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

KRC Comments on Proposed Trimble County Coal Ash Landfill  Posted: October 11, 2011

October 6, 2011

Ron Gruzesky
Solid Waste Branch
Division of Waste Management
200 Fair Oaks, Second Floor
Frankfort, Kentucky 40601

Agency Interest 4054
Application No. APE20110002

Dear Mr. Gruzeksy:

I am writing on behalf of the Kentucky Resources Council, Inc., and on behalf of two landowners who own property, operate a business, and use and enjoy the natural resources of the area adjacent to the proposed special waste landfill, and whose use and enjoyment of their properties may be adversely affected if the landfill is approved and constructed as currently proposed.

The Council will be submitting, under separate cover, a more detailed set of comments and concerns regarding the proposed facility, but presents these concerns and questions in a more summary fashion here for your consideration:

1. Compliance with Applicable State and Federal Laws.

The review and approval of special waste landfill permits by the Cabinet is governed by KRS Chapter 224 and the Cabinet’s regulations at 401 KAR Chapter 45.

Among the obligations of the Cabinet in review and issuance of a permit, is that “[p]ermits shall be issued in a manner and shall contain conditions consistent with requirements of applicable state and federal laws.” Applicable federal laws include both the National Historic Preservation Act and the Clean Water Act, Sections 401, 402 and 404 among others.

In this case, on information and belief, it is thought that there are prehistoric archaeological sites that may be present in the area. A thorough archaeological survey should be conducted in order to determine the occurrence and distribution of sites that may be eligible for listing on the National Register of Historic Places, and appropriate consultation should occur with the State Historic Preservation Officer.

Additionally, the applicant is proposing to construct the landfill in what appears to be an embankment method in a valley, rather than in an upland location as an incised landfill. The placement of fill material in a water of the United States is subject to the requirements of Section 404 of the Clean Water Act, which requires that the applicant demonstrate that the filling cannot be avoided, that the amount of filling has been minimized, and that any adverse effects have been compensatorily mitigated.

Placement of coal combustion wastes is not a water-dependent activity, and as such it is presumed that there are other practicable alternatives that will meet the essential purpose of the project, which is disposal of the wastes. The Cabinet is obligated under 401 KAR 45:030 Section 3 to include in the state-issued permit those conditions consistent with the requirements of, among other laws, the Clean Water Act. It is not legally sufficient to simply condition this permit on securing a Section 404 authorization, since until such authorization is received, the Cabinet cannot know what conditions are required by the Clean Water Act in this instance.

With respect to applicable state laws, among those applicable requirements are the performance standards of the Division for Air Quality with respect to fugitive dust. As the Cabinet is aware, the dry management of coal combustion wastes creates the potential, at every storage and transfer point, for liberation and transport of fine and medium-grained particulates into the local airshed. The potential for adverse health effects from inhalation of fine coal combustion waste particulates to which various metals are sorbed, is well-established, and the Cabinet must assure, prior to issuance of any special waste permit, that two separate state air quality regulations are satisfied:

401 KAR 63:010, which prohibits any person from causing any material to be handled, processed, transported, or stored in a manner that causes particulate matter to become airborne, and which prohibits the discharge of visible fugitive dust emissions beyond the lot line of the property on which the emissions originate.

Compliance with this regulation obligates the Cabinet, in consultation with the Division for Air Quality, to review the proposed methods of storage, conveyance, handling, and disposal of the various coal combustion waste streams, and to assure that prior to issuance of a special waste permit, “reasonable precautions” required by the regulation are in place to assure compliance. Since the prevailing winds are towards the uphill neighbors in a neighborhood that includes at least one licensed daycare, particular attention to controlled management, conveyance and placement of wastes is essential to satisfy this regulation, as well as the general environmental performance standard of 401 KAR 30:031 Section 11, which prohibits a waste site or facility from resulting in a public nuisance because of blowing debris or other waste material.

Also, to the extent that the existing impounded slurried waste will be dried and conveyed to the landfill, plans for control of emissions from that process should also be provided.

401 KAR 63:020 is the other regulation implicated in the management of coal combustion wastes, and requires persons responsible for a source from which hazardous matter or toxic substances may be emitted must provide the utmost care and consideration.

Irrespective of EPA’s decision regarding whether to regulate coal combustion wastes under Subtitle C or D of the Resources Conservation and Recovery Act, this regulation defines “potentially hazardous matter or toxic substances” to include matter “which may be harmful to the health or welfare of humans, animals, and plants[.]” The potential for exposure to the coal combustion wastes through various pathways must be assessed and reasonable precautions taken prior to issuance of a special waste landfill permit.

2. Proper Characterization Of And Design For Landfilling Special Wastes

The design of special waste landfills is intended to address the potential for environmental impacts outside of the waste boundary due to the composition and leaching potential of the various waste components in the context of the disposal.

The composition of the coal combustion wastes will vary both by coal seam and by the pollution control technology employed by the particular facility generating the waste.

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, and in particular mercury, we will of necessity see changes in the composition and increases in 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. Land disposal of those same waste streams will likely see a similar change in the composition and potential toxicity of the wastes and leachates.

The proper characterization of the leaching potential of the wastes requires that the conditions of the proposed landfill, currently and over time, be replicated in the sampling matrix in order to all prediction of the leaching potential of each constituent of concern.

Unfortunately, the testing that is typically utilized to determine the environmental risks associated with management of CCW focus almost solely on the groundwater pathway, and is based on TCLP testing and/or analysis of “total metals.”

Analysis of total metals does not provide any indication of the leaching potential or leaching characteristics of coal combustion wastes, and the U.S. EPA has recommended that management decisions not be based on total content of constituents in coal combustion residues since total content does not consistently relate to quantity released.

Similarly, the TCLP (Toxicity Characteristic Leaching Procedure) is the EPA test method used to evaluate the leachability of metals, organic compounds and pesticides from wastes into groundwater under one set of disposal conditions – co-disposal of CCW in a municipal solid waste landfill. The TCLP is a batch test developed by EPA in response to deficiencies in an earlier test, the Extraction Procedure (EP) toxicity test. Many of the assumptions used in developing the EP were retained, however, and the TCLP is widely considered to have serious limitations.

The literature suggests that TCLP testing is generally insufficient to predict short-and long-term leaching characteristics of coal combustion fly and bottom ash. The use of short-term batch leaching tests, such as TCLP, EP-Toxicity, SPLP, and ASTM-D2987 (Shake Extraction) are not necessarily reflective of field conditions and long-term leaching potential.

Leaching is related to the solubility of a specific compound and can be influenced by pH, temperature, complexation, and oxidation/reduction potential. . . . Regulatory tests and standard methods are not necessarily appropriate for leaching tests intended to stimulate natural processes.

The applicant has provided test results from TCLP and SPLP testing. In order to properly design the fill, the Council believes that additional multi-tiered testing that evaluates the potential leaching of waste constituents over a range of values for parameters that affect the leaching potential, should be employed. As Hassett has recommended, a selection of laboratory leaching procedures should be employed that more closely simulate field management scenarios, focusing specifically on technical and scientific variables such as the long-term hydration reactions that can impact leachate concentrations of several constituents of interest, the means by which water contacts the CCB in order to simulate the reduced permeability frequently exhibited in CCB utilization applications, the impact of pH and other CCB properties on the leachate and on resulting leaching; and the prediction of, and changes in, leaching over time. Hassett recommends use of Synthetic Groundwater Leaching Procedure with a long-term leaching (LTL) procedure as a better predictor of leaching under field conditions. His work reflects that “[I]n many applications, the extended-time SGLP “has demonstrated trends significantly different from TCLP and other commonly used leaching protocols.”

The explanation for the differing results and trends between the extended-time SGLP and TCLP “can be explained by the fact that many commonly used leaching tests impose conditions different from those in a field environment on samples, and, thus, bias data in a manner leading to inappropriate interpretation for environmental impact. Elements most often affected include arsenic, boron, chromium, vanadium, and selenium.” Id.

In sum, proper design must follow testing that demonstrates with accuracy the real potential for mobilization of metals and other constituents of concern under proposed disposal conditions over time. TCLP and other short term tests, and SPLP, are insufficient to provide data on long-term leaching potential.

Thank you in advance for your consideration of these concerns. Supplemental written comments will be transmitted to your office.

Tom FitzGerald

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