Technical Comments from the State of Arizona Regarding EPA Proposed Rule on Hazardous and Solid Waste Management Systems; Identification and Listing of Special Wastes; Di sposal of Coal Combustion

Residuals from Electric Utilit ies (Docket ID # EPA HQ-RCRA-2009-0640) November 10, 2010

Arizona Department of Environmental Quality

1. Pg. 35129, Definition of Beneficial Use of CC P: The definition excludes “large scale” fill projects but does not clearly define “lar ge scale.” Making a distinction between this and CCR Landfills will be challenging a nd 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 th at the material is de stined for disposal. The preamble, however, repeatedly discu sses the beneficial use of CCRs. For example the last sentence on Pg. 35161 refere nces direct use of synthetic gypsum generated as a byproduct of coal combustion stating “this use and similar uses of CCRs that meet product specifications w ould not be affected by [...].” CCRs by the preamble definition are not used but des tined for disposal and would not be applicable to any pr oduct 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: Th e 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 manage ment 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 alr eady likely considered a “sludge” which is exempt from being solid waste when recl aimed since they are not listed. If CCR, however, is a listed special waste then it w ould 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 advan ced between CCP piles and impoundments. Does this mean there are no requirements fo r CCP storage or that all coal combustion

residues are considered CCR even if th ey are being beneficially reused?7. Pg. 35210, Financial Assurance: Arizona’s Aquifer Protection Permit program requires financial assurance for closur e 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 modi fication. There is no regular review of financial assurance adequacy required in APP rules.

8. Pg. 35210, Alternative RCRA Subtitle D Appro aches: The D prime option allows the continued operations of existing surface impound ments to the end of their useful life without the requirement of a composite lin er. 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 Appr oaches: This approach redacts the proposed phase-out of surface impoundments but would allow the EPA to establish a fund and program to conduct annual struct ural stability inspections of surface impoundments with “high” or “signi ficant” hazard potential ratings.

Surface impoundments with “high” or “sig nificant” hazard potential ratings are already subject to inspection by Arizona’s dam safety program. The assessment work to be performed by EPA would be duplicativ e 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 re quire facilities to respond to issues identified with their surface impoundme nts through RCRA, CERCLA, and/or CWA

authorities. a) If this action occurs in an aut horized 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 “nat ural 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 a nd seasonal changes in water levels caused by groundwater pumpage and artificial and na tural recharge. The proposed definition could potentially be a constantly moving ta rget 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 St ate of Arizona strongly encourages EPA to maintain its August 1993 and May 2000 Bevill Regulatory Determinationsregarding CCR and regulate the disposal of CCR under Subti tle 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 admini strative order violation pena lty 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 gro undwater data that is not compatible with groundwater monitoring requirements under Arizona’s A quifer 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 requiremen ts pursuant to the provisions of A.A.C. R18-9-A205, R18-9-A206, and R18-9-A207. Exceed ances of Alert Levels in point of compliance wells trigger more intensive m onitoring and an investigation regarding the source(s) of exceedances. Because of th e facility-specific nature of groundwater monitoring and because an Aquifer Prot ection Permit is required to operate CCR facilities, groundwater is prot ected under existing state statute at th ese 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 im poundment 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 prot ection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Av ailable Demonstrated Control Technology criteria and process in devel oping the design for a facility which allows for the use of site-specific design elements. Arizona requests that paragrap h (a)(1) of this section be modified to allow alternate designs a pproved 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 theDirector of an approved state that demons trates 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 alternat ive liner designs that will provide adequate protection. Arizona ’s Aquifer Protection Permit Program requires the use of a Best Available Dem onstrated 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 paragrap h (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 fo r existing CCR surface impoundments: If an existing surface impoundment has been demonstrated to meet Arizona’s Best

Available Demonstrated Control Technol ogy in its design and ongoing monitoring is in place, then it is not necessary to dr edge and re-line or close the impoundment. Arizona requests that paragraph (g ) of this sectio n 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 Tec hnology criteria and pr ocess 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 independe nt 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 ProtectionPermits have a contingency plan for co rrective 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 discreti on of the ADEQ Director, these corrective

actions could include source control a nd soil, surface water, and groundwater cleanup. Because current state statute and ru le have flexible and facility-specific cleanup provisions rather than prescriptiv e 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 Ar izona’s State Superfund (WQARF) in circumstances requiring significant and exte nsive cleanups resulting from the release of hazardous substances. The WQARF statutes have a very different liability scheme and a different approach to remedy se lection than either RCRA or CERCLA corrective action requirement s. 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 Pr otection Permit program has permitted these kinds of facilities sin ce 1986. Because extensive groundwater and operational monitoring permit requirements have been effective, no significant releases requiring WQARF-orde red cleanups have occurred.

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

indicate that a clean cl osure is possible by removi ng CCRs and structures and decontamination of all areas affected by rele ases. Arizona requests that a provision be added to the closure or post-c losure care requirements to exclude facilities that can

achieve clean closure in accordance with st ate soil and groundwater standards from post-closure care requirements.

21. Pg. 35252, Section 257.100 Closure criteria: Ar izona requests that alternative final cover designs be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program allows for the fina l 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 desig n, provided the alterna tive 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: Para graph (d) of this section prescribes one cover design option and paragraph (e) authorizes an alternative final cover design. Therefore, Arizona requests that pa ragraph (c)(v) be modified as follows (modification in italics):

(v) have a final cover system that me ets 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 re view and approve any request for reduction in the 30-year post-closure care period. Ar izona requests that paragraph (b)(1) be modified as follows (modification in italics):

(1) Decreased if the owner or ope rator of the CCR landfill or surface impoundment demonstrates that the redu ced period is sufficient to protect

human health and the environment and th is 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: Th e parameters listed in this table are proposed for all CCR facilities. Under Ariz ona’s Aquifer Protection Permit program, the ADEQ Director has discre tion 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, Op erating Criteria: Suggest adding a section for Instrumentation, Monitoring and Reporting.

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

related to fluid withdrawal.

3. Pg. 35241, Independent Register ed Professional Engineer or Hydrologist: Suggest including Registered Geologist. Also sugge st 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 di scussion 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 la nguage 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 su bsidence related to mining or fluid withdrawal, and earth fissuring. Or can al so be added to Poor Foundation Conditions.

8. Pg. 35242, Section 257.64(b)(2): Suggest addi ng embankments, sp illways, outlets

9. Pg. 35243, Section 257.70: Earthern embank ments 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 installati on typically have wrinkles.

10. Pg. 35244, Section 257.71: Add Instrumenta tion and Monitoring Plan. Add Data Report of all monitoring along with in terpretation 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, a nd instead have some level of monitoring

instead?12. Pg. 35244, Sections 257.71/72: There are se veral 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 stat es 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.