VIA EMAIL & HAND DELIVERY

January 9, 2014

Mr. Barnes Johnson

Director – Office of Resource Conservation and Recovery

Environmental Protection Agency

Two Potomac Yard

2733 Crystal Drive, North Building

Arlington, VA 22202

Re: Development of Subtitle D Rule for Coal Combustion Residuals

Dear Mr. Johnson:

Thank you again for meeting with USWAG representatives regarding our concerns and

recommendations for EPA’s development of a Subtitle D coal combustion residuals (“CCR”) rule.

Given the implications of the rule for the nation’s electric power industry, state governments, and the

nation’s energy consumers, I want to briefly reiterate certain key points raised at our meeting.

1. The Opportunity for States to Administer the Subtitle D Rule: The self-implementing

nature of the proposed Subtitle D rule presents serious enforcement and implementation problems that

could undermine implementation of the rule. Reliance on citizen suits as the rule’s primary enforcement

mechanism will almost certainly produce varying and inconsistent opinions regarding its scope and

application. Apart from the fact that the court system is the least desirable forum for resolving

regulatory issues, this enforcement model will produce a patch-work of differing regulatory

interpretations depending on where a particular facility is located.

It will also present extreme challenges for the professional engineers (“PEs”) who have primary

responsibility under a self-implementing rule for certifying compliance with the rule’s technical

provisions. PEs will be thrust into the role of interpreting complex regulations and reconciling federal

court decisions on regulatory text when rendering compliance certifications for a particular facility.

Having PEs serve this “gatekeeper” role could greatly burden their ability to issue compliance

certifications with any degree of confidence. This scenario could also produce differing compliance

results for the same certifications of a technical aspect of the rule depending on a particular PE’s

interpretation of the regulatory text and any related court decisions.

Further, it was unclear from our meeting whether compliance with state CCR programs that

adopt the federal CCR rules will be viewed as compliance with the federal rule. Many states will adopt

the federal CCR rules into their state regulatory programs. Therefore, absent some type of recognition
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of state implementation of the federal rules, owners/operators will be confronted with the scenario of

the state CCR rules being interpreted and enforced in state courts and the identical federal rules being

interpreted and enforced in the federal courts.

Given the above, the final rule should recognize and defer, as appropriate, to state CCR

regulatory programs that incorporate the federal CCR rules. This would be consistent with EPA’s longstanding position that “requirements such as those pertaining to landfill design, groundwater monitoring,

corrective action, and closure should optimally be implemented under the oversight of a State

implementing agency.” 56 Fed. Reg. 50978, 50994 (Oct. 9, 1991).

In our comments on the 2010 CCR proposal, we suggested that EPA could address this issue by

promulgating the Subtitle D rule pursuant to section 4010(c) of RCRA. This provision directs EPA to

develop Subtitle D rules for units that “may receive . . . hazardous waste from small quantity generators”

(i.e., conditionally exempt small quantity generator hazardous waste) and “for facilities potentially

receiving such wastes.” 42 U.S.C. § 6949(a) (emphasis added). Given that 4010(c) encompasses CCR

disposal facilities, nothing in the statute precludes the Agency from augmenting its 4010(c) regulations

to address this subset of 4010(c) facilities. This would allow the states to implement the rules through

state permit programs, and would provide EPA with back-up authority if a state fails to properly

implement the rules. See RCRA section 4005(c)(2), 42 U.S.C. § 6945(c)(2).

At a minimum, the final rule should include a regulatory presumption (or similar policy

pronouncement) declaring that a facility in compliance with state CCR rules that are identical to (or

more stringent than) the federal rules is presumed to be compliance with the federal rules. Nothing in

RCRA prevents EPA from adopting such a presumption in issuing Subtitle D regulations under section

4004(a). The Agency could, of course, evaluate the state regulations in assessing whether the rules

mirror the federal requirements and are being appropriately implemented by the state. And EPA could

reserve the option of revoking the presumption for any particular state if the Agency determines that the

rules are no longer being properly implemented by the state. This approach would be similar to EPA’s

implementation of the municipal solid waste landfill (MSWLF) regulations under 40 C.F.R. Part 258,

where the Agency reviews and then defers to state programs that adopt and appropriately implement the

federal MSWLF regulations (per RCRA section 4005(c)). Here, however, EPA simply would be issuing

a regulatory presumption or policy pronouncement that compliance with state regulatory programs that

adopt and properly implement the federal CCR rules should be presumed to constitute compliance with

the federal rules as well.

2. The Final Rule Should Not Cause the Premature Closure of Surface Impoundments:

We discussed our mutual objective to harmonize the final CCR rule with the steam electric generating

point source effluent limitations guidelines (“ELG”) rule. Critical to achieving this objective is ensuring

that nothing in the CCR rule compels the premature closure of surface impoundments that are otherwise

operating in a protective manner. This is because the ELG rule expressly contemplates a future role for

impoundments for purposes of managing legacy CCR transport waters, as well as serving as part of the

ELG treatment train for other specified wastewaters. Any CCR rule that forces the premature closure of

impoundments that are otherwise operating in a protective manner would be inconsistent with the

contemplated role of impoundments in the ELG rule.
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Given this, we discussed three elements of the proposed Subtitle D CCR rule that warrant

modification (these points are also addressed in USWAG comments on the proposed ELG rule):

 Eliminate the proposed mandatory retrofit requirement (at proposed 40 C.F.R. § 257.71(g)). The

rule’s groundwater monitoring and corrective action requirements will address the risks

associated with surface impoundments and ensure that impoundments operating in a protective

manner are available to manage wastewaters under the ELG rule.

 Eliminate the proposed requirement to automatically close CCR units upon the final receipt of

CCR (at proposed 40 C.F.R. § 257.100(j)). When no longer receiving CCR, impoundments that

are meeting applicable groundwater protection standards should be allowed to remain in

operation to treat and manage wastewaters under the ELG rule.

 Do not apply all of the location restrictions to existing operating surface impoundments

(discussed at 75 Fed. Reg. 35128, 25198-99 (June 21, 2010)). This would force the premature

closure of impoundments that, if meeting applicable groundwater protection and stability

standards, should be allowed to remain in operation to treat and manage wastewaters under the

ELG rule.

3. The Definition of CCR Surface Impoundment Must Not Be Overbroad: As currently

drafted, the definition of CCR surface impoundment could be construed as capturing cooling ponds or

other impoundments that receive only de minimis amounts of CCR (e.g., storm water runoff collection

ponds). It would be inappropriate to impose the full array of Subtitle D design standards on ponds that

are not designed and operated to manage CCR, but instead only contain incidental or de minimis

amounts of CCR.

To address this problem, the definition should include a functional criterion making clear that the

term CCR surface impoundment encompasses only surface impoundments whose primary function is to

hold an accumulation of CCR containing free liquids that are sluiced (i.e., flushed with water to

facilitate movement) to the impoundment. The addition of this criterion to the definition will help

ensure that impoundments that receive only de minimis amounts of CCR through indirect methods, such

as through storm water, are not inappropriately subject to the controls designed for impoundments that

are designed and operated to manage CCR. Attached is the relevant portion of our 2010 comments

setting forth a proposed definition of surface impoundment that accomplishes this objective.

4. The Rule’s Applicability to Operating Units: Because there is some ambiguity regarding

the scope of the proposed Subtitle D rule, we discussed the need to clarify that the final rule only applies

to CCR landfills and surface impoundments that receive CCR on or after the effective date of the rule.

Plainly, units that are no longer receiving CCR on the effective date of the rule should not, from a legal

or practical perspective, be subject to the rule. This is consistent with EPA’s position regarding the

scope of its RCRA regulatory programs since the enactment of the statute over 30 years ago. See e.g.,

40 C.F.R. § 258.1(c) and 40 C.F.R. § 257.5(a)(2) (applying the Subtitle D regulations only to facilities

receiving regulated wastes on or after the effective date of the relevant rules). See also 43 Fed. Reg.

58984 (Dec. 18, 1978); 45 Fed. Reg. 33074 (May 19, 1980) ( explaining that RCRA’s Subtitle C

regulations are prospective in nature and are not directed at inactive facilities). As has always been the

case under RCRA, concerns EPA may have with historic solid waste management practices can be
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adequately addressed under RCRA’s imminent and substantial endangerment authority (42 U.S.C.

§ 6973).

Further, there would be logistical and practical difficulties in attempting to apply the rule’s

requirements – including the rule’s closure requirements –for units that have long ago ceased receiving

CCR and are closed and/or are in the middle of implementing state-approved closure plans. Attempting

to superimpose a new set of closure requirements on a unit in the middle of the closure process would

unnecessarily complicate and delay the unit’s closure.

* * * * *

On behalf of USWAG, thank you again for meeting with us. We would be glad to follow-up and

discuss further any of the issues included in this letter or raised at our meeting.

Regards,

Jim Roewer

Executive Director

Utility Solid Waste Activities Group

cc: Betsy Devlin

Ross Elliott

Frank Behan