E-mail to: rcra-docket@epa.gov
Attention Docket ID No. EPA-HQ-RCRA-2009-0640



### COMMENTS

of the

STATE OF NEW MEXICO

on
U.S. ENVIRONMENTAL PROTECTION AGENCY

PROPOSED RULE
DISPOSAL OF COAL COMBUSTI ONS RESIDUALS FROM ELECTRIC UTILITIES
Docket ID No. EPA-HQ-RCRA-2009-0640 75 Fed. Reg. 35128, June 21, 20102 The State of New Mexico submits these comm ents on the U.S. Environmental Protection Agency (“EPA”) proposed rule on the disposal of coal combustion residuals from electric utilities. We appreciate th e opportunity to comment on this important topic for both New
Mexico and the nation. The St ate’s comments were prepared by the New Mexico Environment Department (“NMED”) and the Energy, Mine rals and Natural Resources Department (“EMNRD”). Each of these agencies is curren tly responsible for regulation of coal combustion residual disposal at locati ons within New Mexico.

To summarize, New Mexico supports the alternat ive to regulate coal combustion residuals as a “special waste” under Subtitle C of the federa l Resource Conservation and Recovery Act. We believe this alternative will provide the greate st environmental protection from the potential
harms associated with coal combustion residuals. We also believe that the regulated community and state regulatory agencies can implement this alternative without sign ificant disruption.

I. Current Regulation of CCRs in New Mexico

Authority . New Mexico currently regulates the disposal of coal combustion residuals (CCRs) under both its water quality laws and its co al surface mining law. New Mexico currently has one CCR disposal facility permitted and regula ted under the New Mexico Water Quality Act, Sections 74-6-1 to 74-6-17 NMSA 1978, and one under the New Mexico Surface Mining Act,
Sections 69-25A-1 to 69-25A-36 NMSA 1978.

Under the Water Quality Act, the NM Wate r Quality Control Commission (“WQCC”) is authorized to require “a permit for the discharge of any water contaminant”. Section 74-6-5(A) NMSA 1978. Under the WQCC rule s, “no person shall cause or al low effluent or leachate to discharge so that it may move di rectly or indirectly into grou nd water unless he is discharging pursuant to a discharge permit...”. 20.6.2.3104 NMAC.3 Under the Surface Mining Act, the New Mexi co EMNRD Mining and Minerals Division regulates activities and require s reclamation of coal mines in New Mexico. Since December 31, 1980, EMNRD has administered an approved state program unde r the federal Surface Mining Control and Reclamation Act of 1977 (“SMCRA”) . 40 CFR 931.10. The regulated activities include the placement of CCRs into the coal mine voids during reclamation.

New Mexico does not currently regulate the disposal of CCRs under either its solid waste or
hazardous waste laws. Under both the New Mexi co Solid Waste Act and the Hazardous Waste Act, CCRs are exempt from regulation.

Under the Solid Waste Act,

"Solid waste" does not include:

... (2) fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels and wastes produced in conjunction with the combusti on of fossil fuels that are necessarily associated with the production of energy and th at traditionally have been and actually are mixed with and are disposed of or treated at the same time with fly ash, bottom ash, boiler slag or flue gas emission cont rol wastes from coal combustion; Section 74-9-3(N) NMSA 1978.

Under the Hazardous Waste Act,

"Hazardous waste" does not include any of the following, until the board determines that they are subject to Subtitle C of the fede ral Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq.:

(b) fly ash waste; (c) bottom ash waste;4 (d) slag waste; (e) flue gas emission control waste generate d primarily from the combustion of coal or
other fossil fuels Section 74-4-3(K)(2) NMSA 1978.

CCR Disposal Facilities . There are three coal burning elect rical generation facilities in New Mexico that produce significant amounts of coal combustion residuals (CCRs). These facilities

are:

1. Four Corners Generating Station (Ariz ona Public Service Company) (“Four Corners”)
2. San Juan Generating Station (Public Servi ce Company of New Mexico) (“San Juan”)
3. Escalante Generating Station (Tri-State) (“Escalante”)

EPA’s documentation indicates that the thre e facilities produced 3,983,300 tons of CCRs in
2007. CCRs from each of these facilities are di sposed in New Mexico, but the disposal is subject to different regulating ag encies and regulatory agencies.

Four Corners is located on the Navajo Indian Reservation and therefore not subject to the jurisdiction of the State of New Mexico. According to reports from the EPA, CCRs are currently placed in a surface impoundment near the plant. In prior years, CCRs had been placed in the adjacent Navajo Mine (BHP Billiton), also loca ted within the Navajo Indian Reservation. Regulation of these activities at the power station and the mine would be handled by the Navajo Nation, U.S. EPA and the U.S. Department of the Interior Office of Surface Mining, Reclamation and Enforcement (“OSM”).

San Juan arranges for the placement of its CCRs at the adjacent San Juan Mine, which is operated by BHP Billiton San Juan Coal Company. CCRs have been placed in the San Juan Mine since the 1970s. Currently, the mine place ment of CCRs is regulated under a permit for the mining operation issued by EMNRD under the New Mexico Surface Mining Act. The5 surface coal mining permit for the San Juan Mine includes requirements for groundwater monitoring, minimum cover over CCR areas, final clos ure and financial assurance for closure. No liner was required.

Escalante arranges for the disposal for the CCRs at a location within the plant boundaries. The plant has a discharge permit issued by NMED un der the NM Water Quality Act which includes conditions specific to the CCR landfill. The pe rmit includes requirements for landfill operation, groundwater monitoring, a contingency plan a nd a closure plan. Th e landfill is unlined.
II. EPA Proposals

EPA has offered two primary proposals to regulat e the disposal of CCRs. EPA could either list CCRs as special wastes subjec t to regulation under Subtitle C of RCRA, or regulate disposal
of CCRs under Subtitle D of RCRA by issuing national minimum criteria. EPA’s notice also mentions several other approaches which combine el ements of the Subtitle C and D proposals.

III. Position of State of New Mexico

New Mexico supports EPA’s proposal to list CCRs as a special waste subject to regulation
under Subtitle C of RCRA.

IV. Discussion

Subtitle C vs. Subtitle D. New Mexico supports the develo pment of national standards for the disposal of CCRs. Given the immense amou nt of CCRs generated ea ch year, the importance of the electrical generation industry and the potential public health and environmental consequences of the failure to adequately regulate CCRs (as evidenced by the TVA Kingston impoundment failure), the need for national regula tions is clear. These standards are necessary to assure protection of the public and the environment while providing industry with a predictable and level playing field.6 New Mexico supports the Subtitle C proposal b ecause it provides greater environmental and public health protection along with greater cons istency across the country. Regulation under
RCRA Subtitle C is more desirable because it gives New Mexico a stronger role and more authority to assure that CCRs are properly managed and that any existing contamination is cleaned up. NMED has demonstrated that it has a strong Subtitle C program, especially as it relates to operating permits and corrective acti on, as shown by its oversight of Los Alamos National Laboratory, Sandia National Laboratory, and Kirtland Air Force Base. In addition, Subtitle C financial assurance requirements will he lp ensure that New Mexico is not left paying for cleanup, closure, and post-clos ure care of the CCR units should the owners decide to close the facilities prior to completing their regulatory requirements.

Subtitle C regulation would be much more protec tive than Subtitle D regulation because it would allow New Mexico control over management practices from “cradle-to-grave,” that is from point of generation to final disposal. Whereas Subt itle D regulation would only cover CCR disposal, Subtitle C would lead to a pha sing out of wet management of CCRs in surface impoundments, which is the primary cause of CCR disposal-related environmen tal contamination. The State
would also have much better control over correc tive action and closure/ post-closure care under Subtitle C regulation; under Subti tle D these activities are left to the facilities to implement.

Furthermore, because CCRs are currently exempt from Subtitle D regulation in New Mexico, there is currently very limited potential for use of existing in-state Subtitle D landfill capacity to accept these wastes. Much of the CCRs covere d by the proposed rule will likely meet the
definition of “ash” under New Mexico’s solid waste rules, 20.9.2 NMAC. Three landfills are permitted to accept “ash” from industrial or othe r non-power generating sources as a Subtitle D Special Waste. Two of the three landfills currently accept small quantities of “ash.” The third currently does not accept “ash.” Two of the three permitted landfills are small landfills located in rural areas. The large la ndfill that accepts “ash” is located in Rio Rancho, New Mexico, which is approximately 176 miles from the conc entration of power-gener ating plants near the Four Corners area of the state. Additionally, this facility is nearing cap acity and the end of its permit life.7 Under either Subtitle C or Sub title D, New Mexico would have to amend either the New Mexico
Solid Waste Act or the Hazardous Waste Act and the implementing regulations. As a result, there is no significant time or re source advantage to either regulat ory path. Under either option, facilities would continue to operate under an existing ground water discharge permit until the
solid or hazardous waste statutes and regulations could be cha nged. Under the RCRA Subtitle C option, facilities would become subject to RCRA interim status once New Mexico adopted appropriate rules, and would remain so un til a RCRA permit was issued. While under interim status, facilities would be re quired to retrofit surface impound ments to meet any new liner, leachate collection, and groundwater monitoring requi rements. Because of limited capacity in current Subtitle D landfills in New Mexico, permit modification processes and siting and permitting new landfill facilities still would be n ecessary to meet the expected increased demand under the Subtitle D option.

Minefilling. EPA’s proposal does not address the placement of CCRs in minefills. Instead, the U. S. Department of the Interior (DOI) and EPA will address the management of CCRs in minefills in a separate regulatory action. As noted by EPA, this approach is consistent with the approach recommended by the Nationa l Academy of Sciences and recognizes the expertise of DOI’s Office of Surface Mining Re clamation and Enforcement in this area.

Of the two current CCR disposal sites in New Me xico under state jurisdic tion, one is a minefill (the San Juan Mine) currently regulated by th e State under a program approved by DOI under the federal Surface Mining Control and Reclamation Act. A second minefilling operation in New Mexico occurred at the Navajo Mine on the Nava jo Indian Reservation where it was directly regulated by DOI Office of Surface Mining under SMCRA.

New Mexico urges the EPA and the Department of the Interior to move fo rward quickly with the development of regulations for the disposal a nd handling of coal ash at coal mines under the federal Surface Mining Control and Reclamation Ac t. The SMCRA rules should be consistent with the protections adopted by EPA under RCRA.