Technical Comments from the State of Arizona 

Regarding EPA Proposed Rule on Hazardous and Solid Waste Management 

Systems; Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals from Electric Utilities (Docket ID # EPA HQ-RCRA-2009-0640) 

November 10, 2010 

Arizona Department of Environmental Quality 

1. Pg. 35129, Definition of Beneficial Use of CCP: The definition excludes “large scale” 

fill projects but does not clearly define “large scale.” Making a distinction between 

this and CCR Landfills will be challenging and will be extremely difficult to enforce 

in most instances. NOTE: Pg. 35154 indicates hundreds of thousands of tons of 

material would meet the definition of a CCR Landfill but there is no reference to a de 

minimis amount. 

2. Pg. 35130, Definition of Coal Combustion Residuals: The CCR definition in the 

preamble and Subtitle C draft rule includes that the material is destined for disposal. 

The preamble, however, repeatedly discusses the beneficial use of CCRs. For 

example the last sentence on Pg. 35161 references direct use of synthetic gypsum 

generated as a byproduct of coal combustion stating “this use and similar uses of 

CCRs that meet product specifications would not be affected by [...].” CCRs by the 

preamble definition are not used but destined for disposal and would not be 

applicable to any product specifications. 

3. Pg. 35196, Definition of Coal Combustion Residuals: The CCR definition for Subtitle 

D regulation loses the disposal aspect from the preamble and the Subtitle C proposal. 

Is this omission intentional? 

4. Pg. 35131, Definition of Special Waste: The definition conflicts with Arizona’s 

definition of Special Waste. Pursuant to A.R.S. § 49-851(A)(5), a special waste 

means a solid waste as defined in A.R.S. § 49-701.01, other than a hazardous waste, 

that requires special handing and management to protect public health or the 

environment [...]. 

5. Pg. 35196, Definition of Coal Combustion Residuals: The CCR definition includes 

flue gas materials; these materials are already likely considered a “sludge” which is 

exempt from being solid waste when reclaimed since they are not listed. If CCR, 

however, is a listed special waste then it would always be solid waste pursuant to 40 

CFR § 261.2. There would be a conflict between 40 CFR § 261.2 and 40 CFR § 257 

if this is not addressed. 

6. Pg. 35196, CCPs are not defined in the RCRA Subtitle D proposal nor are 

differentiations or specifications advanced between CCP piles and impoundments. 

Does this mean there are no requirements for CCP storage or that all coal combustion 

residues are considered CCR even if they are being beneficially reused? 
7. Pg. 35210, Financial Assurance: Arizona’s Aquifer Protection Permit program 

requires financial assurance for closure and post-closure care of CCR surface 

impoundments and landfills. This is reviewed with the permit application; however, it 

is only re-visited during a major permit modification. There is no regular review of 

financial assurance adequacy required in APP rules. 

8. Pg. 35210, Alternative RCRA Subtitle D Approaches: The D prime option allows the 

continued operations of existing surface impoundments to the end of their useful life 

without the requirement of a composite liner. Would this also apply to existing CCR 

landfills? 

Careful consideration should be given when defining “useful life.” For example if 

useful life is defined as at 100% capacity a facility conceivably could maintain a 

management unit at 90% perpetually thus preventing the requirement for additional 

actions triggered at closure. 

9. Pg. 35210, Alternative RCRA Subtitle D Approaches: This approach redacts the 

proposed phase-out of surface impoundments but would allow the EPA to establish a 

fund and program to conduct annual structural stability inspections of surface 

impoundments with “high” or “significant” hazard potential ratings. 

Surface impoundments with “high” or “significant” hazard potential ratings are 

already subject to inspection by Arizona’s dam safety program. The assessment work 

to be performed by EPA would be duplicative of Arizona’s current inspection work. 

EPA should inspect those surface impoundments that are not regulated by Arizona’s 

dam safety program. 

The preamble states that the EPA would require facilities to respond to issues 

identified with their surface impoundments through RCRA, CERCLA, and/or CWA 

authorities. 

a) If this action occurs in an authorized state, would the enforcement 

responsibility rest wholly with the EPA or would it fall upon the state to respond? 

b) As the purpose of the proposed rules is to create authorities not currently found 

in existing programs, how does the EPA intend to compel remedial actions 

through those programs via this option? 

10. Pg. 35241, Section 257.60: The definition of “natural water table” should be clarified. 

As written, a natural water table could not be specified with any degree of certainty in 

many parts of Arizona due to long-term and seasonal changes in water levels caused 

by groundwater pumpage and artificial and natural recharge. The proposed definition 

could potentially be a constantly moving target for regulators since water levels in 

some areas fluctuate significantly in short time periods depending on seasonal 

pumpage for irrigation and other groundwater uses. 

11. Pgs. 35254-35264, Subtitle C proposal: The State of Arizona strongly encourages 

EPA to maintain its August 1993 and May 2000 Bevill Regulatory Determinations 
regarding CCR and regulate the disposal of CCR under Subtitle D rather than as a 

“special” hazardous waste under Subtitle C. We believe that CCR can be safely 

regulated under the Subtitle D approach with the appropriate performance and 

management standards. The regulation of CCR as hazardous waste is burdensome on 

federally underfunded state programs. Subtitle C is costly to implement and will put 

more pressure on our already strained state budget. 

 

12. Pg. 35195. Arizona’s Aquifer Protection Permit Program has administrative order 

(A.R.S. § 49-261) and administrative order violation penalty authorities [A.R.S. § 49-

262(C)]; civil injunction [A.R.S. §§ 49-261, 49-262(A) and 49-262 (B)] and civil 

penalty authorities [A.R.S. § 49-262(C)]; criminal sanctions authority (A.R.S. § 49-

263); and suspension or revocation authority [A.R.S. § 49-245(B)]. 

13. Pg. 35247, Section 257.93: The proposed rule will require extensive monitoring and 

statistical analysis of groundwater data that is not compatible with groundwater 

monitoring requirements under Arizona’s Aquifer Protection Program. In Arizona, 

each individual Aquifer Protection Permit establishes Alert Levels and Aquifer 

Quality Limits to monitor any changes in groundwater quality that may be 

attributable to discharges from a facility. In most cases permittees are required to 

install point of compliance monitor wells pursuant to A.R.S. § 49-244. Each permit 

has facility-specific monitoring requirements pursuant to the provisions of A.A.C. 

R18-9-A205, R18-9-A206, and R18-9-A207. Exceedances of Alert Levels in point of 

compliance wells trigger more intensive monitoring and an investigation regarding 

the source(s) of exceedances. Because of the facility-specific nature of groundwater 

monitoring and because an Aquifer Protection Permit is required to operate CCR 

facilities, groundwater is protected under existing state statute at these facilities as 

drinking water, or where background contamination exceeds drinking water 

standards, so that there is no further degradation. 

 

14. General question: does the proposed rule contemplate the excavation of materials 

previously disposed of in a surface impoundment or landfill for repurposing as CCP? 

If so, would the materials still be regulated as waste? Or would the material cease to 

be regulated at the point of excavation? 

15. Pg. 35243, Section 257.70 Design criteria for new CCR landfills and lateral 

expansions: States must have the flexibility to review and approve of alternative liner 

designs that will provide adequate protection. Arizona’s Aquifer Protection Permit 

Program requires the use of a Best Available Demonstrated Control Technology 

criteria and process in developing the design for a facility which allows for the use of 

site-specific design elements. Arizona requests that paragraph (a)(1) of this section be 

modified to allow alternate designs approved under state programs as follows 

(modification in italics): 

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a 

leachate collection system that is designed and constructed to maintain less than 

a 30-cm depth of leachate over the liner or an alternate design approved by the 
Director of an approved state that demonstrates that leachate will be contained 

or managed in a manner that is protective of groundwater and surface water.

The design of the composite liner and leachate collection system or alternate 

design must be prepared by, or under the direction of, and certified by an 

independent, registered, professional engineer. 

16. Pg. 35243, Section 257.71 Design criteria for existing CCR surface impoundments: 

States must have the flexibility to review and approve of alternative liner designs that 

will provide adequate protection. Arizona’s Aquifer Protection Permit Program 

requires the use of a Best Available Demonstrated Control Technology criteria and 

process in developing the design for a facility which allows for the use of site-specific 

design elements. Arizona requests that paragraph (a)(1) of this section be modified as 

follows (modification in italics): 

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a 

leachate collection system above the upper components of the composite liner 

or an alternate design, approved by the Director of an approved state, that 

prevents migration of wastes out of the impoundment to subsurface soils, 

groundwater, or surface water. The design shall be in accordance with a design 

prepared by, or under the direction of, and certified by and independent 

registered professional engineer. 

17. Pg. 35244, Section 257.71 Design criteria for existing CCR surface impoundments: If 

an existing surface impoundment has been demonstrated to meet Arizona’s Best 

Available Demonstrated Control Technology in its design and ongoing monitoring is 

in place, then it is not necessary to dredge and re-line or close the impoundment. 

Arizona requests that paragraph (g) of this section be deleted. 

18. Pg. 35244, Section 257.72 Design criteria for new CCR surface impoundments and 

lateral expansions: Arizona’s Aquifer Protection Permit Program requires the use of a 

Best Available Demonstrated Control Technology criteria and process in developing 

the design for a facility which allows for the use of site-specific design elements. 

Arizona requests that paragraph (a)(1) of this section be modified as follows 

(modification in italics): 

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a 

leachate collection system above the upper components of the composite liner 

or an alternate design, approved by the Director of an approved state, that 

prevents migration of wastes out of the impoundment to subsurface soils, 

groundwater, or surface water. The design of the composite liner and leachate 

collection system or alternate design must be prepared by, or under the 

direction of, and certified by and independent registered professional engineer. 

19. Pg. 35251, Section 257.98: The proposed rule will impose corrective action 

requirements that may not be compatible with elements of Arizona’s corrective action 

requirements. A.A.C. R18-9-A204 requires that all individual Aquifer Protection 
Permits have a contingency plan for corrective action. A.A.C. R18-9-A204(B)(8) 

describes potential corrective actions that may be required by the ADEQ Director on 

a facility-specific basis. At the discretion of the ADEQ Director, these corrective 

actions could include source control and soil, surface water, and groundwater 

cleanup. Because current state statute and rule have flexible and facility-specific 

cleanup provisions rather than prescriptive cleanups, potential cleanup issues are 

already addressed by state law. ADEQ also has authority under A.R.S. § 49-287(E)(3) 

to compel corrective actions under Arizona’s State Superfund (WQARF) in 

circumstances requiring significant and extensive cleanups resulting from the release 

of hazardous substances. The WQARF statutes have a very different liability scheme 

and a different approach to remedy selection than either RCRA or CERCLA 

corrective action requirements. Thus the requirement under 257.98 (d)(2) indicating 

that all remedies must comply with (all) applicable RCRA requirement may create 

conflicts for the state. In practice, the Aquifer Protection Permit program has 

permitted these kinds of facilities since 1986. Because extensive groundwater and 

operational monitoring permit requirements have been effective, no significant 

releases requiring WQARF-ordered cleanups have occurred. 

20. Pg. 35252 Section 257.100 Closure criteria: Paragraph (b) of this section appears to 

indicate that a clean closure is possible by removing CCRs and structures and 

decontamination of all areas affected by releases. Arizona requests that a provision be 

added to the closure or post-closure care requirements to exclude facilities that can 

achieve clean closure in accordance with state soil and groundwater standards from 

post-closure care requirements. 

21. Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final 

cover designs be approved by the Director of an approved state. Arizona’s Aquifer 

Protection Permit Program allows for the final cover design to be developed using the 

a Best Available Demonstrated Control Technology criteria and process and the 

design must be approved in the facility’s permit. Arizona requests that paragraphs 

(e)(1) and (e)(2) of section (e) be deleted and section (e) be modified as follows 

(modification in italics): 

(e) The owner or operator of the CCR landfill or surface impoundment may 

select an alternative final cover design, provided the alternative cover design is 

approved by the Director of an approved state and certified by an independent 

registered professional engineer. 

22. Pg. 35252, Section 257.100 Closure criteria: Paragraph (d) of this section prescribes 

one cover design option and paragraph (e) authorizes an alternative final cover 

design. Therefore, Arizona requests that paragraph (c)(v) be modified as follows 

(modification in italics): 

(v) have a final cover system that meets the requirements of subsection (d) or 

(e). 
23. Pg. 35253, Section 257.101 Post-closure care requirements: The Director of an 

approved state must have the ability to review and approve any request for reduction 

in the 30-year post-closure care period. Arizona requests that paragraph (b)(1) be 

modified as follows (modification in italics): 

(1) Decreased if the owner or operator of the CCR landfill or surface 

impoundment demonstrates that the reduced period is sufficient to protect 

human health and the environment and this demonstration is certified by an 

independent registered professional engineer and approved by the Director of 

an approved state. Upon approval, the demonstration shall be placed in the 

operating record and on the owner’s or operator’s publicly accessible Internet 

site. 

24. Pg. 35253, Appendices III and IV to Part 257: The parameters listed in this table are 

proposed for all CCR facilities. Under Arizona’s Aquifer Protection Permit program, 

the ADEQ Director has discretion to establish parameters for groundwater monitoring 

on a facility-specific basis. This approach provides the agency with flexibility to 

establish parameters in each permit. ADEQ suggests that a more flexible approach 

with facility-specific monitoring be proposed rather than prescriptive monitoring for 

all facilities. 
Arizona Department of Water Resources 

1. Pg. 35240, Subpart C, General Provisions, Operating Criteria: Suggest adding a 

section for Instrumentation, Monitoring and Reporting. 

2. Pgs. 35420/21: Suggest adding definitions for earth fissuring and ground subsidence 

related to fluid withdrawal. 

3. Pg. 35241, Independent Registered Professional Engineer or Hydrologist: Suggest 

including Registered Geologist. Also suggest adding that the professional must be 

certified or registered in the state where the facility exists, in the field where he/she is 

claiming expertise, provided the state has a registration program for that particular 

field. 

4. Pg. 35241, Lateral Expansion: Suggest making this more general to “Expansion” so 

that vertical expansion (raising dams) is included, or adding a separate definition for 

vertical expansion. 

5. Pg. 35241, Section 257.50: Should there be a discussion as to who (State or Federal) 

requirements prevail, or perhaps the more conservative of the two, etc.? 

6. Pg. 35242, Section 257.62: Suggest changing language so that it is clear that the 

demonstration must be to the satisfaction of the State. This is applicable throughout 

the document. 

7. Pg. 35242, Section 257.64(b)(1): Add ground subsidence related to mining or fluid 

withdrawal, and earth fissuring. Or can also be added to Poor Foundation Conditions. 

8. Pg. 35242, Section 257.64(b)(2): Suggest adding embankments, spillways, outlets 

9. Pg. 35243, Section 257.70: Earthern embankments often develop cracking. When 

the embankment cracks, the 2-ft thick layer of compacted soil would likely also have 

cracked. At that point, a single 30-mil HDPE liner becomes the sole line of defense. 

Suggest considering 2 liners placed on 2-ft compacted soil and the leachate collection 

system. Also, “direct and uniform contact with the compacted soil component” is 

unrealistic as HDPE installation typically have wrinkles. 

10. Pg. 35244, Section 257.71: Add Instrumentation and Monitoring Plan. Add Data 

Report of all monitoring along with interpretation by a qualified engineer. 

11. Pg. 35244, Section 257.71(g): If the owner decides to shut down the facility, would 

they be exempt from this requirement, and instead have some level of monitoring 

instead? 
12. Pg. 35244, Sections 257.71/72: There are several other analyses that should be 

performed depending on the site conditions. It may not be practical to list them all 

out here, so maybe a catch-all that states that other analyses may be needed. 

13. Pg 35245, Section 257.83: Suggest that the PE must also review the monitoring data 

and provide interpretations and conclusions.