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 COMBUSTIONS RESIDUALS FROM ELECTRIC 

UTILITIES 

Docket ID No. EPA-HQ-RCRA-2009-0640 

75 Fed. Reg. 35128, June 21, 2010 
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The State of New Mexico submits these comments on the U.S. Environmental Protection 

Agency (“EPA”) proposed rule on the disposal of coal combustion residuals from electric 

utilities. We appreciate the opportunity to comment on this important topic for both New 

Mexico and the nation. The State’s comments were prepared by the New Mexico Environment 

Department (“NMED”) and the Energy, Minerals and Natural Resources Department 

(“EMNRD”). Each of these agencies is currently responsible for regulation of coal combustion 

residual disposal at locations within New Mexico. 

To summarize, New Mexico supports the alternative to regulate coal combustion residuals as 

a “special waste” under Subtitle C of the federal Resource Conservation and Recovery Act. We 

believe this alternative will provide the greatest 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 significant 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 coal surface mining law. New Mexico currently 

has one CCR disposal facility permitted and regulated 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 Water 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 rules, “no person shall cause or allow effluent or leachate to 

discharge so that it may move directly or indirectly into ground water unless he is discharging 

pursuant to a discharge permit...”. 20.6.2.3104 NMAC. 
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Under the Surface Mining Act, the New Mexico EMNRD Mining and Minerals Division 

regulates activities and requires reclamation of coal mines in New Mexico. Since December 31, 

1980, EMNRD has administered an approved state program under 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 Mexico 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 combustion of fossil fuels that are necessarily 

associated with the production of energy and that 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 control 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 federal Resource Conservation and Recovery Act of 

1976, as amended, 42 U.S.C. 6901 et seq.: 

(b) fly ash waste; 

(c) bottom ash waste; 
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(d) slag waste; 

(e) flue gas emission control waste generated 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 electrical generation facilities in New 

Mexico that produce significant amounts of coal combustion residuals (CCRs). These facilities 

are: 

1. Four Corners Generating Station (Arizona Public Service Company) (“Four 

Corners”) 

2. San Juan Generating Station (Public Service Company of New Mexico) (“San Juan”) 

3. Escalante Generating Station (Tri-State) (“Escalante”) 

EPA’s documentation indicates that the three facilities produced 3,983,300 tons of CCRs in 

2007. CCRs from each of these facilities are disposed in New Mexico, but the disposal is 

subject to different regulating agencies 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 located 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 placement of CCRs is regulated under a permit for 

the mining operation issued by EMNRD under the New Mexico Surface Mining Act. The 
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surface coal mining permit for the San Juan Mine includes requirements for groundwater 

monitoring, minimum cover over CCR areas, final closure 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 under the NM Water Quality Act which includes 

conditions specific to the CCR landfill. The permit includes requirements for landfill operation, 

groundwater monitoring, a contingency plan and a closure plan. The landfill is unlined. 

II. EPA Proposals 

EPA has offered two primary proposals to regulate the disposal of CCRs. EPA could either 

list CCRs as special wastes subject 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 elements 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 development of national standards for 

the disposal of CCRs. Given the immense amount of CCRs generated each 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 regulations 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. 
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New Mexico supports the Subtitle C proposal because it provides greater environmental and 

public health protection along with greater consistency 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 action, 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 help ensure that New Mexico is not left paying 

for cleanup, closure, and post-closure 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 protective 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 Subtitle D regulation would only cover CCR disposal, 

Subtitle C would lead to a phasing out of wet management of CCRs in surface impoundments, 

which is the primary cause of CCR disposal-related environmental contamination. The State 

would also have much better control over corrective action and closure/post-closure care under 

Subtitle C regulation; under Subtitle 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 covered 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 other 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 landfill that accepts “ash” is located in Rio Rancho, New Mexico, 

which is approximately 176 miles from the concentration of power-generating plants near the 

Four Corners area of the state. Additionally, this facility is nearing capacity and the end of its 

permit life. 
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Under either Subtitle C or Subtitle 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 resource advantage to either regulatory 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 changed. Under the RCRA Subtitle C 

option, facilities would become subject to RCRA interim status once New Mexico adopted 

appropriate rules, and would remain so until a RCRA permit was issued. While under interim 

status, facilities would be required to retrofit surface impoundments to meet any new liner, 

leachate collection, and groundwater monitoring requirements. 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 necessary 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 National Academy of Sciences and recognizes the 

expertise of DOI’s Office of Surface Mining Reclamation and Enforcement in this area. 

Of the two current CCR disposal sites in New Mexico under state jurisdiction, one is a minefill 

(the San Juan Mine) currently regulated by the 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 Navajo 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 forward quickly with the 

development of regulations for the disposal and handling of coal ash at coal mines under the 

federal Surface Mining Control and Reclamation Act. The SMCRA rules should be consistent 

with the protections adopted by EPA under RCRA.