November 2007 - Plains Justiceplainsjustice.org/files/CoalCombustionWasteReport/CCW Report... ·...

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Prepared By:

Plains Justice

Cedar Rapids, IA

November

2007

Iowa Coal Combustion Waste Disposal

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Credits

This report is made possible by philanthropic support from Energy Foundation and assistance from the

Izaak Walton League of the Midwest.

Andrew Wildenberg and Ian Dees provided technical support.

Brian Severson provided graphic design and data visualization assistance.

Plains Justice also wishes to thank the managers and staff at the Iowa Department of Natural Resources

for their courteous and professional assistance.

Authors:

Carrie La Seur, Ph.D., J.D., President, Plains Justice

Jeffrey Stant, Director, Power Plant Waste Project - Safe Disposal Campaign, Clean Air Task Force

Robert Gadinski, geologist, retired career regulator, Pennsylvania Department of Environmental

Protection Waste Regulatory Program

Casey Kannenberg, J.D. candidate, University of Iowa College of Law

Cover photo:

Waterloo South Quarry, Sep. 12, 2007 (Carrie La Seur)

Plains Justice is a public interest environmental law center that works for environmental justice and a

sustainable economy on the Great Plains through community partnerships. Questions and comments

may be directed to Carrie La Seur at [email protected]

Plains Justice

100 First Street Southwest

Cedar Rapids, Iowa 52404

Phone (319) 362-2120

Fax (866) 484-2373

Copyright Plains Justice 2007

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Contents

v Executive Summary

1 Introduction

4 Contamination Risks Associated with CCW Disposal

7 Human Health Hazards

10 History of U.S. CCW Regulation

12 History of Iowa CCW Regulation

13 Current Iowa CCW Regulations

20 Groundwater Trends at Iowa CCW Landfills

38 Proposed Iowa CCW Regulatory Reform

41 Conclusion

42 Notes

47 Appendix: Proposed Federal Regulatory Reform

v

Executive Summary

This report describes the risks associated with

coal combustion waste (CCW) disposal and how

Iowa and the federal government are handling

the challenge. As the Clean Air Act

progressively restricts the air contaminants that

issue from smokestacks, CCW becomes

increasingly contaminated with pollutants

removed from the air. The waste stream is

disposed of in a variety of ways, including

sanitary landfills, industrial re-use, road

building, fill for construction projects, and

filling of abandoned mines and quarries.

Without proper precautions, land-disposed

CCW can leach toxic heavy metals into

groundwater and surface water.

In comparison to coal, CCW is relatively

enriched in elements such as arsenic, selenium,

chlorine, copper, zinc, and mercury. Heavy

metals are far more concentrated in bottom ash

and fly ash than in the source coal prior to

combustion. Emission controls exacerbate these

differences by removing heavy metals from air

emissions and concentrating them in CCW.

Disposing of the various forms of coal

combustion waste can represent a significant

expense to operators of coal-fired power plants.

The cheapest means of disposal is therefore

attractive to coal plant operators nationwide.

Coal ash currently crosses state boundaries in

search of the cheapest disposal sites. “In

addition to mining and air quality problems

caused by coal, we now have a land and water

problem caused by coal combustion waste,”

says Carrie La Seur, one of the report’s authors

and founder of Plains Justice.

Findings

Iowa’s Coal Combustion Waste Regulations

Pose a Significant Risk to Human Health and

the Environment

Iowa is currently importing CCW from as far

away as Indiana. The likely explanation for the

distant imports is Iowa’s loose regulation of this

waste stream, which keeps costs low but

increases the risk of undetected groundwater

contamination for Iowa residents. Iowa has

nearly two dozen sites at which CCW has been

used as “fill” without any liner, groundwater

monitoring, or financial assurances in case of

contamination. At least four sites use perhaps

the riskiest form of storage: filling unlined

quarries with vast amounts of CCW.

A significant portion of Iowa’s CCW is

being dumped in unlined quarries near

residential areas or rural water supplies, without

groundwater monitoring or financial assurances.

The primary risk from such poor disposal

practices is contamination of ground water not

only with arsenic but also with other heavy

metals such as cadmium, chromium, lead,

thallium, boron, selenium, nickel, molybdenum,

antimony and vanadium.

These metals are called trace elements

because they exist in trace amounts in the

environment, but it is important to understand

that they are toxic in trace amounts. Other more

soluble pollutants present in even greater

quantities in ash, such as sulfate, iron,

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manganese, calcium, magnesium, sodium and

chloride, can often be bellwethers of

contamination yet to come from trace heavy

metals that will tend to leach more slowly from

the ash, dissolving into groundwater in

dangerous concentrations as factors limiting

their solubility change over time.

The Public Lacks Information About the Risk

The public has received little information about

the true nature of this risk. Developers of a

proposed 750 megawatt coal plant at Waterloo,

Iowa, tout CCW fill as an “environmental

benefit” of their plant. Indeed, the permitting

program run by the Iowa Department of Natural

Resources (IDNR) is referred to as “beneficial

use” permitting for CCW that may go into

everything from road construction to gypsum

wallboard to filling up old quarries. However,

the benefits of “beneficial use” fill sites are far

from clear, and federal regulation of this waste

stream has a long, troubled history.

The Public Lacks Access to Permitting and

Monitoring Data

IDNR does not have basic permitting and

enforcement data for this waste stream on its

website. Paper files available at the central

records repository in Des Moines lack complete

data even for sites where monitoring has taken

place. The lack of access to such basic

information hampers citizen involvement in the

permitting and enforcement process. Public

access is critical to each Iowa resident’s ability

to assess risks posed by existing and proposed

land uses. Access to thorough public

environmental records is essential to good

government at the local, county and state level.

Direct public access to such records also

improves the incentives for regulatory

compliance for regulated entities.

State and Federal Regulatory Reform Is Long

Overdue

State CCW regulation has become a patchwork

because of a remarkable 27-year failure by the

U.S. Environmental Protection Agency (EPA)

to issue comprehensive regulations for the

proper management of CCW. The National

Academies of Science have recommended

national regulations that would set minimum

safeguards at CCW placed in surface mines.

However, EPA has let its obligation to regulate

CCW in these and other sites languish. What

remains is a largely voluntary system of

inconsistent state regulations and administrative

guidelines that condones existing CCW

management practices regardless of the hazards.

One hazard of poorly regulated CCW

disposal is contamination of groundwater, which

leads to increased cancer risk. EPA studies

indicate that disposing of CCW in unlined

surface impoundments creates a risk of cancer

due to arsenic exposure through contaminated

groundwater of up to one person in 100. This

level of risk is 10,000 times higher than EPA’s

regulatory goals for reducing cancer. The

harmful impact of excessive levels of heavy

metals such as mercury and lead on human

physiology is well documented. Risks for

children are particularly serious and include a

wide range of neurological and developmental

disorders.

Iowa’s regulatory regime for CCW

landfill sites and for “beneficial use” of CCW

fill poses significant risks of undetected

environmental contamination, significant

liability risks to fill site operators, and

significant health risks to Iowans. In light of the

documented risks to human health and the

environment, the authors of this report strongly

recommend immediate cessation of “beneficial

use” fill permits and closure of fill sites.

Closure should proceed according to

recommended closure and post-closure practices

for coal ash sanitary landfills.

National regulation, both of CCW

landfill sites and “beneficial use”

determinations, is desirable because of the

fluidity of CCW across state borders. A state by

state project of regulatory reform has the risk of

commencing a race to the bottom, in which

CCW finds its way to the most loosely regulated

state, which in the Midwest may be Iowa. Until

national reform takes place, Iowa must improve

its CCW disposal regime to avoid becoming, or

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remaining, a regional net recipient of this

hazardous waste stream.

Immediate Action Is Necessary to Protect

Iowa Ground and Surface Waters

In addition to the detailed recommendations for

Iowa regulatory reform included at the end of

this report, the authors recommend the

following four steps as urgently needed for the

protection of public health and the environment:

1. Halting further permitting, renewal or

expansion of fill sites;

2. Closing existing fill sites on the most

expeditious, yet practicable schedule

(within two years);

3. Imposing immediate and long-term

monitoring at existing fill sites; and

4. Mandating cleanup of contamination

detected at existing sites.

Without immediate preventive action, Iowans

are at significant risk for drinking water

contamination and taxpayer financial liability

for cleanups. Swift action by Iowa regulators

could substantially reduce these risks.

Federal Regulatory Reform Is Necessary But

Not Sufficient

This report includes, as an appendix, a recent

proposal for federal regulatory reform.

Although federal reform is badly needed, it is

unlikely to come quickly enough to protect

Iowans’ health and natural environment from

the existing risk. Waiting for federal reform on

coal combustion waste disposal, originally

ordered by Congress some 27 years ago, is not a

viable strategy.

1

Introduction

The United States’ current energy structure is dominated

by fossil fuels, and Iowa is no exception. Coal

combustion produces up to 85% of Iowa’s electricity.1

Because the power industry can’t prevent all the

environmental and public health harms caused by coal

simply by installing the pollution control technologies

required under the Clean Air Act, the price of coal

currently does not reflect its true cost to society. The

extent of the U.S. coal supply is currently a subject of

debate,2 but the massive American reliance on coal for

electricity and proposals for many new coal plants raise

the question of what health and environmental costs will

be imposed on the population during the life cycle of new

plants.

These costs are not hard to envision, given a

typical 500 megawatt coal plant’s annual output: 10,000

tons of sulfur dioxide, 10,200 tons of nitrogen oxide, 3.7 million tons of carbon dioxide, 220 tons of

hydrocarbons, 720 tons of carbon monoxide, 125,000 tons of ash and 193,000 tons of sludge from the

smokestack scrubber, 225 pounds of arsenic, 114 pounds of lead, 4 pounds of cadmium, trace elements

of uranium, plus many other toxic heavy metals.3 These pollutants cause known damage to human

health, with a spectrum that runs from increased asthma rates to neurological damage caused by mercury

exposure and respiratory mortality in vulnerable populations such as children and the elderly. However,

airborne pollutants are not the only environmental contamination risk from coal combustion.

As the Clean Air Act progressively restricts the air contaminants that issue from smokestacks,

coal combustion by-products become increasingly contaminated with pollutants removed from the air.

“You’re replacing an air problem with a land problem - a disposal problem,” says Bruce Dockter, a

research engineer with the Energy and Environmental Research Center at the University of North

Dakota.4 Although originally directed by Congress in 1980 to develop a safe disposal regime for CCW,

the U.S. Environmental Protection Agency (“EPA”) still has not done so, allowing instead a patchwork

of insufficiently protective state regulations. Regulation of CCW disposal sites in Iowa is entirely under

the authority of the Iowa Department of Natural Resources (IDNR).

Coal of all varieties consists of greatly compressed layers of fossilized plants, including all the

metals taken up by those plants millions of years ago. Analyses of coal ash have long established that

coal combustion results in an even greater concentration of these metals in the solid waste that results

when coal is combusted and its volume reduced by 80 percent to that of ash. According to a 1976 study,

This report describes Iowa’s

regulation of Coal Combustion

Waste (CCW), identifies potential

risks, and recommends state and

federal regulatory reform needed

for the protection of public health

and ecosystems. As new sources

of CCW in Iowa and nearby states

are proposed, with Iowa disposal

sites targeted for hundreds of

thousands of tons of additional

CCW, this issue becomes more

and more urgent.


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in comparison to coal, fly ash is relatively enriched in elements such as chlorine, copper, zinc, arsenic,

selenium, and mercury.5 A more recent study indicates that fly ash is also enriched in boron, strontium,

molybdenum, sulfur, and calcium.6 Trace elements in the ash are concentrated in the smaller ash

particle sizes.

A pilot study by the Electric Power Research Institute (1983)7 revealed large quantitative

differences in elemental concentrations in coal, bottom ash, and fly ash from a southwest U.S. power

plant burning southwestern subbituminous coal:

Aluminum Arsenic Barium Chromium Iron Magnesium Lead Silicon

(ppm)8 (ppb)9 (ppm) (ppm) (ppm) (ppm) (ppb) (ppm)

Coal 29100 7100 71.8 6.1 5130 1130 11000 50200

Bottom Ash 142000 24100 2830 29 28100 4640 23000 260000

Fly Ash 144000 32750 3110 31 24800 5260 51500 258000

The EPRI study demonstrates that heavy metals are far more concentrated in bottom ash and fly ash

than in the source coal prior to combustion.

Emission controls exacerbate these differences by removing heavy metals from air emissions and

concentrating them in CCW. Elevated heavy metal concentrations in CCW were revealed in studies of

the mobilization, or movement in the environment, of trace metals from coal-burning power plants in

Europe.10

This quantitative evaluation looked at stack emissions and the quantities of metals retained in

ash by electrostatic filters (an air pollution control device).

Researchers concluded that modern electrostatic filters can filter out 99.8% of particulate matter

(soot). Consequently, the largest environmental risk associated with most of the metals from coal-

burning power plants is from potential releases from solid waste. Analyses of trace metals present in

coal revealed that of the total mobilization of these metals in the combustion process, the great majority

of the metals were retained in the solid waste and only a very small percent were present in the

atmospheric stack emissions.

For example, for the trace metals charted below, a very high percentage of the total mobilization

of each metal was retained and concentrated in the coal ash. 11

Trace metal Arsenic Cadmium Chromium Lead Antimony Selenium % retained and concentrated in coal ash

97% 97.2% 99% 97.5% 97.7% 91.5%

Disposing of the various forms of coal combustion waste can represent a significant expense to

operators of coal-fired power plants. The cheapest means of disposal is therefore attractive to coal plant

operators nationwide. Coal ash currently crosses state boundaries in search of the cheapest disposal

sites.

Iowa has more than a dozen CCW landfills and over 20 CCW “beneficial use” sites. Some are

currently importing CCW from as far away as Indiana.12

The likely explanation for the distant imports

is Iowa’s loose regulation of this waste stream, which keeps costs low but increases the risk of

undetected groundwater contamination for Iowa residents. In Iowa today, CCW continues to be used as

fill without any liner, groundwater monitoring, or financial assurance in case of contamination. At least

four sites use perhaps the riskiest form of storage: filling unlined, unmonitored quarries with vast


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amounts of CCW.13

In spite of the acknowledged risk, EPA admits that it does not know how many such unlined

facilities exist around the U.S.14

Although the National Academies of Science have recommended

national regulations that would set minimum safeguards at CCW placed in surface coal mines,15

EPA

has let its commitment to develop regulations for CCW in other sites languish. What remains is a

largely voluntary system of inconsistent state regulations and administrative guidelines that condones

existing CCW management practices regardless of the hazards posed.16

This is no de minimis problem. CCW is a vast waste stream. The U.S. Department of Energy’s

Energy Information Administration estimates that U.S. coal burners produced 129 million tons of coal

ash in 2004, a quantity comparable to the 245 million tons of municipal solid waste produced in the U.S.

in 2005.17

The annual generation of CCW in the U.S. alone would fill the box cars of a train extending

from Washington, D.C., to Melbourne, Australia, yet this massive toxic waste stream is usually less

strictly regulated than municipal waste disposal.

This report describes Iowa’s regulation of CCW, identifies potential risks, and recommends state

and federal regulatory reform needed for the protection of public health and ecosystems. As new

sources of CCW in Iowa and nearby states are proposed, with Iowa disposal sites targeted for hundreds

of thousands of tons of additional CCW, this issue becomes more and more urgent. Although specific

sites are discussed as examples, the goal of this report is to prescribe state-level solutions to a national

regulatory problem, not to perform a comprehensive analysis of the compliance status or risks associated

with any single Iowa CCW disposal site.


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Contamination Risks

Associated With CCW

Disposal

A significant portion of Iowa’s CCW is being dumped in unlined quarries adjacent to residential areas

or rural water supplies, without groundwater monitoring or financial guarantees in case of

contamination. The primary risk from such poor disposal practices is contamination of ground water not

only with arsenic but also with other heavy metals such as cadmium, chromium, lead, thallium, boron,

selenium, nickel, molybdenum, antimony and vanadium. These metals are called trace elements

because they exist in trace amounts in the environment, but it is important to understand that they are

toxic in trace amounts. Other more soluble pollutants present in even greater quantities in ash, such as

sulfate, iron, manganese, calcium, magnesium, sodium and chloride, can often be bellwethers of

contamination yet to come from trace heavy metals that will tend to leach more slowly from the ash,

dissolving into groundwater in dangerous concentrations as factors limiting their solubility change over

time.

Quarries are unlined sites, usually in sand and gravel aquifers that are highly conductive to

water, precisely the places for which EPA has documented the greatest potential for damages to occur

from CCW. While the federal government has been slow to acknowledge the scope of the threats posed

by CCW, in a recent admission, EPA states:

EPA has gathered or received information on 135 possible damage cases. . . .

After reviewing these 135 damage cases, EPA identified 24 proven damage cases.

The overwhelming majority of the damage cases reflect management in unlined

units—that is, all but one of the 24 proven damage cases involved unlined CCW

management units, including six cases involving disposal of CCW in unlined sand

and gravel pits. . . . . Four of the proven damages to ground water were from

unlined landfills, 5 were from unlined surface impoundments, 1 was due to liner

failure at a surface impoundment, and the remaining 6 were from unlined sand

and gravel pits.18


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Thus one fourth of the sites acknowledged by EPA as proven examples of CCW contaminating

off site groundwater supplies involve unlined sand and gravel pits. At least one additional proven

damage case involves a limestone quarry. EPA acknowledges that five other sand and gravel quarries

where CCW has been placed are “potential” damage sites for which more information is needed. In

assessing the dangers posed by CCW landfills and surface impoundments, EPA states:

The risk assessment also suggests that one of the most sensitive parameters in the

risk assessment is infiltration rate. Infiltration rate is greatly influenced by

whether and how a WMU (Waste Management Unit) is lined.19

There are few environments with infiltration rates of surface waters to groundwaters exceeding

infiltration rates occurring at sand and gravel quarries. The hydraulic conductivity of sand and gravel

aquifers is very high (with water moving through them at 10-2

to 10-3

cm/sec or faster). The lack of a

liner at such a site assures ready and uninterrupted infiltration of coal ash leachate into groundwater.

The following are several examples of quarries where CCW has contaminated human drinking

water:

• Highway 59 Ash Landfill, Waukesha, Wisconsin: Operators placed just 8,000 tons (a

relatively small amount) of CCW below the water table in a sand and gravel pit, a glacial

unconsolidated aquifer adjacent to a dolomite aquifer. Resulting contamination of 13 offsite

drinking water wells with boron, molybdenum and sulfates exceeding state health standards cost

an estimated $6.6 million to abate.20

• Port Washington Fly Ash Landfill, Wisconsin: Two drinking water wells were contaminated

with selenium and boron exceeding state health standards from coal ash dumped in a sand and

gravel quarry. After contaminating a first well screened 50 feet deep into the Niagara Dolomite

aquifer, 250 feet away from the site, the plume from the ash contaminated a second well dug 160

feet into this hard rock aquifer.21

Dolomite, a limestone carbonate rock with as much magnesium as calcium, will fracture

as much if not more than limestone, although it is prone to less dissolution and formation of

karst. Midwestern sand and gravel quarries along rivers and from glacier deposits are often over

or near carbonate rock, i.e. limestone and dolomite. The fractures and dissolution channels in

this rock provide pathways that enhance contaminant migration away from coal ash dumped into

Midwestern sand and gravel quarries.

• Chisman Creek Disposal Site, Virginia: Wells for 55 homes were contaminated by fly ash

from the combustion of coal and petroleum coke dumped into abandoned sand and gravel pits on

27 acres. Disposal at the site ended in 1974, but water in nearby residential wells became

contaminated in 1980 with sulfate, selenium and vanadium, turning green and exceeding federal

Drinking Water Standards (DWS) for selenium and sulfate (there is no DWS for vanadium). The

shallow groundwater, on-site ponds, and sediments of Chisman Creek and its tributaries became

contaminated with arsenic, beryllium, chromium, copper, molybdenum, nickel, vanadium and

selenium.


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A four year Superfund clean up of the site was necessary to extend public water to the 55

homes, cap disposal pits with soil and compacted clay and vegetation, collect groundwater and

leachate for treatment, lower the water table between the disposal pits, and initiate post closure

monitoring of the pits. Additionally, 600 feet of a tributary to Chisman Creek had to be

relocated to minimize contact with fly ash areas, surface runoff from the site had to be diverted,

and longterm monitoring established for ponds, the tributary and an adjacent estuary.22

• Gambril’s Ash Disposal Site, Maryland: Four million tons of coal ash disposed in two sand

and gravel pits since 1995 has contaminated water in at least 23 nearby residential wells with

cadmium, thallium and lead exceeding DWS necessitating the emergency provision of bottled

water to home owners. In all, detectable levels of metals have been found in least 50 wells. The

generator of the CCW and the operator of the ash dump have been fined $1 million by the

Maryland Department of the Environment and ordered to clean up the site. The County Council

of Anne Arundel County where the site is located has passed a one year ban on any new ash sites

within the County.23

The site is not yet recognized by EPA as a damage case.


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Human Health

Hazards

One externality of poorly regulated CCW disposal is contamination of groundwater, which

leads to increased cancer risk. For example, the cancer risk of adults and children who drink

from groundwater that is contaminated with arsenic from CCW can be as high as 1 in 100, which

is 10,000 times higher than EPA’s regulatory goals for reducing cancer.24

EPA studies indicate a

risk of cancer due to arsenic exposure through contaminated groundwater of up to 1 in 100 for

CCW disposal in unlined surface impoundments.25

The impact of excessive levels of heavy

metals on human physiology is well documented. Following are the effects of some of the

better-known metals.

Arsenic

Arsenic is acutely toxic: drinking water with an arsenic level of 60 parts per million is lethal, and

far lower levels of exposure are directly linked to cancer.26

According to Harvard University’s

Arsenic Project:

After several years of low level arsenic exposure, various skin lesions appear.

These are manifested by hyperpigmentation (dark spots), hypopigmentation

(white spots) and keratoses of the hands and feet. After a dozen or so years skin

cancers are expected. Twenty or thirty years after exposure to 500 [parts per

billion] of arsenic, internal cancers (lung, kidney, liver and bladder) appear among

10% of all exposed.27

Other toxic metals have similarly severe impacts. Health risks associated with chronic increased

consumption of selenium include discoloration of the skin, pathological deformation and loss of


8

nails, loss of hair, excessive tooth decay and discoloration, lack of mental alertness, and

listlessness.

Cadmium and Molybdenum

Excessive intake of cadmium has been linked to kidney damage and increased risk of prostatic

and respiratory cancers.28

Adverse health impacts reported from molybdenum exposure have

included liver dysfunction with hyperbilirubinemia in workmen chronically exposed in the

Soviet Union and gout in factory workers in Armenia. Notable symptoms include joint pains in

the knees, hands, feet, articular deformities, erythema, and edema of the joint areas.29

Lead

Lead poisoning, a more familiar heavy metal risk due to the prevalence of lead in older paint, has

a host of harmful health impacts. Children under age six are especially vulnerable because their

brains and central nervous systems are in development. Even very low levels of lead exposure in

small children can cause reduced IQ, learning disabilities, attention deficit disorders, behavioral

problems, stunted growth, impaired hearing, and kidney damage. High levels of exposure can

cause mental retardation, coma, and death. Iowa’s lead poisoning level is nearly three times the

national average.30

In a community, the presence of lead-poisoned children can be associated with an

increase in the number of children with developmental deficits and learning

disorders. This places an unnecessary and expensive burden on the educational

system. The presence of lead-poisoned children also requires substantial

community public health resources for medical and environmental case

management services.31

Lead exposure in adults can increase blood pressure, cause fertility problems, nerve disorders,

muscle and joint pain, irritability, and memory or concentration problems. Unborn children are

at risk: lead crosses the placenta and can contaminate a fetus through the mother’s blood.

Pregnancy can also cause lead stored in the mother’s bones to be released and enter the blood

stream, causing the baby to be born with an elevated blood lead level.

Under current regulations for disposal of heavy metal-contaminated CCW in Iowa

“beneficial use” fill sites, there is no way to determine if or how much leachate comes in

contact with the groundwater. The hydrogeology of quarry sites in particular creates

significant opportunity for CCW leachate to reach the groundwater or migrate to surface

water. Iowa’s current regulatory regime therefore represents a significant public health

risk.


9

Crawford Quarry

in Cedar Rapids,

a CCW “beneficial use”

fill site

in a residential

neighborhood, less than a mile

from three schools.

Epidemiologists measure lead levels

in micrograms of lead per deciliter of

blood to indicate the severity of

exposure. The U.S. Centers for

Disease Control and Prevention (CDC) have a “level of concern” for children of 10 micrograms

per deciliter. This level of exposure is generally accepted as the point of onset of adverse health

effects. However, the New England Journal of Medicine recently published a study indicating

that very harmful effects may well occur at levels of exposure as low as 5 micrograms of lead per

deciliter of blood.32

The best science now tells us that there may be no safe level of exposure to

lead.


10

History of U.S. CCW

Regulation

The U.S. Congress has grappled with the issue of safe disposal of CCW since 1980, when it

temporarily exempted from regulation as hazardous under the Resource Conservation and

Recovery Act (“RCRA”) Subtitle C certain large-volume wastes generated primarily from the

combustion of coal or other fossil fuels.33

These large-volume wastes are fly ash, bottom ash,

slag waste, and flue gas emission control (“FGD”) wastes.34

Congress directed EPA to perform

a study and publish the results in a Report to Congress (“RTC”) concerning potential adverse

effects on human health and the environment of the disposal of CCW. In addition, Congress

ordered EPA to determine whether the temporarily exempt status of CCW as hazardous waste

was warranted.35

Because EPA did not publish its report within the required timeline, a citizen group filed suit.

In a consent decree to resolve the litigation, EPA divided CCW into two categories:

1. Fly ash, bottom ash, boiler slag, and FGD waste from the combustion of coal by

electric utility and independent power-producing facilities that is not co-managed

with other power plant wastes;

2. All CCW that is co-managed with other power plant wastes, including low

volume cleaning wastes, blow down and coal refuse and all remaining wastes

from the combustion of fossil fuels subject to RCRA Sections 3001(b) and

8002(n).36

EPA, when it finally submitted the RTC in 1988, determined that CCW did not warrant

regulation as hazardous waste under Subtitle C of RCRA.37

In a 1993 Regulatory Determination

(“RD”), EPA concluded that waste from Category 1 does not warrant regulation as hazardous

waste when managed alone, and therefore regulation under Subtitle C of RCRA is

inappropriate.38

Later, in a 1999 RTC, EPA concluded that waste from Category 2 should also be exempt

from regulation under Subtitle C.39

However, in 2000, EPA determined that national regulations


11

are appropriate under Subtitle D of RCRA for CCW placed in landfills and surface

impoundments, and possibly under certain sections of the Surface Mining Control and

Reclamation Act (SMCRA) and RCRA, for CCW placed in landfills and surface impoundments,

and placed in coal mines.40

EPA has not acted on the 2000 determination, and therefore no regulation under Subtitle D is

currently pending. In fact, since the determination, EPA has conducted a lengthy dialogue with

the utility industry’s consortium, the Utility Solid Waste Activities Group (“USWAG”), to create

a voluntary plan for CCW management. USWAG’s “Voluntary Action Plan” is a loosely

worded, unenforceable document that does not address the protective measures most necessary

for safe CCW disposal (e.g., frequent groundwater monitoring).

In January of 2007, a coalition of environmental agencies and organizations41

(Plains Justice

included) drafted a proposal for the Federal Regulation of Coal Combustion Waste to provide a

framework for appropriate federal regulation. This proposal has been submitted to EPA and is

appended to this report as a model for state reform.42


12

History of Iowa CCW

Regulation

Notwithstanding this long overdue national

movement for safer regulation of CCW disposal,

Iowa has yet to update its regulations to resemble

the more protective standards in use nationwide. In

2004, coal combustion in Iowa produced 1,260,000

short tons of CCW. Of that waste, 750,000 short

tons (around 60 percent) were designated for “beneficial use,” anything from the manufacture of

gypsum wallboard to filling abandoned quarries. Iowa also accepts CCW from other states for

disposal or “beneficial use.” Wisconsin is a large contributor, expected to grow larger if new

coal plant proposals become reality. The forty percent of CCW that is not “beneficially used”

goes to CCW landfills governed by 567 Iowa Administrative Code (“IAC”) 103.

Where CCW is allocated for “beneficial use” as fill material, the IAC has application,

record-keeping and reporting requirements for operators of fill sites. Iowa currently has nearly

two dozen sites approved for CCW “beneficial use.” Conditions vary greatly at these sites.

Some are abandoned quarries and some are working mines that fill empty mine “rooms” with

CCW on an ongoing basis. Other sites are one-time projects (e.g., road building or fill for

building projects). Some are closed, and others anticipate accepting CCW for decades to come.

Others, such as Waterloo South Quarry, are the proposed receptacles for the hundreds of

thousands of tons of CCW to be produced by new coal-fired power plants at Waterloo, Iowa and

Cassville, Wisconsin. Plant developers at Waterloo have repeatedly touted filling a quarry with

coal ash as an “environmental benefit” of the new plant.

Iowa is currently engaged in a rulemaking process to improve financial assurances for

disposal sites. The state is also reviewing solid waste regulations. Now is an ideal time to make

sure that all solid waste disposed in Iowa is subject to the same consistent level of protective

regulation.

Plant developers at Waterloo

refer to filling a quarry with

coal ash as an “environmental

benefit” of the new plant.


13

Current Iowa CCW

Regulations

As currently written, Iowa’s regulations for CCW disposal are weak in comparison to those of

other states and certainly in comparison to the federal regulations recommended to EPA by

national environmental organizations. The sanitary landfill CCW regulations at IAC § 567-103

(2007) are wholly inadequate to protect the health of Iowa’s citizens and the environment. CCW

approved for “beneficial use” under IAC § 567-108.4(4) (2007) is subject to even fewer

protective standards than CCW destined for landfills and is exempt from landfill permitting

requirements.

I. Sanitary Landfill CCW Regulations

Iowa’s Environmental Protection Commission regulates CCW sanitary landfills solely at IAC §

567-103 (2007).43

CCW sanitary landfills accept bottom ash, fly ash, slag and flue gas

desulfurization system material generated by the coal combustion process and associated air

pollution control equipment, plus any other pre-approved materials.44

A. Permitting Requirements

The following must be included in any application for a CCW landfill operating permit:

1. A completed application Form 50.542-1542;

2. A copy of the letter from the waste management assistance division approving the

comprehensive landfill operating plan;

3. Proof of legal entitlement to the property;

4. A topographical map of the landfill site and adjacent area (within 300 feet) that shows

existing wells and lakes;

5. The results of a minimum of three soil borings to determine the hydrogeologic conditions

and to determine the direction of groundwater flow throughout the site and the minimum

groundwater depth;


14

6. An “adequate number” of representative groundwater sample results at a minimum of

three locations to characterize the groundwater quality. The analytical parameters

required to characterize the groundwater quality and establish a baseline for those

parameters are: arsenic, barium, beryllium, cobalt, copper, iron, lead, magnesium,

manganese, selenium, zinc, chlorides, and sulfate;

7. Construction drawings and specifications of the improvements and alterations that will

take place on the landfill site (i.e. roads, structures, drainage ways, etc.);

8. A copy of the local siting approval.45

Additionally, the site cannot be a wetland, be within a 100-year flood plain, have any sinkholes

or karst features, be located within 300 feet of a residential or commercial area (without the

written approval of the property owners), and must be a minimum of 5 feet above the high

groundwater table.46

These permitting requirements are inadequate to achieve any meaningful characterization

of the landfill site and the groundwater quality.

First, the permit requirements do not include an analysis of the quality of surface waters,

nor do they require the operator to identify any potential interconnections between aquifers and

surface waters. Without this essential information, it is impossible to ascertain the impact of

CCW disposal on the surface waters surrounding the landfill site.

Second, the baseline groundwater sampling requirements are too vague (e.g. the

requirement of an “adequate number” of samples) and lack certain features necessary to gain a

thorough understanding of the groundwater characteristics. For example, there are no specific

upgradient/downgradient sampling location requirements, no duration or frequency of sampling

requirements, and no requirement to update the site characterization as new information (i.e.

monitoring data) becomes available that indicates the hydrology has evolved or is influencing the

groundwater parameters.

The analytes sampled to determine baseline water quality do not include two well known

indicator parameters for ash contamination, boron and molybdenum. Ample research confirms

the leachability of boron and molybdenum from eastern and Midwestern coal ash. Dressen et al.

(1977) found that molybdenum was highly leachable from coal fly ash under alkaline conditions,

and Wu and Chen (1987) found that very high percentages of boron (58-88%) were leachable

from Illinois Basin bituminous coal ashes under alkaline conditions. Ainsworth and Rai (1987)

found molybdenum to be strikingly more concentrated in fly ash from eastern bituminous coal

compared to western subbituminous coal and lignite.

The state of Wisconsin uses boron as an indicator parameter for contamination at coal ash

landfills, and monitoring data from Wisconsin sites has repeatedly revealed high levels of boron

and molybdenum in groundwater at sites contaminated by coal ash. The failure to monitor for

boron and molybdenum leaves Iowa regulators less capable of distinguishing sources of

contamination at coal ash landfills such as the Cargill Gypsum/Fly Ash Landfill in Mahaska

County, where the operator is attributing high levels of sulfate, iron and manganese (many times

over secondary drinking water standards) in downgradient wells to degraded drainage from

previous coal mining at the site.


15

In addition, the applicant is not required to determine groundwater flow rates,

information that is fundamental to understanding the amount of water moving under a site and

pollutant transport times to human receptors such as drinking water or stock water wells or

irrigation pumping points. Furthermore, while the applicant must determine the direction of

groundwater movement, there are no details specifying the degree to which flow directions must

be understood, much less any requirement to map the direction of groundwater flow. In addition

to the lack of flow rates and vague requirement to determine flow direction, the requirement to

identify existing wells and lakes within 300 feet of the site on a topographical map will not

reliably reveal the nature, extent and proximity of human activities or ecological receptors to the

proposed landfill site. As a whole, these methods are unlikely to reveal the true risk of

unacceptable exposure to ash contaminants.

Last, there is no financial assurance requirement to cover monitoring, maintenance,

abatement of pollution, closure or postclosure of the landfill, although IDNR is in the process of

a rulemaking that should rectify this deficiency. Without a financial assurance requirement, the

State cannot be sure that operators will be responsible for any damage their landfills cause to any

groundwater, surface water, air, or the surrounding environment.

B. Design Criteria

Applicants for a CCW sanitary landfill permit must also submit a design plan for an operating

permit. In addition to certain fence and access road requirements, the CCW landfill site design

plan must include the following:

1. A method for ensuring protection of the groundwater and surface water;

2. A method of ash transportation that prevents blowing ash; and

3. A plan to divert surface runoff during the active life of the site and during the postclosure

period.47

These requirements are inadequate for the protection of public health and the

environment. While other states in the Midwest have developed thorough, detailed and

comprehensive isolation and cover requirements,48

Iowa’s regulations do not require any

particular isolation or cover system.

One sentence in the CCW disposal regulations directly addresses the protection of groundwater,

and that sentence proposes no specific standards or requirements.49

• There are no daily or intermediate cover requirements.50

• There are no liner permeability or thickness requirements, or even a requirement that an

operator must utilize a liner at all.

• There are no standards or requirements for a leachate collection system.51

Without these specific requirements to isolate CCW from groundwater, surface water, air, and

the surrounding environment, Iowans in the vicinity of coal ash landfills are not assured of


16

adequate protection from the harmful heavy metal toxins that may escape CCW landfill sites in

the form of leachate and fugitive dust.

C. Monitoring Requirements

Iowa CCW landfill groundwater and surface water monitoring requirements are also inadequate

for the protection of public health and the environment. Within a year of initiating operations,

CCW sanitary landfill operators must commence a groundwater monitoring program. This plan

must be submitted to the appropriate department field office prior to initiating operations.52

The

monitoring program must include the following:

1. A minimum of 1 downgradient monitoring well installed within a year of initiating

operations (additional wells may be required);

2. Quarterly sampling of all monitoring wells within a year of commencing operations to

establish average baseline concentrations;

3. Annual sampling of all monitoring wells within one year of completing the quarterly

baseline monitoring;

4. Sampling for 3 consecutive months if a parameter is exceeded for the two most recent

years of data. If the average of the monthly samplings equals or exceeds the baseline

parameter, a site assessment may be required;

5. A report of the groundwater monitoring results must be submitted annually.53

Several aspects of these monitoring requirements are troubling. First, there is no requirement

for surface water monitoring. Without a requirement for surface water monitoring, any

contamination resulting from CCW leachate emanating to the surface may not be detected or, if

detected, may not be properly attributed to the CCW

landfill. The greater speed with which surface waters

travel, as compared to groundwater, and the threat that

high metals, pH and other pollutants in ash leachate

pose to aquatic life, wildlife and domestic animals,

make this deficiency particularly egregious.

Second, allowing the collection of monitoring data

to determine “baseline” concentrations after operations

at a landfill have commenced can result in the

collection of samples that do not reflect water quality

unaffected by waste disposal. This defeats the basic

objective of baseline monitoring, namely to establish

background water quality from before permit

operations with which to compare subsequent water

quality to determine if contamination from the waste is

occurring.

The determination of baseline water quality, water

flow directions and pathways, rates of flow and

locations of human and ecological receptors are basic

information that needs to be gathered for the regulatory

agency to make intelligent decisions to approve or

The determination of baseline

water quality, water flow

directions and pathways, rates

of flow and locations of human

and ecological receptors are

basic information that needs to

be gathered for the regulatory

agency to make intelligent

decisions to approve or deny a

permit for an ash landfill.

Without this information, cost

effective monitoring systems

that protect human health and

the environment with an

adequate margin of safety are

unlikely to be employed.


17

deny a permit for an ash landfill. Without this information, cost effective monitoring systems

that protect human health and the environment with an adequate margin of safety are unlikely to

be employed.

Third, only one downgradient monitoring well is required, while no upgradient monitoring

wells are required. Although the report’s authors find that most Iowa CCW landfills are being

required to install at least one upgradient monitoring well, this basic requirement is a standard

component in virtually all landfill regulations elsewhere and should not be determined on a

permit by permit basis. In addition to surface water monitoring points, more monitoring wells

should be required (at least one upgradient and at least three downgradient) to understand the full

impact of CCW leachate on groundwater. Monitoring of leachate quality from samples drawn

from leachate collection systems or from wells screened within the ash is also needed to

contextualize the constituents most likely to be found in downgradient waters from ash

contamination.

Fourth, the frequency of post-baseline groundwater monitoring and the initiation of

corrective action responses is severely inadequate and corrective action steps are not adequately

defined. Annual monitoring fails to account for different seasons in the hydrologic cycle when

aquifers are recharging or discharging and when water tables are fluctuating and greater

precipitation may dilute contaminant concentrations. Depending on when the sampling occurs,

the results can understate or overstate trends in concentrations or miss detection of a contaminant

entirely. Even if annual monitoring detects an increase in heavy metal toxins polluting Iowa

groundwater, nothing will be done until two consecutive years of sampling reveal an above

average number for the parameter in question. Only then will the operator be required to

implement a regime of sampling for three consecutive months.

Even then, if the average of those 3 month samples equals or exceeds the value that required

the monthly sampling, all that ”may” be done is a

“site assessment.” 54

Specific corrective actions and

the timing for executing them are not spelled out.

Thus, the operator will not be required by the

language of the regulation to take immediate

corrective action to abate proven contamination,

even though the CCW landfill has been polluting

the groundwater for well over two years.

As a basic recommendation, when a rise in

pollutant concentrations is detected, immediate

requirements to monitor from additional points and

for additional parameters would enhance efforts to

locate the source(s) of contamination within a

landfill. Such enhanced monitoring will

differentiate potential sources of contamination and

identify points where leachate is being generated

and migration is occurring.

The failure to require any of these steps in

regulations may leave residents near CCW landfills

with little assurance that contamination will be addressed before it harms them. In the worst

case scenario, the local community may be left entirely ignorant of emerging environmental

threats, becoming non-consenting participants in an experiment on their health.

As a basic recommendation,

when a rise in pollutant

concentrations is detected,

immediate requirements to

monitor from additional points

and for additional parameters

would enhance efforts to locate

the source(s) of contamination

within a landfill. Such

enhanced monitoring will

differentiate potential sources of

contamination and identify

points where leachate is being

generated and migration is

occurring.


18

D. Closure/Postclosure Requirements

Iowa CCW landfill closure/postclosure requirements are inadequate as well. The operator of a

CCW landfill does not have to submit a plan for post-closure (a closure plan requirement is not

specified) until 180 days prior to closure.55

The post-closure plan must contain the following:

1. The date of closure;

2. Actions that will be taken to close the site;

3. The parties responsible for postclosure care;

4. Final site contours and final cover design (which must consist of not less than 2 feet of

compacted soil and 1 foot of uncompacted soil capable of sustaining a growth of

common grass);

5. A slope design of not less than 3 percent or more than 25 percent;

6. A growth of common grasses to be established by the end of the first full growing season;

7. A minimum of 1 sample from each monitoring well shall be collected annually during the

post-closure period;

8. Annual inspection of the site, including a report on the findings and any corrective

actions taken.56

Post-closure actions are required for a minimum of 10 years following closure, although the

department may extend the monitoring and reporting period as needed.57

These closure/post-closure requirements do not adequately protect the health of Iowans and the

purity of Iowa’s ground and surface water. This inadequacy is manifest in several of the

regulation’s weaknesses:

1. the lack of mandatory final cover implementation date;

2. the short post-closure period (10 years);

3. the infrequency of sampling required;

4. the lack of surface water sampling;

5. the lack of specified corrective action standards and procedures; and

6. the lack of a financial assurance requirement.

The lack of a final cover implementation date means that CCW could go uncovered for extended

periods of time, creating a risk to the groundwater and nearby surface waters. Other states in the

Midwest have more stringent and specific time requirements for final cover implementation.58

The post-closure period is also too short to get a real sense of any potential long-term impact

CCW may have on the groundwater, surface water, and surrounding environment. It is


19

important for the health of Iowans that the postclosure period be long enough to allow the

operator to assess with a high degree of accuracy the long-term effect of CCW.59

The lack of surface water sampling and infrequency of groundwater sampling ensure that

contamination will either go unnoticed or be approached with such lethargy that corrective action

will not halt contamination in time to avoid human and ecological damage. Indeed, whether any

corrective action will be required, even a site assessment for contaminant rises, is not clearly

spelled out. Finally, without a financial assurance requirement, the state may not be able to

enforce the post-closure care requirements and may be forced to shift the cost of monitoring and

clean-up to taxpayers. Upon finalization of new financial assurance requirements, they must

become part of all existing and new permits.


20

Groundwater Trends

at Iowa CCW

Landfills

Monitoring data from Iowa CCW landfills

demonstrate the potential for the CCW in these

facilities to pollute underlying groundwater. While

this report does not examine in detail the activities at

Iowa CCW landfills, the authors undertook a brief

examination of water quality at monitoring points at

these facilities. This analysis readily reveals higher

ash pollutant concentrations at downgradient points

than at upgradient points and rising concentrations at

downgradient points compared to concentrations at upgradient points that are usually static or

declining. The following are examples of these trends from three Iowa CCW landfills.

Figures 1 through 4 reflect iron, sulfate, magnesium and cobalt concentrations in the

shallow groundwater underneath the adjoining Cargill Sweeteners – North American Landfills

for CCW and gypsum near Eddyville in Mahaska County.60

According to reports in the permit

files from the landfill’s consultant, Howard R. Green Company, the original landfills for fly ash

(CCR) and gypsum were developed at this site in the late 1980s, approximately 10 to 15 years

after strip mining for coal ceased at the site. Gypsum was disposed in a cell on the western half

of the site from 1990 to 1991. A substantially larger amount of fly ash was deposited on the

eastern half of the site from 1990 to 2000. According to IDNR inspection reports, the amount of

fly ash disposed was approximately 20,000 to 30,000 tons per year.

Monitoring well MW-6 in Figures 1 through 4 is an upgradient point while monitoring

wells MW-10, 11, 12 and 13 are designated as downgradient points. These wells are screened in

mine spoils underneath a constructed groundwater drainage layer of sand, which in turn is under

Monitoring data from Iowa

Coal Combustion Waste

landfills demonstrate the

potential for the Coal

Combustion Waste in these

facilities to pollute underlying

groundwater.


21

a recompacted liner of “clay-rich mine spoils,” and a system of leachate collection pipes. The

upgradient and downgradient designations are corroborated by groundwater flow maps and water

level measurements in Annual Water Quality Reports from the Operator which place the water

elevations in MW-6 consistently above water elevations in the downgradient wells. For

example, water elevations (in feet above mean sea level) recorded in Annual Reports from

September 1995 through September 2005 were 7.6 to 40.8 feet higher in MW-6 than in MW-10,

MW-11, MW-12 and MW-13. Two other downgradient wells, MW-8 and MW-9 (unexamined)

were sampled in conjunction with MW-6 for the gypsum landfill.

Figure 1 reveals noticeably higher concentrations of iron in all downgradient wells, but

particularly MW-10 and MW-11, than have been measured in upgradient MW-6. The highest

measurement in MW-6 was 1.6 mg/L, while the highest measurements in MW-10 and MW-11

have been 3.6 and 3.9 mg/L respectively. Only three of 25 samples at MW-6 recorded iron

levels equal to or greater than five times the secondary Drinking Water Standard (“DWS”) of

0.30 mg/l. In contrast, 20 of 27 samples at MW-10 and 15 of 27 samples at MW-11 have

produced iron concentrations equal to or greater than five times the secondary DWS. There was

also an anomalously high measurement of 11 mg/L recorded at MW-13, but other measurements

for this well and those at MW-12 are in the same range as those at MW-6.

The operator maintains that higher iron levels at MW-11 and MW-12 are due to

“weathering of disturbed materials in the mine spoils.” The operator puts forward this same

assertion consistently for higher levels of manganese, sulfate, and cobalt at downgradient

monitoring wells at this site. However, this claim does not explain clearly rising trends in

average concentrations of these pollutants measured at downgradient monitoring wells that are

not seen at MW-6. Figure 1 reflects a doubling of average iron concentrations at MW-11 from

1990 to 2005.

If high iron at MW-11 were due simply to the ambient effects of mining which ended

thirty years ago at this site, one would not expect to find such a rising average concentration.

The oxidation and weathering of pyrites in the spoils should decline with time from the mining

as these constituents wash out of the system. The covering of the site with compacted spoils,

CCW and capping measures should have further reduced the atmospheric exposure needed for

weathering of spoils to produce such degraded mine drainage. Reductions in acid mine drainage

and acidity in both underground and surface mine sites with time has been substantively

documented in research and is a fundamental concept behind modern reclamation which seeks to

eliminate the atmospheric exposure that generates acid from mine spoils.61

In addition to much higher concentrations at downgradient points, Figure 2 demonstrates

the same rising trend in average sulfate concentrations is occurring at downgradient MW-12 but

not at upgradient MW-6. Access to monitoring data prior to 1999 for sulfate, not in the permit

file available at DNR’s main Des Moines records facility, would reveal if sulfate trends at other

downgradient monitoring points have been occurring. While sulfate concentrations at MW-6

have remained static, between the secondary DWS of 250 mg/L and US EPA’s health based

Drinking Water Advisory of 500 mg/L, the average sulfate concentration at MW-12 has risen to

approximately 3500 mg/L as of November 2005, 14 times the secondary DWS and seven times

the Drinking Water Advisory.62


22

Figure 1. Cargill Fly Ash Landfill Well Data

Iron

0

2

4

6

8

10

12

Q1,

1990

Q3,

1990

Q2,

1991

Q2,

1992

Q2,

1993

Q2,

1994

Q2,

1995

Q2,

1996

Q2,

1997

Q1,

1999

Q3,

1999

Q3,

2000

Q1,

2001

Q3,

2001

Q3,

2002

Q4,

2004

mg

/L

MW-6 (upgradient)

MW-10 (downgradient)





23

Figure 2. Cargill Fly Ash Landfill

Sulfate

0

1000

2000

3000

4000

5000

6000Q

1,

1999

Q2,

1999

Q3,

1999

Q4,

1999

Q3,

2000

Q1,

2001

Q2,

2001

Q3,

2001

Q4,

2001

Q3,

2002

Q4,

2003

Q4,

2004

Q4,

2005

mg

/L

MW-6 (upgradient)





Linear (MW-12 (downgradient))

The 2005 Annual Water Quality Report from Cargill also revealed manganese

concentrations of 8.9 mg/L at MW-10, 6.0 mg/L at MW-11, 2.6 mg/L at MW-12 and 0.712

mg/L at MW-13, compared to a concentration at MW-6 of 0.112 mg/L in the November 2005

annual sampling. Thus manganese ranged from just over twice the secondary DWS at MW-6 to

178 times the secondary DWS at MW-10. Levels at three of the four downgradient points also

exceeded all EPA (child and adult) Health Advisory Levels including the Drinking Water

Equivalent Level for manganese, which standards range from of 0.3 mg/L to 1.6 mg/L, while the

concentration at upgradient MW-6 remained below these health-based standards.

Much higher concentrations of magnesium at all downgradient wells than at upgradient

MW-6 provide additional evidence that ash is degrading groundwater at this site (see Figure 3).

While there is no drinking water standard, health advisory or drinking water advisory level for

magnesium, like calcium this metal occurs in large quantities and readily soluble concentrations

in many coal ashes and thus serves as a good indicator parameter for water contaminated by ash.

Presumably IDNR’s recognition of this fact is why it requires CCW landfills to monitor for

magnesium. The presence of high levels of sulfate and magnesium at downgradient monitoring

points appears to concern IDNR, which states in a May 8, 2006 letter to Cargill concerning the

2005 Annual Water Quality Report:


24

In addition, the possibility that a release may have occurred at this site is

supported by the common occurrence of calcium sulfate and magnesium

sulfate in fly ash and by the detection of similar sulfate concentrations in

groundwater at other CCR landfills in the state.

Cargill appears to acknowledge the significance of high magnesium concentrations at the site in

the 2005 Report on page 11-2:

Magnesium was detected in all of the wells. Magnesium does not have a

MCL, SMCL, or HAL standard. The results were evaluated by comparing

the reported concentration to the average concentration from the most

recent two (2) years of data. The concentrations were above the two (2)

year average in all of the wells with the exception of MW-06. The

concentrations of magnesium detected in the wells ranged from 18.0 mg/L

in MW-06 to 310 mg/L in MW-10. Based on review of historical data, the

concentrations of magnesium in MW-13 may be indicative of an

increasing trend.

An increasing trend in average magnesium concentrations at MW-13 is confirmed in Figure 3

and might be confirmed at other monitoring points were there magnesium data available for

those points prior to Quarter 3 of 2000.


25

Figure 3. Cargill Fly Ash Landfill

Magnesium

0

50

100

150

200

250

300

350

400

450

Q3

, 2

00

0

Q4

, 2

00

0

Q1

, 2

00

1

Q2

, 2

00

1

Q3

, 2

00

1

Q4

, 2

00

1

Q3

, 2

00

2

Q4

, 2

00

3

Q4

, 2

00

4

Q4

, 2

00

5

mg

/L

MW-6 (upgradient) MW-10 (downgradient) MW-11 (downgradient)

MW-12 (downgradient) MW-13 (downgradient)

Figure 4 illustrates a rise in average cobalt concentrations in downgradient water at the Cargill

Landfill. Cobalt is a trace metal found in Iowa coal ashes (and many others) and monitored for

at Iowa CCW landfills. An Annual Water Quality Report filed for Permit No. 62-SDP-4-89P

states:

Analysis of Iowa coals shows the presence of sulfur, primarily from pyrite but also as

sulfate and in organic forms. These analyses also show the presence of cobalt,

manganese and iron in the ash from these coals (Hatch et al., 1984).

While cobalt can be radioactive and is much more toxic if so, it is usually found as a stable

metal. Cobalt is beneficial as part of Vitamin B12, but also harmful in small doses. The

International Agency for Research on Cancer (IARC) states that, “Cobalt is possibly

carcinogenic to humans” although this is based on studies of rodents breathing cobalt dust or

who had the metal placed directly into their bodies. Long term exposure of rodents to lower

levels of cobalt in food and drinking water has resulted in effects on the heart, liver, kidneys,

testes, blood and skin as well as behavior.63


26

While there is wide variation in standards for safe cobalt levels in water among states, the

latest measurements at MW-10 and MW-11 exceed Wisconsin’s groundwater standard and

drinking water standard for cobalt of 40 micrograms per liter (0.04 mg/L).

0

0.005

0.01

0.015

0.02

0.025

0.03

0.035

0.04

0.045

0.05

Q1 '99 Q2 '99 Q3 '99 Q4 '99 Q3 '00 Q1 '01 Q2 '01 Q3 '01 Q4 '01 Q3 '02 Q4 '03 Q4 '04 Q4 '05

mg/L

Figure 4. Cargill Fly Ash LandfillCobalt

MW-6 (upgradient) MW-10 (downgradient) MW-11 MW-12 MW-13


27

The figures below show similar degradation of the shallow groundwater underneath two other

Iowa CCW Landfills. Figures 5, 6 and 7 reflect rising iron and manganese concentrations and

notably higher sulfate concentrations respectively measured at downgradient monitoring wells

than at upgradient wells (and other downgradient wells) at the Grain Processing Corporation

Landfill. This facility occupies approximately 80 acres of a ravine fill site opening into a flood

plain near Muscatine in Louisa County.64

According to permit documents, “landfilling” has

been going on at this site since at least the mid-1960s.

Wells MW-2, MW-3 and MW-5 are designated upgradient points and MW-4, MW-15

and MW-16 are designated downgradient points. All monitoring wells at the site are screened in

shallow sand or in a deeper sand and gravel alluvial aquifer that is a regional water table in the

area. The designation of MW-5 is contradicted by permit materials which label it a

downgradient well in narratives and maps while monitoring reports identify MW-5 as an

upgradient point. Most notable are sharp rises in iron and manganese at downgradient MW-4 off

the northwestern corner of the site to concentrations that exceed the secondary DWS for iron by

28 times and manganese by 96 times. Also of note are rising sulfate concentrations at

downgradient MW-16 beyond the eastern boundary to three times the secondary DWS (250

mg/L) and 7 to 8 times higher than sulfate concentrations in the other monitoring wells.

Figure 5. Grain Processing Corp. Landfill

Iron

0

1

2

3

4

5

6

7

8

9

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

mg

/L

MW-02 (upgradient) MW-03 (upgradient)

MW-05 (upgradient) MW-04 (downgradient)



28


Manganese

0

1

2

3

4

5

62

00

0

20

01

20

02

20

03

20

04

20

05

20

06

mg

/L

MW-02 (upgradient) MW-03 (upgradient)

MW-05 (upgradient) MW-04 (downgradient)




29


Sulfate

0

200

400

600

800

1000

1200

2000

2001

2002

2003

2004

2005

2006

mg

/L

MW-02 (upgradient)

MW-03 (upgradient)

MW-05 (upgradient)





Figures 8, 9 and 10 also reflect higher concentrations of iron, manganese and sulfate respectively

at downgradient points in groundwater underneath the CCR Landfill (Permit No. 29-SDP-3-82P-

ILF) at the Iowa Army Ammunition Plant in Des Moines County. The site occupies

approximately 7.5 acres. Although the data set extends for only 2-3 years and the site is small,

there is noticeably more degradation manifested at downgradient monitoring wells (MW-3-91,

MW-4-91d, MW-5-91, and MW-6-91) than at upgradient monitoring wells (MW-1-91 and MW-

2-91d). The “d” besides the monitoring label infers a deeper aquifer depth being monitored by

that well.


30

Figure 8. IA Army Ammunition Plant Landfilil

Iron

0

0.1

0.2

0.3

0.4

0.5

0.6

0.7

0.8

1/1

/2001

1/1

/2002

1/1

/2003

1/1

/2004

1/1

/2005

mg

/L

MW-1-91 (upgradient) MW-2-91d (upgradient)

MW-3-91 (downgradient) MW-4-91d (downgradient)

MW-5-91 (downgradient) MW-6-91 (downgradient)

Figure 9. IA Army Ammunition Plant Landfill

Manganese

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5

5

03

/02

'09

/02

03

/03

09

/03

03

/04

09

/04

09

/05

mg

/L

MW-1-91 (upgradient)MW-2-91d (upgradient)MW-3-91 (downgradient)MW-4-91d (downgradient)MW-5-91 (downgradient)MW-6-91


31

Figure 10. IA Army Ammunition Plant Landfill

Sulfate

0

50

100

150

200

250

300

20

02

20

03

20

04

mg

/L

MW-1-91 (upgradient) MW-2-91d (upgradient)

MW-3-91 (downgradient) MW-4-91d (downgradient)

MW-5-91 (downgradient) MW-6-91 (downgradient)

Monitoring data from Iowa CCW landfills indicates that additional safeguards are needed in

regulations as well as rigorous enforcement of those safeguards to stop contamination of shallow

groundwater by CCW that appears to be a routine occurrence at these “protected” sites.

II. “Beneficial Use” of CCWs

Not all CCW produced in or imported to Iowa winds up in a sanitary landfill. CCW is pre-

approved for “beneficial use” under Iowa Administrative Code § 567-108.4(4) (2007) and does

not require further approval from IDNR when used as designated by this regulation. Coal

combustion fly ash and flue gas desulfurization by-products may be used as follows:

1. Raw material in manufactured gypsum, wallboard, plaster, or similar product;

2. Raw material in manufactured calcium chloride;

3. Raw material in the manufacture of absorbents;

4. Fill material pursuant to IAC § 567-108.6(1) (defining requirements for fill material

use); or

5. Alternative cover material at a sanitary landfill pursuant to IAC § 567-108.8 (approving

use of alternative cover materials for sanitary landfills).65

Coal combustion fly ash or bottom ash or boiler slag may be used as follows:

1. Raw material in the manufacture of cement or concrete products;

2. Raw material to be used in mineral recovery;


32

3. Raw material in the manufacture of asphalt products;

4. Raw material in plastic products;

5. Subbase for hard-surface road construction;

6. Soil stabilization for construction purposes;

7. Fill material pursuant to IAC § 567-108.6(1);

8. Alternative cover material at a sanitary landfill pursuant to IAC § 567-108.8.66

Coal combustion bottom ash may be used as follows:

1. Traction agent for surfaces used by vehicles;

2. Sandblasting abrasive.67

If CCW is to be used as fill material, the following measures are required:

1. Leachate characteristics of the solid by-product shall be measured by the synthetic

precipitation leaching procedure (SPLP, EPA Method 1312) and shall be less than or

equal to 10 times the maximum contaminant levels (MCL) for drinking water. Foundry

sand and coal combustion by-products may limit the SPLP analytes to total metals for

drinking water.

2. Total metals testing results, which shall include thallium, shall be consistent with the

department’s statewide standards for soil pursuant to IAC § 567-137. Arsenic levels shall

be consistent with the statewide standards for soil or the naturally occurring (i.e.,

baseline) arsenic levels of the soil, whichever are greater.

3. The solid by-product shall produce a fill that has a pH:

a. Greater than or equal to 5 and less than or equal to 8 if the fill may be used as a

growing media either now or in the future;

b. Greater than or equal to 5 and less than 12 if the fill is specifically intended not to

be uses as growing media either now or in the future. In this category of fill,

materials with a pH equal to or greater than 10 but less than 12 shall be used only

in areas where direct physical contact by humans for long periods of time is not

expected to occur.

c. For deep fills where only the surface may serve as growing media either now or in

the future, then at a minimum the top 3

feet shall have a pH greater than or

equal to 5 and less than equal to 8. Fill

material below the top 3 feet shall have

a pH greater than or equal to 5 and less

than or equal to 12.

4. The by-product shall not be placed in a

waterway or wetland or any waters of the state

or extend below or within 5 feet of the high

water table.

5. The by-product shall not be placed within the

100-year flood plain unless in accordance with

all local and department regulations including

IAC § 567-71.5 (regarding approval of waste or water treatment facilities).

Thus a laboratory leach test on

one sample of CCW and an

analysis of the pH and metals

content relative to soils from a

single sample of CCW are the

sole regulatory requirements

before large volumes of that

CCW can be used to fill a low-

lying area in Iowa.


33

6. The by-product shall not be placed closer than 200 feet to a sinkhole or to a well that is

being used or could be used for human or livestock water consumption.

7. The by-product shall not be putrescible.68

Thus a laboratory leach test on one sample of CCW and an analysis of the pH and metals content

relative to soils from a single sample of CCW are the sole regulatory requirements before large

volumes of that CCW can be used to fill a low-lying area in Iowa. Normally the testing

requirements must be completed before commencing filling and in an annual report to IDNR.

However, file review indicates that variances to soil and pH standards are granted routinely.

More importantly, ample research has shown that laboratory leach tests such as the

Synthetic Precipitation Leaching Procedure (SPLP) do not provide a reliable indication of how

metals and other constituents in CCW will behave in the disposal environment. While this test

determines the quantity of inorganic constituents that readily leach out of a coal ash sample

under controlled laboratory conditions for short (18 hour) periods, it is not designed to simulate

actual conditions in sites where CCW is placed. Given the lack of any safeguards under Iowa’s

beneficial use policy separating the CCW fill sites from soils, rock and layers of earth or

preventing large quantities of rain water, snow melt or other precipitation from percolating

through these sites, the conditions in them will be geochemically much more complex than the

set conditions in the lab test.

Site placements will involve much larger volumes of coal ash in much more concentrated

environments for leaching, a variety of surrounding site materials, constant wetting and drying of

CCW that will vary throughout large deposits and changing chemistries of groundwaters and

leachates moving through the coal ash. Also missing from the SPLP is the ability to predict coal

ash leaching behavior over time. Coal ash placements will produce leachate over decades at

these sites, not hours. Different constituents in CCW and the surrounding earth will become

more or less soluble over time as factors such as oxidation/reduction potentials and pH change.

Not surprisingly, researchers at US EPA, the US Department of Energy, and numerous

universities have found that standard leaching tests (such as the SPLP) alone should not be relied

upon to predict the leaching behavior of numerous contaminants in coal ash and “may greatly

underestimate the actual leaching that will occur” at CCW disposal sites.69

A study of a bituminous fly ash disposal site revealed that several different leaching tests

failed to predict the contaminants ultimately found in monitoring wells.70

The study found that

leaching tests both over-predict and under-predict concentrations of pollutants and that results

should be field tested until the leaching characteristics of the particular ash in the site in question

are fully known. The study found that leach tests are unreliable field indicators “primarily

because these tests are not designed, and should not be used, to predict exactly the concentrations

of leachate components that will be found in the field.” 71

There are no regulatory requirements for environmental covenants or easements to prevent

future uses that might lead to human health impacts. There are no regulatory requirements for

pre-fill surface or groundwater baseline testing or for surface or groundwater monitoring after fill

activities have commenced.

Iowa’s ‘beneficial use’ regime in effect handles a toxic waste stream as if it were almost entirely

benign, creating the potential for a growing human health hazard.


34

A. Management Plans

All sites engaged in CCW beneficial uses listed in IAC § 567-108.4 are required to develop and

maintain a solid by-product management plan that satisfies the following requirements:

1. Lists the source(s) of the solid by-product;

2. Lists procedures for periodic testing of the solid by-product to ensure that the chemical

and physical composition has not changed significantly;

3. Provides a description of storage procedures, including:

a. Storage location(s);

b. Maximum anticipated inventory, including dimensions of any stockpiles;

c. Run-on and run-off controls, which may include a storm water National Pollution

Discharge Elimination System (“NPDES”) permit;

d. Maximum storage time, not to exceed six months unless authorized in writing by

the department.72

File review indicates that the quality and thoroughness of management plans vary widely, from

ring-bound documents that include test results, to one-page letters. Consistent standards are not

spelled out to ensure that periodic retesting occurs on a frequent enough basis to detect changes

in the physical and chemical composition of CCW before large quantities of the CCW are

dumped at fill sites. We were unable to locate any files that include NPDES permits. In general,

the management plans assert that run-off and run-on are not risks and do not address them. We

comment on one sample management plan below in a discussion of a Scott County, Iowa, site.

B. Records and Reporting

Any entity that engages in the beneficial use of CCW in Iowa must maintain all records related

to the management plan for a minimum of 5 years.73

Reporting is required as follows:

1. A copy of the management plan must be submitted to IDNR whenever that plan is

revised or within 60 days of the end of the calendar year, whichever is earlier;

2. Generators whose solid by-products are being beneficially used as fill material shall

submit to the department within 60 days of the end of each calendar year the following

information for each beneficial use project or activity:

a. The location of the project;

b. The tons of solid by-product used for the project.74

The only mention of Iowa in EPA’s “Coal Combustion Waste Management at Landfills and

Surface Impoundments, 1994-2004, Report”, notes that Iowa is one of 30 states that do not

exempt on-site CCW landfills from state solid waste permitting requirements. This is a

misleading categorization of Iowa’s permitting regime, because it gives the impression that

Iowa’s solid waste permitting laws apply to all CCW. On the contrary, if CCW is designated for

“beneficial use” in Iowa, a near total lack of state solid waste permitting requirements results.

Unfortunately, the EPA report did not review regulations governing the “beneficial use” of

CCWs, which are the source of greatest concern in Iowa.


35

In addition, research for this report was complicated by the fact that IDNR does not have

basic permitting and enforcement data for this waste stream on its website. Paper files available

at the central records repository in Des Moines lack complete data even for sites where

monitoring has taken place. The lack of access to such basic information hampers citizen

involvement in the permitting and enforcement process. Public access is critical to each Iowa

resident’s ability to assess risks posed by existing and proposed land uses. Access to thorough

public environmental records is essential to good government at the local, county and state level.

Direct public access to such records also improves the incentives for regulatory compliance for

regulated entities.

C. Case Study 1 – Linwood Mining Beneficial Use Site, Scott County, Iowa

At the Linwood underground mining operation located north and west of Buffalo, Iowa, in Scott

County near the eastern border, fly ash is used to fill underground voids to stabilize the surface.

Linwood Mining and Materials Corporation (“Linwood”) collects fly ash as backhaul in their

product distribution to a number of coal combustion sites in Iowa, Indiana, and Wisconsin.75

Fly

ash used for backfilling mine chambers is stored onsite in contained compartments called pigs.

The management plan submitted by Linwood and the Waste Commission of Scott County and

accepted by IDNR appears inadequate even in relationship to the relatively minimal standards set

by the Code.

In response to the Code’s requirement for periodic testing, the management plan encloses

one set of test results of existing sources and proposes to test as new fuel sources are added or to

the extent that the fly ash can be considered a new source. How this will be determined, by

whom or by what standard, is not clear, but is a basic concern given the potential for multiple

different ashes from generators in several states to be disposed in this operation.

In what appears to be a violation of the plain language of IAC 567-108.6(1)(d), (e) and

(f), without any variance mentioned, the management plan states:

Fly ash backfilling operation of the rooms at the mine may occur within the

horizontal extent of the 100-year flood plain, are generally below the high water

table and may be within 200 feet of a sinkhole or well that is being used or could

be used for human or livestock consumption. The placement of fly ash in the

mine room is approximately 140 feet to 180 feet below the surface (Citations

omitted).76

The management plan does not give any additional information about the hydrogeology of the

site or explain why this situation should be considered legal.

Part of the submission from the operators is an application for a variance to allow for

beneficial use of CCW that exceeds state soil standards for beryllium and arsenic. The primary

justification offered is that the operator solidifies the fly ash by mixing it with water, then adding

lime kiln dust if necessary, to make the mixture “set up” in the mine. The variance petition

provides no further information about the stability or permeability of the substance created,


36

although the petition asserts that “the material is not exposed to water,” suggesting that water

might affect it were water present.77

No test results on the resulting substance are included.

A September 15, 2005 request to accept CCW from Alliant Energy’s Nelson Dewey coal

fired plant at Cassville, Wisconsin, includes testing results indicating that the waste tests above

Iowa state soil standard limits for arsenic, vanadium, and “possibly beryllium,” although the

beryllium level detected is over twice the state soil standards limit.78

In three tests, the waste

tested from 19 to 38.1 mg/kg for arsenic, while the state standard for soil is 1.40 mg/kg.79

IDNR

granted a variance for beneficial use of this waste as minefill, relying on leachate tests dating

from 2001 in granting the June 2006 variance.80

Neither the beneficial use determination nor

the management plan for Linwood sets up any

enforceable schedule for composition testing in the

site or any requirement for groundwater monitoring.

Leachate tests more recent than from 2001 apparently

have not been required of the operator. IDNR and the

operator accept the “setting up” process that binds the

CCW in a “cementitious” state as sufficient

protection, without further analysis. Yet in evaluating

the variance request, IDNR Environmental Engineer

Senior Nina M. Koger states with regard to total

metals limits: “In some cases, the regulated limits are

set too high and there is no way to determine if the

results are actually less than the limit or not.”

The relevant section of the Code, IAC § 567-

108, provides no guidance on what conditions might

justify a variance allowing higher total metals limits

than those set by law. Part of the stated justification for the variance is that other sites have

received a similar variance, in spite of the fact that they do not “solidify” their fill. One of those

sites, Waterloo South Quarry Fill Reclamation, is discussed below.

D. Case Study 2 – Waterloo South Quarry Reclamation, Black Hawk County

Viewed from surface level (as pictured on the front of this report), Waterloo South Quarry is a

massive open pit with many ponds of standing water on a dry day. This quarry in northeastern

Iowa accepts CCW from some of Iowa’s best-known public and private institutions: the

University of Iowa, University of Northern Iowa, Iowa State University and John Deere

Foundry. University of Iowa fly ash and John Deere Foundry waste hold variances for

exceeding state standards.

Foundry sand goes into the quarry first, to a height of 12 feet from the natural surface.

Two feet of clay are added as an “aquitard.” Ash is then mixed with quarry rock to cover the

clay to within 2 feet of the natural surface. The final 2 feet are filled with vegetated topsoil. A

final letter in the file, changing the height of the foundry sand fill from 25 feet to 12 feet below

the surface, does not mention the clay cap. It is not clear whether this requirement still exists.

The file gives no indication of any groundwater monitoring at the site or any subsequent leachate

tests done on ashes once they are approved for disposal at this site. There is therefore no way to

determine whether any water contamination has resulted from CCW disposal at this site, and no

baseline from which to measure any future contamination, even if monitoring began today.

A September 15, 2005 request

to accept CCW from Alliant

Energy’s Nelson Dewey coal

fired plant at Cassville,

Wisconsin, includes testing

results indicating that the waste

tests above Iowa state soil

standard limits for arsenic,

vanadium, and “possibly

beryllium,” although the

beryllium level detected is over

twice the state soil standards

limit.


37

As previously noted, this site is slated to become the repository for a vast additional

CCW stream from a proposed 750 megawatt coal plant at Waterloo, Iowa.


38

Proposed Iowa CCW

Regulatory Reform

Iowa’s CCW disposal regulations need to improve

quickly in order to protect the health and well-being of

Iowans, and to keep our environment clean and safe.

Iowa is now home to a new 790MW coal-fired power

plant at Council Bluffs and state agencies have received

proposals for a 660MW plant at Marshalltown and a

750MW plant at Waterloo, each of which will add

thousands of tons of coal ash to Iowa disposal sites. In

light of these proposals for massive new coal plants that would dispose of their coal ash in Iowa,

new and more protective regulations are urgently needed.

The following proposed improvements to regulations for landfill sites constitute a framework

for comprehensive CCW regulations:

1. Improved site characterization is needed of disposal sites prior to permit approval. This characterization must include baseline surface water sampling and improved

baseline groundwater sampling in order to achieve a better understanding of the quality

of the water. At a minimum, monthly surface and groundwater quality samples at should

be collected that characterize the seasonal variation of surface and groundwater quality

throughout the entire hydrologic cycle in baseline sampling. These samples should be

collected from upgradient and downgradient monitoring points and upstream and

downstream monitoring points.

This characterization should also require mapping of the flow rate and direction of

groundwater and identify all interconnections between aquifers and groundwater and

surface waters on the site or in vicinity of the site. All of this information must be

gathered prior to approval of a facility’s permits and serve as the basis for approval of the

permit or disapproval of the site for waste disposal;

Iowa’s Coal Combustion Waste

disposal regulations need to

improve quickly to protect the

health and well-being of

Iowans, and to keep our

environment clean and safe.


39

2. Operators must characterize the chemical and physical properties of the CCW prior

to accepting it at their facilities, and must continue to characterize it as it evolves.

The characterization of the CCW should be integrated with the characterization of the site

so that disposal of wastes with known high potential to pollute at sites near human

receptors is avoided. 3. Operators must design a facility that is capable of limiting impacts to acceptable

levels during the lifetime of the disposal and through the closure/postclosure

periods. This design must include comprehensive liner, cover, and leachate collection

system requirements comparable to those of other states surrounding Iowa;

4. Increased monitoring is needed of the construction, operation, and performance of

the disposal site during its operation and after closure;

5. Groundwater and surface water monitoring are needed that will realistically detect

contamination from CCW leachate. This should include a minimum of 1

upgradient/upstream monitoring well, a minimum of 3 downgradient/downstream

monitoring wells (this should include the closest water-bearing zones to the bottom of fill

sites), and wells in proximity. In addition monitoring should document pollutant

concentrations emanating directly from within the waste.

Operators should be required to conduct at least quarterly sampling of all

monitoring wells during the life of the disposal site and during the closure/postclosure

periods to ensure that the groundwater and surface waters are safe from contamination.

Data from monitoring shall be assessed to assure that the initial conceptualization in

characterization of the site is updated as necessary so that monitoring systems remain

effective in measuring upgradient water quality and detecting contaminant migration

from the site;

6. Abatement of adverse impacts when they occur must be required by setting

standards of performance that trigger intervention both if standards are exceeded

and if standards will be exceeded. The procedure for assessing and abating pollution

should be clearly spelled out and should assure that pollution is abated as expeditiously as

possible.

7. The guarantee of financial assurance during the life of the disposal site and during

the closure/postclosure periods must be assured before permits for landfills are

approved.81

The danger posed by coal ash leachate does not disappear when coal ash is transported inside the

boundaries of a fill site. Evidence of harm from lax coal ash disposal is well established

throughout the country. No scientific basis exists for exempting fill sites from Iowa landfill

standards. Many fill sites in Iowa are in sand and gravel quarries or limestone quarries, a siting

choice that renders meaningless the limitation on placement of CCW five feet above the water

table, given that such sites are located in highly conductive aquifers. These are precisely the

sites that generate the highest human cancer risk according to the US EPA risk assessment just

completed in the August 2007 Notice of Data Availability.


40

Accordingly, we recommend that the Iowa Administrative Code be modified to remove

“fills, structural or otherwise, pursuant to IAC § 567-108.6(1), as a beneficial use of CCW

exempt from the landfill standards in IAC § 567-103.” In addition, the above deficiencies

provide ample basis for:

1. Halting further permitting, renewal or expansion of “fills” under Iowa Admin. Code § 567-

108.6(1);

2. Closing existing fill sites on the most expeditious, yet practicable schedule (within two

years);

3. Imposing immediate and long term monitoring at existing fill sites; and

4. Mandating cleanup of contamination detected at existing sites.


41

Conclusion

Iowa’s regulatory regime for CCW landfill sites and for “beneficial use” of CCW fill poses

significant risks of undetected environmental contamination, significant liability risks to fill site

operators, and significant health risks to Iowans. In light of the documented risks to human

health and the environment, we strongly recommend immediate cessation of “beneficial use” fill

permits and closure of such sites using the recommended practices for coal ash sanitary landfills.

National regulation, both of CCW landfill sites and “beneficial use” determinations, is desirable

because of the fluidity of CCW across state borders. A state by state project of regulatory reform

has the risk of commencing a race to the bottom, in which CCW would find its way to the most

loosely regulated state (which may be Iowa in the Midwest). Until national reform takes place,

Iowa must improve its CCW disposal regime to avoid becoming (or remaining) a regional net

recipient of this under-regulated hazardous waste stream.


42

NOTES

1 Energy Information Administration.

2 “Coal: Resources and Future Production”, Energy Watch Group (March 2007).

3 http://www.ucsusa.org/clean_energy/coalvswind/brief_coal.html.

4 Anna Jo Bratton, “Plants’ Clean-Up May Create Side-Effect”, Associated Press, Aug. 26, 2007.

5 Block, C., Dams, R. (1976), “Study of Fly Ash Emissions During Combustion of Coal.” Environmental Science

and Technology. 10: 1011.

6 Carlson, C.L., Adriano, D.C. (1993). “Environmental Impacts of Coal Combustion Residues”, Journal of

Environmental Quality, 22: 227-247.

7 Electric Power Research Institute (EPRI) (1983). “Pilot Study of Time Variability of Elemental Concentrations in

Power Plant Ash.” Stanford University, Stanford, California and Radian Corporation, Austin, Texas.

8 Parts per million.

9 Parts per billion.

10

Bignoli, G. (1989), “Health and Environmental Impact of Chromium Release from Coal Ash.” Journal of Coal

Quality, 8 (3-4): 72-81. Sabbioni, E., Goetz, L., and Bignoli, G. (1984), “Health and Environmental Implications of

Trace Metals Released from Coal-Fired Power Plants: An Assessment Study of the Situation in the European

Community”, The Science of the Total Env., (40) 141-154.

11

Sited in Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines,

Clean Air Task Force (July 2007), Chapter 2, at 1 & 2.

12

See October 28, 2004 management plan for Permit # 82-SDP-03-77, Linwood Mining in Scott County, citing

CCW sources in Iowa, Indiana and Wisconsin (Table 1).

13

Boone County Quarry; Lee Crawford Quarry, Cedar Rapids; Waterloo South Quarry, near La Porte City; and

Wendling Plower Quarry, Central City.

14

EPA Draft Report, “Human and Ecological Risk Assessment of Coal Combustion Wastes”, August 6, 2007 at ES-

8.

15

“Managing Coal Combustion Residue in Mines” Report, National Academies of Science, March 1, 2006.


43

16

See Advance Notice of Proposed Rulemaking on Placement of Coal Combustion Byproducts in Active and

Abandoned Coal Mines; 72 Fed. Reg. 12026 (March 14, 2007), Docket No. 1029-AC54.

17

Cited in U.S. Department of Energy and Environmental Protection Agency, “Coal Combustion Waste

Management at Landfills and Surface Impoundments” (August 2006) at 4. Municipal solid waste figures from U.S.

EPA, see < http://www.epa.gov/epaoswer/non-hw/muncpl/facts.htm>.

18

US EPA, “Notice of Data Availability on the Disposal of Coal Combustion Wastes in Landfills and Surface

Impoundments”, (August 2007) at 20-21.

19


1. 20

“Addendum to Environmental Contamination Assessment Highway 59 Ash Landfill Town of Waukesha,

Wisconsin, Wisconsin Electric Power Company, November 1998.

21

Riewe, T., “The Ones That Gave Us Gray Hair,” Water Well Journal, 1995.

22

“Coal Combustion Waste Damage Case Assessments,” US EPA, Office of Solid Waste, July 9, 2007.

23

Tom Pelton & Phillip McGowan, “Utility fined over fly ash”, Baltimore Sun, October 2, 2007.

24

http://www.earthjustice.org/news/press/007/cancer-coals-hidden-cost.html.

25


9.

26

See http://www.physics.harvard.edu/~wilson/arsenic/arsenic_project_introduction.html.

27

Id.

28

“Managing Coal Combustion Residues in Mines”, Table 4.3 Examples of Contaminants of Concern from

CCRs,CCWs, Their Drinking Water Standards (MCL), and Potential Adverse Health Effects, 98 & 99, National

Research Council, 2006.

29

“Health effects of molybdenum”; www.lenntech.com/Periodic-chart-elements/Mo-en.htm, Lenntech, The

Netherlands.

30

Iowa Department of Public Health, Bureau of Lead Poisoning Prevention :

http://www.idph.state.ia.us/eh/lead_poisoning_prevention.asp.

31

Id.

32

“Intellectual Impairment in Children with Blood Lead Concentrations Below 5 Micrograms per Deciliter”, New

England Journal of Medicine, Vol. 348: 1517-1526 (April 17, 2003).

33

42 U.S.C.A. § 6921(b)(3)(A) (2006).

34

Id.

35

Deborah Elcock and Nancy L. Ranek, U.S. Environmental Protection Agency, Coal Combustion Waste

Management at Landfills and Surface Impoundments, 1994-2004 2 (2006) (citing 42 U.S.C.A § 9651(a)(2) (1986)).

36

Id. The main distinction was between non-comanaged CCW in the former and the comanaged CCW in the latter

which is also a much larger volume (than non-comanaged) component of CCW.


44

37

Id.

38

Elcock and Ranek, supra note 33, at 3.

39

The difference between the 1988 RTC and 1993 RD and a subsequent 1999 RTC and 2000 RD was that the first

RTC and RD covered only utility CCW (fly ash, bottom ash, boiler slag and FGC waste) that was not comanaged

with low volume utility waste or coal waste, while the 1999 RTC and 2000 RD covered utility CCW that is

comanaged with these other wastes and all nonutility CCW as well as wastes from oil-fired and gas-fired power

plants.

40

Id. 41

Signatories to the January 2007 proposal to EPA are Earthjustice, Clean Air Task Force, Environmental Integrity

Project, Sierra Club, Natural Resources Defense Council, Waterkeeper Alliance, Hoosier Environmental Council,

Public Citizen, Jefferson Action Group, Dine CARE, Army for a Clean Environment, Plains Justice, Appalachian

Center for the Economy and the Environment, People in Need of Environmental Safety, Valley Watch, West

Highlands Conservancy, Montana Environmental Information Center, San Juan Citizens Alliance, Clean Wisconsin,

Residents against the Power Plant, Ohio Valley Environmental Coalition, Neighbors for Neighbors, Delaware

Riverkeeper Network, Healthlink, Wenham Lake Watershed Association, Coal River Mountain Watch, Dakota

Resource Council, and S.U.F.F.E.R.

42

Attached as Appendix.

43

“This chapter stands alone and is not affected by references in other rules . . . .”

44

IAC § 567-103.1 (2007).

45

IAC § 567-103.1(2) (2007).

46

IAC § 567-103.1(1) (2007).

47

IAC § 567-103.1(3) (2007).

48

See, e.g., Ill. Admin. Code tit. 35, § 811.106(a) (2007) (a uniform layer of clean soil must be placed on all exposed

waste by the end of each day of operation); Minn. R. 7035.2885(10) (2006) (operators that accept fly ash must cover

it as soon as it is placed and compacted; bottom ash or combined ash must not be left uncovered for more than 48

hours); Wis. Admin. Code NR § 506.05(1) (2007) (All waste must be completely covered at the end of each

operating day).

49

IAC § 567-103.1(3)(a) (2007) (“The design of a coal combustion residue sold waste landfill shall contain a

method for ensuring protection of the groundwater and surface water”).

50

But cf., IAC § 567-103.1(4)(b) (2007) (Soil cover may be required for site-specific controls).

51

But cf., IAC § 567-103.2(4)(c)(4)(2) (2007) (The operator must have an emergency plan for leachate, but there are

no standards or guidelines for a leachate collection system).

52

IAC § 567-103.1(4) (2007).

53

Id.

54

IAC § 567-103.1(4)(d) (2007).

55

IAC § 567-103.1(5)(a) (2007).

56

IAC § 567-103.1(5) (2007).


45

57

IAC § 567.103.1(5)(f) (2007).

58

See, e.g., Ill. Admin. Code tit. 35, § 807.305(c) (2007) (Final cover must be laid no later than 60 days following

placement of refuse in the final lift); Minn R. 7035.2815(6)(B), (C) (2006) (Operator must comply with final cover

requirements within 18 months of last placement, but intermediate cover must be laid down no later than 30 days

after last placement).

59

See Mo. Code Regs. Ann. Tit. 10, § 80-2.030 (2007) (Postclosure period is 30 years).

60

Permit Nos. 62-SDP-04-89P and 62-SDP-03-89P, respectively. 61

Ziemkieweicz, Paul F. and F. Allen Meek, Jr. “Long Term Behavior of Acid Forming Rock: Results of 11-Year

Field Studies,” Presented at the International Land Reclamation and Mine Drainage Conference and the Third

International Conference on the Abatement of Acidic Drainage, Pittsburgh, PA, April 24-29, 1994. See also

Demchak, J., J. Skousen, and L.M. McDonald, “Longevity of Acid Discharges From Underground Mines Lying

Above the Regional Water Table,” West Virginia University and West Virginia Agricultural and Forestry

Experiment Station, Morgantown, WV, April, 2003.

62

Office of Water, US EPA, “2006 Edition of the Drinking Water Standards and Health Advisories,” August, 2006.

63

Agency for Toxic Substances and Disease Registry, “Toxicological Profile for Cobalt”, April 2004.

64

Permit # 58-SDP-03-92P.

65

IAC § 567.108.4(4)(a) (2007).

66

IAC § 567-108.4(4)(b) (2007).

67

IAC § 567-108.4(4)(c) (2007).

68

IAC § 567-108.6(1) (Putrescible waste is solid waste that contains organic matter capable of being decomposed

by microorganisms and of such a character and proportion as to cause obnoxious odors and to be capable of

attracting or providing food for birds or animals. http://tapseis.anl.gov/).

69

From testimony of Greg Helms, USEPA Office of Solid Waste and Emergency Response, Washington D.C.; Ann

Kim, US Department of Energy, National Energy Technology Laboratory, Pittsburgh PA; David Kosson, Ph.D.,

Chairman, Department of Civil and Environmental Engineering, Vanderbilt University, Nashville TN; and Rick

Holbrook, US Office of Surface Mining, Western Region, at the December 6, 2004 Meeting of the National

Research Council’s Committee on Mine Placement of Coal Combustion Wastes in Farmington, New Mexico. See

also Managing Coal Combustion Residues in Mines, pp. 151-152, National Research Council, 2006.

70

Dodd, D.J.R., A. Golomb, H.T.Chan and D. Chartier. “A Comparative Field and Laboratory Study of Fly Ash

Leaching Characteristics,” Ontario Hydro Research Division, Toronto, Ontario, Canada, in Hazardous Solid Waste

Testing: First Conference, ASTM STP 760, American Society for Testing and Materials, 1981, pp. 164-185.

71

Ibid.

72

IAC § 567-108.6(2).

73

IAC § 567-108.7(2).

74

IAC § 567-108.7(3).

75

Sources are all coal fired power plants, including ADM facilities at Clinton and Cedar Rapids, IA; ISPAT at East

Chicago, IN; Pleasant Prairie at Pleasant Prairie, WI; Oak Creek at Oak Creek, WI; Port Washington at Port


46

Washington, WI; Valley at Milwaukee, WI; Cargill at Cedar Rapids, IA; University of Iowa at Iowa City, IA; Iowa

State University at Ames, IA; Stateline at Whitney, IN; and Nelson Dewey at Cassville, WI.

76

Management Plain submitted October 24, 2004 to IDNR by Linwood Mining and Materials Corporation and

Waste Commission of Scott County, at 2.

77

Linwood variance petition for waste from Alliant Nelson Dewey Station, Cassville, WI (Sep. 17, 2004) at 2.

78

September 15, 2005 letter to IDNR Environmental Engineer Senior Nina M. Koger from Jaci Moore, PE, of

Linwood Mining & Materials Corporation, enclosed with petition for variance.

79

Tests submitted in support of Linwood variance petition (Sep. 15, 2005).

80

Enclosures to June 12, 2006, beneficial use determination letter from Nina M. Koger of IDNR to Tim Walsh of

AMSCO.

81

Proposal for the Federal Regulation of Coal Combustion Waste (2007).

Appendix:

Proposal for the

Federal Regulation of

Coal Combustion

Waste

January 31, 2007

PREAMBLE

The following proposal for regulations is submitted jointly to the U.S. Environmental

Protection Agency (EPA) by Earthjustice, Clean Air Task Force, Environmental Integrity

Project, Sierra Club, Natural Resources Defense Council, Waterkeeper Alliance, Hoosier

Environmental Council, Public Citizen, Jefferson Action Group, Dine CARE, Army for a Clean

Environment, Plains Justice, Appalachian Center for the Economy and the Environment, People

in Need of Environmental Safety, Valley Watch, West Highlands Conservancy, Montana

Environmental Information Center, San Juan Citizens Alliance, Clean Wisconsin, Residents

against the Power Plant, Ohio Valley Environmental Coalition, Neighbors for Neighbors,

Delaware Riverkeeper Network, Healthlink, Wenham Lake Watershed Association, Coal River

Mountain Watch, Dakota Resource Council, S.U.F.F.E.R.


48

Purpose of the Proposal

This proposal provides a framework for federal regulation of the waste generated by U.S.

coal-fired power plants. Its intent is to address, with nationally consistent, enforceable minimum

standards, the significant risks to human health and the environment posed by the disposal of

coal combustion waste (CCW).

The above-named groups submit this proposal as a starting point for an inclusive and

comprehensive discussion between EPA and environmental stakeholders.i We are submitting this

proposal with the hope that it will function as a working template for draft regulations to be

formulated by a committee established pursuant to the Federal Advisory Committee Act. It is

necessary for EPA to formally establish a committee comprised of interested and affected

stakeholders because, to date, EPA has sought almost exclusively the input of the regulated

community and consequently has failed to produce even draft regulations in the nearly seven

years following EPA’s Regulatory Determination.

In 2000, EPA made an explicit commitment to promulgate a rule pursuant to the

Resource Conservation and Recovery Act (RCRA) governing CCW.ii Since 2000, EPA has

conducted a long standing dialogue with the electric utilities industry and, in fact, invited their

consortium, the Utility Solid Waste Activities Group (USWAG)iii

, to submit a voluntary plan for

CCW management, in lieu of regulations, violating the clear directive of the 2000 Regulatory

Determination. In contrast, EPA did not solicit the submission of today’s proposal. Rather,

environmental stakeholders requested the opportunity to submit draft regulations after learning

that EPA was poised (1) to publish notice in the federal register of the electric utility industry’s

voluntary plan, and (2) to seek public comment on the option of abandoning federal regulation of

CCW. We greatly appreciate the opportunity to submit this proposal, but its placement in the

docket does not in any way indicate parity with the regulated community in terms of access and

consideration of our viewpoint by EPA.

We thus respectfully ask that EPA seriously and thoughtfully consider this proposal from

environmental groups and communities threatened or harmed by CCW. To this end, we ask for

the immediate establishment of a federal advisory committee whose charge is to produce

comprehensive enforceable federal regulations. To reiterate, the goal of these proposed

regulations is simply to initiate this dialogue. In order to move forward, the rulemaking process

must allow for extensive additional input from a variety of interested groups including, in

addition to environmental groups and affected communities, engineers, hydrogeologists, and

those, inside and outside of government, who may have creative approaches to achieving

environmental protection from CCW contamination.

Lastly, we cannot lose track of the fact that CCW currently disposed without adequate

safeguards poses an imminent and substantial endangerment to health and the environment at

numerous sites throughout the U.S. In view of this present threat, we ask that EPA use its

authority under Section 7003 of RCRA immediately to abate such hazards while the federal

rulemaking process is underway. EPA has the authority under Section 7003 to require ground

water monitoring, as well as remedial measures, at CCW disposal sites that threaten human

health or water resources. Because of the acknowledged damage to human populations, drinking


49

water sources and aquatic ecosystems, it is essential that EPA use this authority to prevent

further damage while developing this national rule.

The Need for This Proposal

In light of the significant risk to human health and the environment posed by improper

management of CCW, we ask that work begin immediately to draft federal regulations containing

adequate safeguards. Several recent EPA reports confirm the substantial, imminent and growing

risk posed by CCW and thus support the urgent need for federal regulations. Specifically:

• EPA’s draft Revised Risk Assessment for CCW (December 2006)iv found that people

living near CCW surface impoundments assume risks that exceed EPA cancer thresholds by

1000 times or more. EPA estimates that the excess cancer risk for adults and children drinking

groundwater contaminated with arsenic from CCW surface impoundments can be as high as 1 in

100 -- 10,000 times higher than EPA’s regulatory goal for reducing cancer risks.v Furthermore,

this draft Revised Risk Assessment confirms that “[t]here are ecological risks associated with

surface impoundments to terrestrial and aquatic communities primarily from selenium and

boron.”vi

• EPA’s 2006 report, entitled Characterization of Mercury-Enriched Coal Combustion

Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control confirmed that

CCW leaches arsenic and selenium at levels of potential concern.vii

The report tested both

laboratory leachate and field leachate of CCW and found significant exceedances of MCLs for

arsenic and selenium in groundwater in a substantial percentage of the samples. In fact, the

concentrations of some samples approached 100 times the MCL. The report concludes that use

of activated carbon injection to capture mercury at coal-fired power plants substantially increases

the arsenic and selenium content of CCW. The report found, in addition, that CCW commonly

leached arsenic and selenium in excess of 10 times the MCL from both plants that employed

sorbent technologies and those that did not.

Also, according to this report and EPA’s Preamble to the National Emission Standards

for Hazardous Air Pollutants from the Portland Cement Manufacturing Industry published

December 20, 2006, sorbent injection processes significantly increase the mercury content of fly

ash.viii

Testing to date reveals that the median increase in mercury in fly ash is by a factor of 8.5

and, in one case, the mercury content increased by a factor of 70. Such increased mercury,

arsenic and selenium in fly ash also increase risks to human health via inhalation of fugitive dust.

In the 2000 Determination, EPA committed specifically to “reevaluat[ing] risks posed by

managing coal combustion solid wastes if levels of mercury or other hazardous constituents

change due to any future Clean Air Act air pollution control requirements for coal burning

utilities.”ix

It is critical that EPA mandate the use of air pollution control technologies, including

sorbent injection, to reduce hazardous emissions from coal-fired power plants. In conjunction

with their use, nevertheless, EPA must take action to ensure that the pollution reduction in power

plant air emissions is not transferred to land and water via the coal ash. Consequently, in view of

EPA’s own findings and explicit commitment, the agency must reassess risk to human health and

the environment from CCW enhanced by the use of pollution control devices.


50

• A 2006 report published by EPA and the U.S. Department of Energy (DOE), entitled

Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004, found

that states have not closed significant gaps in their regulation of CCW. In fact, the report’s

survey of surface impoundments and landfills permitted between 1994 and 2004 indicates that

the absence of state requirements imposing mandatory safeguards has resulted in disposal units

that lack basic safeguards. The report points out that 30% of the total coal-fired generating

capacity in the U.S. is in states “that potentially exempt CCW landfills from solid waste

permitting requirements and that exclude certain CCWs from all solid waste regulation.”x This

astounding statement most certainly underestimates the gap in state regulation of CCW, because

it does not account for the many states that exempt CCW from all solid waste regulation when

“beneficially used,” a term that frequently encompasses potentially dangerous fill projects for

roads, gravel pits, floodplains, floodways, hill sides, valleys and mines.xi

In view of EPA’s draft Revised Risk Assessment (cited above) that identifies significant

risk from leaking surface impoundments, the findings related to deficiencies in state laws

governing surface impoundments are particularly troubling. The DOE/EPA Report found that:

(i) Only one of the states surveyed had regulations requiring groundwater monitoring

at CCW surface impoundments.

(ii) Only 33% of the states surveyed had regulations requiring liners for surface

impoundments.

(iii) Only 14% of the states surveyed had regulations requiring leachate collection

systems for surface impoundments.

(iv) Only 20% of the states surveyed required corrective action and financial

assurance at CCW surface impoundments.

(v) Only 9% of the states surveyed had regulations requiring a solid waste permit for

all CCW surface impoundments.

The DOE/EPA report also found that states lacked regulations requiring many basic

safeguards for CCW landfills:

(i) 45% of the states surveyed do not require permits for all on-site CCW landfills.

Two states of the states surveyed do not require any solid waste permits for CCW

landfills.

(ii) 44% of the states surveyed did not have regulations requiring liners for CCW

landfills.

(iii) 33% of the states surveyed do not have regulations requiring groundwater

monitoring at CCW landfills.xii

(iv) No state surveyed had regulations requiring quarterly groundwater monitoring for

the active life of the disposal unit.xiii

(v) 71% of the states surveyed did not have regulations requiring leachate collection

systems for landfills.

(vi) No state surveyed passed more stringent regulations pertaining to liners,

groundwater monitoring, leachate collection or financial assurance for surface

impoundments or landfills since 1999.


51

Lastly, the report’s survey of new and expanded CCW landfills and surface

impoundments permitted between 1994 and 2004 indicates that substantial safeguards are still

not employed at many new or expanded units. The report found:

(i) 89% of the new surface impoundment permits lacked groundwater protection

standards.xiv

(ii) 89% of the new surface impoundment permits lacked requirements for closure

and post-closure.

(iii) 88% of the new surface impoundment permits lacked requirements for financial

assurance.

(iv) 88% of the new surface impoundments lacked solid waste permits.

(v) 38% of the new surface impoundment permits lacked groundwater monitoring

requirements.

• EPA’s most recent “Damage Case Assessment under RCRA for Fossil Fuel

Combustion Wastes,” dated August 2006, recognizes 24 proven damage cases -- more than

double the number of recognized damage cases cited in the 2000 Determination. Further, EPA

recognizes another 39 “potential” damage cases in the 2006 Assessment.xv

Given the serious

deficiencies in monitoring systems at most CCW sites, and the complete lack of monitoring at

many CCW sites, damage caused by lax management of CCW is highly likely to be

underestimated, as EPA conceded in its 2000 Determination.xvi

While we believe that EPA’s

damage case list represents only a small fraction of the contaminated sites caused by CCW, the

significant increase in the number of proven and potential damage cases speaks for itself. We

believe this sharp increase in officially recognized, documented damage cases to groundwater

and surface water by mismanaged CCW since 2000 requires an immediate response from EPA.

• DOE and the Energy Information Administration (EIA)’s 2007 Annual Energy Outlook

indicates that electricity production by coal is projected to increase almost 25 percent by 2020

and 64% by 2030.xvii

The increase in the production of coal ash is roughly proportional to the

increase in the use of coal for electric power. CCW generation will increase, therefore, at least

25 percent by 2020. Moreover, the increase in CCW volume is likely to be substantially greater,

because both the increased use of scrubbers on coal-fired power plants and the building of

numerous fluidized bed combustion plants (that produce up to 10 times more CCW than

conventional pulverized coal plants) will significantly boost the waste volume. According to

EPA, 129 million tons of CCW was produced in 2004. A sharp growth in the volume of this

immense waste stream, as well as its projected increase in toxicity, is a clear basis for immediate

regulatory action.

USWAG’s “Voluntary Action Plan”

This proposal stands in stark contrast to USWAG’s “Voluntary Action Plan” (VAP).

USWAG’s VAP contains six pages of loosely worded, wholly unenforceable voluntary actions

that, even if adopted in full today by all U.S. coal-fired power plants, would guarantee no

reduction of risk. While it is outside the scope of this document to critique the VAP, it is worth

noting that the agreement contains no enforceable conditions, signatories have up to five years


52

before any groundwater monitoring is required at the majority of landfills and surface

impoundments, there is no prohibition on the most dangerous disposal practice identified by EPA

– the dumping of CCW in sand and gravel pits below the water table, nor is there a prohibition

on the construction of new surface impoundments, and the plan fails entirely to contain any

closure, post-closure and financial assurance requirements.

Simply put, USWAG’s VAP fails to address the critical safeguards required for safe

disposal of any solid waste. Thus contamination of drinking water supplies will likely continue

undetected and unabated, if not increase, given the pending construction of many new power

plants and the resulting substantial increase in CCW. Even if the VAP invited compliance with

appropriate safeguards, the fact remains that any voluntary plan, by definition, fails to provide

enforceable requirements and national consistency. In view of the abominable level of

safeguards on existing disposal units quantified in the 2000 Determination, which found that

only 57% of all landfills and 26% of all surface impoundments had liners, there is absolutely no

basis for EPA to rely on a voluntary plan for nationwide compliance. While the DOE/EPA

report asserts that some improvement in the use of safeguards has occurred at CCW units

permitted between 1994 and 2004, the 56 units surveyed by the report represent less than 10% of

all U.S. CCW disposal units. EPA has no data indicating that the use of safeguards has improved

whatsoever at the nation’s 600 existing CCW landfills and surface impoundments, only an

official admission that the damage from these units is more pervasive nationally than the agency

previously recognized (see above-cited 2006 Damage Case Assessment). Thus acceptance of a

voluntary agreement to deal with this management crisis consciously disregards the enormous

risk to human health and the environment posed by these operating units. It also disregards the

increased liability that will result from a major growth in the volume and toxicity of CCW

nationally without any enforceable standards in place to assure that citizens, their environment,

and their water supplies will be protected from imminent and substantial and endangerment.

This protection is required by RCRA and was promised by EPA in the 2000 Regulatory

Determination.

Summary of Proposed Regulations

A. Overview

The following proposed regulations constitute a framework for development of

comprehensive CCW regulations. The end goal is to produce regulations for the disposal of

CCW that prevents unacceptable impact to human health and the environment. To accomplish

this goal, the proposal must require that (1) CCW disposal facilities are located, designed and

operated to limit impacts to acceptable levels; (2) CCW disposal facilities are monitored to

demonstrate that they are limiting and will continue to limit impacts to acceptable levels; and (3)

CCW disposal facilities provide the financial means to remediate unacceptable impacts during

and after disposal operations.

To accomplish these objectives, the regulations must require the owners and operators of

all CCW disposal units to:


53

(1) Characterize the disposal site at and around the facility prior to the

development of new CCW disposal units, during the operation of all CCW

disposal units and after closure of all disposal units.

(2) Characterize the chemical and physical properties of the CCW prior to

disposal, under disposal conditions and as the CCW evolves during disposal

operations and after closure.

(3) Design a facility capable of limiting impacts to acceptable levels during

operation of the unit and after closure.

(4) Monitor the construction, operation and performance of the facility during


(5) Monitor the impacts of the disposal unit, including instantaneous conditions,

historical trends, and future trends during operation of the unit and after

closure.

(6) Abate adverse impacts when they occur by setting standards of performance

that trigger intervention both if standards are exceeded and if standards will be

exceeded.

(7) Guarantee financial ability to intervene and remediate impacts during the


In addition, the proposed regulations must also guarantee public participation, public

access to information, and effective enforcement mechanisms, including the right to bring a

citizen suit, to ensure compliance with regulatory standards.

B. Specific Regulatory Provisions

The proposal submitted herein is patterned after EPA’s proposed rule, “Standards for the

Management of Cement Kiln Dust,” published by EPA on August 20, 1999.xviii

EPA described

this rule as a “creative, affordable, and common sense approach for the management of cement

kiln dust (CKD) waste under the Resource Conservation and Recovery Act.” The 1999 CKD

rule set forth numerous design and management standards, drawing primarily from the municipal

solid waste landfill regulations (40 CFR Part 258). In the CKD rule, EPA also proposed

”contingent” RCRA Subtitle C (hazardous waste) regulatory standards that would apply to CKD

in the event of substantial noncompliance with the Subtitle D standards. We believe a similar

framework is wholly appropriate for the regulation of CCW, as well. The following proposal,

however, does not contain provisions requiring CCW be subject to Subtitle C standards in the

event of substantial noncompliance with Part 253. We would, nevertheless, like to discuss the

addition of such regulatory provisions in the course of the CCW rulemaking.

Similarly, we have also deferred a discussion of waste characterization requirements for

CCW. In our view, most state CCW regulatory programs are barely able to meet the most basic

safeguards regarding the characterization, monitoring and abatement of pollution at CCW

disposal sites, much less competently implement major improvements in waste characterization

measures needed beyond the benchmark leach tests commonly used today. Because the evidence

demonstrates that even the most “benign” CCW, as indicated by standard laboratory leach tests,

has caused harm to the environment, we believe that the provisions in this proposal should apply

regardless of the waste characterization currently employed by state and federal agencies.


54

However, we do believe that characterization of CCW must be further explored and view

characterization measures as potentially adding an additional degree of safety to the basic

standards of this proposal.

Specifically, our proposal contains the following provisions:

1. Location restrictions: Ban on disposal below the seasonal high groundwater level.

The proposed regulations include a ban on management of CCW in units whose base is

located below the seasonal high groundwater level. The seasonal high groundwater level is

defined as the natural level at which water stands in a shallow well open along its length and

penetrating the surficial deposits just deeply enough to encounter standing water at the bottom

when the aquifer is at its highest seasonal elevation. This specifically includes perched

groundwater. This restriction is necessary to protect human health and the environment because

of the damage caused by management of CCW at sites located below the natural water table.

2. Additional location restrictions: Prohibition on placement of CCW disposal units in

floodplains, wetlands, fault areas, seismic impact zones, unstable areas and karst

terrain.

The proposed regulations include a prohibition on locating new CCW units in

floodplains, wetlands, fault areas, seismic impact zones, unstable areas and karst terrain. For

existing units located in these areas, a demonstration must be made that such units are designed

in a way to prevent adverse impacts to the environment. If this demonstration cannot be made

the existing unit would have to close within two years of the effective date of the final rule.

3. Standards for protection of groundwater

The draft regulations propose that design criteria similar to those for municipal solid

waste landfills (MSWLFs) under the Subtitle D program (Solid Waste Disposal Facility Criteria,

56 FR 50978, October 9, 1991) be adopted with certain modifications for groundwater

monitoring and remediation. For the protection of groundwater, any new CCW management

unit or expansion of an existing unit must be constructed with a composite liner and a leachate

collection and removal system that is designed and constructed to maintain less than a 30 cm

depth of leachate over the liner. The composite liner must consist of two components; an upper

flexible membrane liner with a minimum thickness of 30 mil, and a lower component consisting

of at least two feet of compacted clay with a hydraulic conductivity of no more than 1 x 10(-7)

cm/sec. All waste management units must also apply suitable cover over exposed waste in a

manner designed to minimize surface water infiltration, leachate generation and the creation of

fugitive (airborne) releases from waste. Where required, based on site and waste characteristics,

additional requirements may be imposed on a case by case basis.

4. Requirements for groundwater monitoring and corrective action

The regulations propose that groundwater monitoring be required for all new and existing

CCW disposal units to detect the presence of CCW constituents in the groundwater. The


55

groundwater monitoring system must include at a minimum one upgradient and three

downgradient wells screened in the shallow aquifer immediately below the waste disposal unit

and at least one well located in the waste to gather pore water quality and allow for rapid

identification and response to contamination of underlying groundwater. The downgradient

wells must be located not farther than 50 meters from the unit boundary at the relevant point of

compliance (POC) specified by the EPA Regional Administrator. The groundwater monitoring

system must be capable of ascertaining the quality of background groundwater that has not been

affected by releases from the unit and assessing the quality of groundwater passing the relevant

POC, as certified by a qualified groundwater scientist. The groundwater monitoring program

must include consistent procedures that are designed to ensure monitoring results that provide an

accurate representation of groundwater quality at the background and downgradient wells.

Because this proposal requires groundwater monitoring at new and existing CCW disposal units,

the rule effectively prohibits the location of such units in areas where subsurface conditions

prevent characterization and monitoring of subsurface contaminant migration.

The regulations propose that disposal facilities conduct quarterly monitoring for

"detection" parameters, which include common constituents of CCW. During “detection

monitoring,” groundwater monitoring results are measured against corrective action “trigger”

levels that are based on the highest pre-disposal concentrations of the constituents, as determined

by upgradient background monitoring and baseline monitoring that establishes background

quality at downgradient points prior to placement of CCW. If these trigger levels are exceeded, a

more extensive groundwater monitoring regime is required, which includes a much larger list of

assessment parameters monitored more frequently and from additional monitoring points.

Corrective action abatement steps must be taken if this ‘assessment monitoring”

determines that there is a statistically significant increase in pollutant concentrations above

background concentrations. The facility operator must complete an assessment and selection of

corrective action remedies within 120 days and begin abatement of the pollution within 60 days

of selecting the remedy. The objective of the remedy is to halt the spread of contamination and

restore background water quality at affected monitoring points. The remedy is deemed complete

when background water quality has been maintained for a period of three years.

5. Closure and Post Closure Care

The proposed regulations require that new and existing CCW disposal units, including

expansions and inactive units, be closed in accordance with specified standards and that units be

monitored and maintained after closure. Closure and post-closure plans describing these

activities are to be prepared to comply with a minimum set of procedural requirements.

The proposal requires that post-closure care be conducted for a period of 30 years after

the closure of each CCW disposal unit. Post-closure care consists of maintaining the

effectiveness of the final cap, continuing groundwater monitoring and leachate management, and

if necessary upgrading these activities, to control the formation and release of leachate into the

environment. Routine maintenance of the integrity of the final cap is necessary to prevent liquid

from penetrating into the closed landfill and creating the potential for leachate migration.


56

6. Financial Assurance

The proposed regulations require a demonstration of financial assurance for the costs of

conducting closure, post-closure care and if applicable, corrective action for known releases.

The proposed financial assurance requirements are patterned after the financial assurance

provisions for municipal solid waste landfills under Subtitle D (see 258.71 to 258.75). The

purposes of the financial assurance are to ensure that the owner or operator of a CCW disposal

unit adequately plans for the future costs of closure, post-closure care and corrective action for

known releases, and to ensure that adequate funds will be available when needed to cover the

costs if the owner or operator is unwilling or unable to do so.

To demonstrate to the EPA Regional Administrator that it has planned for future costs,

written cost estimates must be prepared. These cost estimates would serve as the basis for

determining the amount of financial assurance that must be demonstrated. This proposal states

that that persons managing CCW in new and existing CCW disposal units, including expansions,

be required to demonstrate financial responsibility for closure, post-closure care, and corrective

action for known releases in an amount equal to the cost of a third party conducting these

activities. The cost estimates must be based on the cost of closing the CCW disposal unit at the

point of the unit's active life when the extent and manner of its operation would make closure the

most expensive. Similarly, cost estimates for post-closure care must include estimates for both

annual and periodic activities, and account for the most expensive costs of routine post-closure

care.

The proposal does not address the requirement to demonstrate financial assurance for

third party liability to compensate injured third parties. Such liability requirements are currently

required under RCRA Subtitle C for hazardous waste management facilities (see 40 CFR

264.147). Financial assurance for third-party liability benefits public health by providing the

incentive of lower insurance premiums resulting from improved facility design and operation.

This requirement should be considered and an analysis completed to determine its feasibility.

7. Implementation

Existing CCW disposal units, including expansions, would be required to be in compliance

with the groundwater monitoring requirements proposed under 253.40 within one year after the

effective date of the final rule. New CCW disposal units, including expansions, must be in

compliance with the groundwater monitoring requirements before CCW can be placed in the

unit. Groundwater monitoring shall be conducted throughout the active life and post-closure

care period of the CCW disposal unit.

8. Notification, Recordkeeping and Reporting

The proposed regulations require that information concerning CCW management be

retained in an operating record and be submitted to US EPA or an authorized state. In addition,

the rule proposes that all information contained in the operating record must be publicly

available. These requirements would ensure the public availability of basic types of information

that demonstrate compliance with the requirements of the proposed regulations.


57

Record reviews are one of the ways EPA and citizens can ascertain whether a facility is

in compliance. Accordingly, in Sec. 253.23, a recordkeeping requirement ensures that a

historical record of CCW disposal unit performance is maintained at the facility and submitted to

the EPA Regional Administrator. The person managing CCW would be required to maintain and

submit the following records: (1) Any required demonstration, certification, finding, monitoring,

notification, testing, or analytical data under Subpart E of part 253; (2) required inspection

records, training procedures, and regulatory agency notification procedures; (3) required closure

and post-closure care plans and any monitoring or analytical data proposed under Secs. 253.50

and 253.51; and (4) any required cost estimates and financial assurance documentation proposed

in subpart G. All information in the operating record must be publicly available, and, as stated

above, EPA or an authorized state would receive copies of the documents. In addition,

documentation of groundwater monitoring that indicates exceedances of trigger levels must be

clearly set forth in notifications that are submitted to EPA (or the authorized state), the host

municipality, adjacent landowners, and the public.

9. Citizen Suits and Citizen Enforcement of Part 253 Standards

Part 253 provides citizens with the right to bring a citizen suit for the failure of any CCW

disposal unit to comply with Part 253 standards. In contrast, USWAG’s Voluntary Action Plan

provides no right of federal, state, or citizen enforcement of its provisions. EPA emphasized, in

its 2000 Determination, the importance of citizen enforcement and the inherent advantage of

subtitle D standards, which “would be applicable and enforceable by citizens as soon as the

federal rule becomes effective.”xix

Part 253 also affirms the right of citizens to bring an action

under section 7002 of RCRA, 42 U.S.C. §6972, to abate any pollution generated by CCW that

may create the threat of an imminent and substantial endangerment of health or the environment

or seek other relief related to the abatement of the threat.

In order to ensure the right of EPA to enforce the provisions of Part 253, as well as to

ensure the applicability of federal inspection authority of CCW units, it is necessary to provide in

the regulations that substantial noncompliance with specific Part 253 standards triggers Subtitle

C listing of CCW. While the regulation we are proposing does not propose this step, we

reiterate that it is essential to discuss this important contingency in course of comprehensive

CCW rulemaking.

10. Prohibition on the construction of new CCW surface impoundments and closure of

existing CCW surface impoundments

The draft regulations provide that after the effective date of the final rule construction of

new surface impoundments and the expansion of existing surface impoundments for the

management, storage or disposal of CCW shall be prohibited.

In addition, the disposal of CCW into existing surface impoundments shall cease within two

years of the final rule. The proposal requires monitoring to be established at existing surface

impoundments within one year of the effective date of the regulations and closure of CCW


58

surface impoundments within two years, in accordance with all closure and post-closure

requirements set forth in Part 253.

Conclusion

This proposal lays the framework for a federal rule addressing the second largest

industrial solid waste stream in the U.S. Such a rule is long past due. The failure of EPA to

provide rules for safe disposal of coal ash has resulted in the poisoning of surface water and

groundwater in 23 states, by EPA’s own admission. As we approach the greatest increase in

coal-fired power plants in the history of this country, this is exactly the wrong time to acquiesce

and accept voluntary standards from an industry with a track record of poor waste management.

EPA must abide by its commitment in its 2000 Regulatory Determination to write a federal rule,

and it must bring those to the table with the will, expertise and commitment to assist in the effort.

Through a federal advisory committee, the process can be fair, open and collaborative.

Finally, because CCW currently disposed in dumps without adequate safeguards poses an

imminent and substantial endangerment to health and the environment at many sites, it is

appropriate that EPA immediately use its authority under Section 308(a) of the Clean Water Act

and Section 7003 of RCRA to require groundwater monitoring and cleanup at such sites. We

recommend that EPA survey its list of CCW damage cases, including potential and indeterminate

cases, and solicit input from stakeholders to identify disposal sites where monitoring or remedial

action is needed to quantify the threat to health and the environment. Information gathered from

this monitoring and remediation will help guide the federal rulemaking. Initiation of such

enforcement actions will make good on EPA’s explicit promise in its 2000 Determination,

wherein EPA stated, exactly twice, “As we proceed with regulation development, we will also

take enforcement action under RCRA section 7003 when we identify cases of imminent and

substantial endangerment.”xx

Respectfully submitted,

Lisa Evans, Attorney, Earthjustice. Earthjustice is located at 426 Seventeenth Street, 6th Floor,

Oakland, CA 94612. Earthjustice is a non-profit public interest law firm dedicated to protecting

the magnificent places, natural resources, and wildlife of this earth and to defending the right of

all people to a healthy environment.

Jeffrey Stant, Director, PPW Project-Safe Disposal Campaign, Clean Air Task Force (CATF).

Clean Air Task Force is located at 77 Summer St, 8th floor Boston, MA 02110. CATF is a

nonprofit organization dedicated to restoring clean air and healthy environments through

scientific research, public education and legal advocacy.

Eric Schaeffer, Director, Environmental Integrity Project (EIP). The Environmental Integrity

Project is located at 919 18th Street, NW, Suite 650, Washington, DC 20006 . EIP is a

nonpartisan, nonprofit organization established in March of 2002 to advocate for more effective

enforcement of environmental laws.


59

Ed Hopkins, Director Environmental Quality Program, Sierra Club is located at 85 Second Street

San Francisco, CA 94105. Sierra Club is a nonprofit environmental advocacy organization

seeking to protect and restore the quality of the natural and human environment.

Mayra Quirindongo, Natural Resources Defense Council (NRDC). Natural Resources Defense

Council is located at 40 West 20th Street New York, NY 10011. NRDC uses law, science and

the support of more than 1 million members and online activists to protect the planet's wildlife

and wild places and to ensure a safe and healthy environment for all living things.

Scott Edwards, Senior Attorney, Waterkeeper Alliance. Waterkeeper Alliance is located at 50 S.

Buckhout, Suite 302, Irvington, New York 10533. Waterkeeper Alliance connects and supports

local Waterkeeper programs to provide a voice for waterways and communities worldwide.

Brian Wright, Coal Policy Director, Hoosier Environmental Council. Hoosier Environmental

Council is located at 1915 W. 18th

St. Suite A, Indianapolis, IN 46202. Through education,

advocacy, and citizen empowerment in Indiana, the Hoosier Environmental Council works to

restore and protect the natural systems upon which life depends.

Lisa Graves Marcucci, President, Jefferson Action Group. Jefferson Action Group is located at

123 Oakwood Drive Clairton, PA 15025-3042. The mission of the Jefferson Action Group, Inc.

is working to ensure human health is a priority in all environmental regulations.

Carrie La Seur, Executive Director, Plains Justice. Plains Justice is located at 319 3rd St. NW,

Mount Vernon, IA 52314. Plains Justice is a public interest environmental law firm working for

environmental justice on the Northern Plains.

Lori Goodman, Treasurer, Dine CARE. Dine CARE is located 10A Town Plaza, Suite 138,

Durango, CO 81301. Dine CARE is a membership organization by and for the Diné, the People.

Our members all those Diné who strive to maintain a relationship with Mother Earth based on

balance and harmony.

Margaret Janes, Senior Policy Analyst, Appalachian Center for the Economy and the

Environment. Appalachian Center for the Economy and the Environment is located at 5640

Howards Lick Rd., Mathias, WV 26812. The Appalachian Center is a regional law and policy

organization working with citizens and grassroots citizens’ groups to clarify, analyze and act on

the environmental and economic issues that affect Appalachian communities.

Tom Smith, State Director, Public Citizen. Public Citizen is located at 1002 West Avenue #300

Austin, TX 78701. Public Citizen works to protect health, safety, and democracy.

Bud Prast, President, People in Need of Environmental Safety. People in Need of Environmental

Safety is located at 1621 Colorado Ave. Michigan City, IN 46360. People In Need of

Environmental Safety (P.I.N.E.S.) is dedicated to educating Pine Township and surrounding area

residents about surface and groundwater contamination caused by coal ash waste.


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Dante Picciano, Executive Director, Army for a Clean Environment. Army for a Clean

Environment is located at 2066 Evergreen Drive Tamaqua, PA 18252. Army for a Clean

Environment works to promote a safe environment through education and fostering the

prevention of the dumping of harmful materials in the community and surrounding areas.

John Blair, Executive Director, Valley Watch. Valley Watch is located at 800 Adams Ave

Evansville, IN 47713-2213. Valley Watch, Inc. is an Indiana not-for-profit corporation

established in 1981 to protect the public health and environment of the lower Ohio River Valley.

Cindy Rank, Mining Committee Chair, West Virginia Highlands Conservancy. West Virginia

Highlands Conservancy can be reached at HC 78 Box 227, Rock Cave, WV 26234. The West

Virginia Highlands Conservancy is one of the state's oldest environmental activist organizations

and has over the past 40 years, be a leader in protecting the natural environment of West

Virginia.

Mike Eisenfeld, New Mexico Staff Organizer, San Juan Citizens Alliance. San Juan Citizens

Alliance is located at 108 N. Behrend, Suite I, Farmington, New Mexico, 87401. The San Juan

Citizens Alliance organizes for the land and people of the San Juan Basin.

Travis Brown, Neighbors for Neighbors. Neighbors for Neighbors is located at P.O. Box 661

Elgin, TX 78621. The mission of Neighbors for Neighbors is families working together to

protect the lands, economy, and quality of life of Bastap and Lee counties for future generations.

Anne Hedges, Program Director, Montana Environmental Information Center (MEIC). Montana

Environmental Information Center is located at P.O. Box 1184 Helena, MT 59624. MEIC is

dedicated to the protection and restoration of Montana’s natural environment. MEIC is a

member supported nonprofit organization with over 4,000 members in Montana and across the

country.

Cathy Lodge, President, Residents Against the Power Plant (RAPP). RAPP is located at 257

Meinrad Drive, Bulger, PA 15019. RAPP is a citizens organization dedicated to working for the

protection of public health and enforcement of environmental laws.

Vivian Stockman, Project Coordinator, Ohio Valley Environmental Coalition. Ohio Valley

Environmental Coalition is located at P.O. Box 6753 Huntington, WV 25773. The Coalition’s

mission is to organize and maintain a diverse grassroots organization dedicated to the

improvement and preservation of the environment through education, grassroots organizing and

coalition building, leadership development and media outreach.

Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network. Delaware Riverkeeper

Network is located at 300 Pond Street, Second Floor, Bristol, PA 19007. The Delaware

Riverkeeper is the voice of the Delaware River and its streams, championing their rights as living

members of our community, and is leader for the Delaware Riverkeeper Network.

Mark Redsten, Executive Director, Clean Wisconsin. Clean Wisconsin is located at 122 State

Street, Suite 200 Madison, WI 53703-2500. Clean Wisconsin, an environmental advocacy


61

organization, protects Wisconsin's clean water and air and advocates for clean energy by being

an effective voice in the state legislature and by holding elected officials and corporations

accountable.

Vernon Haltom, Co-Director, Coal River Mountain Watch. Coal River Mountain Watch is

located at Box 651 Whitesville, WV 25209. The mission of Coal River Mountain Watch is to

stop the destruction of our communities and environment by mountaintop removal mining, to

improve the quality of life in our area and to help rebuild sustainable communities.

Mark Trechock, Staff Director, Dakota Resource Council (DRC). Dakota Resource Council is

located at P.O. Box 1095, Dickinson, North Dakota 58602-1095. DRC is working for

preservation of family farms, enforcement of corporate farming laws, soil and water

conservation, regulation of coal mining and oil and gas development, protection of groundwater

and clean air, renewable energy, and sound management of solid and toxic wastes.

Lynn Nadeau, Treasurer, Healthlink. Healthlink is located at 4 Seawall St. Marblehead, MA

01945. Healthlink’s mission is to protect and improve public health by reducing and eliminating

pollutants and toxic substances from our environment through research, education and

community action.

Jan Schlichtmann, Executive Director, Wenham Lake Watershed Association. Wenham Lake

Watershed Association is located at 6 Quincy Park Beverly, MA 01915. The goal of the Wenham

Lake Watershed Association is to ensure the integrity of the drinking water for Beverly, Salem

and Wenham by promoting the thorough investigation, impartial evaluation and effective

removal of threats to Wenham Lake.

William D. Lockwood, President, Save Us From Future Environmental Risks (S.U.F.F.E.R.),

S.U.F.F.E.R. is located at 497 S. Poplar St, Hazleton, PA 18201. S.U.F.F.E.R. is a Pennsylvania

non-profit corporation dedicated to protecting the environment in and around the City of

Hazleton, Pennsylvania.


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PART 253--MANAGEMENT STANDARDS FOR COAL COMBUSTION WASTE

Subpart A--General Provisions

Sec.

253.1 Purpose, scope, and applicability.

259.2 Definitions.

259.3 Imminent hazard action

Subpart B--Location Restrictions

253.10 Placement above the seasonal high groundwater level.

253.11 Floodplains.

253.12 Wetlands.

253.13 Fault areas.

253.14 Seismic impact zones.

253.15 Unstable areas.

253.16 Karst terrains.

Subpart C—Additional Criteria

253.20 Air criteria for temporary storage including storage in tanks, containers, or

buildings.

253.21 Criteria for trucks transporting coal combustion waste.

253.22 Air criteria for CCW disposal units.

253.23 Recordkeeping requirements.

253.24 Storage criteria [reserved]

Subpart D--Design Criteria

253.30 Design criteria.

253.31 Prohibition on the construction of new surface impoundments

253.32 Closure of existing coal combustion waste surface impoundments

253.33 Access requirements

253.34 Run-on/run-off control systems

Subpart E--Groundwater Monitoring and Corrective Action

253.40 Applicability.

253.41 Groundwater monitoring systems.

253.42 [Reserved]

253.43 Groundwater sampling and analysis requirements.

253.44 Detection monitoring program.

253.45 Assessment monitoring program.

253.46 Assessment of corrective measures.


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253.47 Selection of remedy.

253.48 Implementation of the corrective action program.

Subpart F--Closure and Post-Closure Care

253.50 Closure criteria.

253.51 Post-closure care requirements.

253.52 Closure of CCW surface impoundments.

253.53 Post Closure care of CCW surface impoundments.

Subpart G--Financial Assurance Criteria

253.60 Applicability.

253.61 Financial assurance for closure.

253.62 Financial assurance for post-closure care.

253.63 Financial assurance for corrective action.

253.64 Allowable mechanisms.

253.65 Discounting.

Appendix I to Part 253--Constituents for Detection Monitoring

Authority: 42 U.S.C. 6912(a) and 6924(x).

Subpart A--General Provisions

Sec. 253.1 Purpose, scope, and applicability.

(a) The purpose of this part is to establish minimum national criteria for all coal combustion

waste disposal units, including landfills and surface impoundments.

(b) Regulations in this part apply to any coal combustion waste (CCW) actively managed [after

the effective date of the final rule], and as otherwise specifically provided in paragraph (c) of this

section, including CCW managed in new CCW disposal units, existing CCW disposal units and

expansions of CCW disposal units.

(c) Regulations in this part also apply to CCW disposal units that stopped receiving waste before

[the effective date of the final rule], hereinafter “inactive units.” [In view of the large and diverse

universe of inactive units, it will be necessary to tailor the applicability of the closure and post-

closure requirements of Part 253 to these units. Factors that must be considered include the age

and condition of the unit, when CCW was last placed in the unit, and whether the unit has

already undergone closure pursuant to state requirements. These factors will be considered and

tailored requirements generated after further analysis.]

(d) The compliance date for all requirements of this part 253, unless otherwise specified, is [one

year after the effective date of the final rule].


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Sec. 253.2 Definitions.

This section contains definitions for terms that appear throughout this part; additional definitions

appear in the specific sections to which they apply.

Active life means the period of operation beginning with the initial receipt of CCW and

ending at completion of closure activities in accordance with Sec. 253.50.

Active management means a facility or unit that receives CCW and that has not been closed in

accordance with Sec. 253.50.

Aquifer means a geological formation, group of formations, or portion of a formation capable

of yielding significant quantities of ground water to wells or springs.

Beneficial Use of CCW means the substitution of CCW for another commercial product based

on similar properties. Beneficial use of CCW shall not present a greater harm or threat of harm

than the use of the product that the CCW is replacing. Uses that constitute disposal, including use

of CCW as fill, including minefill, unconsolidated road base, and structural fill are not

considered beneficial use of CCW for the purposes of this part.

Coal combustion waste (CCW) means the solid and liquid waste generated primarily by the

burning of coal and controlling of resulting emissions including fly ash, bottom ash, boiler slag,

scrubber sludge, waste from fluidized bed combustion and other uniquely associated wastes

often mixed with the above-mentioned ash, sludge and slag.

Coal combustion waste landfill unit means a discrete area of land or an excavation that

receives CCW waste, and that is not a land application unit, surface impoundment, waste pile, as

those terms are defined under Sec. 257.2 of this chapter, or injection well as defined by 40 CFR

Parts 144 and 146. A CCW disposal unit may receive other types of non-hazardous industrial

wastes, such as construction debris, mining overburden and other commercial solid waste (as

defined in Sec. 258.2 of this chapter). A CCW disposal unit may be a new CCW disposal unit, an

existing CCW disposal unit, an expansion of an existing CCW disposal unit, or an inactive CCW

disposal unit.

Coal combustion waste surface impoundment means a topographic depression, excavation, or

diked area, primarily formed from earthen materials (lined or unlined) and designed to hold

accumulated liquid wastes, wastes containing free liquids, or sludges that were not backfilled or

otherwise covered during periods of deposition; the depression may be dry if deposited liquid has

evaporated, volatilized or leached, or wet with exposed liquid; structures that may be more

specifically described as lagoon, pond, aeration pit, settling pond, tailings pond, sludge pit, etc.

Also included is a surface impoundment that has been covered with soil after the final deposition

of waste materials (i.e., buried or backfilled).

Disposal means the discharge, deposit, injection, dumping spilling, leaking or placing of any

CCW into or on any land or water so that such CCW or any constituent thereof may enter the

environment or be emitted into the air or discharged into any waters, including ground waters.

EPA Regional Administrator means the chief administrative officer of the EPA Region

responsible for implementing the Subtitle C solid waste permit program. This reference only

applies to a State that has not chosen to create a regulatory program under State law. In States


65

with an authorized RCRA program, all references to the EPA Regional Administrator should be

read as referring to the State Director, or other State official responsible for implementing the

CCW regulatory program.

Existing CCW disposal unit means any coal combustion waste disposal unit, including any

CCW landfill or surface impoundment, that is receiving CCW as of 90 days after the effective

date of the final rule. Facility means all contiguous land and structures, other appurtenances, and

improvements on the land used for the disposal of CCW.

Expansion means a lateral or vertical expansion of the waste boundaries of an existing CCW

disposal unit.

Groundwater means water below the land surface in a zone of saturation.

Inactive CCW disposal unit means any coal combustion waste disposal unit, including any

CCW landfill or surface impoundment that has not received waste after [the date of this final

rule].

Leachate means a liquid that has passed through or emerged from CCW and contains soluble,

suspended, or miscible materials removed from such waste.

New CCW disposal unit means any coal combustion waste landfill or surface impoundment or

expansion of an existing landfill or surface impoundment that has not received waste prior to the

effective date of the final rule.

Owner means the person(s) who owns a CCW disposal unit or part of a CCW disposal unit.

Operator means the person(s) responsible for the overall operation of a CCW disposal unit or

part of a CCW disposal unit.

Person(s) managing CCW means any person responsible for transport, storage, treatment,

disposal or sale of any CCW, including owners and operators of CCW waste disposal units.

Run-off means any rainwater, leachate, or other liquid that drains over land from any part of a

facility.

Run-on means any rainwater, leachate, or other liquid that drains over land onto any part of a

facility.

Saturated zone means that part of the earth's crust in which all voids are filled with water.

Storage means the containment of CCW on a temporary basis in such a manner as not to

constitute disposal of such waste.

Uniquely associated wastes are low volume wastes that are co-managed with coal combustion

waste including coal pile runoff, coal mill rejects/pyrites, air heater and precipitator washwater,

boiler fireside chemical cleaning waste, floor and yard drains and sumps, and waste treatment

sludge.

Uppermost aquifer means the geologic formation nearest the natural ground surface that is an

aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within

the facility's property boundary. This definition specifically includes discontinuous aquifers,

which are perched.

Waste management unit boundary means a vertical surface located at the hydraulically


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downgradient limit of the unit. This vertical surface extends down into the uppermost aquifer.

Waste pile or pile means any noncontainerized accumulation of solid, nonflowing waste that is

used for treatment or storage.

Sec. 253.3 Imminent hazard action.

Notwithstanding any other provisions of these regulations, enforcement actions may be brought

pursuant to sections 7002 and 7003 of RCRA.

Subpart B--Location Restrictions

Sec. 253.10 Placement above the seasonal high groundwater level.

(a) Upon the effective date of this rule, all CCW disposal units and expansions of CCW

disposal units must be managed such that the base of the unit is located above the upper

limit of the site-specific seasonal high groundwater level.

(b) For purposes of this section seasonal high groundwater level means the level at which

water stands in a shallow well open along its length and penetrating the surficial deposits

just deeply enough to encounter standing water at the bottom when the aquifer is at its

highest seasonal elevation. This specifically includes perched groundwater.

(c) Owners and operators of all existing CCW disposal units must submit to the EPA

Regional Administrator a demonstration that the base of each CCW disposal unit is

located above the site-specific seasonal high groundwater level. This demonstration shall

be placed in the operating record.

(d) Any existing CCW disposal unit whose base is not located above the site-specific

seasonal high groundwater level must be closed in compliance with the applicable

requirements of this Part within two years of [the effective date of this final rule].

Sec. 253.11 Floodplains.

(a) Upon the effective date of this rule, new CCW disposal units or expansions of CCW

disposal units shall not be located within floodplains.

(b) Existing CCW disposal units located in a 100-year floodplain must make a demonstration

to the EPA Regional Administrator within 120 days of [the effective date of this rule] that

the unit will not restrict the flow of the 100-year flood, reduce the temporary water storage

capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to

human health and the environment. The person managing CCW must place the

demonstration in the operating record and submit the demonstration to the EPA Regional

Administrator.

(c) The Regional Administrator must approve or disapprove any demonstration made pursuant

to Sec. 253.11(b) within 120 days of its submission. If the Regional Administrator does


67

not approve the demonstration, the owner or operator of the existing CCW disposal unit

must close the disposal unit in compliance with the applicable requirements of this Part

within two years of that determination. All approved demonstrations must be maintained

in the operating record.

(d) For purposes of this Section:

(1) Floodplain means the lowland and relatively flat areas adjoining inland and coastal

waters, including flood-prone areas of offshore islands that are inundated by the 100-year

flood.

(2) 100-year flood means a flood that has a 1-percent or greater chance of recurring in any

given year or a flood of a magnitude equaled or exceeded once in 100 years on the average

over a significantly long period.

(3) Washout means the carrying away of solid waste by waters of the base flood.

Sec. 253.12 Wetlands.

(a) Upon the effective date of this rule, CCW disposal units shall not be located in

wetlands.

(b) Existing CCW units that are located in wetlands must make the following

demonstration to the EPA Regional Administrator within 120 days of [the date of the final

rule]:

(1) The construction and operation of the CCW disposal unit does not:

(i) Cause or contribute to violations of any applicable State water quality standard,

(ii) Violate any applicable toxic effluent standard or prohibition under section 307 of

the Clean Water Act,

(iii) Jeopardize the continued existence of endangered or threatened species or result in

the destruction or adverse modification of a critical habitat, protected under the

Endangered Species Act of 1973, and

(iv) Violate any requirement under the Marine Protection, Research, and Sanctuaries

Act of 1972 for the protection of a marine sanctuary;

(2) The CCW disposal unit does not cause or contribute to significant degradation of

wetlands. The integrity of the CCW disposal unit and its ability to protect ecological resources

must be demonstrated by addressing the following factors:

(i) Erosion, stability, and migration potential of native wetland soils, muds and deposits

used to support the CCW disposal unit;

(ii) Erosion, stability, and migration potential of dredged and fill materials used to

support the CCW disposal unit;

(iii) The volume and chemical nature of the waste managed in the CCW disposal unit;

(iv) Impacts on fish, wildlife, and other aquatic resources and their habitat from release

of the solid waste;


68

(v) The potential effects of catastrophic release of waste to the wetland and the resulting

impacts on the environment; and

(vi) Any additional factors, as necessary, to demonstrate that ecological resources in the

wetland are sufficiently protected.

(c) The Regional Administrator must approve or disapprove any demonstration made

pursuant to Sec. 253.12(b) within 120 days of its submission. If the Regional Administrator

does not approve the demonstration, the owner or operator of the existing CCW disposal unit

located in a wetland must close the disposal unit in compliance with the applicable

requirements of this Part within two years of that determination. All approved demonstrations

must be maintained in the operating record.

(d) For purposes of this section, wetlands means those areas that are defined in 40 CFR

232.2(r).

(e) Nothing in this section affects the applicability of any other statute or regulation

affecting management of CCW in wetlands, including the permitting requirements under

section 404 of the Clean Water Act.

Sec. 253.13 Fault areas.

(a) Upon the effective date of this rule, CCW disposal units shall not be located within 200

feet (60 meters) of a fault that has had displacement in Holocene time.

(b) Existing CCW disposal units located within 200 feet (60 meters) of a fault that has had

displacement in Holocene time must make a demonstration to the EPA Regional

Administrator within 120 days of [the effective date of this rule] that an alternative setback

distance of less than 200 feet (60 meters) will prevent damage to the structural integrity of

the CCW disposal unit and will be protective of human health and the environment, except

as specified in paragraph (c) of this section.

(c) The Regional Administrator must approve or disapprove any demonstration made pursuant

to Sec. 253.13(b) within 120 days of its submission. If the Regional Administrator does

not approve the demonstration, the owner or operator of the existing CCW disposal unit

must close the disposal unit in compliance with the applicable requirements of this Part

within two years of that determination. All approved demonstrations must be maintained

in the operating record.

(d) For the purposes of this section:

(1) Fault means a fracture or a zone of fractures in any material along which strata on one

side have been displaced with respect to that on the other side.

(2) Displacement means the relative movement of any two sides of a fault measured in any

direction.

(3) Holocene means the most recent epoch of the Quaternary period, extending from the

end of the Pleistocene Epoch to the present.

Sec. 253.14 Seismic impact zones.


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(a) Upon the effective date of this rule, CCW shall not be managed in a CCW disposal unit

located in a seismic impact zone, unless a demonstration is made to the EPA Regional

Administrator, within 120 days [of this final rule] for existing units and prior to construction of

any new CCW disposal unit, that all containment structures, including liners, leachate collection

systems, and surface water control systems, are designed to resist the maximum horizontal

acceleration in lithified earth material for the site. The person managing CCW waste must place

the demonstration in the operating record.

(b) The Regional Administrator must approve or disapprove any demonstration made pursuant

to Sec. 253.14(a) within 120 days of its submission. If the Regional Administrator does not

approve the demonstration, the owner or operator of the existing CCW disposal unit located in a

seismic impact zone must close the disposal unit in compliance with the applicable requirements

of this Part within two years of that determination. All approved demonstrations must be

maintained in the operating record.

(c) For the purposes of this Section:

(1) Seismic impact zone means an area with a ten percent or greater probability that the

maximum horizontal acceleration in lithified earth material, expressed as a percentage of the

earth's gravitational pull (g), will exceed 0.10g (i.e., 98.0 centimeters per second per second)

in 250 years.

(2) Maximum horizontal acceleration in lithified earth material means the maximum

expected horizontal acceleration depicted on a seismic hazard map, with a 90 percent or

greater probability that the acceleration will not be exceeded in 250 years, or the maximum

expected horizontal acceleration based on a site-specific seismic risk assessment.

(3) Lithified earth material means all rock, including all naturally occurring and naturally

formed aggregates or masses of minerals or small particles of older rock that formed by

crystallization of magma or by induration of loose sediments. This term does not include man-

made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or

regolith lying at or near the earth surface.

Sec. 253.15 Unstable areas.

(a) CCW shall not be managed in disposal units located in unstable areas.

(b) Existing CCW disposal units located in an unstable area must make a demonstration to the

EPA Regional Administrator within 120 days [of this final rule] that engineering measures have

been incorporated into the CCW disposal unit’s design to ensure the integrity of the structural

components of the CCW disposal unit will not be disrupted. The following factors, at a

minimum, must be considered when determining whether an area is unstable:

(1) On site or local soil conditions that may result in significant differential settling;

(2) On site or local geologic or geomorphologic features; and

(3) Onsite or local human made features or events (both surface and subsurface).

(c) The Regional Administrator must approve or disapprove any demonstration made pursuant to

Sec. 253.15(b) within 120 days of its submission. If the Regional Administrator does not

approve the demonstration, the owner or operator of the existing CCW disposal unit located in an


70

unstable area must close the disposal unit in compliance with the applicable requirements of this

Part within two years of that determination. All approved demonstrations must be maintained in

the operating record.


(1)Unstable area means a location that is susceptible to natural or human-induced events or

forces capable of impairing the integrity of some or all of the landfill structural components

responsible for preventing releases from a landfill. Unstable areas can include poor

foundation conditions, areas susceptible to mass movements, and karst terrains.

(2) Structural components means liners, leachate collection systems, final covers, run-on/run-

off systems, and any other component used in the construction and operation of the CCW

disposal that is necessary for protection of human health and the environment.

(3) Poor foundation conditions means those areas where features exist which indicate that a

natural or human-induced event may result in inadequate foundation support for the structural

components of a CCW disposal unit.

(4) Areas susceptible to mass movement means those areas of influence (i.e., areas

characterized as having an active or substantial possibility of mass movement) where the

movement of earth material at, beneath, or adjacent to the CCW disposal unit, because of

natural or human-induced events, results in the downslope transport of soil and rock material

by means of gravitational influence. Areas of mass movement include, but are not limited to,

landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall.

Sec. 253.16 Karst terrains.

(a) Upon the effective date of this rule, new CCW disposal units and expansions of CCW

disposal units shall not be located in karst terrain.

(b) A person managing an existing CCW disposal unit located in karst terrain must make a

demonstration to the EPA Regional Administrator within 120 days [of this final rule] that

engineering measures have been incorporated into the CCW disposal unit’s design to ensure the

integrity of the structural components of the CCW disposal unit will not be disrupted. The

following factors, at a minimum, must be considered when determining whether a terrain is

karstic:

(1) On-site or local geologic or geomorphologic features;

(2) On-site or local soil conditions that may result in significant differential settling, collapse,

or puncture of a landfill liner;

(3) On-site hydrology, including the character and direction of ground-water flow and points

of discharge for the karst ground-water basin the facility may affect; and

(4) On-site or local human-made features or events (both surface and subsurface).

(c) The Regional Administrator must approve or disapprove any demonstration made pursuant to

Sec. 253.16(b) within 120 days of its submission. If the Regional Administrator does not

approve the demonstration, the owner or operator of the existing CCW disposal unit located in

karst terrain must close the disposal unit in compliance with the applicable requirements of this


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Part within two years of that determination. All approved demonstrations must be maintained in



(1) Karst terrains mean areas where karst landscape, with its characteristic hydrogeology

and/or landforms are developed. In karst terrain, ground-water flow generally occurs through

an open system with both diffuse and conduit flow end member components, and typically

has rapid ground-water flow velocities that exceed Darcian flow velocities. Composed of

limestone, dolomite, gypsum and other soluble rock, karst terrain typically has well

developed secondary porosity enhanced by dissolution. Landforms found in karst terrain

include, but are not limited to, sinkholes, sinking streams, caves, springs and blind valleys.

Karst terrains always include one or more springs for each ground-water basin, and

underground streams except where groundwater flow is diffuse or the host rock has

megaporosity.

(2) Structural components means liners, leachate collection systems, final covers, run-on/run-

off systems, and any other component used in the construction and operation of the CCW

disposal unit that is necessary for protection of human health and the environment.

(3) Conduit flow means nonlinear to turbulent groundwater flow through an integrated system

of conduits that behave hydraulically as a system of pipes. Conduit flow is typical of ground-

water flow through thick, massive soluble rock such as limestone, where ground water is

concentrated, flow is rapid and specific discharges are high. Turbulent conduit flow can be

initiated in fractures as thin as 5 to 10 millimeters.

(4) Darcian flow means groundwater flow which follows Darcy's law, where the specific

discharge is proportional to the hydraulic gradient. Darcian ground-water flow is typically

linear and laminar, travels from 1 x 10-11

to 1 x 10-12

centimeters per second, and is

characteristic of ground-water flow through granular porous media.

(5) Diffuse flow means groundwater flow that is laminar and slow (within the range of

Darcian flow velocities) through a system of joints and bedding planes that have had minimal

solution enlargement.

Subpart C--Additional Criteria

Sec. 253.20 Air criteria for temporary storage including storage in tanks, containers, or

buildings.

(a) This section applies to coal combustion waste placed in temporary storage. Such CCW

must be covered or otherwise managed to control wind dispersal of dusts, or stored in tanks,

containers or buildings that meet the following minimum standards:

(1) The tank, container, or building should be an engineered structure with a human-made

floor, walls, and a roof all of which prevent water from reaching the stored CCW and are

made of non-earthen materials providing structural support.

(2) The tank, container, or building must be free standing and not a surface impoundment (as

defined in 40 CFR 257.2), be manufactured of a material suitable for storage of its contents,


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and meet appropriate specifications such as those established by either ASTM, API, or UL

standards.

(b) For purposes of this section, temporary storage means interim storage of CCW designated for

recycling, sale or final disposal.

(c) Alternative measures for fugitive dust control may be approved by the EPA Regional

Administrator if a demonstration is made to the EPA Regional Administrator that the alternative

measures are at least as effective in controlling wind dispersal of CCW as the minimum

standards defined in paragraph (a) of this section. The person managing CCW must place the

demonstration in the operating record and provide the EPA Regional Administrator with a copy

of the demonstration.

Sec. 253.21 Criteria for trucks transporting coal combustion waste.

(a) CCW transported in trucks or other vehicles must be covered or otherwise managed to

control wind dispersal of dust.

(b) All trucks transporting CCW must comply with the applicable DOT standards pertaining to

the transportation of hazardous materials.

Sec. 253.22 Air criteria for CCW disposal units.

(a) CCW disposed in CCW disposal units must be managed in a manner that does not violate any

applicable requirements developed under a State Implementation Plan (SIP) approved or

promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended.

(b) CCW must be disposed in CCW disposal unit constructed so that such CCW is:

(1) Covered or otherwise managed to control wind dispersal of dust, or

(2) Emplaced as conditioned CCW to control wind dispersal, and

(3) Covered with a sufficient thickness of earthen material at the end of each operating day,

or at more frequent intervals if necessary, except as provided in paragraph (d) of this section,

to control blowing dust.

(c) For purposes of this section conditioned CCW means coal combustion waste that has been

compacted in the field at appropriate moisture content using moderate to heavy equipment to

attain 95% of the standard Proctor maximum dry density value according to ASTM D 698 or D

1557 test methods.

(d) Alternative measures for fugitive dust control may be approved by the EPA Regional

Administrator if a demonstration is made to the EPA Regional Administrator that the alternative

measures are at least as effective in controlling wind dispersal of CCW as the minimum

standards defined in paragraphs (a), (b), and (c) of this section. The person managing CCW must

place the demonstration in the operating record and provide a copy of the demonstration to the

EPA Regional Administrator.

Sec. 253.23 Recordkeeping requirements.


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(a) An operating record of a CCW disposal unit must be retained at the facility. The following

information must be recorded in the operating record as it becomes available:

(1) Any notification of violation required under paragraph (c) of this section;

(2) Any certification of compliance required under paragraph (d) of this section;

(3) Any location restriction demonstration required under Subpart B;

(4) Any CCW disposal unit design documentation;

(5) Any demonstration, certification, finding, monitoring, testing, or analytical data

required by Subpart E;

(6) Any demonstration, certification, testing, or analytical data required by Sec. 253.17(d);

(7) Any plans for selected remedies as required by Sec. 253.47;

(8) Closure and post-closure care plans and any monitoring, testing, or analytical data as

required by Secs. 253.50 and 253.51; and

(9) Any cost estimates and financial assurance documentation required by Subpart G of this

part.

(b) The person managing CCW must submit copies of documents, including changes and updates

to all documents specified in paragraph (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), (a)(8) and (a)(9), to

the EPA Regional Administrator. All information contained in the operating record must be

made available for inspection and copying by the public at all reasonable times.

(c) The person managing CCW must notify the EPA Regional Administrator, in a letter signed

by the owner or operator of the facility, whenever any standard of this rule is violated.

(d) The person managing CCW must submit a certification to the EPA Regional Administrator,

signed by the owner or operator of the facility, once each year: throughout the active life and

post-closure care period that a new or existing CCW disposal unit is in compliance with the

additional criteria, groundwater monitoring, and corrective action provisions of subparts C and E

of this part and with the closure and post-closure and financial assurance provisions of subparts F

and G; and throughout the active life of the facility that all CCW managed on-site or sent off-site

for beneficial use is disposed in compliance with all applicable provisions of this part. The

certification must also certify that all records from paragraph (a) of this section are properly

maintained, submitted as required to the EPA Regional Administrator, and available to the public

in accordance with the provisions of paragraph (b) of this section.

Sec. 253.24 Storage criteria [To be inserted]

Subpart D--Design Criteria

Sec. 253.30 Design criteria.

(a) Prior to construction of a CCW disposal unit in carbonate terrain, a karst ground-water

investigation must be conducted to verify that the site does not contain features characteristic of

karst terrain, as described In Sec. 253.16. The karst investigation must define the direction of


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groundwater flow and points of discharge for the karst ground-water basin(s) the facility may

affect. The karst groundwater investigation shall also include, but not be limited to, a karst

inventory and a dye tracer study to identify springs that are hydrologically related to the CCW

disposal unit. The investigation must be certified by a qualified groundwater scientist and

approved by the EPA Regional Administrator.

(b) CCW must be managed in CCW disposal units and expansions constructed:

(1) In accordance with a design and operating practices that, together with location

characteristics, will prevent the migration of any hazardous constituents into the

groundwater or surface water at any future time, and

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

detection, collection, and removal system that is designed, constructed, and operated to

maintain less than a 30 cm depth of leachate over the liner. The owner or operator shall

collect and remove pumpable liquids to minimize the head on the liner.

(c) For purposes of this Section, composite liner means a system consisting of two components;

the upper component must consist of a minimum 30 mil flexible membrane liner (FML), and the

lower component must consist of at least a two foot layer of compacted soil with a hydraulic

conductivity of no more than 1x10-7

cm/sec. FML components consisting of high density

polyethylene (HDPE) shall be at least 60 mil thick. The FML component must be installed in

direct and uniform contact with the compacted soil component.

(d) For purposes of this Section the leachate detection, collection, and removal system must be

capable of detecting, collecting, and removing leachate during the active life and post-closure

care period. The requirements for a leak detection system in this paragraph are satisfied by

installation of a system that is, at a minimum:

(1) Constructed with a bottom slope of one percent or more;

(2) Constructed of granular drainage materials with a hydraulic conductivity of 1×10−2

cm/sec

or more and a thickness of 12 inches (30.5 cm) or more; or constructed of synthetic or geonet

drainage materials with a transmissivity of 3×10−5

m2/sec or more;

(3) Constructed of materials that are chemically resistant to the waste managed in the unit and

the leachate expected to be generated, and of sufficient strength and thickness to prevent

collapse under the pressures exerted by overlying wastes and any waste cover materials or

equipment used;

(4) Designed and operated to minimize clogging during the active life and post-closure care

period; and

(5) Constructed with sumps and liquid removal methods (e.g., pumps) of sufficient size to

collect and remove liquids from the sump and prevent liquids from backing up into the waste.

Each unit must have its own sump(s). The design of each sump and removal system must

provide a method for measuring and recording the volume of liquids present in the sump and

of liquids removed.


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(6) The owner or operator shall collect and remove pumpable liquids in the sumps to

minimize the head on the liner.

(e) When designing a CCW disposal unit that complies with paragraph (b)(1) of this section, the

following factors, at a minimum, must be considered:

(1) The hydrologic characteristics of the facility and surrounding land;

(2) The climatic factors of the area; and

(3) The volume and physical and chemical characteristics of the leachate.

(f) The relevant POC shall be no more than 50 meters from the waste management unit boundary

and shall be located on land owned by the owner of the CCW disposal. In determining the

relevant POC, the following factors shall be considered:

(1) The hydrogeologic characteristics of the facility and surrounding land including the

locations of nearest connections of groundwater to surface waters and all groundwater

recharge and discharge points in the surrounding land;

(2) The volume and physical and chemical characteristics of the leachate;

(3) The quantity, quality, and direction of flow of groundwater;

(4) The anticipated travel time for potentially impacted groundwater to reach the monitoring

system;

(5) The proximity and withdrawal rate of the groundwater users;

(6) The availability of alternative drinking water supplies;

(7) The existing quality of the groundwater, including other sources of contamination and

their cumulative impacts on the groundwater, and whether the groundwater is currently used

or reasonably expected to be used for drinking water; and

(8) Public health, safety, and welfare effects.

(g) The person managing CCW must submit to the EPA Regional Administrator copies of

documents required in paragraph (a) of this section within ten (10) days of the date these

documents have been placed in the operating record, and all information contained in the

operating record must be made available for inspection and copying by the public.

Sec. 253.31 Prohibition on construction of new coal combustion waste surface

impoundments

Upon [the effective date of this final rule], construction of new surface impoundments and the

expansion of existing surface impoundments for the management, storage or disposal of CCW

shall be prohibited.

Sec. 253.32 Closure of existing coal combustion waste surface impoundments

Existing CCW surface impoundments shall close within two years of [the effective date of this

final rule]. Closure of CCW surface impoundments shall be in accordance with all closure and

post-closure requirements in set forth in this Part 253. [Note: additional requirements regarding

the closure of existing surface impoundments will be added.]


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Sec. 253.33 Access requirements.

Owners or operators of all CCW disposal units must control public access and prevent

unauthorized vehicular traffic and illegal dumping of wastes by using artificial barriers, natural

barriers, or both, as appropriate to protect human health and the environment.

Sec. 253.34 Run-on/run-off control systems.

(a) Owners or operators of all CCW disposal units must design, construct, and maintain:

(1) A run-on control system to prevent flow onto the active portion of the landfill during the

peak discharge from a 25-year storm;

(2) A run-off control system from the active portion of the landfill to collect and control at

least the water volume resulting from a 24-hour, 25-year storm.

(b) Run-off from the active portion of the landfill unit must not cause a discharge of pollutants

into waters of the United States, including wetlands, that violates any requirements of the Clean

Water Act, including, but not limited to, the National Pollutant Discharge Elimination System

(NPDES) requirements, pursuant to section 402.

Subpart E--Groundwater Monitoring and Corrective Action

Sec. 253.40 Applicability.

(a) The requirements in this part apply to all new and existing CCW disposal units, except as

provided in paragraph (b) of this section.

(b) Persons managing CCW in CCW disposal units must comply with the groundwater

monitoring requirements of this part according to the following schedule:

(1) Existing CCW disposal units must be in compliance with the groundwater monitoring

requirements specified in Secs. 253.41 through 253.45 by one year after the effective date of

the rule;

(2) Upon the effective date of this rule, new CCW disposal units and expansions of existing

CCW disposal units must be in compliance with the groundwater monitoring requirements

specified in Secs. 253.41 through 253.45 before CCW can be placed in the unit.

(c) The owner or operator of the CCW disposal unit(s) must notify the EPA Regional

Administrator once each year throughout the active life and post-closure care period that a new

or existing CCW disposal unit is in compliance with the groundwater monitoring and corrective

action provisions of this Subpart.

(d) Once established at a CCW disposal unit, groundwater monitoring shall be conducted

throughout the active life and post-closure care period of that CCW disposal unit as specified in

Sec. 253.51.

(e) For the purposes of this subpart, a qualified ground-water scientist is a scientist or engineer

who has received a baccalaureate or post-graduate degree in the natural sciences or engineering

and has sufficient training and experience in groundwater hydrology and related fields as may be

demonstrated by State registration, professional certifications, or completion of accredited


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university programs that enable that individual to make sound professional judgments regarding

groundwater monitoring, contaminant fate and transport, and corrective action.

Sec. 253.41 Groundwater monitoring systems.

(a) A groundwater monitoring system must be installed that consists of a sufficient number of

wells and/or springs, installed at appropriate locations and depths, to yield groundwater samples

from the uppermost aquifer (as defined in Sec. 253.2) and any other aquifer that is hydrologically

connected to the uppermost aquifer or is otherwise vulnerable to contamination by the waste unit

based on the hydrologic characterization of the site. The groundwater monitoring system must

consist of sufficient monitoring points to detect degradation of groundwater quality that

originates from any point within the unit. The system must include, at a minimum, one

upgradient and three downgradient wells. Groundwater samples must:

(1) Represent the seasonal variation of head elevation and water quality of upgradient

groundwater that has not been affected by leakage from the unit being monitored.

(2) Represent the elevation and quality of leachate contained within the disposal unit

throughout the operation and post closure monitoring of the unit;

(3) Represent the quality of groundwater passing the relevant POC. The downgradient

monitoring system must be installed at the relevant POC (or at the waste management unit

boundary if deemed necessary by the EPA Regional Administrator to prevent offsite

migration of contaminants) that ensures timely detection of groundwater contamination in the

uppermost and any other affected aquifer.

(b) A groundwater monitoring system must be designed, installed, and operated to assure the

ability to detect changes in groundwater quality considering projected changes to the

hydrogeologic system at the facility during the construction, operation, and post-closure periods.

(c) A multi-unit groundwater monitoring system may be installed instead of separate

groundwater monitoring systems for each CCW disposal unit when the facility has several units,

provided the multi-unit groundwater monitoring system meets the requirement of paragraph (a)

of this section and will be as protective of human health and the environment as individual

monitoring systems for each CCW disposal unit, based on the following factors:

(1) Number, spacing, and orientation of the CCW disposal units;

(2) Hydrogeologic setting that exists during the construction, operation, and post-closure

periods; and

(3) Site history.

(d) Monitoring wells must be cased in a manner that maintains the integrity of the monitoring

well bore hole. This casing must be screened or perforated and packed with gravel or sand,

where necessary, to enable collection of ground-water samples. The annular space (i.e., the space

between the bore hole and well casing) above the sampling depth must be sealed to prevent

contamination of samples and the groundwater.

(1) The person managing CCW must notify the EPA Regional Administrator that the

documentation of design, installation, development, and decommission of any monitoring


78

wells, piezometers and other measurement, sampling, and analytical devices has been placed

in the operating record; and

(2) The monitoring wells, springs, piezometers, and other measurement, sampling, and

analytical devices must be operated and maintained so that they perform to design

specifications throughout the life of the monitoring program.

(e) The number, spacing, and depths of monitoring systems shall be:

(1) Determined based upon site-specific hydrogeologic information that must include

thorough characterization of:

(i) Aquifer thickness(es), ground-water flow rate(s), groundwater flow direction(s)

including seasonal and temporal fluctuations in groundwater flow, and flow through

fractures or other pathways between aquifers; and

(ii) Saturated and unsaturated geologic units, disposed wastes, and fill materials overlying

the uppermost aquifer, materials comprising each potentially affected aquifer, and

materials comprising the confining unit defining the lower boundary of the uppermost

aquifer; including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic

conductivities, porosities and effective porosities.

(2) Certified by a qualified groundwater scientist and approved by the EPA Regional

Administrator. Within 14 days of this certification, the person managing CCW must notify

the EPA Regional Administrator that the certification has been placed in the operating

record.

Sec. 253.43 Groundwater sampling and analysis requirements.

(a) The groundwater monitoring program must include consistent sampling and analysis

procedures that are designed to ensure monitoring results that provide an accurate representation

of groundwater quality at the upgradient and downgradient wells (and at springs respective to

site hydrogeology) installed in compliance with Sec. 253.41(a). The person managing CCW

must submit to the EPA Regional Administrator the sampling and analysis program

documentation and place this documentation in the operating record. The program must include

procedures and techniques for:

(1) Sample collection;

(2) Sample preservation and shipment;

(3) Analytical procedures;

(4) Chain of custody control; and

(5) Quality assurance and quality control.

(b) The monitoring program must include sampling and analytical methods that are appropriate

for groundwater sampling and that accurately measure hazardous constituents, ph, temperature,

specific conductivity and other monitoring parameters in groundwater and leachate samples.

Analyses shall be reported at detection limits at least 50 percent below the lower of health-based

or drinking water standards where such exist. Groundwater samples shall not be field-filtered

prior to laboratory analysis.


79

(c) The sampling procedures and frequency must ensure protection of human health and the

environment with an adequate margin of safety and be designed to reliably detect changes in

water quality and contamination from the waste disposal unit(s) before such contamination has

migrated beyond the property boundary of the waste disposal unit.

(d) Groundwater and leachate elevations must be measured in each well immediately prior to

purging, each time ground water is sampled. The rate and direction of groundwater flow must be

determined each time ground water is sampled. Groundwater elevations in wells that monitor the

same waste management area must be measured within a period of time short enough to account

for temporal variations in groundwater flow that could otherwise preclude accurate

determination of groundwater flow rate and direction.

(e) Baseline groundwater quality must be established in upgradient and downgradient well(s)

(and spring(s) if appropriate) for each of the monitoring parameters or constituents required in

the particular groundwater monitoring program that applies to the CCW disposal unit, as

determined under Sec. 253.44(a) or Sec. 253.45(a). Baseline monitoring must be sufficient to

track seasonal variability and consist of not less than quarterly sampling for a period of one year.

(f) The person managing CCW must determine whether or not there is an increase (increase or

decrease for pH) over baseline values for each parameter or constituent required in the particular

groundwater monitoring program that applies to the CCW disposal unit, as determined under

Sec. 253.44(a).

(g) In determining whether an increase (increase or decrease for pH) has occurred, the person

managing CCW must compare the groundwater quality of each parameter or constituent at each

monitoring well (and spring if appropriate) to the highest (highest and lowest for pH) recorded

baseline value of that constituent.

(h) Within 14 days after completing sampling and analysis, the person managing CCW must

determine whether there has been an increase (increase or decrease for pH) over baseline at each

monitoring well and spring.

Sec. 253.44 Detection monitoring program.

(a) Detection monitoring is required at CCW disposal units at all groundwater monitoring wells

(and springs if appropriate) defined under Sec. 253.41 (a). At a minimum, a detection monitoring

program must include the monitoring for the constituents listed in Appendix I to this part.

(1) The EPA Regional Administrator may establish an expanded list of indicator parameters

for a CCW disposal unit, in addition to the constituents listed in Appendix I to this part. In

determining additional parameters, the EPA Regional Administrator shall consider the

following factors:

(i) The types, quantities, and concentrations of constituents in wastes and leachate

managed at the CCW disposal unit;

(ii) The mobility, stability, and persistence of waste constituents or their reaction

products in any unsaturated zone(s) beneath the CCW disposal unit;

(iii) The detectability of indicator parameters, waste constituents, and reaction products

in the ground water; and


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(iv) The concentration or values and coefficients of variation of monitoring parameters

or constituents in the ground-water baseline.

(b) The monitoring frequency for all constituents listed in Appendix I to this part, or in the

alternative list approved in accordance with paragraph (a)(1) of this section, shall be sufficient to

track seasonal variability and not less than quarterly during the active life of the facility

(including closure) and the post-closure period.

(c) At least one sample from a leachate collection sump, and each upgradient and downgradient

well (and spring if appropriate) must be collected and analyzed during subsequent sampling

events.

(d) If the person managing CCW determines that the concentration of one or more of the

constituents listed in Appendix I to this part is higher (outside the range for pH) than the highest

(outside the range for pH) baseline value for that parameter at the POC, the person managing

CCW:

(1) Must, within 14 days of this finding, place a notice in the operating record indicating

which constituents have increased (outside the range for pH) over baseline levels, and notify

the EPA Regional Administrator of this finding. The documentation shall clearly indicate all

constituents that have increased over baseline and define the baseline for each identified

constituent;

(2) If the person managing CCW determines that there has been an increase above the

highest baseline value for any parameter (outside the range for pH), in any two sampling

events, he must establish an assessment monitoring program meeting the requirements of

Sec. 253.45 within 90 days, except as provided for in paragraph (d)(3) of this section.

(3) The owner/operator may demonstrate that the increase (outside the range for pH) resulted

from error in sampling or analysis. A report documenting this demonstration must be

certified by a qualified groundwater scientist and submitted to the EPA Regional

Administrator, as well as placed in the operating record. If the demonstration is approved by

the EPA Regional Administrator, the person managing CCW may continue detection

monitoring as specified in this Section. If, after 90 days, a successful demonstration is not

made, the person managing CCW must initiate an assessment monitoring program as

required in Sec. 253.45.

Sec. 253.45 Assessment monitoring program.

(a) Assessment monitoring is required whenever an increase over the highest (outside the

range for pH) baseline value has been detected for one or more of the constituents listed

in the Appendix I of this part during any two sampling events.

(b) Within 90 days of triggering an assessment monitoring program, and at least bimonthly

(every other month) thereafter, the person managing CCW must sample and analyze the

groundwater for constituents identified in Appendix VIII of Part 261 of this chapter as

well as aluminum, boron, chloride, chromium (hexavalent), copper, molybdenum, sulfate,

and zinc. A minimum of one sample from each downgradient well (and spring if

appropriate) must be collected and analyzed during each sampling event. The initial

sampling event for assessment monitoring will consist of the collection and analysis of


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four independent samples for all constituents in Appendix VIII of Part 261 as well as

aluminum, boron, chloride, chromium (hexavalent), copper, molybdenum, sulfate and

zinc from each upgradient and downgradient well (and spring if appropriate) to establish

existing concentrations for the constituents.

(c) The EPA Regional Administrator may increase the frequency for repeated sampling and

analysis for the set of constituents required by paragraph (b) of this Section, during the

active life (including closure) and post-closure care of the unit considering the following

factors:

(1) Lithology of the aquifer(s) and unsaturated zone(s);

(2) Hydraulic conductivity(ies) of the aquifer(s) and unsaturated zone(s);

(3) Ground-water flow rates;

(4) Minimum distance between upgradient edge of the CCW disposal unit and downgradient

monitoring well screen (minimum distance of travel);

(5) Hydrograph of springs if appropriate;

(6) Resource value of the aquifer; and

(7) Nature (fate and transport) of any constituents detected in response to this Section.

(d) After obtaining the results from the initial or subsequent sampling events required in

paragraph (b) of this Section, the person managing CCW must:

(1) Within 14 days, place documentation in the operating record identifying the constituents

that have been detected and their concentrations and submit such documentation to the EPA

Regional Administrator and to the host municipality in which the CCW disposal unit is

located. The documentation shall clearly specify each detected constituent along with the

baseline values for all detected constituents;

(2) Within 90 days, resample all wells (and springs if appropriate) specified by Sec.

253.41(a), conduct analyses for those constituents required by paragraph (b) of this Section,

and submit all analyses to the EPA Regional Administrator and host municipality as well as

record all concentrations in the facility operating record. At least one sample from each

upgradient and downgradient well (and spring if appropriate) must be collected and analyzed

during these sampling events.

(3) Establish upgradient concentrations for any constituents detected pursuant to paragraph (b)

or (d)(2) of this Section; and

(4) Determine whether or not there is a statistically significant increase over upgradient or

baseline values for each parameter or constituent required in the particular groundwater

monitoring program that applies to the CCW disposal unit, as determined under Sec.

253.44(a) or Sec. 253.45(a).

(e) The number of samples collected to establish groundwater quality data must be consistent

with the appropriate statistical procedures determined pursuant to paragraph (f) of this section.

The sampling procedures shall be those specified under Sec. 253.44 for detection monitoring,

Sec. 253.45 for assessment monitoring.

(f) One of the following statistical methods to be used in evaluating groundwater monitoring data


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must be specified in the operating record and submitted to the EPA Regional Administrator for

each hazardous constituent in addition to an evaluation of trend analysis that is sufficient to

account for seasonal or other temporal variations in the data. The statistical test chosen shall be

conducted separately for each hazardous constituent in each well (and spring if appropriate).

(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons

procedures to identify statistically significant evidence of contamination. The method must

include estimation and testing of the contrasts between each compliance well's mean and the

upgradient mean levels for each constituent.

(2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons

procedures to identify statistically significant evidence of contamination. The method must

include estimation and testing of the contrasts between each compliance well's median and

the upgradient median levels for each constituent.

(3) A tolerance or prediction interval procedure in which an interval for each constituent is

established from the distribution of the upgradient data, and the level of each constituent in

each compliance well is compared to the upper tolerance or prediction limit.

(4) A control chart approach that gives control limits for each constituent.

(5) Another statistical test method that meets the performance standards of paragraph (h) of

this section. The person managing CCW must place a justification for this alternative in the

operating record and submit the justification to the EPA Regional Administrator of the use of

this alternative test. The justification must demonstrate that the alternative method meets the

performance standards of paragraph (h) of this section.

(g) Any statistical method chosen shall comply with the following performance standards, as

appropriate:

(1) The statistical method used to evaluate groundwater monitoring data shall be appropriate

for the distribution of chemical parameters or hazardous constituents. If the distribution of the

chemical parameters or hazardous constituents is shown by the person managing CCW to be

inappropriate for a normal theory test, then the data should be transformed or a distribution-

free theory test should be used. If the distributions for the constituents differ, more than one

statistical method may be needed.

(2) If an individual well comparison procedure is used to compare an individual compliance

well constituent concentration with upgradient constituent concentrations or a groundwater

protection standard, the test shall be done at a Type I error level no less than 0.01 for each

testing period. If a multiple comparisons procedure is used, the Type I experimental error rate

for each testing period shall be no less than 0.05; however, the Type I error of no less than

0.01 for individual well comparisons must be maintained. This performance standard does not

apply to tolerance intervals, prediction intervals, or control charts.

(3) If a control chart approach is used to evaluate groundwater monitoring data, the specific

type of control chart and its associated parameter values shall be protective of human health

and the environment. The parameters shall be determined after considering the number of

samples in the baseline data base, the data distribution, and the range of the concentration

values for each constituent of concern.

(4) If a tolerance interval or a predictional interval is used to evaluate ground-water


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monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the

population that the interval must contain shall be protective of human health and the

environment. These parameters shall be determined after considering the number of samples

in the baseline data base, the data distribution, and the range of the concentration values for

each constituent of concern.

(5) The statistical method shall account for data below the limit of detection with one or more

statistical procedures that are protective of human health and the environment. Any practical

quantification limit (pql) that is used in the statistical method shall be the lowest concentration

level that can be reliably achieved within specified limits of precision and accuracy during

routine laboratory operating conditions that are available to the facility.

(6) The statistical method shall include procedures to control or correct for seasonal and

spatial variability as well as temporal correlation in the data.

(h) In determining whether a statistically significant increase has occurred, the person managing

CCW must compare the groundwater quality of each parameter or constituent at each monitoring

well (and spring if appropriate) designated pursuant to Sec. 253.41(a)(3) to the baseline value of

that constituent at that well (spring, if appropriate) and upgradient value of that constituent,

according to the statistical procedures and performance standards specified under paragraphs (f)

and (g) of this section.

(i) If the concentrations of all constituents listed in paragraph (b) are shown to be at or below

baseline values and upgradient values, using the statistical procedures in Sec. 253.45, for

consecutive sampling events spanning an entire hydrologic cycle, the person managing CCW

must notify the EPA Regional Administrator of this finding prior to returning to detection

monitoring.

(j) If one or more constituents listed in paragraph (b) are detected at statistically significant

levels above the baseline or upgradient concentrations established under paragraph (h) of this

section in any sampling event, the person managing CCW must, within 14 days of this finding,

place a notice entitled “Statistically Significant Contaminant Detection” in the operating record

identifying the constituents that have exceeded baseline or upgradient concentrations and the

extent of those exceedances, and submit such documentation, including the extent of the

exceedances to the EPA Regional Administrator, the host municipality, adjacent landowners and

to the public through a public notice in a major local newspaper of general circulation. The

person managing CCW must also:

(1) Characterize the nature and extent of the release by installing additional monitoring wells

as necessary;

(2) Install at least one additional monitoring well at the facility boundary in the direction of

contaminant migration and sample this well in accordance with paragraph (d)(2) of this

Section;

(3) Notify all persons who own the land or reside on the land that directly overlies any part of

the plume of contamination if contaminants have migrated off-site if indicated by sampling of

wells (and springs if appropriate) in accordance with paragraph (g) of this section; and

(4) Initiate an assessment of corrective measures as required by Sec. 253.46 within 30 days;

or


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(5) Demonstrate that a source other than a CCW disposal unit caused the contamination, or

that the SSI increase resulted from error in sampling, analysis, statistical evaluation, or natural

variation in groundwater quality. A report documenting this demonstration must be certified

by a qualified groundwater scientist and submitted to the EPA Regional Administrator and

placed in the operating record. If the EPA Regional Administrator approves the

demonstration, the person managing CCW must continue monitoring in accordance with the

assessment monitoring program pursuant to this section, and may return to detection

monitoring if the constituents listed in paragraph (b) are at or below baseline and upgradient

concentrations as specified in paragraph (i) of this section in subsequent sampling. Until a

successful demonstration is made, the person managing CCW must comply with paragraph (j)

of this section including initiating an assessment of corrective measures. Approval of a

demonstration by the EPA Regional Administrator shall be placed in the operating record,

sent to the local municipality and adjacent landowners, and published in a local newspaper of

general circulation.

Sec. 253.46 Assessment of corrective measures.

(a) Within 30 days of finding that any of the constituents listed in Section 253.45 of this chapter

have been detected at a statistically significant level exceeding baseline or upgradient

concentrations, the person managing CCW must initiate an assessment of corrective measures.

Such an assessment must be completed within 90 days, or such shorter period of time decided by

the EPA Regional Administrator.

(b) The person managing CCW must continue to monitor in accordance with the assessment

monitoring program as specified in Sec. 253.45.

(c) The assessment shall include an analysis of the effectiveness of potential corrective measures

in halting the spread of the contamination and restoring baseline water quality as well as meeting

all of the other requirements and objectives of the remedy as described under Sec. 253.47,

addressing at least the following:

(1) The performance, reliability, ease of implementation, and potential impacts of appropriate

potential remedies, including safety impacts, cross-media impacts, and control of exposure to

any residual contamination;

(2) The time required to begin and complete the remedy;

(3) The costs of remedy implementation; and

(4) The institutional requirements such as State or local permit requirements or other

environmental or public health requirements that may substantially affect implementation of

the remedies.

(d) The owner or operator of the CCW disposal unit must provide the public with information

regarding the corrective measures assessment, as well as the opportunity to comment on the

corrective measures assessment, prior to the selection of remedy, in a public meeting with

interested and affected parties. The owner or operator of the CCW disposal unit shall publish a


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notice of availability and brief analysis of the corrective measures assessment and proposed

corrective action remedy in a major local newspaper of general circulation. The owner or

operator shall make the assessment and proposed remedy, as well as the operating record,

available for public viewing at a public information repository, as required by section [to be

determined] of this part.

(e) The owner or operator shall provide a reasonable opportunity, not less than 30 calendar days,

for submission of written and oral comments on the proposed remedy. Upon timely request, the

EPA Regional Administrator will extend the public comment period by a minimum of 30

additional days. The EPA Regional Administrator shall provide the opportunity for a public

meeting to be held during the public comment period at or near the facility regarding the

proposed remedy.

Sec. 253.47 Selection of remedy.

(a) Within 30 days of completing an assessment of corrective measures conducted under Sec.

253.46, the person managing CCW must select a remedy that, at a minimum, meets the standards

listed in paragraph (b) of this section. Within 14 days of selecting a remedy, the person managing

CCW must submit to the EPA Regional Administrator a report describing the selected remedy

which demonstrates how the remedy meets the standards in paragraph (b) of this section. The

report must include a notification that the owner and operator have placed a copy of the report in


(b) Remedies must:

(1) Be protective of human health and the environment;

(2) Control the source(s) of releases so as to reduce or eliminate, to the maximum extent

practicable, further releases of constituents listed in Section 253.45 of this chapter into the

environment that may pose a threat to human health or the environment; and

(3) Comply with standards for management of wastes as specified in Sec. 253.48(d).

(c) In selecting a remedy that meets the standards of paragraph (b) of this section, the person

managing CCW shall consider the following evaluation factors:

(1) The long- and short-term effectiveness and protectiveness of the potential remedies.

(2) The effectiveness of the remedy in controlling the source to reduce further releases.

(3) The ease or difficulty of implementing a potential remedy(s).

(4) The degree to which community concerns are addressed by a potential remedy(s).

(d) The person managing CCW shall specify as part of the selected remedy a schedule(s) for

initiating and completing remedial activities. Such a schedule must require the initiation of

remedial activities within 60 days taking into consideration the factors set forth in paragraphs (d)

(1) through (5) of this section. The person managing CCW must consider the following factors in

determining the schedule of remedial activities:

(1) Extent and nature of contamination;


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(2) Practical capabilities of remedial technologies;

(3) Availability of treatment or disposal capacity for wastes managed during implementation

of the remedy;

(4) Potential risks to human health and the environment from exposure to contamination prior

to completion of the remedy;

(5) Other relevant factors.

(e) The EPA Regional Administrator shall approve or amend the selected remedy, taking into

consideration the comments received during the public comment period as well as the factors

enumerated in this section. The EPA Regional Administrator may approve a remedy with

amendments to conform to the requirements of this section or public comments received. The

EPA Regional Administrator may determine an alternative period of time for the person

managing CCW to initiate or complete remedial activities pursuant to paragraph (d) of this

section.

(f) The owner or operator of the CCW disposal unit shall publish a notice of the corrective action

remedy approved and the initiation of the implementation of the corrective action program in a

local paper of general circulation.

Sec. 253.48 Implementation of the corrective action program.

(a) Based on the schedule established under Sec. 253.47 for initiation and completion of remedial

activities, the owner/operator must:

(1) Establish and implement a corrective action groundwater monitoring program that:

(i) At a minimum, meets the requirements of an assessment monitoring program under

Sec. 253.45;

(ii) Indicates the effectiveness of the corrective action remedy; and

(iii) Demonstrates compliance with groundwater protection standards pursuant to

paragraph (e) of this section.

(2) Implement the corrective action remedy selected under Sec. 253.47; and

(3) Take any interim measures necessary to ensure the protection of human health and the

environment. Interim measures should, to the greatest extent practicable, be consistent with

the objectives of and contribute to the performance of any remedy that may be required

pursuant to Sec. 253.47. The following factors must be considered by a person managing

CCW in determining whether interim measures are necessary:

(i) Time required to develop and implement a final remedy;

(ii) Actual or potential exposure of nearby populations or environmental receptors to

hazardous constituents;

(iii) Actual or potential contamination of drinking water supplies or sensitive ecosystems;

(iv) Further degradation of the groundwater that may occur if remedial action is not

initiated expeditiously;


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(v) Weather conditions that may cause hazardous constituents to migrate or be released;

(vi) Potential for exposure to hazardous constituents as a result of an accident or failure of

a container or handling system; and

(vii) Other situations that may pose threats to human health and the environment.

(b) A person managing CCW may determine, based on information developed after

implementation of the remedy has begun or other information, that compliance with

requirements of Sec. 253.47 are not being achieved through the remedy selected. In such cases,

the person managing CCW must implement other methods or techniques that could practicably

achieve compliance with the requirements, unless the person managing CCW makes the

determination under paragraph (c) of this section.

(c) If the person managing CCW determines that compliance with requirements under Sec.

253.47 cannot be practically achieved with any currently available methods, the person

managing CCW must:

(1) Obtain certification of a qualified groundwater scientist and approval by the EPA Regional

Administrator that compliance with requirements under Sec. 253.47(b) cannot be practically

achieved with any currently available methods;

(2) Implement alternate measures approved by the EPA Regional Administrator to control

exposure of humans or the environment to residual contamination, as necessary to protect

human health and the environment; and

(3) Implement alternate measures approved by the EPA Regional Administrator for control of

the sources of contamination, or for removal or decontamination of equipment, units, devices,

or structures that are:

(i) Technically practicable; and

(ii) Consistent with the overall objective of the remedy.

(4) Submit to the EPA Regional Administrator within 14 days a report justifying the

alternative measures prior to implementing the alternative measures and place the report in


(d) All solid wastes that are managed pursuant to a remedy required under Sec. 253.47, or an

interim measure required under paragraph (a)(3) of this section, shall be managed in a manner:

(1) That is protective of human health and the environment; and

(2) That complies with applicable RCRA requirements.

(e) Remedies selected pursuant to Sec. 253.47 shall be considered complete when:

(1) Compliance with the groundwater protection standards established under Sec. 253.45(h)

has been achieved by demonstrating that concentrations of constituents listed in section

253.45(b) of this chapter have not exceeded baseline concentrations for a period of three

consecutive years.

(2) All actions required to complete the remedy have been satisfied.

(f) Upon completion of the remedy, the person managing CCW must submit to the EPA

Regional Administrator within 14 days a certification that the remedy has been completed in


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compliance with the requirements of paragraph (e) of this section, and he must place the

certification in the operating record. The certification must be signed by the owner or operator of

the CCW disposal unit and by a qualified groundwater scientist, and approved by the EPA

Regional Administrator.

Subpart F--Closure And Post-Closure Care

Sec. 253.50 Closure criteria for CCW landfills.

(a) A final cap system must be installed at all CCW disposal units that is designed to minimize

infiltration and erosion. The cap system must be designed and constructed to:

(1) Have a saturated hydraulic conductivity less than or equal to the saturated hydraulic

conductivity of any bottom liner system or natural subsoils present, or a saturated hydraulic

conductivity no greater than 1x10-5

cm/sec, whichever is less, and

(2) Minimize infiltration through the closed CCW disposal unit by the use of an infiltration

layer that contains a minimum 18-inches of earthen material, and

(3) Minimize erosion of the cap by the use of an erosion layer that contains a sufficient

thickness of earthen material that is capable of sustaining native plant growth, and

(4) Minimize the disruption of the cap through a design that accommodates settling and

subsidence.

(b) The EPA Regional Administrator may approve an alternative cap design that includes:

(1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration

layer specified in paragraphs (a)(1) and (a)(2) of this section, and

(2) An erosion layer that provides equivalent protection from wind and water erosion as the

erosion layer specified in paragraph (a)(3) of this section.

(c) The person managing CCW must prepare a written closure plan that describes the steps

necessary to close all CCW disposal units at any point during their active life in accordance with

the design requirements in paragraphs (a) or (b) of this section, as applicable. The closure plan,

at a minimum, must include the following information:

(1) A description of the cap, designed in accordance with paragraph (a) of this section and

the methods and procedures to be used to install the cap;

(2) An estimate of the largest area of the CCW disposal unit ever requiring a cap as required

under paragraph (a) of this section at any time during the active life;

(3) An estimate of the maximum inventory of wastes ever on-site over the active life of the

landfill facility. The plan should include drawings and cross sections depicting the

information in (c)(1), (c)(2) and (c)(3); and

(4) A schedule for completing all activities necessary to satisfy the closure criteria in this

section.

(d) The person managing CCW must submit the closure plan to the EPA Regional Administrator

and place such plan in the operating record no later than one year after the effective date of this

rule for existing units or by the date of the initial receipt of waste for new units. [Rules regarding


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approval of closure plans by the EPA Regional Administrator to be inserted.]

(e) Prior to beginning closure of each CCW disposal unit as specified in paragraph (f) of this

section, the person managing CCW must submit a notice of intent to close the unit to the EPA

Regional Administrator and place that notice in the operating record.

(f) The closure activities of each CCW disposal unit (except inactive units) must begin no later

than 30 days after the date on which the CCW disposal unit receives the known final receipt of

wastes or, if the CCW disposal unit has remaining capacity and there is a reasonable likelihood

that the CCW disposal unit will receive additional wastes, no later than one year after the most

recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be

granted by the EPA Regional Administrator if the person managing CCW demonstrates that the

CCW disposal unit has the capacity to receive additional wastes and the person managing CCW

has taken and will continue to take all steps necessary to prevent threats to human health and the

environmental from the unclosed CCW disposal unit.

(g) The closure activities of all CCW disposal units must be completed in accordance with the

closure plan within 180 days following the beginning of closure as specified in paragraph (f) of

this Section. Extensions of the closure period may be granted by the EPA Regional

Administrator if the person managing CCW demonstrates that closure will, of necessity, take

longer than 180 days and he or she has taken and will continue to take all steps to prevent threats

to human health and the environment from the unclosed CCW disposal unit.

(h) Within 14 days following closure of each CCW disposal unit, the owner or operator of the

CCW disposal unit must submit to the EPA Regional Administrator a certification, signed by an

independent registered professional engineer, facility management, and approved by the EPA

Regional Administrator, verifying that closure has been completed in accordance with the

closure plan and such certification shall be placed in the operating record.

(1) Within 14 days following closure of all CCW disposal units, the owner of operator of the

CCW disposal unit must record a notation on the deed to the facility property, or some other

instrument that is normally examined during title search, and notify the EPA Regional

Administrator that the notation has been recorded and a copy has been placed in the

operating record.

(2) The notation on the deed must in perpetuity notify any potential purchaser of the property

that the land has been used for disposal of CCW.

(j) The person managing CCW may request permission from the EPA Regional Administrator to

remove the notation from the deed if all CCW has been removed from the facility. Such removal

must be verified by the EPA Regional Administrator and must include the removal or

decontamination of all waste residues, contaminated containment system components (including

but not limited to liners, leachate collection and pipes), contaminated subsoils and site materials,

and structures and equipment contaminated with waste and leachate. The notation cannot be

removed from the deed if the waste disposal unit is the subject of any ongoing corrective action

requirement in Subpart E.

Sec. 253.51 Post-closure care requirements.

(a) Following closure of each CCW disposal unit, the person managing CCW must conduct post-


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closure care. Post-closure care must be conducted for 30 years, except as provided under

paragraph (b) of this Section, and consist of at least the following:

(1) Maintaining the integrity and effectiveness of any final cap, including making repairs to

the cap as necessary to correct the effects of settlement, subsidence, erosion, or other events,

and preventing run-on and run-off from eroding or otherwise damaging the final cap;

(2) Maintaining and operating the leachate collection system in accordance with the

requirements in Sec. 253.30; and

(3) Monitoring the groundwater and undertaking corrective actions in accordance with the

requirements of Subpart E of this part and maintaining the groundwater monitoring system.

(b) The length of the post-closure care period may be increased by the EPA Regional

Administrator, if the EPA Regional Administrator determines that the lengthened period is

necessary to protect human health and the environment.

(c) For all CCW disposal units, including inactive units, the person managing CCW must prepare

a written post-closure care plan that includes, at a minimum, the following information [Rules

regarding approval of post-closure plans by the EPA Regional Administrator to be inserted.]:

(1) A description of the monitoring and maintenance activities and requirement for corrective

action required in paragraph (a) of this Section for each CCW disposal unit, and the

frequency at which these activities will be performed;

(2) Name, address, and telephone number of the person or office to contact about the facility

during the post-closure period; and

(3) A description of the planned uses of the property during the post-closure period. Post-

closure use of the property shall not disturb the integrity of the final cover, liner(s), or any

other components of the containment system, or the function of the monitoring systems unless

necessary to comply with the requirements in this part. The EPA Regional Administrator may

approve any other disturbance if the person managing CCW demonstrates that disturbance of

the final cover, liner or other component of the containment system, including any removal of

waste, will not increase the potential threat to human health or the environment.

(d) The person managing CCW must submit a post-closure plan to the EPA Regional

Administrator and place such a plan in the operating record no later than one year after the

effective date of this rule for existing units or by the initial receipt of waste for new units.

(e) Within 14 days following completion of the post-closure care period for each CCW disposal

unit, the owner or operator of the CCW disposal unit shall submit to the EPA Regional

Administrator a certification, signed by an independent, registered professional engineer and

approved by the EPA Regional Administrator, verifying that post-closure care has been

completed in accordance with the post-closure plan and shall place such certification in the

operating record.

(f) [Rules regarding certification of completion of post-closure requirements by the EPA

Regional Administrator to be inserted.]

§ 253.52 Closure and post-closure care of CCW surface impoundments.


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(a) At closure, the owner or operator of a CCW surface impoundment must:

(1) Remove or decontaminate all waste residues, contaminated containment system

components (liners, etc.), contaminated subsoils, and structures and equipment contaminated

with waste and leachate and dispose of the resulting waste according to applicable RCRA

requirements; or

(2) Eliminate free liquids by removing liquid wastes and leachate, or solidifying the

remaining wastes and waste residues;

(3) Stabilize remaining wastes to a bearing capacity sufficient to support final cover; and,

(4) Cap the surface impoundment with a cap designed and constructed to:

(A) Provide long-term minimization of the migration of liquids through the closed

impoundment;

(B) Function with minimum maintenance;

(C) Promote drainage and minimize erosion or abrasion of the cap;

(D) Accommodate settling and subsidence so that the cap's integrity is maintained; and

(E) Have a permeability less than or equal to the permeability of any bottom liner

system or natural subsoils present.

(b) If some waste residues or contaminated materials are left in place at final closure, the owner

or operator must comply with all post-closure requirements contained in §253.53, including

maintenance and monitoring throughout the post- closure care period. The owner or operator

must:

(1) Maintain the integrity and effectiveness of the cap, including making repairs to the cap as

necessary to correct the effects of settling, subsidence, erosion, or other events;

(2) Maintain and monitor the leachate detection, collection and removal system and comply

with all other applicable leachate detection system requirements of this part;

(3) Perform a one-year hydrologic study prior to closing the impoundment that defines

baseline surface water and groundwater quality;

(4) Monitor all surface water discharges (including permitted NPDES discharges, flows from

the top of the filled impoundment, and breakouts from dikes) shall be monitored. Any

exceedance of Clean Water Act standards will require corrective action responses to

permanently halt the exceedances. [Note: requirements for monitoring and maintenance of

surface water monitoring systems will be added at a later date];

(5) Maintain and monitor the groundwater monitoring system and comply with all other

applicable requirements of Section 253.53 of this part;

(6) Prevent run-on and run-off from eroding or otherwise damaging the final cap; and

(7) Prevent the erosion or structural compromise of dikes, berms, any other earthen or

manmade structures that contain the waste on site; and

(8) Present a plan that will accomplish these steps and maintain the site for at least a 30-year

period, certified by an independent professional engineer, to the EPA Regional Administrator


92

for approval. The plan must be approved by the EPA Regional Administrator prior to

initiation of any closure activities including the performance of the hydrologic study in (b)(3).

(c) If an owner or operator plans to close a surface impoundment in accordance with paragraph

(a)(1) of this section, and the impoundment does not comply with the liner requirements of

Section 253.30 (c), then:

(1) The closure plan for the impoundment must include both a plan for complying with

paragraph (a)(1) of this section and a contingent plan for complying with paragraphs (a)(2) –

(a)(4) of this section in case not all contaminated subsoils can be practicably removed at

closure; and

(2) The owner or operator must comply with paragraph (b) of this section in case not all

contaminated subsoils can be practicably removed at closure.

(d) The cost estimates calculated for closure and post-closure care of an impoundment subject to

this paragraph must include the cost of complying with the contingent closure plan and the

contingent post-closure plan.

Sec. 253.53 Post-closure care for CCW surface impoundments

[Additional requirements to be added pending further analysis.]

Subpart G--Financial Assurance Criteria

Sec. 253.60 Applicability.

(a) The requirements of this section apply to owners and operators of all CCW disposal units,

except owners or operators who are State or Federal Government entities whose debts and

liabilities are the debts and liabilities of a State or the United States.

(b) In this part, Owner means the person(s) who owns a CCW disposal unit or part of a CCW

disposal unit.

(c) Operator means the person(s) responsible for the overall operation of a CCW disposal unit or

part of a CCW disposal unit.

Sec. 253.61 Financial assurance for closure.

(a) The owner or operator must have a detailed written estimate, in current dollars, approved by

the EPA Regional Administrator of the cost of hiring a third party to close the largest area of all

CCW disposal units ever requiring a final cap as required under Sec. 253.50 at any time during

the active life in accordance with the closure plan. The owner or operator must notify the EPA

Regional Administrator that the estimate has been placed in the operating record.

(1) The cost estimate must equal the cost of closing the largest area of all portions of the

CCW disposal unit ever requiring a final cap at any time during the active life when the

extent and manner of its operation would make closure the most expensive, as indicated by

its closure plan (see Sec. 253.50(c)(2)).

(2) During the active life of the CCW disposal unit, the owner or operator must annually

adjust the closure cost estimate for inflation.


93

(3) The owner or operator must increase the closure cost estimate and the amount of financial

assurance provided under paragraph (b) of this Section if changes to the closure plan or CCW

disposal unit conditions increase the maximum cost of closure at any time during the

remaining active life.

(4) The owner or operator may reduce the closure cost estimate and the amount of financial

assurance provided under paragraph (b) of this Section if the cost estimate exceeds the

maximum cost of closure at any time during the remaining life of the CCW disposal unit.

Within 14 days of this finding, the person managing CCW must notify the EPA Regional

Administrator that the justification for the reduction of the closure cost estimate and the

amount of financial assurance has been placed in the operating record. The existing amount

of financial assurance may not be reduced to the amount estimated for the reduced closure

cost until the reduction in cost is approved by the EPA Regional Administrator.

(b) For each CCW disposal unit receiving CCW after the effective date of the rule, the owner or

operator must establish financial assurance for closure in compliance with Sec. 253.64. The

owner or operator must provide continuous coverage for closure until released from financial

assurance requirements by demonstrating compliance with Sec. 253.50 (h) and (i). [At Sec.

253(h), I assume you want the Reg. Admin. to approve the certified closure completion

statement that is submitted to him/her.]

Sec. 253.62 Financial assurance for post-closure care.

(a) The owner or operator must have a detailed written estimate, in current dollars, approved by

the EPA Regional Administrator of the cost of hiring a third party to conduct post-closure care

for the CCW disposal unit in compliance with the post-closure care plan developed under Sec.

253.51. The post-closure care cost estimate used to demonstrate financial assurance in paragraph

(b) of this Section must account for the total costs of conducting post-closure care, including

annual and periodic costs as described in the post-closure care plan over the entire post-closure

care period. The owner or operator must notify the EPA Regional Administrator that the estimate

has been placed in the operating record.

(1) The cost estimate for post-closure care must be based on the most expensive costs of post-

closure care during the entire post-closure care period.

(2) During the active life of the CCW disposal unit and during the post-closure care period,

the owner or operator must annually adjust the post-closure cost estimate for inflation.

(3) The owner or operator must increase the post-closure care cost estimate and the amount of

financial assurance provided under paragraph (b) of this section if changes in the post-closure

plan or CCW disposal unit conditions increase the maximum costs of post-closure care.

(4) The owner or operator may reduce the post-closure care cost estimate and the amount of

financial assurance provided under paragraph (b) of this section if the cost estimate exceeds

the maximum costs of post-closure care remaining over the post-closure care period. Within

14 days of this finding, the owner or operator must notify the EPA Regional Administrator

that the justification for the reduction of the post-closure cost estimate and the amount of

financial assurance has been placed in the operating record. The existing amount of financial

assurance may not be reduced to the amount estimated for the reduced post-closure cost until


94

the reduction in cost is approved by the EPA Regional Administrator.

(b) The owner or operator of each CCW disposal unit must establish, in a manner in accordance

with Sec. 253.64, financial assurance for the costs of post-closure care as required under Sec.

253.51. The owner or operator must provide continuous coverage for post-closure care until

released from financial assurance requirements for post-closure care by demonstrating

compliance with Sec. 253.51(e).

Sec. 253.63 Financial assurance for corrective action.

(a) An owner or operator in a CCW disposal unit required to undertake a corrective action

program under Sec. 253.48 must have a detailed written estimate, in current dollars, approved by

the EPA Regional Administrator of the cost of hiring a third party to perform the corrective

action in accordance with the program required under Sec. 253.48. The corrective action cost

estimate must account for the total costs of corrective action activities as described in the

corrective action plan for the entire corrective action period. Prior to undertaking corrective

action under Sec. 253.48, the owner or operator must notify the EPA Regional Administrator that

the estimate has been placed in the operating record.

(1) The owner or operator must annually adjust the estimate for inflation until the corrective

action program is completed in accordance with Sec. 253.48(f).

(2) The owner or operator must increase the corrective action cost estimate and the amount of

financial assurance provided under paragraph (b) of this section if changes in the corrective

action program or CCW disposal unit conditions increase the maximum costs of corrective

action.

(3) The owner or operator may reduce the amount of the corrective action cost estimate and

the amount of financial assurance provided under paragraph (b) of this section if the cost

estimate exceeds the maximum remaining costs of corrective action. Within 14 days of

making an annual adjustment under paragraph (a)(1) of this section, the owner or operator

must notify the EPA Regional Administrator that the justification for the reduction or increase

of the corrective action cost estimate and the amount of financial assurance has been placed in

the operating record. The existing amount of financial assurance may not be reduced to a

lesser amount estimated for a reduced cost for corrective action until the reduction in cost is

approved by the EPA Regional Administrator.

(b) An owner or operator in a CCW disposal unit, if required to undertake a corrective action

program under Sec. 253.48 must establish financial assurance using the allowable mechanisms

defined under Sec. 253.64. An owner or operator in a CCW disposal unit must establish financial

assurance for all corrective action programs initiated during the active life of the unit, closure,

and post-closure care periods. The owner or operator must provide continuous coverage for

corrective action.

Sec. 253.64 Allowable mechanisms.

The mechanisms used to demonstrate financial assurance under this Section must ensure that

the funds necessary to meet the costs of closure, post-closure care, and corrective action for

known releases will be available whenever they are needed. Persons managing CCW must

choose from the options specified in paragraphs (a) through (j) of this section.


95

(a) Trust Fund.

(1) The owner or operator may satisfy the requirements of this section by establishing a trust

fund that conforms to the requirements of this paragraph. The trustee must be an entity which

has the authority to act as a trustee and whose trust operations are regulated and examined by

a Federal or State agency. A copy of the trust agreement must be placed in the facility's

operating record.

(2) Payments into the trust fund must be made annually by the owner or operator over the

term of the initial control mechanism or over the remaining life of the CCW disposal unit,

whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-

half of the estimated length of the corrective action program in the case of corrective action

for known releases. This period is referred to as the pay-in period.

(3) For a trust fund used to demonstrate financial assurance for closure and post-closure care,

the first payment into the fund must be at least equal to the current cost estimate for closure or

post-closure care, except as provided in paragraph (k) of this section, divided by the number

of years in the pay-in period as defined in paragraph (a)(2) of this section. The amount of

subsequent payments must be determined by the following formula:

Next Payment = [CE-CV]/Y

Where: CE is the current cost estimate for closure or post-closure care (updated for inflation

or other changes), CV is the current value of the trust fund, and Y is the number of years

remaining in the pay-in period.

(4) For a trust fund used to demonstrate financial assurance for corrective action, the first

payment into the trust fund must be at least equal to one-half of the current cost estimate for

corrective action, except as provided in paragraph (k) of this section, divided by the number

of years in the corrective action pay-in period as defined in paragraph (a)(2) of this Section.

The amount of subsequent payments must be determined by the following formula:

Next Payment = [RB-CV]/Y

Where: RB is the most recent estimate of the required trust fund balance for corrective action

(i.e., the total costs that will be incurred during the second half of the corrective action

period), CV is the current value of the trust fund, and Y is the number of years remaining in

the pay-in period.

(5) The initial payment into the trust fund must be made before the initial receipt of waste or

before two years elapse after the effective date of this rule, whichever is later; in the case of

closure and post-closure care, or no later than 120 days after the corrective action remedy has

been selected in accordance with the requirements of Sec. 253.48.

(6) If the owner or operator establishes a trust fund after having used one or more alternate

mechanisms specified in this Section, the initial payment into the trust fund must be at least

the amount that the fund would contain if the trust fund were established initially and annual

payments made according to the specifications of this paragraph and paragraph (a) of this

section, as applicable.


96

(7) The owner or operator, or other person authorized to conduct closure, post-closure care, or

corrective action activities may request reimbursement from the trustee for these

expenditures. Requests for reimbursement will be granted by the trustee only if sufficient

funds are remaining in the trust fund to cover the remaining costs of closure, post-closure

care, or corrective action, and if justification and documentation of the cost is placed in the

operating record. Prior to reimbursement, the owner or operator must notify the EPA Regional

Administrator that the documentation of the justification for reimbursement has been placed

in the operating record and that reimbursement has been received.

(8) The trust fund may be terminated by the owner or operator only if the owner or operator

substitutes alternate financial assurance as specified in this Section or if he is no longer

required to demonstrate financial responsibility in accordance with the requirements of Sec.

253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(b) Surety Bond Guaranteeing Payment or Performance.

(1) The owner or operator may demonstrate financial assurance for closure or post-closure

care by obtaining a payment or performance surety bond that conforms to the requirements of

this paragraph. The owner or operator may demonstrate financial assurance for corrective

action by obtaining a performance bond that conforms to the requirements of this paragraph.

The bond must be effective before the initial receipt of waste or before two years elapse after

[the effective date of this rule], whichever is later; in the case of closure and post-closure

care, the bond must be effective no later than 120 days after the corrective action remedy has

been selected in accordance with the requirements of Sec. 253.48. Within 14 days after

demonstrating financial assurance according to this section, the owner or operator must

notify the EPA Regional Administrator that a copy of the bond has been placed in the

operating record. The surety company issuing the bond must, at a minimum, be among those

listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the

Treasury.

(2) The penal sum of the bond must be in an amount at least equal to the current closure,

post-closure care or corrective action cost estimate, whichever is applicable, except as

provided in paragraph (k) of this section.

(3) Under the terms of the bond, the surety will become liable on the bond obligation when

the owner or operator fails to perform as guaranteed by the bond.

(4) The owner or operator must establish a standby trust fund. The standby trust fund must

meet the requirements of paragraph (a) of this Section except the requirements for initial

payment and subsequent annual payments specified in paragraphs (a)(2), (3), (4) and (5) of

this section.

(5) Payments made under the terms of the bond will be deposited by the surety directly into

the standby trust fund. Payments from the trust fund must be approved by the trustee.

(6) Under the terms of the bond, the surety may cancel the bond by sending notice of

cancellation by certified mail to the owner and operator and to the EPA Regional

Administrator 120 days in advance of cancellation. If the surety cancels the bond, the owner

or operator must obtain alternate financial assurance as specified in this section.


97

(7) The owner or operator may cancel the bond only if alternate financial assurance is

substituted as specified in this Section or if the owner or operator is no longer required to

demonstrate financial responsibility in accordance with Sec. 253.61(b), Sec. 253.62(b) or Sec.

253.63(b).

(c) Letter of Credit.

(1) The owner or operator may satisfy the requirements of this Section by obtaining an

irrevocable standby letter of credit that conforms to the requirements of this paragraph. The

letter of credit must be effective before the initial receipt of waste or before two years elapse

after the effective date of this rule, whichever is later; in the case of closure and post-closure

care, the letter of credit must be effective no later than 120 days after the corrective action

remedy has been selected in accordance with the requirements of Sec. 253.48. Within 14

days after obtaining a letter of credit, the owner or operator must notify the EPA Regional

Administrator that a copy of the letter of credit has been placed in the operating record. The

issuing institution must be an entity which has the authority to issue letters of credit and

whose letter-of-credit operations are regulated and examined by a Federal or State agency.

(2) A letter from the owner or operator referring to the letter of credit by number, issuing

institution, and date, and providing the following information: Name, and address of the

facility, and the amount of funds assured, must be included with the letter of credit in the

operating record.

(3) The letter of credit must be irrevocable and issued for a period of at least one year in an

amount at least equal to the current cost estimate for closure, post-closure care or corrective

action, whichever is applicable, except as provided in paragraph (k) of this Section. The letter

of credit must provide that the expiration date will be automatically extended for a period of

at least one year unless the issuing institution has canceled the letter of credit by sending

notice of cancellation by certified mail to the owner and operator and to the EPA Regional

Administrator 120 days in advance of cancellation. If the letter of credit is canceled by the

issuing institution, the owner or operator must obtain alternate financial assurance.

(4) The owner or operator may cancel the letter of credit only if alternate financial assurance

is substituted as specified in this Section or if the owner or operator is released from the

requirements of this Section in accordance with Sec. 253.61(b), Sec. 253.62(b) or Sec.

253.63(b).

(d) Insurance.

(1) The owner or operator may demonstrate financial assurance for closure and post-closure

care by obtaining insurance that conforms to the requirements of this paragraph. The

insurance must be effective before the initial receipt of waste or before two years elapse after

the effective date of the requirements of this rule, whichever is later; in the case of closure and

post-closure care, the insurance must be effective no later than 120 days after the corrective

action remedy has been selected in accordance with the requirements of Sec. 253.48. At a

minimum, the insurer must be licensed to transact the business of insurance, or eligible to

provide insurance as an excess or surplus lines insurer, in one or more States. Within 14 days

after obtaining insurance, the owner or operator must notify the EPA Regional Administrator


98

that a copy of the insurance policy has been placed in the operating record.

(2) The closure or post-closure care insurance policy must guarantee that funds will be

available to close the CCW disposal unit whenever final closure occurs and/or to provide

post-closure care for the CCW disposal unit whenever the post-closure care period begins,

whichever is applicable. The policy must also guarantee that once closure or post-closure care

begins, the insurer will be responsible for the paying out of funds to the owner or operator or

other person authorized to conduct closure or post-closure care, up to an amount equal to the

face amount of the policy.

(3) The insurance policy must be issued for a face amount at least equal to the current cost

estimate for closure or post-closure care, whichever is applicable. The term face amount

means the total amount the insurer is obligated to pay under the policy. Actual payments by

the insurer will not change the face amount, although the insurer's future liability will be

lowered by the amount of the payments.

(4) A owner or operator, or any other person authorized to conduct closure or post-closure

care, may receive reimbursements for closure or post-closure expenditures, whichever is

applicable. Requests for reimbursement will be granted by the insurer only if the remaining

value of the policy is sufficient to cover the remaining costs of closure or post-closure care,

and if justification and documentation of the cost is placed in the operating record. Within 14

days after reimbursement, the owner or operator must notify the EPA Regional Administrator

that the documentation of the justification for reimbursement has been placed in the operating

record and that reimbursement has been received.

(5) Each policy must contain a provision allowing assignment of the policy to a successor

owner or operator. Such assignment may be conditional upon consent of the insurer, provided

that such consent is not unreasonably refused.

(6) The insurance policy must provide that the insurer may not cancel, terminate or fail to

renew the policy except for failure of payment of premium. The automatic renewal of the

policy must, at a minimum, provide the insured with the option of renewal at the face amount

of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the

policy by sending notice of cancellation by certified mail to the owner and operator and to the

EPA Regional Administrator 120 days in advance of cancellation. If the insurer cancels the

policy, the owner or operator must obtain alternate financial assurance as specified in this

section.

(7) For insurance policies providing coverage for post-closure care, commencing on the date

that liability to make payments pursuant to the policy accrues, the insurer will thereafter

annually increase the face amount of the policy. Such increase must be equivalent to the face

amount of the policy, less any payments made, multiplied by an amount equivalent to 85

percent of the most recent investment rate or of the equivalent coupon-issue yield announced

by the U.S. Treasury for 26-week Treasury securities.

(8) The owner or operator may cancel the insurance policy only if alternate financial

assurance is substituted as specified in this Section or if the owner or operator is no longer

required to demonstrate financial responsibility in accordance with the requirements of Sec.

253.61(b), Sec. 253.62(b) or Sec. 253.63(b).


99

(e) Corporate Financial Test. The owner or operator that satisfies the requirements of this

paragraph may demonstrate financial assurance up to the amount specified herein:

(1) Financial Component.

(i) The owner or operator must satisfy one of the following three conditions:

(A) A current rating for its senior unsecured debt of AAA, AA, A, or BBB as issued by

Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; or

(B) A ratio of less than 1.5 comparing total liabilities to net worth; or

(C) A ratio of greater than 0.10 comparing the sum of net income plus depreciation,

depletion and amortization, minus $10 million, to total liabilities.

(ii) The tangible net worth of the owner or operator must be greater than:

(A) The sum of the current closure, post-closure care, corrective action cost estimates

and any other environmental obligations, including guarantees, covered by a financial

test plus $10 million except as provided in paragraph (e)(1)(ii)(B) of this section.

(B) $10 million in net worth plus the amount of any guarantees that have not been

recognized as liabilities on the financial statements, provided all of the current closure,

post-closure care, and corrective action costs and any other environmental obligations

covered by a financial test are recognized as liabilities on the owner's or operator's

audited financial statements, and subject to the approval of the EPA Regional

Administrator.

(iii) The owner or operator must have assets located in the United States amounting to at

least the sum of current closure, post-closure care, corrective action cost estimates and any

other environmental obligations covered by a financial test as described in paragraph (e)(3)

of this Section.

(2) Recordkeeping and reporting requirements.

(i) As they become available, the owner or operator must place the following items into the

facility's operating record:

(A) A letter signed by the owner's or operator's chief financial officer that:

(1) Lists all the current cost estimates covered by a financial test, including, but not

limited to, cost estimates required for municipal solid waste management facilities

under 40 CFR Part 258, cost estimates required for UIC facilities under 40 CFR Part

144, if applicable, cost estimates required for petroleum underground storage tank

facilities under 40 CFR Part 280, if applicable, cost estimates required for PCB storage

facilities under 40 CFR Part 261, if applicable, and cost estimates required for

hazardous waste treatment, storage, and disposal facilities under 40 CFR Parts 264 and

265, if applicable; and

(2) Provides evidence demonstrating that the firm meets the conditions of either

paragraph (e)(1)(i)(A) or (e)(1)(i)(B) or (e)(1)(i)(C) and paragraphs (e)(1)(ii) and

(e)(1)(iii) of this Section.

(B) A copy of the independent certified public accountant's unqualified opinion of the


100

owner's or operator's financial statements for the latest completed fiscal year. To be

eligible to use the financial test, the owner's or operator's financial statements must

receive an unqualified opinion from the independent certified public accountant. An

adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for

disallowance, with the potential exception for qualified opinions provided in the next

sentence. The EPA Regional Administrator may evaluate qualified opinions on a case-

by-case basis and allow use of the financial test in cases where the EPA Regional

Administrator deems that the matters which form the basis for the qualification are

insufficient to warrant disallowance of the test. If the EPA Regional Administrator does

not allow use of the test, the owner or operator must provide alternate financial

assurance that meets the requirements of this Section.

(C) If the chief financial officer's letter providing evidence of financial assurance

includes financial data showing that owner or operator satisfies paragraphs (e)(1)(i)(B)

or (e)(1)(i)(C) of this section that are different from data in the audited financial

statements referred to in paragraph (e)(2)(i)(B) of this Section or any other audited

financial statement or data filed with the Securities and Exchange Commission (SEC)

then a special report from the owner's or operator's independent certified public

accountant to the owner or operator is required. The special report shall be based upon

an agreed upon procedures engagement in accordance with professional auditing

standards and shall describe the procedures performed in comparing the data in the

chief financial officer's letter derived from the independently audited, year-end financial

statements for the latest fiscal year with the amounts in such financial statements, the

findings of that comparison, and the reasons for any differences.

(D) If the chief financial officer's letter provides a demonstration that the firm has

assured for environmental obligations as provided in paragraph (e)(1)(ii)(B) of this

section, then the letter shall include a report from the independent certified public

accountant that verifies that all of the environmental obligations covered by a financial

test have been recognized as liabilities on the audited financial statements, how these

obligations have been measured and reported, and that the tangible net worth of the firm

is at least $10 million plus the amount of any guarantees provided.

(ii) The owner or operator must place the items specified in paragraph (e)(2)(i) of this

section in the operating record and notify the EPA Regional Administrator that these items

have been placed in the operating record before the initial receipt of waste or before two

years elapse after the effective date of this rule, whichever is later; in the case of closure,

and post-closure care, items specified in paragraph (e)(2)(i) of this section must have been

placed in the operating record no later than 120 days after the corrective action remedy has

been selected in accordance with the requirements of Sec. 253.48.

(iii) After the initial placement of items specified in paragraph (e)(2)(i) of this section in

the operating record, the owner or operator must annually update the information and place

updated information in the operating record within 90 days following the close of the

owner or operator's fiscal year. The EPA Regional Administrator may provide up to an

additional 45 days for a owner or operator who can demonstrate that 90 days is insufficient

time to acquire audited financial statements. The updated information must consist of all

items specified in paragraph (e)(2)(i) of this section.


101

(iv) The owner or operator is no longer required to submit the items specified in paragraph

(e)(2) of this section or comply with the requirements of this paragraph when:

(A) The person substitutes alternate financial assurance as specified in this section

that is not subject to these recordkeeping and reporting requirements; or

(B) The person is released from the requirements of this section in accordance with

Sec. 253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(v) If the owner or operator no longer meets the requirements of paragraph (e)(1) of this

section, the owner or operator must, within 120 days following the close of the owner or

operator's fiscal year, obtain alternative financial assurance that meets the requirements of

this section, place the required submissions for that assurance in the operating record, and

notify the EPA Regional Administrator that the owner or operator no longer meets the

criteria of the financial test and that alternate assurance has been obtained.

(vi) The EPA Regional Administrator may, based on a reasonable belief that the owner or

operator may no longer meet the requirements of paragraph (e)(1) of this section, require at

any time the owner or operator to provide reports of its financial condition in addition to or

including current financial test documentation as specified in paragraph (e)(2) of this

section. If the EPA Regional Administrator finds that the owner or operator no longer

meets the requirements of paragraph (e)(1) of this section, within 120 days of this finding

the owner or operator must provide alternate financial assurance that meets the

requirements of this section.

(vii) Calculation of costs to be assured. When calculating the current cost estimates for

closure, post-closure care, corrective action, or the sum of the combination of such costs to

be covered, and any other environmental obligations assured by a financial test referred to

in paragraph (e) of this section, the owner or operator must include cost estimates required

for coal combustion waste management facilities under this part, as well as cost estimates

required for the following environmental obligations, if the person assures them through a

financial test: obligations associated with UIC facilities under 40 CFR Part 144, petroleum

underground storage tank facilities under 40 CFR Part 280, PCB storage facilities under 40

CFR Part 261, and hazardous waste treatment, storage, and disposal facilities under 40

CFR Parts 264 and 265.

(f) Corporate Guarantee.

(1) The owner or operator may meet the requirements of this section by obtaining a written

guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner

or operator, a firm whose parent corporation is also the parent corporation of the owner or

operator, or a firm with a ``substantial business relationship'' with the owner or operator.

The guarantor must meet the requirements for owners or operators in paragraph (e) of this

section and must comply with the terms of the guarantee. A certified copy of the guarantee

must be placed in the facility's operating record along with copies of the letter from the

guarantor's chief financial officer and accountants' opinions. If the guarantor's parent

corporation is also the parent corporation of the owner or operator, the letter from the

guarantor's chief financial officer must describe the value received in consideration of the

guarantee. If the guarantor is a firm with a ``substantial business relationship'' with the


102

owner or operator, this letter must describe this ``substantial business relationship'' and the

value received in consideration of the guarantee.

(2) The guarantee must be effective and all required submissions placed in the operating

record before the initial receipt of waste or before the effective date of the requirements of

this section, whichever is later, in the case of closure and post-closure care, or in the case

of corrective action no later than 120 days after the corrective action remedy has been

selected in accordance with the requirements of Sec. 253.48.

(3) The terms of the guarantee must provide that:

(i) If the owner or operator fails to perform closure, post-closure care, and/or corrective

action of a facility covered by the guarantee, the guarantor will:

(A) Perform, or pay a third party to perform, closure, post-closure care, and/or

corrective action as required (performance guarantee); or

(B) Establish a fully funded trust fund as specified in paragraph (a) of this section in

the name of the owner or operator (payment guarantee).

(ii) The guarantee will remain in force for as long as the owner or operator must comply

with the applicable financial assurance requirements of this Subpart unless the guarantor

sends prior notice of cancellation by certified mail to the owner or operator and to the EPA

Regional Administrator. Cancellation may not occur, however, during the 120 days

beginning on the date of receipt of the notice of cancellation by both the owner or operator

and the EPA Regional Administrator, as evidenced by the return receipts.

(iii) If notice of cancellation is given, the owner or operator must, within 90 days

following receipt of the cancellation notice by the owner or operator and the EPA Regional

Administrator, obtain alternate financial assurance, place evidence of that alternate

financial assurance in the facility operating record, and notify the EPA Regional

Administrator. If the owner or operator fails to provide alternate financial assurance within

the 90-day period, the guarantor must provide that alternate assurance within 120 days of

the cancellation notice, obtain alternative assurance, place evidence of the alternate

assurance in the facility operating record, and notify the EPA Regional Administrator.

(4) If a corporate guarantor no longer meets the requirements of paragraph (e)(1) of this

section, the owner or operator must, within 90 days, obtain alternative assurance, place

evidence of the alternate assurance in the facility operating record, and notify the EPA

Regional Administrator. If the owner or operator fails to provide alternate financial assurance

within the 90-day period, the guarantor must provide that alternate assurance within the next

30 days.

(5) The owner or operator is no longer required to meet the requirements of paragraph (g)

of this section when:

(i) The owner or operator substitutes alternate financial assurance as specified in this

section; or

(ii) The owner or operator is released from the requirements of this section in

accordance with Sec. 253.61(b), Sec. 253.62(b), or Sec. 253.63(b).

(g) State-Approved Mechanism. In an authorized State, the owner or operator may satisfy the


103

requirements of this section by obtaining any other mechanism that meets the criteria specified in

paragraph (j)(1) Of this section, and that is approved by the State Director.

(h) State Assumption of Responsibility. If the State Director either assumes legal responsibility

for the person's compliance with the closure, post-closure care and/or corrective action

requirements of this part, or assures that the funds will be available from State sources to cover

the requirements, the owner or operator will be in compliance with the requirements of this

section. Any State assumption of responsibility must meet the criteria specified in paragraph

(j)(1) of this section.

(i) Use of multiple mechanisms. The owner or operator may demonstrate financial assurance for

closure, post-closure, and corrective action, as required by Sec. 253.61, Sec. 253.62, and Sec.

253.63 by establishing more than one mechanism per facility, except that mechanisms

guaranteeing performance rather than payment, may not be combined with other instruments.

The mechanisms must be as specified in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i) of

this section, except that financial assurance for an amount at least equal to the current cost

estimate for closure, post-closure care, and/or corrective action may be provided by a

combination of mechanisms rather than a single mechanism.

(j) The language of the mechanisms listed in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), and (i)

of this section must ensure that the instruments satisfy the following criteria:

(1) The financial assurance mechanisms must ensure that the amount of funds assured is

sufficient to cover the costs of closure, post-closure care, and corrective action for known

releases when needed;

(2) The financial assurance mechanisms must ensure that funds will be available in a timely

fashion when needed;

(3) The financial assurance mechanisms must be obtained by the owner or operator by the

effective date of these requirements or prior to the initial receipt of solid waste, whichever is

later, in the case of closure and post-closure care, and no later than 120 days after the

corrective action remedy has been selected in accordance with the requirements of Sec.

253.48, until the owner or operator is released from the financial assurance requirements

under Secs. 253.61, 253.62 and 253.63.

(4) The financial assurance mechanisms must be legally valid, binding, and enforceable under

State and Federal law.

Sec. 253.65 Discounting.

The EPA Regional Administrator may allow discounting of closure cost estimates in Sec.

253.61(a), post-closure cost estimates in Sec. 253.62(a), and/or corrective action costs in Sec.

253.63(a) up to the rate of return for essentially risk free investments, net of inflation, under the

following conditions:

(a) The EPA Regional Administrator determines that cost estimates are complete and accurate

and the owner or operator has submitted a statement from a Registered Professional Engineer so

stating;

(b) The EPA Regional Administrator finds the facility in compliance with applicable and


104

appropriate permit conditions;

(c) The EPA Regional Administrator determines that the closure date is certain and the owner or

operator certifies that there are no foreseeable factors that will change the estimate of site life;

and

(d) Discounted cost estimates must be adjusted annually to reflect inflation and years of

remaining life.

Appendix I to Part 253--Constituents for Detection Monitoring ------------------------------------------------------------------------

Common Name 1

-------------------------------------------------------------------------

pH

Conductivity

Total Dissolved Solids

Aluminum

Antimony

Arsenic

Barium

Beryllium

Boron

Cadmium

Calcium

Chloride

Chromium (Total)

Chromium (hexavalent)

Copper

Fluoride

Iron

Lead

Mercury

Nickel

Magnesium

Manganese

Molybdenum

Potassium

Selenium

Silver

Sodium

Sulfate

Thallium

Zinc

------------------------------------------------------------------------ 1 Common names are those used widely in government regulations, scientific publications, and

commerce; synonyms exist for many chemicals.


105

NOTES

i Due to the very short time period provided by EPA to submit this proposal, we have not attempted to address all

aspects of CCW management nor have all identified issues been fully resolved. For example, this proposal does not

address the various uses of CCW that can cause serious contamination of water resources, such as the use of coal ash

for fill and road base. The absence of provisions addressing this and other CCW hazards should not be construed as

an absence of concern, nor should it be construed to mean that regulations are not required to address those issues.

Given the time and opportunity, we are very interested in working with EPA to fill all gaps remaining in this

proposal.

ii On April 24, 2000, EPA acknowledged in its Regulatory Determination that “coal combustion wastes could pose

risks to human health and the environment if not properly managed” and “national regulations under subtitle D of

RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface impoundments.”

U.S. Environmental Protection Agency. Regulatory Determination on Wastes from the Combustion of Fossil Fuels,

70 Fed. Reg, 32214 at 33214. Hereinafter this document is referred to as “EPA 2000 Determination.”

iii

USWAG is a consortium of approximately 80 utility operating companies comprising more than 85% of total U.S.

electric generating capacity.

iv In January 2007, EPA denied a FOIA request from Earthjustice for the final Revised Risk Assessment. The denial

is currently under appeal. Earthjustice did receive in a synopsis of the draft Revised Risk Assessment, and, as of the

date of this document, Earthjustice has received no indication from EPA that the conclusions of the draft Revised

Risk Assessment have changed.

v EPA summarized the draft Revised Rick Assessment as follows: “The primary risk to groundwater is from

Arsenic. Risk exceedances due to arsenic (groundwater to drinking water pathway) are from 10(-2) to 10(-3) for

surface impoundments and 10(-4) for landfills.” From a document entitled, “Coal Combustion Waste (CCW)

Rulemaking Early Guidance Meeting, Briefing: Marcus Peacock, Deputy Administrator, EPA, July 27, 2006,”

(Document undated.)

vi Id.

vii

F. Sanchez, Keeny, R., Kosson, D., Delapp, R., Thorneloe, S. Characterization of Mercury-Enriched Coal

Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA/600/R-06/008,

January 2006.


106

viii

U.S. Environmental Protection Agency. National Emission Standards for Hazardous Air Pollutants from the

Portland Cement Manufacturing Industry, Federal Register, Vol. 71, No. 244, December 20, 2006.

ix

2000 Determination at 32221.

x United States Environmental Protection Agency and United States Department of Energy. Coal Combustion Waste

Management at Landfills and Surface Impoundments, 1994-2004 (August 2006) at page 46.

xi

See, for example, the Indiana statutory provision that explicitly prohibits the Solid Waste Management Board, the

rulemaking body responsible for environmental regulation of solid wastes, from developing any regulations

restricting the use of power plant waste as fill. See IC 13-19-3-3(2)(E).

xii

Texas, the state that generates the largest amount of CCW in the U.S., does not require groundwater monitoring.

xiii

The only surveyed state that approached this benchmark was Pennsylvania, which requires “no shorter than”

quarterly groundwater monitoring for indicator parameters but ‘no shorter than” annual monitoring for metals and

volatile organic compounds.

xiv Groundwater protection requirements are defined in the report as contaminant concentrations in groundwater that

cannot be exceeded. xv

“Potential damage cases,” by EPA’s definition, constitute sites at which groundwater or surface water is

contaminated by CCW leachate but where the agency has no evidence of migration beyond the property boundary or

where contaminants are not listed as primary contaminants under the Safe Drinking Water Act. “Potential” does not

mean that contamination is not proven.

xvi

EPA stated, “ Given the volume of coal combustion wastes generated nationwide (115 million tons) and the

numbers of facilities that currently lack some basic environmental controls, especially groundwater monitoring,

other cases of proven and potential damage are likely to exist.” 2000 Determination at 32216.

xvii

Annual Energy Outlook, 2007 with Projections to 2030 (Early Release)- Overview. Report No. DOE/EIA-

0383/2007, December 2006.

xviii

Standards for the Management of Cement Kiln Dust: Proposed Rule. Vol. 64, No. 161, Pages 45631-45697,

August 20, 1999.

xix

EPA 2000 Determination at 32232.

xx

EPA 2000 Determination at 32217 (and repeated verbatim at 32233).

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