneapolis, SouthWest Transit of Eden Prairie, 

ohibit the use of Fly Ash in any of the 

mixed concrete to be used in the project. Specifically cited were concerns 

regarding using a hazardous waste material, expressly Fly Ash 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 website during the rulemaking process, EPA states 

promotion of uses deemed beneficial in the future. 2010 Proposed Rule, at 35,187.
118

concrete, on a public project. Only after prolonged discussion and explanation of 

the known behavior of these materials in ready-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 alone 

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, respectively) for 

leachability, off-gassing, and/or other potential environmental or human health concerns 

applicable to the type of use. Clear information for the public about what testing levels are 

considered safe alongside the testing results will effectively address consumer fears, if there are 

any.

In addition, reuse of these products in government buildings, and continued 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 any stigma is quickly overcome. Extensive use of 

products containing coal ash in government buildings and grounds would help assure the public 

that the products do not pose risks that are any 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 already have indicated their willingness to approve the use 

of coal ash products. Professional organizations that set industry standards for performance, 

safety, and environmental sustainability have decided to accept coal ash for uses that meet the 

definition 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 system79 has 

already stated that an EPA Subtitle C designation would not alter their LEED standards. The 

USGBC has publicly stated that “the issues encompassed in the two proposals will not directly 

cause any changes to the LEED rating systems.”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 extremely 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-HQRCRA-2009-0640 (Doc. No. EPA-HQ-RCRA-2009-0640-57721, at 1–2 (Sept. 13, 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 Power 

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 LEED 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 fly ash from its concrete 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 presumably 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 listed as hazardous 

Many industry players engaged in recycling 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 on September 1, 2010, 84 percent of precast 

concrete producers said they would continue to use fly ash even after a Subtitle C listing.84 

Eighty percent also believed EPA could reduce the impact of stigma even from a hazardous 

waste designation with easy measures 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 ready mix concrete producers will continue to use fly 

ash even 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 many recyclers to continue using coal ash even after a hazardous 

waste listing suggests that other industry players are advancing groundless stigma arguments to 

avoid regulation. In any case, the businesses that will continue to use coal combustion waste in 

their products will be motivated to undertake public education efforts of their own in the event 

they are genuinely 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 would remove 

fly ash from the project specifications in its concrete standard if EPA determined that CCRs were a hazardous waste 

when disposed.” However, according to a recent letter from ASTM clarified that ASTM simply meant that standards 

would have to be revised if coal ash was designated as hazardous waste 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 Docket 

(June 26, 2010).

83 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 

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-survey20100901/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 recycled without facing a stigma require significant processing before reuse, such that “in 

virtually all of these recycled product situations, the product is readily distinguishable chemically 

and physically from the hazardous waste used to produce the product.”88 However, the same is 

true of the coal ash products that 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 any resemblance to the constituent fly ash or gypsum. 

Moreover, it is not the case that all other recycled waste products incorporate hazardous 

wasted in a physically or chemically altered form. For example, when an old mercurycontaining light bulb, such as a fluorescent or compact fluorescent light (CFL) bulb, is recycled, 

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 CFLs or other 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 safely encapsulated than coal ash in concrete.90 

The second argument industry makes is that other recycled hazardous wastes are used in 

industrial settings, not residences. They state: “products from recycled hazardous waste typically 

are utilized only in industrial settings, and in situations where both the recycled product and the 

virgin product for which it substitutes are clearly hazardous materials.”91 This is wrong. People 

use products that incorporate hazardous wastes and products that are themselves hazardous 

wastes (upon disposal) all the time and even in their homes. Indeed many of these products are 

designed for household use. Mercury-containing CFL bulbs 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. Notably, lead acid batteries are “the most recycled 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-HQ-RCRA-2009-

0640-0387.1, at 2 (Aug. 7, 2009) [hereinafter “Letter from Industry”].

89 The Lamp Recycling 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.thinkgreenfromhome.com/SafeConvenient.cfm. 
121

with more than 99% of batteries recycled.93 A “new” lead acid battery typically contains at least 

60 to 80 percent recycled lead.94 

 EPA has itself provided a list of household products that would be or contain components 

that would be hazardous waste when disposed95:

 Airflow/fan limit controls

 Antiques

 Appliances (Electric)

 Appliances (Gas-fired)

 Barometers

 Button cell batteries

 Clothes irons

 Electronics

 Gas flow regulators

 Heating and cooling systems

 Jewelry

 Lamps/Light bulbs

 Light switches (Silent)

 Mercury

 Paint (Latex)

 Pesticides

 Plumbing

 Security systems

 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-most-recycled-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 many 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 analysis. 

Again, there is no evidence that stigma has affected the market for any of these everyday

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 vulnerable 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 routinely handled. For these 

and all of the other reasons stated 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 by 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 arguably 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 decision 

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 factors96 are applicable to a threshold determination whether or not to 

regulate CCRs, the factors no longer apply 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 already issued several Reports to Congress.99 Furthermore, EPA already made the 

regulatory determinations required by the statute. First, EPA made a regulatory 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 statutory 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 only 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 Waste 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 recycled 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 Recycling 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 wastes.” 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 failed to make a listing determination, the Hazardous 

and Solid Waste Amendments of 1984108 were adopted as a “further prod”109 to the Agency, 

requiring that EPA “shall propose whether to list or identify [recycled used oil] as hazardous 

waste under Section 6921.”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). Also, 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, 861 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 

waste 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 solely 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 relevant 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 protectively 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 listing 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 determining 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 such material generated per year; 

(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 Waste 

 

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 interpretation 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 provided that EPA “shall ensure that the recovery and reuse of used 

oil are not discouraged,”116 the Bevill study factors require only that EPA consider “the current 

and potential utilization of such materials.” Thus, there is no need for EPA to consider stigma 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 yet 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 factor 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 “fully effective in protecting human health and the 

environment”; and (2) beneficial use plays “a large and salutary role . . . for this waste.”119 In the 

intervening years since the 2000 regulatory determination, it has become apparent (1) that 

federally enforceable regulation of coal ash is essential and that Subtitle D would not be fully

protective of human health and the environment120 and (2) that many 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 and the environment, and that is the 

lens through which EPA is directed to look at the Bevill study factors, including any factor that 

arguably implicates stigma. Congress specifically instructed EPA to “submit a report on the 

adverse effects on human health and the environment, if any, 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 weight 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 recycling 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-R99-010) (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-ToKnow; Addition of Chemicals, 55 Fed. 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. EPA hopes that 

industry, government, and the public will recognize and consider differences in 

degree and type 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 recycled even 

when all announcement regarding permits for facilities managing these materials were required 

to refer expressly to “hazardous waste.”126 EPA explained: 

To avoid conceivable stigmatization, EPA proposed that hazardous wastes that 

are to be recycled be called “regulated recyclable 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 to 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 mad 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 befall 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, &266). 

127 Id. at 646.
127

of BSE diagnosed in a Washington 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 USDA. 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 

arguments. 

3. Subtitle C Regulation is Needed to Prevent Uses of CCR that Endanger 

Human Health and the Environment. 

While subtitle C will not discourage truly beneficial uses for all of the reasons discussed 

above, it should have the salutary effect of 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; yet electric utilities and recyclers are increasingly relying 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 tons) 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 have 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 % 

Change 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

Flowable 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): 

American 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. 

American 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 formerly-labeled “beneficial” reuses (e.g. Gambrills, Maryland) but 

nonetheless stated that regulation of even unencapsulated uses 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 by 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 identified. Our analysis 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 Integrity 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 which 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/news_reports/documents/OutofControlMountingDamagesFromCoal9AshWasteSites.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 EIP & Earthjustice, Out of Control 

Report (Feb. 2010)

13 NC Swift Creek Structural Fill 

Site

Structural Fill EIP & Earthjustice, Out of Control 

Report (Feb. 2010)

14 PA Bangor Quarry Quarry EIP & Earthjustice, Out of Control 

Report (Feb. 2010)

15 TN Trans-Ash, Inc. – CCW 

Landfill

Former Gravel Mine EIP & Earthjustice, Out of Control 

Report (Feb. 2010)

16 IL Joliet 9 Lincoln Stone 

Quarry Landfill

Former Quarry EIP, Earthjustice, & Sierra Club, In 

Harm’s Way (Aug. 2010)

17 LA Big Cajun Barge Mooring 

Facility Out of Coal 

Ash

EIP, Earthjustice, & Sierra Club, In 

Harm’s Way (Aug. 2010)

18 OH Industrial Excess Landfill 

Superfund Site

Former Sand and 

Gravel Quarry

EIP, 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 radioactive133) 

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 Recycling,” states:

[W]hile hazardous waste recycling is not an inherently 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 

recycling may thus involve two different sets of activities. First would be a 

reduction in waste mismanagement that result from hazardous waste recycling, 

which would increase the social benefits and lower the social costs of recycling 

operations (e.g., reduce leakages, spills). Second would be cessation of activities 

that occur under the guise of recycling but have little or no benefits and large 

costs, such as “sham recycling.”134

The balance of this section will help provide 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 

already 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 in uses of fly ash, bottom ash, and boiler slag from 2001 to 2008135. 

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/coalplant.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-thannuclear-waste; U.S. Geological Survey, Radioactive Elements in Coal and Fly Ash: Abundance, Forms, and 

Environmental Significance (Fact Sheet FS-163-97), available at http://pubs.usgs.gov/fs/1997/fs163-97/FS163-97.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 

practices such as extraction; and meets relevant product specifications and 

regulatory standards (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 recently rebuked by 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 by EPA, 

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 In addition, Commenters the Environmental Integrity 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 fly 

ash to contour this golf course without a liner.141 EPA acknowledges that “concentrations of 

arsenic, boron, chromium, copper, lead and vanadium detected 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 Levels (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 Policies, Report No. 11-P-0002 (Oct. 13, 2010), available at

http://www.epa.gov/oig/reports/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 why 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 systems must take additional steps.”143 There were 

55 residential samples taken,144 so 6 samples with lead exceedances 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 certainly 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, lead 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 onsite groundwater all exceeded MCLs, 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, nearly 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 system was subsequently installed in 

2008. This is yet another example showing that structural fills must be stringently regulated, and 

that all unencapsulated “uses” previously or currently deemed beneficial must be subject to a 

strict monitoring system 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 Golf 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 xiv, 46–49 (Feb. 24, 2010), available at 

http://www.environmentalintegrity.org/news_reports/documents/OutofControlMountingDamagesFromCoalAshWasteSites.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.org/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 MCLs.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 any 

RCRA regulation (and also exempted from any monitoring requirements), the monitoring that 

was done at this site to reveal the pollutant exceedances would likely 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 justified extensively in the literature on beneficial reuse and by the damage 

cases that have occurred already 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 already been at least thirteen damage cases caused by 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 pursuant to Subtitle C of RCRA.

BBBS Sand and Gravel Quarries in Gambrills, Maryland148: 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 extremely 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 by EPA as a proven damage case after MCLs were exceeded in 34 residential 

wells “[arsenic (1), beryllium (1), cadmium (6), lead (20), 173 and thallium (6)]” and “SMCLs 

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 Maryland 

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 MCLs, 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/OutofControlMountingDamagesFromCoalAshWasteSites.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-constellation. 
135

administrative 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 MCLs, 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. Rezendes 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

MCL in groundwater, and is another example of why unencapsulated uses are not beneficial 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 only 

licensed “for disposal of inert fill materials including soil, concrete, and brick” caused 

exceedances of the State health-based standard for lithium off-site and exceedances on-site 

including exceedances of the MCL for 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 selenium in residential wells off-site; sulfate above the secondary MCL and vanadium were 

also found in high levels off-site; arsenic, beryllium, chromium, copper, molybdenum, nickel, 

vanadium, and selenium were also found “above background levels” in on-site groundwater.153 

WEPCO Cedar-Sauk Landfill, Wisconsin: Coal combustion waste placed in this 

abandoned sand and gravel pit caused selenium to exceed the MCL in 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 In addition, this was deemed “one of the most seriously affected coal ash sites in the 

State” caused sulfate, 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 nearby 

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 permitted as a sanitary landfill, and fly ash and bottom ash were used for cover. 

The site caused the “seepage of landfill leachate onto adjacent property,” with VOCs found in 

residential wells off-site and cadmium and lead found in off-site river water. The site 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, 

Pennsylvania158: Groundwater concentrations in downgradient wells at this quarry exceeded 

primary and secondary MCLs for arsenic, aluminum, fluoride, boron, iron, manganese, sulfate, 

and total dissolved solids (TDS), and the site operator’s consultant conceded that the landfill is 

responsible for the degradation. In addition, two NPDES permitted outfalls discharged 

concentrations of boron, cadmium, hexavalent chromium, and selenium into Brushy 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

MCL for 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 MCLs 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 MCLs 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 nearby residential 

areas).160

Joliet 9 Lincoln Stone Quarry Landfill, Illionois161: 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.org/news_reports/documents/OutofControlMountingDamagesFromCoalAshWasteSites.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, IEPA issued a 

Notice of Violation citing 50 exceedances of groundwater standards for arsenic, barium, copper, 

and molybdenum. Arsenic has exceeded the MCL by up to 8.3 times and molybdenum had 

exceeded the federal Lifetime Health Advisry by 70 times in 2 off-site monitoring wells. 

These numerous examples of the harm caused by 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 merely disposal in disguise, and 

must be regulated stringently under Subtitle C of RCRA to prevent the risks they pose of 

contaminating groundwater, surface water, and ecological systems 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. All 

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 commonly 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 surface 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 standards162 to regulate this 

extremely dangerous 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 

preamble 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 

Analysis”), 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 

Analysis’s conclusion that “There were no exceedances for this scenario. Further, there were no 

risks in excess of 1E-7 nor any 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 to raise 

concerns from a human health and environmental point of view. EPA’s risk 

assessment estimated 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 that none of the identified beneficial uses warranted federal 

regulation, because ‘‘we were not able to identify damage cases associated with 

these types 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 22, 2000.) EPA also cited the importance of 

beneficially using secondary materials and of resource conservation, as an 

alternative to disposal.163

Thus, EPA decided in 2000 that no beneficial uses 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 gypsum in agricultural applications must be regulated like a landfill 

and will not meet the definition of “beneficial use.”164 Specifically, EPA states that “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) . . . 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 gypsum in agriculture,167 guidance is insufficient to ensure 

compliance before the crops grown in that gypsum soil enter the stream of commerce, and new 

research (see discussion infra) concerning agricultural uses makes identification of a “safe” level 

unlikely. 

There are new data and analyses on the leachability of pollutants in FGD gypsum and fly 

ash (two commonly used types of coal ash for agricultural uses) and the risks posed by these 

agricultural applications (as well as by 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 leachability of 

pollutants such as arsenic and cadmium from FGD gypsum and fly ash, and the possibility that 

these leached metals would be absorbed by 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 OSWER, 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 “excess,” 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 gypsum 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 variety 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 regulate all 

agricultural applications of coal ash pursuant to RCRA’s subtitle C. 

FGD gypsum, also known as “synthetic gypsum” or “scrubber waste,” is the byproduct of 

the use of FGD systems or “scrubbers” to reduce emissions of air pollutants such as sulfur 

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 

gypsum has the same chemical make up as mined gypsum— calcium sulfide dehydrate, or 

CaSO4·2H2O— it has been used as a replacement for mined gypsum in many applications, 

including use as an agricultural amendment.170 

Agricultural applications of FGD gypsum and fly 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 gypsum 

has several 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 soils; and reducing migration of 

nutrients and sediments to surface water.172 However, a non-beneficial consequence of 

amending soils with FGD gypsum is that, in addition to the calcium, sulfate, and other pollutants 

 

168 Proposed Rule, at 35,163. 

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 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,

and Table 1. 

172 Id. 
140

that can be beneficial to soils in controlled quantities, the toxic pollutants in the gypsum are also 

being absorbed by 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 unencapsulated uses. For example, EPA continues to cite to the 1998 Risk Analysis 

as proof that agricultural applications do not pose risks higher than 1×10–6despite the flaws in 

the study and despite new evidence calling that study’s accuracy into question. For example, the 

1998 Risk Analysis states: 

Because the FBC waste material is directly applied 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 impacted media. It was 

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 fundamentally flawed. In the 1998 Risk Analysis, 

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 impacted media.” CITE ask Lisa 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 times the “average” field size can place 

100 times quantity of pollutants into a receiving stream or lake. Deposition of these 

heavy 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 

would likely be insignificant. Therefore, it was assumed that risks would be driven by other 

pathways and thus inhalation risks were not evaluated for this analysis.”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 (FFC2), 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 Analysis on this point ensures an underestimation of risk to 

environmental and human receptors.

Furthermore, EPA has not revised its 1998 Risk Analysis 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 discussion 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 Analysis 

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, 

specifically, “can leach [selenium] and [arsenic].” 178 The study further presented a critique of 

EPA’s assumption that industry will adhere to management standards that promote low 

leachability because large quantities of coal ash are inherently necessary to achieve the intended 

benefits of this use. Specifically, EPA’s 2007 study states that a disadvantage of using coal ash 

for soil amendments 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; yet “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 applications are truly 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 by previous tests such as the TCLP test.181 See Section II.D.a, 

supra, for a complete analysis 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 (emphasis 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 Proposed Rule was published in the Federal 

Register), showing drastically higher leach rates than the TCLP test previously relied upon by 

EPA and industry. The results of EPA’s study showed that FGD gypsum and fly ash, the 

primary and secondary type of coal ash used in agricultural applications, respectively, both leach 

toxic and other coal ash pollutants, including antimony, arsenic, boron, cadmium, chromium, 

molybdenum, and selenium, at levels that greatly exceed MCLs

183:

Table ES-3. Leach results for 5.4 ≤ pH ≤ 12.4 and at “own pH” from evaluation of twenty FGD 

gypsums.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 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.

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 attenuation 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 gypsum, these results reveal that selenium leaches at up to 16,000 μg/L, 50 

times the MCL and 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

addition, 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 leaches 

up to 330 μg/L, 55 times higher than the primary MCL. FGD gypsum leaches molybdenum 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 Advisory. 

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 MCL and 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 the 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 29,000 μg/L, exceeding the MCL of 50 by a factor 

of 580 and exceeding the hazardous waste threshold (1,000 μg/L) by 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 64 times the MCL; lead leaches at up to more than 2.3 times the 

MCL; molybdenum 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 by EPA.188

b. The Toxic Pollutants That Leach 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 by crops, 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 

yields up to 70% and found no groundwater contamination or fertility decline in three years. 

 

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 of other types of coal ash such as fly 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 fly ash have been shown to be 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. Highly phototoxic elements often 

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 toxic to plants and may be 

concentrated in plant tissue at levels that cause toxicities in grazing animals. Soils 

amended with high rates of fly ash may accumulate enough Mo to potentially 

cause molybdenosis in cattle (Doran and Martens, 1972; Elseewi and Page, 

1984).191

Even EPA’s 1998 Risk Analysis, which EPA is now relying 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 taken 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 nearby streams193:

 

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, Agricultural 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 Depiction 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 (Peralta-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 by reuse of FGD gypsum and 

other types of coal ash for agricultural applications, and the proven migration of toxic pollutants 

from FGD gypsum 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 roads in their communities, yet 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 systems and groundwater, has been proven not to accumulate to 

 

194 Id. at 22. 

195 Sanchul Hwang et al., Phaselous vulgaris Growth under 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/files/2008_ACAA_CCP_Survey_Report_FINAL_100509.pdf. 

197 2010 Proposed Rule, at 35,163.
146

concentrations that would 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 system, leachate collection system, or other protection associated with this use. 

Furthermore, 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 must 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 fly 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 Safety 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 recycled 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 incorporated 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 reasonably 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., Novetas Solutions LLC, EPA Coal Combustion Residuals Public Hearings (Oct. 27, 

2010) 

http://www.newageblastmedia.com/EPA%20CCR%20Public%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 additional ash must be treated like 

any other new placement of coal ash, especially 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 

systems (“air pollution scrubbers”) created to reduce mercury emissions. The New York State 

Department 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 

concentrated 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 been negated.206

These findings were recently corroborated by 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 study, which tested many real coal ashes from several 

power plants, found that “virtually all of the metals tested were volatilized when exposed to a 

temperature of 1450oC,” 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 extremely 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 widely considered safe by those in the beneficial reuse industry and by

government organizations, some studies are beginning to question whether “synthetic gypsum” 

 

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 Research & 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, Thermal Study”], available at 

http://www.epa.gov/nrmrl/pubs/600r09152/600r09152.pdf. 
148

wallboard may cause elevated mercury releases. FGD gypsum panel products were the fourthlargest reuse of coal ash in 2008, with 8,533,732 short tons of FGD waste recycled into panel 

products, representing more than a 37% increase from 2001.208 However, one study found that 

flue gas desulfurization (FGD) gypsum plants can release 1,000 pounds of mercury annually or 

more, the equivalent of 1% of 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 gypsum in wallboard found that 

the non-mercury metals are less likely to volatize (and more likely to be retained in the FGD 

gypsum), 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, the 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 by the “beneficial use” exclusion.

iii. Mineral filler in asphalt

Using bottom ash (257,806 short tons in 2008) and a relatively 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 volatilization 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-furnace SCR [selective catalytic reduction] design. This design type 

necessitates that the fly ash come in contact with the SCR catalyst 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 subject 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

Incorporating fly ash into concrete is considered the safest beneficial reuse by EPA, and 

we agree. In addition, using fly ash in concrete affords other environmental benefits such as CO2

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 only metals that showed any significant leaching trends in the 

tests. Arsenic showed a correlation between the metal content in fly 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 often 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 aggregate, did not achieve the target strength requirements of 1000 

psi in 3 days.”215 However, mixing the bottom ash with percentages of fly ash216 and other 

methods are leading to use of this product, in the amount of 720,948 short tons ash per year for 

concrete/concrete products/grout (although this use was down almost 59,000 tons as compared to 

2001).217 Levels of heavy metals in bottom ash have been tested to be detectable, “[t]he ashes 

were analysed for the presence of Cr, Mn, Pb, Zn, Cu, Ni and Co and detectable 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. Risks and Damage Case

The use of bottom ash and other types 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 as uncovered roads, led to the town being 

declared a Superfund Site after levels of boron, molybdenum, 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 Malhotra, 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://www.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 Energy 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 standards). 

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-threethermal-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 Pennsylvania publication suggests that FGD gypsum “can be used by itself or in a mixture 

with natural gypsum in manufacturing plaster of Paris, gypsum wallboard, roof tiles, cements, 

fillers for paper, paints, toothpaste, blackboard chalk, lipstick, Epsom salts, and many, many 

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 

subject 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 environmental risks. Minefilling was deemed unsafe when the National 

Academy 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 safeguards like a liner, and, accordingly 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.” 

Unfortunately, unsafe reuse practices have been increasing. For example, “mining 

applications”— the controversial practice of minefilling that can place toxic constituents in direct 

contact with the water table — has increased by 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; and HGTV Pro, 

http://www.hgtvpro.com/hpro/di_kitchens/article/0,,hpro_20172_3456203,00.htm. 

222 Bureau of Topographic & Geologic Survey, Pa. Dep’t Conservation & Natural 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 Waste 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 million tons in 2008.226

In addition, a recent article co-authored by EPA staff explains that increasing air 

pollution controls in the coming years will cause more coal ash to be generated and cause the 

coal ash to be more highly concentrated with toxic pollutants, making coal ash increasingly more 

toxic. The article explains that the “annual amount of coal combustion residues (CCRs) 

generated is expected to grow with increasing demand for electricity 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 is projected to be equipped with SCR 

and/or FGD technology by 2020 (5, 6). The current practice of seasonal use of 

postcombustion NOx control will likely be extended to year-round 

implementation. In addition, coal-fired power plants, the largest source of 

anthropogenic Hg emissions in the U.S. (7), will likely expand the use of 

activated carbon injection (ACI) (8-10) to reduce Hg stack emissions. 

Changes in APC technologies will result in a greater amount of residue generated 

for each unit of electricity produced and an overall increase in the total content of 

Hg and other hazardous air pollutants in fly ash, FGD residues, and other APC

residues (3, 8). The mobility of metals may be 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, pyritic coal rejects from coal 

washing or high-sulfur coal rejects (11-14). Also, APC residues may be 

comanaged with residues, boiler slag, bottom ash, and other wastes from electric 

utilities (11, 15). Emerging APC technologies are likely to create new APC 

residues to be managed such as spray dryer ash or spent sorbents from Hg or 

postcombustion NOx control technology (11).227

The same EPA study 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 benefits, that is not reason to exempt 

all reuses from disposal regulations as “beneficial uses.” Only 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 CoalFired 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 CO2 emissions 

reductions should be deemed beneficial. Notably, only a small number of reuses have been 

demonstrated to have positive CO2 reduction benefits— replacing Portand cement with fly ash, 

and using fly ash in brick. EPA should not allow other more dangerous uses ride on the coattails 

of concrete 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 exclude 

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 beneficial 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 standards (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.229

This definition fails to exclude: 1) excessive applications/use of coal ash in the reuse method as 

would be determined by EPA; 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 excessive 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 define “beneficial use” more narrowly: (1) to provide clear mechanisms for 

regular and long-term EPA-mandated monitoring and analyses 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 yet be known due to unavailability of data, imperfect analyses, or failure to test products in a 

manner that reliably detects leachability, off-gassing, or other 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 unsafe reuses. A report co-authored by EPA 

acknowledges that “[c]urrrently, 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 year that have been deemed unsafe by EPA but which nonetheless 

have product standards promoting them by 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 physical, 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 disposed 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 duty 

to revise such criteria and regulation from time to time, as may be appropriate.

233

 In addition, 

section 3001(b)(1) states that the Administrator 

[S]hall also identify or list those hazardous wastes which shall be 

subject to the provisions of this subtitle solely because of the presence 

 

230 Susan A. Thorneloe, EPA, et al., Evaluating the Fate of Metals in Air Pollution Control Residues from CoalFired Power Plants, 44 Envtl. Sci. Technol. 7,351, 7,351 (Aug. 31, 2010), available at

http://pubs.acs.org/doi/pdfplus/10.1021/es1016558. 

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

Coal combustion residues, because of their quantity, concentration, and chemical 

characteristics, may cause or significantly contribute to an increase in mortality or an increase in 

serious irreversible or incapacitating reversible illness and may pose a substantial present or 

potential hazard to human health or the environment when improperly 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 mortality 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 by EPA, EPA’s Office of Research and Development, and numerous public interest 

groups.236 Many of the findings of these reports have already been discussed in detail in these 

comments. Further evidence supporting a hazardous waste listing is discussed below.

B. CCR meets the regulatory 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 Pathways, 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 Coal 

Combustion 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 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 proposed rule, EPA considered the eleven factors in making the 

proposed special listing decision and definitively 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 In fact, 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 EPA 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 assessments in many significant ways underestimate the risk posed by 

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 

application of the criteria. We agree with EPA’s assessment. 

For the same eleven factors, nevertheless, we provide comment when we find that EPA’s 

analysis 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 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); U.S. EPA 1998, ‘‘Draft Final Report: Non-groundwater Pathways, 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 Coal 

Combustion 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 Risks 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 by 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 

petition by attaching the petition to these comments as Attachment 8. Earthjustice, Sierra Club, Environmental 

Integrity Project, et al, Petition for Rulemaking 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, filed July 10, 2009.
156

“Based on the information in ASTDR’s Tox FAQs, EPA’s IRIS system and 

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

Specifically, 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, selenium, silver and thallium. 

EPA’s 2010 Risk Assessment found that many 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-disposed 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 underestimated 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 VIII 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 

currently documented. 

In addition, it is also worth noting that coal combustion residues may contain a variety of 

additional toxic constituents listed in appendix VIII such as dioxins and polycyclic aromatic 

hydrocarbons (PAHs).249 The presence particularly of PAHs in CCR may pose risk to human 

health and the environment. PAHs form during the combustion of coal and adsorb onto fly ash 

particles.250 Lastly, 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), available 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 concentration 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 improperly managed, they could 

leach out and pose a substantial present or potential hazard to human health or the environment 

when improperly 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 these metals are present at many 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 by 

EPA in their Damage Case Assessments253 and by Environmental Integrity 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 common 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 appendix 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 found 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 Case 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 Coal Combustion 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 metals
3. 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 pathways when 

mismanaged. 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, thereby creating risks to human health and the environment.256

EPA explains 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 pathways 

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 findings 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 by EPA and suggest additional 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 by antimony, arsenic, barium, cadmium chromium, lead, nickel and thallium. The 

highest risk found by EPA 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 assessment 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 In many instances the level 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#tocat 50 and 75 Fed. Reg. 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 synthetic liner.261 The prevalence of unlined CCR disposal sites 

both wet and dry greatly facilitates the migration of metals from CCR. The table below, 

summarizing the data in Appendix F, indicates the number of appendix viii constituents found in 

the 137 damage cases.

Parameter 

EPAa

Damage

Cases

Out of 

Controlb

Damage 

Cases

In Harm's 

Wayc Damage 

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

Zinc 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, 2010).

EPA must also consider the evidence, amassed over the last ten years by 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 behavior are 

discussed in both in EPA’s preamble to the proposed rule262 and section III.C.1, supra. Given 

the demonstrated propensity of toxic constituents, such as antimony, arsenic, barium, cadmium, 

chromium, molybdenum, 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 section 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. 35139-35142
161

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, particularly under conditions of changing pH263 and the prevalence 

of unlined and poorly lined disposal units, it is clear that CCR poses “a substantial present or 

potential hazard to human health or the environment when improperly 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 surface impoundments 

co-disposing of CCR and coal refuse presented a risk of cancer from arsenic in recreationally 

caught fish above the benchmark, as did unlined surface impoundments containing CCR alone. 

Hexavalent selenium was estimated to result in exposures at least 3 times the reference dose and 

2 times the reference dose from unlined and clay-lined surface impoundments, respectively.

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; Brandy Branch Reservoir, Texas; Welsh Reservoir, Texas; Savannah 

River Project, South Carolina, Belews Lake, North Carolina; and Hyco 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 fish are likely to be the tip of 

the iceberg. Many 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 In addition, a recent peerreviewed study of the TVA spill area at the 18-month mark concludes that sediments and the 

pore water in those sediments remain highly 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), available 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 

Assessments (July 9, 2007); 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 degree 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 

ecosystems, including death, genetic deformities and injury to reproduction systems of aquatic 

organisms in water bodies contaminated by coal ash surface impoundments.269

EPA’s 1998 “Non-Groundwater Pathways, Human and Ecological Risk Analysis for 

Fossil Fuel Combustion Phase 2” (hereinafter 1998 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 should be assessed, but focusing solely 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 analysis 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 hydrological unit in order for a selenium risk assessment to be realistic. EPA’s 

1998 and 2010 analyses 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 water bodies near CCR impoundments,"271 and lists 

three examples (Lemly 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 wildlife 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/ special/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 

impoundment damage cases (Belews, 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 ecosystem damage from coal ash 

contaminants in their 2006 report. The NRC includes a summary of those adverse impacts in 

Chapter Four 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 impoundments 

or downstream habitats. Contaminants originating in CCRs enter food chains by

a variety of mechanisms. These mechanisms include direct uptake by plants, 

epithelial accumulation by organisms in contact with the sediments and/or 

porewater (e.g., benthic 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

Specifically, the NRC identifies diverse physiological injuries to organisms from exposure 

to CCR that harm growth, survival and reproductive success. The NRC points out that young 

fish and amphibians are particularly 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 repeatedly been observed in organisms exposed to CCRs or CCR 

effluent. Decades of study of fish populations in North Carolina and Texas 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 

adversely affected in streams receiving surface impoundment effluent. Such changes in 

invertebrate composition can have widespread environmental implications, including changes in 

nutrient and energy cycling 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 ecosystems were harmed. 

 

273 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 74.

274 Id. at 75.

275 Id. at 76.
164

d. Particulate matter inhalation

Although EPA’s 2010 Risk Assessment did not consider risk from inhalation of fugitive 

dust at coal ash disposal and reuse sites, EPA did conduct a screening level analysis 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 determined 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 the 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 quarries, 

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 yet documented. Despite 

the lack of data at these mostly unmonitored sites, EPA 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 

byproducts), and bioaccumulative. Among these are selenium,276 mercury, lead, chromium, 

cadmium, copper, nickel, zinc, silver, and arsenic. The toxicity and bioaccumulation of these 

elements in aquatic life, especially fish, has been well known for many years, and has been 

summarized repeatedly. 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 called 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, Illinois sites.281 At the 

Montville site, disposal of CCR stopped in 1971, yet almost 40 years 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. Lewis 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. Powell, D.A. Clark and C.J. Paul. 1991. Colloidal-Facilitated Transport of Inorganic 

Contaminants in Ground Water: Part II. Colloidal Transport. EPA/600/M-91/040.

281 See Appendix F
165

years after disposal, an arsenic contaminant plume extends 400 feet east of the old ash ponds 

with concentrations as high 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, beryllium, 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 improperly 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 continue 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 by 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 

selenium, readily bioaccumulate in aquatic ecosystems and at levels that are toxic for fish 

(Sorenson, 1991).286 Selenium leaching from CCR tends to be in the form of, or readily becomes 

transformed into, selenates and selenites, which are highly toxic because they are readily

assimilated by organisms. Appendix I to these comments contains considerable detail describing 

the harm to aquatic ecosystems arising from selenium contamination from CCR disposal sites at 

the Belews Lake, Roxboro, and Mayo sites in North Carolina; 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 annually is over 23 times larger than the entire universe of hazardous waste generated 

each year 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 Impacts 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 likely to allow deadly 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 year. To qualify for listing, section 261.11(c)(viii) only requires the showing of “plausible 

types of improper management to which the waste could be subjected.” (Emphasis added.) For 

coal ash, this criterion is exceeded by leaps and bounds—EPA has not only documented a 

nationwide inventory of CCR dumps where the waste is currently being mismanaged, it has 

documented a continuing trend of mismanagement, evident in damage cases and newly 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 by CCR reuse is described in detail in preceding sections of these comments. Given the 

quantity of CCR generated annually, 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, currently 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 types of mismanagement, common to past and current CCR disposal and reuse, have 

been found by 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 consult 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 claylined surface impoundments, particularly 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, molybdenum, 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 Battlefield golf course and see also http://hamptonroads.com/2009/08/lawsuitclaims-dominion-saw-golf-course-coal-ash-dump and http://hamptonroads.com/2009/05/dominion-kept-7yearsecret-fly-ashs-environmental-risks.
167

nitrate/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 Value1 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 surface impoundments
Chemical 90th Percentile HQ1

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 greatly 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, respectively. 

From EPA’s 2009 Information Collection Requests (ICR), 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 ICR 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 ponds were built in or before 1995. Therefore, by 

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 only clay or a single liner—and 

both are inadequate to prevent migration of contaminants and sufficiently reduce risk.295

Only a small percentage of the lined surface impoundments will have composite liners, 

because only 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 likely to 

have safeguards. As has been noted earlier, EPA’s data reveal that the largest and highest coal 

 

291 See Information 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 that 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 

Impoundments, 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 dams. 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.

 Eighty-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 

obvious that the great majority of the tallest and highest capacity coal ash impoundments –

arguably the most dangerous units-- are unlined.

Further, according to the 2010 Risk Assessment, EPA found only “the composite-lined 

units ... effectively reduced risks from all pathways and constituents below the risk criteria.”298

Therefore, since the great majority of surface impoundments, especially the larger ponds and 

higher dams, are unlined, the “plausible mismanagement” of CCR in ponds is a certainty and, as 

EPA has calculated, the risk is great that appendix VIII constituents will migrate from the 

inadequately lined ponds.

In addition to the fact that the majority of CCR surface impoundments are unlined or 

inadequately lined, it must be noted that the majority of these ponds also do not have 

groundwater monitoring or leachate collection systems. In 2000, EPA estimated that 62% of 

operating surface impoundments did not have groundwater monitoring.299 Information 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 In addition, the report also found that only 19 percent of the permits 

for the newly permitted surface impoundments contained groundwater protection standards.301 

Thus the risk posed to health and the environment by the hundreds of unlined and inadequatelylined CCR surface impoundments is conflated by the absence of monitoring systems that might 

identify 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 

Impoundments, 1994–2004 (Aug. 2006) at 30.

301 Id. Groundwater protection standards are contaminant concentrations in groundwater that cannot be exceeded. 

They can include primary and secondary drinking water standards, background concentration levels, and preventive 

action limits.
171

Lastly, surface impoundments, of course, also pose significant harm from spills, both 

large and small. Section VI.A, infra, discusses the frequency of spills, the aging 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 

specifically 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 underlying 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 partly responsible for the 

contamination of groundwater that eventually resurfaced and impacted nearby 

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 many 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 rarely lined 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 Plains Justice, Iowa Coal Combustion Waste Disposal Report, (November 2007), available at 

http://plainsjustice.org/coal-combustion-waste-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 

waste 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 Freetown, Massachusetts described in EPA’s Coal Combustion Waste 

Damage Case Assessments at 38.
172

iii. Unlined CCR landfills

EPA estimates that there are over 337 currently operating CCR landfills.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 landfills 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 Assessment, the Agency concludes that only 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 concerning 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 systems. Again, EPA has 

few data on the exact number that employ this safeguard. The fact that 30 of 37 states, as 

described 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 Landfills.” The screening assessment acknowledges 

significant potential harm from fugitive dust. Specifically, 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 CCRgenerating states do not require daily 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 

Impoundments, 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

fugitive dust controls places residents near the dump sites at great risk.314

Harmful levels of fugitive dust are not only a problem at coal ash disposal sites. At coal 

ash reuse sites, such as structural fill projects where large amounts of ash are placed, fugitive 

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 structural 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 minefilling was the third largest application at over 10 million tons a 

year.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 

designed, 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 nearly 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 have liners 

(almost none will have a composite liner) and groundwater monitoring. In addition, older dams 

are far less likely than newer dams to be designed by a professional engineer (P.E.). Only 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 impoundments 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 locations

EPA’s Regulatory Impact Analysis surveyed 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 similarly quantify the number of CCR disposal units in proximity to the water 

 

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

Environment, December 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 woman 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 wore 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 was 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 karst 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 regulations reviewed in 2000 by EPA, only 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, only five states had location restrictions 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 exposes 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 prevent 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, only five states of the 25 state regulations reviewedhave location restrictions 

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. Lastly, 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 by 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 year 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 continued 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 Power’s Plant Bowen, 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 generated 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 year.323 Annual 

generation 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 by annual national generation is important, an examination of 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 considering 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 year. Over the course of 

50 years, 50 million tons may be disposed at some sites. If this waste was not properly and 

securely 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 already disposed and the environment is already 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 many places in these comments, we describe the nature, severity and scope of damage 

to human health and the environment from mismanagement of CCRs. Section III.D, supra, 

describes the 137 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 conclude 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. xx
176

x. Action taken by other governmental agencies or 

regulatory 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 

constituents. 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 timely 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 

effectively and comprehensively addressed the CCR release noted. Each listing is an indication 

only that a governmental action was taken. The existence of these actions, which include the 

listing of CCR dumps on the Superfund National Priority List, alternative superfund actions, 

state superfund cleanups and federal and state enforcement orders, reinforce the fact 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.
State Site Owner Action Taken (Y/N) Source

IN

Town of Pines: Yard 

520 Landfill Site 

(Brown’s Landfill) 

Northern Indiana 

Public Service Corp. 

(NIPSCO)

(Federal Action) EPA and the responsible parties 

signed an Administrative Order of Consent effective 

January 2003 under CERCLA to cover costs of 

connecting the affected areas to city 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 onsite exceedances of non-health-based standards for 

total dissolved 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 

NPL list, 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 Facility 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 water migration, and sequestration of 

pyrites.

1

ND R.M. Heskett Station

Montana-Dakota 

Utilities

(State Action) According to the NDDOH, the State 

required the company “... to install ground water 

monitoring wells and implement a closure plan.

1
178

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

PPL Martins Creek 

Power Station PPL Generation, LLC 

(State Action) State enforcement action taken by 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 water 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

WI Power & 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.

1
179

State Site Owner Action Taken (Y/N) Source

SC

SCE&G Wateree 

Station

Included 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 Hyman Budoff / Merle 

& Charles Kittinger (Federal Actions) Numerous Actions taken 

3

Citation Key

1 EPA Damage casea

2 Out of Controlb

3 In Harm's Wayc

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, 2010).
xi. Such other factors 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, 

molybdenum, nitrate/nitrite, strontium, sulfate, vanadium and zinc.328 All of these constituents 

pose health threats that are documented by the Agency for Toxic Substances and Disease 

Registry (ATSDR) ToxFAQs, the EPA Integrated Risk Information System (IRIS), and the 

Toxicology Data Network (TOXNET) of the National Institutes of Health. While EPA notes 

that these constituents do not provide an independent 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 synergistic effects to 

the Appendix VIII constituents.”329 We concur, but posit that health impacts from the above 

constituents should be considered whether or not they act synergistically with appendix VIII 

constituents. As seen in the ATSDR and EPA profiles, these constituents pose severe health 

impacts independently 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 

subtitle 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, only 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 sanitary landfills and which shall be 

classified as open dumps. These criteria constitute the subtitle D regulations for disposal of nonhazardous solid waste.333

 Section 4004(a) establishes the standard for these criteria as follows;

[a]t a minimum, such criteria 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 proposed 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 

regulations 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

Overarchingly, there is no subtitle D criteria 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 by state regulatory agencies to regulate the disposal of 

these wastes in any reasonably effective manner 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 by EPA 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 exceedingly straightforward. For example, for the key

groundwater protection standard in section 257.3-4, a violation occurs when the 

groundwater exceeds a specified MCL beyond 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 enforce this regulation. 

 

332 42 U.S.C. § 6972.

333 As EPA 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 waste 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 processes to determine which 

facilities are ‘‘open dumps’’ and which are ‘‘sanitary landfills.’’ EPA has in practice defined the two 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 complex 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 rely 

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 

effectively 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 considerably 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 differences 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 spelled out in EPA’s 

Regulatory Impact Analysis with great specificity, 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 toxic 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 adopt 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 distinction between allowable sanitary landfills 

and prohibited open dumps becomes meaningless. 

In fact, EPA has greatly underestimated projected state noncompliance. Applying 

EPA’s own yardstick that states not currently requiring groundwater monitoring at 

surface impoundments “would not change their practices simply 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.

Lastly, 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 enforcing 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.
183

disposal across the country, it would be impossible to achieve effective enforcement at 

the scale that is needed 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 it 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 subtitle 

D criteria that now apply 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 comply with section 4004(a) criteria and that additional regulations under 

subtitle D are warranted. However, the regulatory scheme EPA proposes eliminates the 

few key protections that apply now. The groundwater protection provision currently 

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 entirely 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 deadly contaminants into groundwater, and these dumps 

remain in compliance until there is a “statistically significant” increase in a listed 

parameter that is voluntarily reported by 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, namely 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 corrective measures within 90 days 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 company moves quickly enough or resolves the problem in the end. 

Lastly, EPA is proposing another fundamental change in the subtitle D regulatory

scheme that will significantly weaken groundwater protection. Section 257.3-4(a) 

currently prohibits the contamination of an aquifer, defined as “a geologic formation... 

 

340 40 C.F.R. § 257.3-4 and 42 U.S.C. § 6945(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 yielding 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 depend on groundwater for drinking or 

agricultural use, who may not have access to a public water system, 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 sites documented by public interest groups, 

reveals many 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 disregard for the safety of small communities 

certainly 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 deficiencies 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 authority to impose land disposal restrictions 

(“LDR”) under subtitle D, and therefore cannot impose a ban on surface impoundments. 

EPA argues that the practical 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 by 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 danger 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 any 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 facility 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 liable party 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 financial 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 requirements 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 party 

to the taxpayer 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 by EPA’s 2003 “Enforcement Alert,” which 

specifically addresses RCRA financial assurance requirements.348 The Alert called financial 

assurance requirements a “fundamental compliance obligation” and stated the “failure to comply 

with financial assurance requirements puts human health and the environment at risk.”349

At least one court has recognized the important role played by 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 (4th Cir. 2001). The Court explained:

The incentive for safety is obvious: the availability and cost of a bond will be tied directly to the structural 

integrity of a facility and the soundness of its day-to-day operations. When the EPA promulgated its 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 give 
186

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, transmission and distribution industry was 

“the sector reporting the second-largest quantity of on-site release of hazardous substances.”352

Specifically, 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 by 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 severity 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 List sites.354 The Agency noted 

The severity of the consequences impacting public health and the environment as 

a result of releases and exposure of hazardous substances posed by 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 long-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

Despite the Agency’s acknowledgement that financial assurance requirements are essential to 

public health and safety, 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 any 

financial assurance.

 

landfill owners and operators “an incentive to locate, design, and operate facilities to minimize closure and postclosure 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 resulting 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, respectively, 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 Landfill 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 In fact, 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. 

In sum, the inability to properly operate and maintain a coal ash disposal facility, 

including executing safe closure and post-closure care, will greatly 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 “Cradle 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 air, 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 Therefore 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-four residents also 

filed a state lawsuit for damages and injunctive relief in state court. Abrahams v. Phill-Con Services, LLC, No. CV2010-21 (Perry County Cir. Ct. filed June 21, 2010), removed to Bankruptcy Court as Abrahams v. Phill-Con 

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 Gwendolyn 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 process 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 proposed 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 section 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 facilities 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 waste, but no information is available on where those units are located or the 

conditions of the disposal.360 Identification of hundreds of historic dump sites will undoubtedly

help to safeguard water supplies, especially 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, Incorporated, 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 Engineers 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 professional engineers 

and hydrologists” 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 program, 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 

landfill owners has not always been timely, forthright or in the public interest. The questionable 

conduct of “independent” professional engineers and hydrologists at three recent coal ash 

contamination sites was revealed in court filings. At the Colstrip, Montana 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 representative 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 by 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 many critical parts of the regulations, 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, capricious 

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, poses 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 

& Power 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, disproportionately 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 

analysis 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 coal ash, which assuredly 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-income 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 choose one option over the 

other. 

By EPA’s own admission, coal plants—which are usually accompanied by coal ash 

ponds and dry coal ash landfills—are disproportionately located in impoverished areas. 

Earthjustice’s own environmental justice analysis of the national rule also found disparate 

impact. Our analyses 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 nationally 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 Fed. Reg. 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) - Sample Data, All 5-Digit ZIP Code Tabulation Areas 

(860), Table P53 "Median Household Income in 1999 (Dollars)", available at 

http://factfinder.census.gov/servlet/DCSubjectKeywordServlet?_ts=307978361769. 

367 U.S. Census Bureau, Census 2000 Summary File 3 (SF 3) - Sample 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?_lang=en&_ts=263843114140. “Low-income” 

defined as earning less than $20,000 annually. ZIP codes containing coal ash ponds compared to a national mean 

percent “low-income” of 12.61%, calculated based on the “Family Income in 1999” dataset; United States 
191

particularly troublesome that coal ash impoundments are disproportionately located in lowincome communities, 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 subtitle D option is considered. Using EPA’s data, this disparity

is significantly 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 

scheme. 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 disposal.368 Using the same 

method of environmental justice analysis used by EPA, we also found that the race and income 

disparity is especially problematic in certain geographic areas, such as EPA Region 4.369

In sum, at the heart of EPA’s environmental justice analysis 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, supra, 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 coal ash 

disposal facilities in their state—it is crystal 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 populations 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 analysis for the proposed coal ash 

regulations, the myriad risks of coal ash “may have a disproportionately higher effect on lowincome populations.”370

 In the 2010 RIA, EPA used 2000 Census data to determine if minority

and low-income populations are disproportionately represented, 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

 

Environmental 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, Mississippi, 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 Wastes; Disposal of Coal 

Combustion 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 analyzed ZCTA census data in three ways: (a) by calculating what ratio of plants are 

in ZCTAs whose percent minority or poverty rate exceeds statewide percentages; (b) by 

calculating minority and poverty rates for all people in ZCTAs containing plants in a given state, 

and comparing these aggregations with statewide percentages; and (c) by aggregating all plantcontaining ZCTA Census data nationally, 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 poverty rates near plants than statewide. Finally, poverty 

population near plants nationally (12.9 percent) exceeded the national average percent poverty 

(11.9 percent), by 8 percent. All three measures demonstrated a disproportionate representation 

of low-income individuals near plants. In view of the national disparity found by EPA, a federal 

coal ash rule that applies equally in all states is necessary 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 terms 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 enforceable 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 preexisting 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 poor 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 the 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 

impoverished, 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 relatively small, or even non-existent, environmental justice problem, while failing to 

add protections in states where environmental justice communities are heavily impacted by coal 

ash disposal.

Demographic Groups Surrounding Coal-Fired Electric Utility Plants

 

371Id.

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 Method

Subset A

States Expected to 

Implement Subtitle-D 

Requirements

(17 states)

Subset B

States Not Expected to 

Implement Subtitle-D 

Requirements

(30 states)

Below Poverty 

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 analysis, prepared by

Michael Patoka of the Center for Progressive Reform at the University of Maryland School of 

Law, uses the same method that EPA used when performing its own environmental justice 

analysis for the proposed coal ash rule. Mr. Patoka’s analysis, however, distinguishes between 

states that are expected to implement subtitle D requirements, should EPA adopt this nonfederally 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 poverty

level (“poverty population”) exceeds the national average by 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 states that will not adopt new controls. 

The poverty populations near plants exceed their respective statewide averages by 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 states 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 percent 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, Illinois, New Jersey, and Connecticut. For minority populations, the five 

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 impacts 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 especially magnified in EPA Region 4. 

Throughout EPA Region 4, coal-fired utility plants are sited in areas with disproportionately high 

poverty and minority populations—particularly 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 Alabama 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 minority 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 minority 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 by 19 percent. In a few particular states, 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 nearly 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 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 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, ultimately, the threat of contamination—borne 

unequally by poverty populations nationwide—have a more dramatic disproportionate impact in 

Region 4. The national average percent poverty population is 11.9 percent.375 Near coal plants 

nationwide, the poverty rate is 12.9 percent, or 8 percent higher than the national average. In 

Region 4, the poverty rate near coal plants is 14.9 percent, a figure which exceeds the national 

average by 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 percent higher than the national average. 

Finally, the poverty rate near coal plants in Tennessee exceeds the national average by 41 

percent. The maps below show the correlations between poverty rates and coal ash 

impoundment siting in Alabama and South Carolina. Poverty 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 was given as 11.9% because these analyses calculated the poverty rate by 

dividing the population living below the poverty line by the total population in each geography.
196
197

Outside of Region 4, disparate impacts are also particularly dramatic in Louisiana, 

Arizona, and New Mexico. In Louisiana, shown in the map below, the three coal ash ponds are 

all in environmental justice communities. The poverty rate near coal ash ponds in Louisiana 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 poverty rates 

near ash ponds exceed the national average by 52 percent and 225 percent, respectively. The two 

ash ponds in New Mexico area in areas with a combined percent non-white population 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) - Sample Data, All Census Tracts, "Individual Poverty 

in 1999" received via email from Professor Paul Mohai, University of Michigan, on Jun. 4, 2010.
198
199

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 millions 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, lead, and other heavy metals.378 The landfill is located in a Census tract with a 33 

percent poverty rate and a 62 percent non-white population.379 It is 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 daily cover. Federal regulation under 

subtitle C would ensure that the burdens of coal ash disposal, exemplified by Perry County, are 

more fairly shared and, when encountered, protections are consistently 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 therefore 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 proposal to utilize 3004(x) 

authority to modify the four-year grace period for compliance with minimum technology 

requirements does not adequately protect human health and the environment. This extension is 

therefore in violation of RCRA and EPA should thus maintain the current four-year period.

Promulgation of a rule under the authority of subtitle C will lead to the eventual phaseout 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) - Sample 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) - Sample 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), which 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 newly subject to Subtitle C regulations, 

provisions of RCRA 3005(j) grant impoundment operators a four-year 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 considers extending the traditional four-year exemption.385 Under the 

proposal the Agency would permit impoundments to continue receiving coal ash for five years 

and would provide an additional two years before final closure.386 This creates a seven-year 

grace period 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-year exemption, creates a 9 to 15 year period in which surface 

impoundments will continue to pose substantial human health and environmental risks. If EPA 

were to maintain the current four year 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 justifications 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 years.”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 is practically 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 § 268.14.

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 on a case-by-case basis where 

nine to 15 years 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 analysis 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 impoundments. 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 exemption 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 unacceptably 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 federally 

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 

properly distinguish between the unique nature of the cleanup process itself and ash that is 

merely the byproduct of the cleanup process. 

This exemption is based on EPA’s understanding that ongoing cleanups involve 

administrative 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 sitespecific plans might be upset by application of hazardous waste regulations.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 ash generated by those 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 activity. However, ash that is generated from cleanup 

activities (i.e., ash that is dredged from waterways or otherwise collected during cleanup) and is 

destined for final disposal must be covered by the provisions of subtitle C. EPA has not 

distinguished waste that is generated by the cleanup process from ash generated directly by coal 

combustion. Likewise, 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 cleanup 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 by 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, therefore, largely 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 properly designed and are not properly 

maintained. The best-case scenario under EPA’s current proposal would allow these precarious 

impoundments to continue operating for seven years 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 broadly 

interpreted to grant enforcement authority 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 the 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 (4th 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 Harm’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 poorly 

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 seriously harmed.401 EPA has compiled hazard ratings for 200 of the 

629 known surface impoundments throughout the country.

402

 While these hazard ratings do not 

address potential for harm, the ratings do directly 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 §7003.

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 

years.406 In other words, there need not be an emergency to find imminent endangerment.407

There is no objective rating system, such as the hazard potential ratings, to easily identify

those impoundments 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 (4th Cir. 1997).

402 EPA, Information 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 Electric 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 

impoundments.)
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 

designed 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 environment 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 professional engineer. These ponds that present the most 

substantial endangerment may not be properly designed and constructed and they are not 

regularly monitored by an expert in structural engineering. A number of these ponds are more 

than a half-century-old, 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 says 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 groundwater 

pathways 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 EPA has already 

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 ecological 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 

EPRI Comanagement 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; 

Disposal 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 Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 

2010).
207

nation’s surface impoundments are unlined.416EPA’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 unlined 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 risks from unlined or insufficiently 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 delayed 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 

groundwater 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 endangerment to health or the 

environment.”417 Courts have broadly 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 immediately or in the future.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 MINEFILLS 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 ecosystem 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 Analysis, 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 (4th Cir. 1997).
208

Federal regulations are needed to ensure that essential safeguards are in place before any 

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 directly 

into groundwater. Federal regulations must also require long-term, comprehensive monitoring 

for pollution from the dumping, and ensure that mine owners are held 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 disposal sites. EPA must ensure full protection of human 

health and the environment under Subtitle C of RCRA for all communities affected by the 

disposal of CCR.

A. Enormous Quantities of CCR Are Already Being Dumped in Mines.

In 2006, the American Coal Ash Association claimed that 43 percent of nearly 125 

million tons of CCR was “recycled”,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 year in Pennsylvania mines 

alone.421 Based on mine disposal rates in Pennsylvania, 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 million tons of CCR, or 20 

percent of generation, are minefilled each year.

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 nearly 80 football fields. Before an environmental group appealed the permit 

for this site, Pennsylvania regulators had issued a permit that would have allowed up to 59 

million tons of CCR and sludge to be dumped into this one giant 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 Juan River.422Similarly, 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 Quality 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 Power 

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 

power 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 layers into small pieces, called spoil. Compared 

to the flow through undisturbed rock, water easily 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 synthetic membranes and are required by law to be situated above water 

tables – coal ashdumped into mine pits continually leaches its toxic metals and other 

contaminants directly 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 highly 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 minefilling 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 wrongly defined the 

dumping of CCR in coal mines as a “beneficial use” or “recycling” of an industrial waste and 

exempted the practice from all solid waste regulations.425 Yet minefilling is far from beneficial 

use or recycling.

In a multi-year study of fifteen coal ash minefills in Pennsylvania, researchers found that 

CCR made the water quality worse at ten of the sites, and acidity actually increased over time.426 

At the remaining five sites, there was not enough monitoring data to determine whether adverse 

impacts were caused by the 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 

surface 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 Power Company, LLC (“Robinson Power”) Decision, Findings Of Fact And Conclusions 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 Pennsylvania 

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 disposal 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 many different heavy metals 

and other toxic trace elements, each of which can leach into water under different chemical 

conditions, particularly 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 overlook 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, molybdenum and

boron.427 Multiple researchers have 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 by monitoring data from ash minefills.429

Furthermore, at most eastern mines, there is much more acidity than can be buffered by 

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 such as 

cadmium, copper, lead, manganese, nickel, and zinc will leach into the water.430 Ashes from

a “fluidized bed combustor” (FBC), a type of power plant boiler that can burn practically any 

type of fuel, will become acidic in acid mine drainage without continual addition of alkaline 

material, with the result that the concentration of metals increases beyond the amounts originally 

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 generating 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; Skousen, 

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, Jennifer. Effects of Large-Scale CCB Applications on Groundwater: Case 

Studies, Final Report, April 15, 2004, CBRCE-37, page 6. The complete report can be viewed at the Combustion 

Byproducts 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 Pennsylvania 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, rendering 

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. Neither of these contaminants had 

been detected before ash disposal. Cadmium jumped to nearly 14 times the drinking water 

standard in groundwater and increased in surface water to nearly 4 times the drinking water 

standard and 76 times the water quality standard. Selenium, a pollutant that is extremely toxic to 

aquatic life, was measured at a seep at the property boundary at nearly 4 times the drinking water 

standard and more than 36 times the water quality standard. At a deep mine discharge 800 feet 

beyond 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 Mexico, the Shumway Arroyo has 

long served as a source of drinking water for area residents and their livestock. Since the late 

1980s, however, forty 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 Arroyo 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 in the shallow gravel aquifer underneath the arroyo. 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 groundwater, 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 Arroyo eventually flows to the San Juan River, 

a source of drinking water for thousands.

This is not the first 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 unlined 
212

pits, nearly 200 feet deep and 300 feet wide, are now filled with concentrated, battleship-sized 

tonnages of caustic fly ash and scrubber sludge. Because the pits are located above the arroyo, 

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 combustion (“FBC”) power plant. State 

regulators, particularly in Pennsylvania, actively 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 produce 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 into the combustion process to capture emissions of sulfur dioxide. In Pennsylvania, 

FBC power plants produce only 8 percent of the electricity generated in the state, but ash from 

FBC plants makes up over 60 percent of the CCR produced by 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 types, waste bituminous coal contains 4 times more mercury

than ordinary bituminous coal.433

CCR is also becoming more toxic as an indirect result of increasingly 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 2006 

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 Specifically, 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 types of boilers to leach toxic arsenic 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 ppm 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 significantly higher than their MCLs.436 It also 

leached large amounts of boron and barium far above RCRA’s hazardous waste threshold (100 

times the MCL). Levels of concern for molybdenum, cadmium, and lead were also found.

D. EPA Has Extensively Studied The CCR Problem, But Taken Little Action. 

EPA’s own analyses of how CCR behaves in unlined disposal sites predict that some 

metals will migrate and contaminate nearby groundwater to levels extremely 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 pathways. Coal ash and scrubber 

sludge that dries out in uncovered mine pits becomes airborne on windy days. 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 nearby 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 and 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 

Combustion 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 1999; 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. (1980). 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. 

Damage 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 

readily 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 yet issued any regulations for controlling the disposal 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. Department 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 safeguards.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 grossly inadequate. 

As detailed above, many state regulatory agencies actually 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 Combustion 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.wrcc.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 Abandoned 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 recently, Pennsylvania, 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, including 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 banana 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 by landfills, mine bonds typically do not include 

funds for remediating groundwater contamination. 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 cost is shifted from power plants and mine operators to host communities 

and taxpayers 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 toxic industrial waste are being dumped directly 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 groundwater 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 

Combustion 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 mines. 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.

448
216

placed in mines, the National 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 fully 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 established;

 Deeds record and fully 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

Lastly, the National Academies of Sciences report stated that the public should be 

actively 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 monitoring, and clean up standards are employed 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 compelling 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 heavy toll it takes on the health and environment of 

the communities near coalfields. Many of these communities are populated by low-income 

residents whose health is already compromised by the effects of coal mining.450 These 

communities should not now be dumping grounds for toxic coal combustion waste. 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. Amer. 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 repeatedly 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 “equally protective” as compared to 

regulations promulgated under Subtitle C, and that such regulations would be “federally

enforceable.”452 Neither assertion is correct, 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 hazardous 

waste from small quantity generators. By doing so, states would eliminate the facilities’ 

potential for handling exempt hazardous waste and thereby make the program inapplicable. 

This result exposes the fundamental absurdity of industry’s argument that 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 by industry’s suggestion that EPA should 

disingenuously 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 Section 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 safety of 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 Roewer, USWAG, “Comments of the 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 Roewer 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., Roewer, 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 “serious 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 year 

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 sewers, even though “[n]either of these types 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 by Subtitle D facilities [were] 

becoming increasingly serious and widespread.”459

In response to this problem, Congress added Section 4010(c) to the RCRA statute as part 

of the 1984 amendments.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 specifically, 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 ground 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 In sum, the basic purpose of 4010(c) was to 

provide at least some minimum protection against health and safety 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 solid waste landfills in 1991 to 

incorporate the protections specified in 4010(c).464 EPA delayed promulgating similar 

regulations for other types of solid waste landfills, but eventually, in response to litigation, EPA 

promulgated criteria for non-municipal solid 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 waste 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 Hazardous 

Wastes 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 only applicable to facilities that actually “receive” small-quantity generator waste.466

B. Section 4010(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) beyond those actually receiving hazardous 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 thereby opt out of the entire program either on a state-wide basis (through laws or 

regulations) or on a facility-by-facility basis (through permitting). 

This is much more than a theoretical concern. States routinely engage in this type of 

action in the air pollution context. In order to 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 frequently issue 

“synthetic 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 regulatory

requirements.470 Courts have upheld this practice as lawful even where the restrictions are 

enforceable only by 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 waste 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 hazardous 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, The 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 type of pollution 

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 minimis 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 control 

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 interests have 

already 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 types 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. Unfortunately, there can be no assurance that this will be true. On the contrary, since 

any regulatory program based on 4010(c) would 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 

applicability 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 waste 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. Accordingly, 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 demonstrate 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 only 

that the facility (i) in fact receives and burns only household and non-hazardous commercial or 

industrial waste, (ii) does not accept any 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 facility 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 any source of 

hazardous waste. Just as the toxicity of the ash residue was irrelevant 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 compelling 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, yet 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-disposed 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 separately (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 sufficiently stringent or protective. If EPA 

wanted to pursue the 4010(c) approach, this “would likely require a supplemental proposal” 

since neither alternative in 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 Roewer, 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) significantly weakens the standard for classifying a facility

as a sanitary landfill rather than an open dump. Under the general standard, a facility 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 nonregulation with the burden on EPA to demonstrate the necessity 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 specifically 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 national 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, all 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-year groundwater monitoring period whenever the 

“owner/operator demonstrates that a shorter period of time is adequate to protect human 

health and the environment and the 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 analysis 

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 

practicability considerations.490 Here again, the corrective action program under Subtitle 

C is more comprehensive and protective as seen, for instance, in the duty 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 

constituents, or reaction products” as specified by the Regional Administrator and in 

accordance with detailed procedures and statistical analysis methods.493

 Recordkeeping – For purposes of 4010(c), EPA only requires recordkeeping for 

information “as it becomes 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 notifications of neighbors regarding off-site migration of 

contaminants.495 Under Subtitle C, however, most records must be kept for a minimum 

of five years, 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 design/construction requirements,498 including liners for surface 

impoundments and landfills;499 manifest system/cradle-to-grave responsibility for hazardous 

wastes;500 closure and post-closure requirements;501 financial assurances;502 export/import 

restrictions;503 the “derived-from” rule/mechanism for managing leachate;504 stricter controls on 

reuse/recycling;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 typically 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 inspections, 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., Roewer, 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 typical 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 requirements.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 public 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 potentially the programs of multiple states. Because of 

these hurdles and resource constraints, it is virtually unheard of for EPA to withdraw its approval 

or delegation of any state regulatory program under any of the federal environmental laws. 

EPA’s ability to step in and enforce waste management requirements only 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 any 

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 “imminent and substantial 

endangerment” (ISE) caused by solid or hazardous waste.514 Industry groups have suggested that 

these provisions provide sufficient authority to address the threats posed by CCR and that, as a 

result, it is not necessary for EPA to designate and regulate CCR as a hazardous waste. These 

arguments are entirely 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 practical 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 comprehensive 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 waste which may 

present an imminent and substantial endangerment to health or the environment” 42 U.S.C. § 6972(a)(1)(B) 

(emphasis 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 . . . necessary to protect public health and the 

environment.” 42 U.S.C. § 6973(a).
226

Furthermore, RCRA is a proactive statute designed primarily to address risks from wastes 

before they become a problem through comprehensive regulation.515 Courts have repeatedly 

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 . . . .”516The ISE 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 system for hazardous wastes. 

Both provisions were included in the Senate bill that ultimately became RCRA from its first 

introduction,518 along with regulatory authority over hazardous wastes.519 Thus, from the outset, 

Congress envisioned both an EPA-administered federal regulatory system 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 provisions during the initial passage of RCRA 

is sparse, it is clear that the ISE 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 statutes with comprehensive regulatory systems.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 ISE situations under section 7002, and broadening the scope of 

 

515 RCRA stands in sharp contrast to remedial statutes such as the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.

516 S.C. Dep’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 (4th Cir. 1996) (emphasis added). See 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. COMM. PRINT 96 IFC-31, at 31 (Sept. 1979).

517 S.C. Dep’t of Health & Envtl. Control, 37 F.3d at 256. 

518 However, 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 were subsequently authorized by HSWA.

519 See S. 2150, 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 

somewhat 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. NO. 94-988, 94th Cong., at 16 (June 25, 1976).

522 See id. at 16, 18.
227

section 7003523 — 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 

provision, Senator George Mitchell, was equally explicit: “I reiterate: These amendments are a 

supplement to, and not a substitute for Government action.”525 In one citizen suit under section 

7002, the Supreme Court similarly observed that “[c]hief responsibility 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 Western, 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 ISE actions alone can adequately 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 any member of Congress ever 

speak out against this dual system as redundant or unnecessary. The drafters of RCRA and 

HSWA clearly 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 generally be beyond the means of citizen groups. And, even 

EPA, with its greater resources, cannot reasonably be expected to prosecute every potential ISE 

case, or even obtain evidence sufficient to prove imminent and substantial endangerment without 

the monitoring 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 first limitation on 

the effectiveness of such suits is the significant cost — in time, money, and effort — to any 

citizen in bringing suit. These costs are substantial not only for the advocacy organizations 

perhaps best equipped to bear them, but especially for individuals who may be most directly

affected by 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. NO. 98-284, 98th Cong., at 57, 59 (Oct. 28, 1983, 

Calendar No. 500) (emphasis added).

525 130 CONG. 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. NO. 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. NO. 94-1491, 94th Cong., 2d Sess., at 50 (quoting report 

accompanying 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.) 50,224 (1975)).

526 See 42 U.S.C. § 6972(b); see also H.R. CONF. REP. NO. 98-1133, at 117–118 (Oct. 3, 1984) (describing how

citizen suit provision was continually narrowed 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

Lastly, despite arguably 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 rely on purely 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, sections 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 by 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 merely reactive and cannot adequately 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 issue 

with the EPA’s supposed failure to comply with certain employee 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 section 

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 

employment 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 employment which may result from the administration 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 administration 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 only 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” between 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 you for your 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-****)).