Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Presents Comments On Proposed Coal Combustion Waste Rule  Posted: October 4, 2010

Presented at the public hearing, Louisville, Kentucky,
September 28, 2010

My name is Tom FitzGerald, and I am Director of the Kentucky Resources Council, a nonprofit environmental advocacy organization providing legal and technical assistance without charge to low-income individuals, to communities and to community organizations, on a wide range of air, waste, water, mining, resource extraction, utility policy and energy matters.

Let me begin by expressing my appreciation that you have added both Louisville and Knoxville as locations for hearings on the proposal to better regulate coal combustion waste management and disposal. With Kentucky being 92% dependent on coal for our electricity, these issues have a unique significance to this Commonwealth. KRC will be submitting more extensive legal and technical comments, but want to underscore a few key points.

As you know, the burning of coal produces large amounts of fly ash, bottom ash, boiler slag and flue gas desulfurization sludge that are collectively called coal combustion wastes or CCW. Today CCW is the second largest industrial waste stream in America, surpassed only by mining waste. As efforts to control pollutants in emissions from coal combustion increase, so have both the volume and potential toxicity of CCW. The volume of CCW produced nationally increased by 30 - 40% to approximately 130 million tons annually in 2004 largely due to use of flue gas desulfurization devices in order to meet the requirements of the Clean Air Act Amendments of 1990. Burning coal today produces over 131 million tons annually of coal combustion waste, and it is anticipated that by 2015 that volume will rise to 175 million tons annually.

Additional initiatives for controlling power plant emissions, including proposed controls on mercury are likely to increase total CCW generation further with estimates of as much as 170 million tons being generated annually by 2015.

The disposal of CCW has caused a well-documented variety of environmental problems particularly to soils and waters, due to extremes of pH and high concentrations of soluble salts, trace metals and other pollutants that leach from different CCWs. The National Academies of Science acknowledged the particular environmental threat posed by disposal of coal ash in mines, landfills and surface impoundments.

According to the GAO, between 2000 and 2006, utilities reported depositing into impoundments and landfills, 124 million pounds of arsenic, chromium, lead, nickel, selenium and thallium as components of the coal combustion wastes.

As improvements continue to be achieved in both pre- and post-combustion scrubbing and capture of particulates and metals, we will of necessity change the composition and increase the potential toxicity of the wastes and leachate. As noted by the GAO, in September of 2009 EPA noted a need to revise the current effluent guidelines for discharges to surface waters because of the high level of toxic-weighted pollutant discharges from coal-fired power plants and the expectation that these discharges will increase significantly in the next few years due to new air pollution control requirements.

The Council believes that proper management of CCW is essential for protection of human health and the environment. Adequate and comprehensive safeguards will prevent the interstate “one downsmanship” that has occurred in the absence of a national minimum floor of environmental standards, human health and the environment will continue to be threatened by those more interested in currying market share and short-term economic gain rather than the long-term public interest in proper management of the wastes. Adoption of a program of uniform, comprehensive and appropriate minimum standards for the characterization and management of coal combustion wastes for reuse and disposal is the best way to improve the beneficial utilization of CCW and to assure protection of the environment from improper disposal of CCW that is not legitimately utilized.

After much reflection, I have come to the conclusion that only a hybrid Subpart C approach will provide that framework. The current state of regulation by the states, such as it is, is a hodgepodge of rules that have allowed construction of unlined ponds, unengineered or poorly engineered embankment impoundments, and sham beneficial reuse of fly ash and other coal combustion wastes. If the utilities or coal industry can come forward with a legal framework that assures a minimum national floor of adequate regulation, including permitting of waste disposal, characterization of wastes intended for beneficial reuse, tracking the fate and transport of the wastes and monitoring disposal sites, and which does not necessitate reliance on Subpart C, that will be worthy of consideration. In the face of the numerous natural resource and groundwater contamination incidents that have occurred under the current regulatory framework, proposing more of the same through issuance of Subpart D guidelines that the states are not obligated to adopt or enforce through permits, is an untenable outcome and an indefensible position.

In the remaining minute or so that I have, let me press a few critical points:

First, adoption of meaningful requirements for management and disposal will likely increase reliance on questionable and sham “beneficial uses.” It is essential that you create a gatekeeper function that requires a demonstration that a proposed beneficial reuse is not a sham reuse that is in the nature of disposal, and that the waste streams be fully characterized using appropriate tests to determine the fate and transport mechanisms that might be associated with the end use or disposal scenario. Without a gatekeeper function, sham beneficial reuse that causes environmental damage will likely occur as it has here in Kentucky, where we grant “permits by rule” to beneficial reuses and require little or no advanced characterization, nor monitoring.

Second, appropriate testing methods must be employed that will demonstrate that under the use or disposal scenario, human health and the environment will not be harmed. The widespread over-reliance on and misuse of TCLP toxicity to characterize coal combustion wastes intended to be beneficially reused, or disposed of in other than mixed municipal waste landfills, results in cases where the long-term leaching of metals is underestimated. The EPA’s Science Advisory Board has criticized the TCLP protocol on the basis of several technical considerations, including the test’s consideration of leaching kinetics, liquid-to-solid ratio, pH, potential for colloid formation, particle size reduction, aging, volatile losses, and co-mingling of the tested material with other wastes (i.e., co-disposal). The literature suggests that TCLP testing is generally insufficient to predict short-and long-term leaching characteristics of coal combustion fly and bottom ash. Because of the limitations of TCLP testing, management decisions are being made that may expose generators, transporters, and reusers or disposers of the CCW to residual liabilities.

Third, co-disposal of CCW in mine workings should be discouraged, and allowed if at all only after adoption of rigorous standards by EPA commensurate with those for CCW landfills, as recommended by the 2006 National Academy of Sciences report on Managing Coal Combustion Residues in Mines. A small but growing percentage of coal combustion wastes are backhauled and disposed, or “beneficially reused,” in mine workings (including both underground mine voids and more commonly, in surface mine backfills or spoil/mine waste fills). Such use and disposal occurs not because such sites offer a hydrologically or geologically preferable location, but primarily because coal companies offer the backhauling and mine site disposal as a "service" or incentive in order to increase market share for their coal in an increasingly competitive marketplace.

Co-disposal of coal combustion wastes at former or current mine sites represents perhaps the least appropriate place among options for disposal of such wastes because of several factors:

1. The increase in surface area available for leaching of elements resulting from fracturing of overburden and confining layers;

2. Higher total dissolved solids levels in mine spoils that compete for sorption sites on solids with toxic elements released from the buried ash;

3. Direct communication between surface and underground mine workings and aquifers through stress-relief fracture systems and subsidence-induced fracture flow;

4. The dependence of residents of coal-bearing regions on private, groundwater supplies and the significant potential for contamination of those supplies; and

5. The presence of site conditions conducive to creation of acid or toxic-forming material that can solubilize constituents of concern from the waste.

Finally, the use of embankment impoundments for management of coal waste slurries should be eliminated in favor of dry ash and gypsum management, and existing slurry impoundments closed unless it can be demonstrated that they were designed, engineered and constructed according to sound engineering practice. Thank you.

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