November 2007 - Plains Justiceplainsjustice.org/files/CoalCombustionWasteReport/CCW Report... ·...
Transcript of November 2007 - Plains Justiceplainsjustice.org/files/CoalCombustionWasteReport/CCW Report... ·...
i
Prepared By:
Plains Justice
Cedar Rapids, IA
November
2007
Iowa Coal Combustion Waste Disposal
ii
iii
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
iv
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,
vi
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
vii
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.
Iowa Coal Combustion Waste Disposal
2
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
Iowa Coal Combustion Waste Disposal
3
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.
Iowa Coal Combustion Waste Disposal
4
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
Iowa Coal Combustion Waste Disposal
5
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.
Iowa Coal Combustion Waste Disposal
6
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.
Iowa Coal Combustion Waste Disposal
7
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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;
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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)
MW-11 (downgradient)
MW-12 (downgradient)
MW-13 (downgradient)
Iowa Coal Combustion Waste Disposal
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)
MW-10 (downgradient)
MW-11 (downgradient)
MW-12 (downgradient)
MW-13 (downgradient)
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:
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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)
MW-15 (downgradient) MW-16 (downgradient)
Iowa Coal Combustion Waste Disposal
28
Figure 6. Grain Processing Corp. Landfill
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)
MW-15 (downgradient) MW-16 (downgradient)
Linear (MW-04 (downgradient))
Iowa Coal Combustion Waste Disposal
29
Figure 7. Grain Processing Corp. Landfill
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)
MW-04 (downgradient)
MW-15 (downgradient)
MW-16 (downgradient)
Linear (MW-16 (downgradient))
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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;
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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,
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
EPA Draft Report, “Human and Ecological Risk Assessment of Coal Combustion Wastes”, August 6, 2007 at ES-
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
EPA Draft Report, “Human and Ecological Risk Assessment of Coal Combustion Wastes”, August 6, 2007 at ES-
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.
Iowa Coal Combustion Waste Disposal
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).
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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:
Iowa Coal Combustion Waste Disposal
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
operation of the unit and after closure.
(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
operation of the unit and after closure.
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
60
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
62
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.
Iowa Coal Combustion Waste Disposal
63
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].
Iowa Coal Combustion Waste Disposal
64
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
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
66
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
Iowa Coal Combustion Waste Disposal
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;
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
69
(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
Iowa Coal Combustion Waste Disposal
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.
(d) For purposes of this Section:
(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
Iowa Coal Combustion Waste Disposal
71
Part within two years of that determination. All approved demonstrations must be maintained in
the operating record.
(d) For purposes of this Section:
(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,
Iowa Coal Combustion Waste Disposal
72
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.
Iowa Coal Combustion Waste Disposal
73
(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
Iowa Coal Combustion Waste Disposal
74
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.
Iowa Coal Combustion Waste Disposal
75
(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.]
Iowa Coal Combustion Waste Disposal
76
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
Iowa Coal Combustion Waste Disposal
77
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
80
(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
Iowa Coal Combustion Waste Disposal
81
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
Iowa Coal Combustion Waste Disposal
82
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
Iowa Coal Combustion Waste Disposal
83
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
Iowa Coal Combustion Waste Disposal
84
(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
Iowa Coal Combustion Waste Disposal
85
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
the operating record.
(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;
Iowa Coal Combustion Waste Disposal
86
(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;
Iowa Coal Combustion Waste Disposal
87
(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
the operating record.
(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
Iowa Coal Combustion Waste Disposal
88
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
Iowa Coal Combustion Waste Disposal
89
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-
Iowa Coal Combustion Waste Disposal
90
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.
Iowa Coal Combustion Waste Disposal
91
(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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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).
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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.
Iowa Coal Combustion Waste Disposal
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).