Document X7J5N9JJYMYMxp6MepBoDdyjK

4 DUKE V MbBry KVV.W / m a East iltev S te if November 27, 2017 Ma. Rebecca Joniskan Office of Land Quality indiana Department of Environmental Management 100 N. Senate Avenue MC 65-45 IGQN 1101 Indianapolis, IN 46204-2251 Subject EPA Response to OCR Impoundment Ciosure Questione Dear Ms. Joniskan: Duke Energy Indiana, U...C, (DEI) respectfully submits to the Indiana Department of Environmental Management (IDEM) this letter and attachments to address U.S. Environmental Protection Agency (U.S. ERA) responses to questions that relate to DEI OCR impoundment Closure and Post Closure Plans that are being reviewed by IDEM. While the question and answer document was taken off of the U.S. E.PA website, DEI would like to provide our interpretation of the CCR Rule with regard to the same issues. DEI appreciates your consideration of this analysis and these important issues as we move through the process to secure approval of our closure plans, which will achieve expeditious basin closure in an environmentally safe manner consistent with the requirements of the CCR rule. It you have any questions or would like to discuss these Issues further, please contact me at (personal Matters / Ex.j Sincerely, Duke Energy Indiana, LLC Owen R, Schwartz Lead Environmental Specialist EHS CCP Waste & Groundwater Programs Attachments Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00001 Legal department In a document titled. "Questions from IDEM" ("Q & As*} dated October 25, 2017, EPA responds to certain, questions Duke Energy understands may have been verbally presented to EPA staff by IDEM earlier that m onth. On. or around November :t, 2017, EPA posted the Q & As to its "Frequent: Questions about: Groundwater M onitoring and. Corrective: Action, and Im plementing the Final Rule Regulating the Disposal, of Coal. Combustion. Residuals (OCR}" Web site, but. within, a few days, the agency removed them from the site. Although EPA has not explained the reason, for this change,, we believe this action may have been taken in light of the fact that certain, interpretations set out In the Q & As are not. in accord, with a plain, reading of the OCR. ruled regulatory text, its preamble, and underlying ERA documents, Duke Energy specifically addresses ERA'S responses to questions 1, 3, 4, and 5 in the Q & As. Question 1 To be sure, although all of the Q fe As were taken down from, the Web site,, some of them were in accord with, the OCR rule. For example, Duke Energy concurs with EPA's responses to Qx regarding, the meaning of "retrofit* and whether an. owner or operator may construct a new non-CCE. surface im poundm ent in the location, of a CCR. surface impoundm ent alter all CCR and. areas that may have been contaminated by OCR have been removed, prior to meeting the groundwater protection standards for all Appendix IV constituents. In fact, EPA's interpretation is consistent with the legal analysis titled "Construction of a New Non-CCR W astewater Pond within the Footprint of a Former CCR Surface Impoundment* (see Attachment "C}, which Duke Energy provided, to IDEM on September 8, 2017, Compare EPA. s conclusion in response *Ai(a}* ("|T]he CCR rule does not. prohibit, the construction of a nomCCR surface im poundm ent in the location, while closure by removal, is progressing. H ow ever,, . . the ow ner/operator m ust ensnie that, construction of the new non-CCR unit does not impact: the ability to meet the closure requirem ents for the CCR surface im poundm ent,"} w ith Duke Energy's analysis on pp. 2 and 3 of Attachment "1" ("Nothing in the rule prohibits [constructing a new non-OCR wastewater pond in the location of an excavated unit once th e CCR, and all liners contaminated with CCR waste and CCR waste leachate have been removed], so long as Duke Energy takes appropriate steps to ensure that construction of the new nonCCR. wastewater pond will. not. hinder or frustrate any measures required, to meet the groundwater protection, standard.''). Question 3 In the response to Q3, EPA repeats the language of the CCR. rule and correct ly explains that 40 C,E,K, Part 257 "does not require any particular documentation, of soil, testing,* although a. state may require: more. In discussing the two dosure-hy-removal Sierra Club v. EPA 18cv3472 NDCA Tier 2 wm.i? ED 002061 00086955-00002 performance standards,: EPA explains on p. 21412 of the preamble th at the first standard requires the owner and operator to "remove all wastes from, the closing unit, and. remove ail. liners contaminated with CCR. waste and CCR waste leachate. . . . [anti] to remove and decontaminate all areas affected, by releases from, the CCR unit* This "would require removal or decontamination of the underlying and surrounding soils," EPA further explains that, "[a]nee a facility has removed the waste and any liner, the presum ption is that the source of contamination has been removed as well." The second performance standard, "specifies that closure has been completed, when all CCR in the unit and any areas affected by releases from, the CCR unit have been removed [he., the first performance standard] and groundwater monitoring dem onstrates th at" Appendix IV constituents do not exceed the groundwater protection standards (ie,, the second, performance standard). Critically, EPA explains the following on p. 21.4.1.2: [FJadlity owners and operators will need to document that any contaminants left, in the su hst>jls (he,, contaminated groundwater left, in soils below the former landfill or im poundm ent) will not impact any environmental media including groundwater, surface water, or the atmosphere in excess of Agency-recommended limits or factors, typically, any m e ia k in these "subsoils"in excess o f background levels are allowed to either naturally attenuate, or are removed by flushing.. (Emphasis added.) The underlined language above dearly evinces EPA's understanding that contaminated subsoils and groundwater may remain after the CCR and ail contaminated liners have been removed from the closing unit pursuant, to the first performance standard, o f Section 257.10 2(e). In such circumstances, as indicated in the Italicized language above, the owner or operator must take those actions necessary to meet Section 257.102(c)'s second, performance standard. W hether this is monitored natural, attenuation or something more, such, as groundwater extraction and treatm ent, will, be determ ined by a site-specific analysis, which must consider, inter alia,. ground water m onitoring data. and. the hydrogeology of the site. .As a final, m atter, if is im portant to note that EPA determ ined that, it was not appropriate to require owners and operators to clean up soils to background levels to meet the elosufe-by-removai performance standard. As EPA explained, on p. 21412 of the preamble: In practice, EPA does not .routinely require complete removal of ail contamination (that is, cleanup to 'background") from a closing unit even for hazardous waste units. Requiring CCR units to clean up soils to levels before the site was contaminated, would he more stringent than current hazardous waste policies. There is no basis in the current record to impose provisions for the remediation of 2 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00003 CCR units th a t are m ore stringent than, those imposed on hazardous wastes. In other words, owners and operators of CCR surface impou.ndiii.ents should not be held to a higher closure standard when dosing units used to store and treat CCR--a nonhazardous waste--than owners, and operators closing hazardous waste units. In order to satisfy the requirem ents of Section 257*102(0}, owners, and operators must, do two things: (1) satisfy the first performance standard--remove the CCR and contam inated liners, then (2} satisfy the second performance standard--'remediate the groundwater, as necessary, to meet the groundwater protection standards for Appendix IV constituents. To the extent any CCR is in contact with groundwater, it will be addressed by the owner or operator under the second performance standard. .Questions..,! and 5 EPA's responses to Q4 are not supported by the CCR rale, and the response to Q5 addressed an issue that was settled this past August when EPA revised, that portion of its December 2016 guidance addressing closure in the context of submerged ash in groundwater. In response <`A4(a),'t ERA indicated that the word "infiltration/ as used in Section 237,102(d)(1)(i) "refers to any kind of movement of liquids into the waste u n it/ including "any liquid passing into or through the CCR unit by filtering or permeating from any direction, including the bottom of the u n it/ However, the entirety of Section 257,1.02(d) contains t hr *[cjiosure performance standard when leaving CCR in. p lace/ and all. of its provisions in paragraphs (d)(1), (2), and (3) are intended to address the design, installation, and performance of the cap, not what happens underneath it. Specifically, paragraph (d)(t) sets out general requirements to address: (!) - infiltration of liquids through the cap; (ii) impoundm ent of liquids on top of the cap; (hi) stability "of the final cover system "; (iv) - /m inim Izfatioo] of the need, for further maintenance of the CCR unit"; and (v) - completion of installation "consistent with recognized and generally accepted good engineering, practices," Considered together, these five qualitative requirem ents make clear th at the purpose of paragraph. (d)(i) is to ensure th at the final cover system, is properly designed, installed, and m aintained to prevent the impoundment of liquids on top of and the infiltration of liquids through the cap. Paragraph (d)(2) goes further by detailing precisely what actions owners and. operators m ust take "prior to Installing the final cover system" to ensure: that the final cover system functions properly and. m aintains its integrity, as required, under paragraphs (d)(i){ihM v): (i) eliminate free liquids, and (ii) stabilize the remaining wastes "to support the final cover system./ Finally, paragraph (d)(3) sets out the precise technical requirem ents that: must be met to meet the qualitative requirements set out in paragraphs {d)(i)(iM h), Specifically, (i) contains the design criteria of th e final cover system setting out (A) permeability requirements (1 x t.tH* cm/sec), (B) measures to reduce infiltration (a 18* of earthen material, () measures to reduce erosion (2 6* of earthen material), and (D) measures to 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00004 main tain the integrity of the filial cover system. Thus, consideration of the closure-byremoval performance standards in their entirety makes clear that they are intended to ensure (!) against the infiltration, of liquids through the top of the cap and the im poundm ent of liquids, sediment, and slurry on top of the cap; and (ii) the integrity of the final cover system. Paragraph (d)(i)(i) of Section 257,102 speaks to preventing "to the maximum, extent feasible,** the post-closure infiltration of liquids into the waste (ie., through the final cover system) to prevent releases of CCRor contaminated ran o fP to the ground or surface waters or the atmosphere,*' Again, the performance standard is speaking to the performance of the final cover system, which, as discussed, above, is the central feature of the closure-in-place option, and its effectiveness in preventing liquids from, infiltrating the cover and causing CCR contained in the closed unit from, being released or leaching to the ground,, surface waters, or the atmosphere. Critically, the standard does not: mention groundwater, or even, suggest that: it cannot be met if CCR is in. contact: with, groundwater. When, the rule refers to the term groundw ater elsewhere in the rule, it specifically uses the single word--"groundw ater." But in paragraph id)(:i)(i), contrary to the statement in response *A(4b},* th e role's use of the definite article "th e " before "ground" underscores th a t the standard, is referring to releases--such as contam inated run-off from the cover system --to the ground or surface waters. Language in the rule's pream ble addressing the closuredn-place perform ance standard farther underscores the fact that, the focus of Section. 257.102(d) is on the prevention of infiltration of liquids through the cap and. the integrity of the final cover system.. On p. 21413, EP states the following: [AJ facility m ust ensure th at in designing a. final cover for a CCR unit they account for any condition, that may cause the final cover system, not to perform as designed. This could, include accounting for site conditions that may increase the likelihood th at a cover would, be susceptible to desiccation cracking or settlement cracking. Under this performance standard, if the cover system, results iu liquids infiltration or releases of leachate from the CCR. unit, the final cover would not: be an appropriate cover. Thus, when referring to the standard concerning the post-closure infiltration of liquids into the waste, EPA speaks directly to site-specific conditions th at could cause the final cover system to fall, thereby allowing liquids infiltration or releases of contaminated runoff. The fact that EPA describes these events as occurring in. the context of a cracked cover makes clear that the performance standards are intended to address what is occurring on. top of and through the cap, not underneath it. Indeed, a review of EPA's use of the term "infiltration" throughout the preamble reveals that the agency is consistently talking abou t the passage of liquids through the top of the cover when referring, to this term . For example, on p. 21370, EPA explains that the soil, componen t of a composite liner system "serves as a. backup in the event of any leakage/infiltration from, the geomembrane occurs," while the geomembrane "provides a highly impermeable layer that can ,... minimize infiltration of leachate in a CCR 4 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00005 surface im poundm ent" Similar usage appears on. p. 21370, where EPA explains that uncontrolled, storm water run-on "may have significant impacts on t h e , , , continued safe operation of the OCR landfill,, due to such phenomena as erosion, and. infiltration,* And. in describing "run-off,* EPA explains it is the "portion of rainwater, snowmelt.: or other liquid which does not undergo abstraction, such, as infiltration, and travels overland,* In these and in every other instance of the word "infiltration,* EPA is referring to the movement, of liquids into' the unit. from, above and never in term s o f the horizontal migration of groundwater beneath the unit's cover system, Likewise, the requirem ent in Section 257,i02.(d}fi)(ii} th at a closed unit "Ipjreeiude the probability o f future impoundment of water, sediment, or slurry,* refers to the impoundment of water, sediment, and slurry on top nf the final cover system, not underneath it. Although neither `'sediment* nor "s l u m " is defined under the CCR rule, the common definition of "sediment* is "Klioely divided solid m aterial that settles to the bottom, o f a liquid," and "ft] be deposition of such material onto the surface beneath this water or air,* And "shirry" fe commonly defined as "[a] thin mixture of a. liquid, especially] water, and any of several finely divided substances, [such] as cement., plaster of Paris, or clay particles." EPA's use of these term s along with the term "water* dem onstrates that the standard is intended, to preclude the deposition of materials on. top of the cap of a closed unit, whether brought by water or other elements, The words indicate that the standard does not address the lateral migration of groundwater underneath the final cover system. Section VLM.3.a. of the riders preamble, addressing closure in place, discusses the final cover system and. explains the following: To address the commenters* concerns that the final cover system may not function effectively as designed over the long term under certain, circumstances, the rule also includes a performance standard that any final cover system must meet. This standard, is modeled, after the closure performance standard applicable to interim status hazardous waste units under 263.111. The final rule requires find anv final cm vr y>.qem control, minimize or eliminate, to the maximum extent practicable, pust-*T sure infiltration of liquids into the waste and releases of leachate tin addition to CCR or contaminated run-offi to the ground or surface waters, (Emphasis added.) The preamble to the proposed, rule for interim status hazardous waste units describes the standard in Section 265,111 (underlined above) as a "general, closure performance standard;* EPA explains in the proposal that it: was proposing to Incorporate into the general standard, a reference to the specific closure standards included in Section 265,228 (closure and post-closure care for surface impoundments), under which owners and. operators of hazardous waste units would have two options for closure: (1) excavate 5 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00006 (similar to under Section 257,102(e) of the CCR rule); or (2) `teji se the impoundment and provide post-closure care" (similar to Section 257.102(d) of the CCR role). Under the second option (closure with waste in plane),, owners and operators of hazardous waste units must: Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues; Stabilize remaining wastes to a bearing capacity sufficient to support the final cover; and Cover the surface impoundment with a final cover designed, and constructed to: o provide long-term, minimization of the migration of liquids through the dosed impoundment; o function with minimum maintenance; o promote drainage and minimize erosion or abrasion, of the cover; o accommodate settling and subsidence so that the cover's integrity is maintained; and o have a permeability less than or equal to the -permeability o f any bottom, liner system or natural, subsoils present. * During the post-closure care period: o maintain the integrity and effectiveness of the final, cover, including making repairs to the cover as necessary to correct the effects of settling, subsidence, erosion, or other events; o maintain and monitor the leak detection system; o maintain and m onitor the groundwater monitoring s\ dem; and. o prevent run-on and. run-off from eroding or other* use dam aging the -final cover. All of these requkem ents--roquiremeots 00.which the CCR role's closure performance standards were closely m.odeled.~-~coosidered in. their totality further support the conclusion that. EFA's focus is on the integrity of the cover system and. on preventing the migration of liquids through the top of the cap, not underneath i t In response KA(4c}* of the withdrawn, guidance, reference was m ade to a. hypothetical situation where "a OCR surface im poundm ent. . . extends into the ground water table* However, as in the response to Q5, the guidance reintroduced a concept th at EFA fully addressed in an .August 2017 revision of its interpretive guidance wherein the agency deleted, the language referencing closure of a portion of a unit "submerged in the underlying aquifer." Likely recognizing that, contrary to the plain language and intent o f the rule, the earlier guidance from December 2016 incorrectly conflated the ru les closure requirements with, its corrective action, provisions, .EFA deleted the entirety of the example and made dear that [bjotli dean closure and closure with waste in place can. be equally protective, provided that the requisite performance standards are: met. If the performance standards for clean closure and the performance standards for closure with waste in. place can. be met, an owner or operator may 6 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00007 determine which al ternative: is appropriate for their particular unit See Attachment ``a ' for a redlined comparison o f BPA's revised guidance:. Indeed, nowhere does the OCR rule address saturated ash as a factor that must he considered when determining the method, of basin closure. In fa c t the closure-in-place option recognizes that. CCR m ay remain in contact, with groundwater upon completion of closure. In preparing its 2014 H um an and Ecological Risk Assessment o f Cool Combustion Residuals in support of the rule, on pp, 5-10 to 5-11,. EP specifically considered the potential implication of groundwater-saturated CCR and concluded, that "this uncertainty is unlikely to have an appreciable effect5"on the agency's risk assessment. On p, 21440 of the rule's preamble* EP specifically addresses a commenter s concern over the fact that the risk assessment modeled all. disposal sites above the water table and did not take into account that "many surface impoundments and landfills are deep and can come in direct contact with, the water table," Stating that it believes "the commenter misunderstood how the sediments were modeled, for surface Impoundments," EPA. explains that the model "can. accommodate surface Impoundments in direct: contact with the water table." The foregoing makes d e a r that EP was well aware that surface impoundments, with ash. In contact with, groundwater existed,, yet it chose not to require that they be closed by removal, or to establish a set of perform ance standards specific to those units. That EPA did not intend such a result is reflected, in. the fact that although it chose, pursuant to Section 257,io i(b )(i), to force existing OCR. surface im poundm ents not constructed with a base that is located at least five feet above the upper limit, of the uppermost, aquifer (or unable to dem onstrate that there will, not he an interm ittent, recurring, or sustained hydraulic connection between any portion of the base of the C:R unit and the uppermost aquifer due to normal fluctuations in groundwater elevations) to close, it did not set out any separation from aquifer requirem ents in Section 257.102's closure: performance standards. EF was silent with, respect to this issue because it determined that, to the extent the OCR surface impoundment extends into the groundwater table, if levels o f any Appendix IV constituents are in excess of the groundwater protection standards, this issue will be addressed through natural attenuation or other methods of removal based on groundwater monitoring and other site-specific factors, Surely, when EPA intends to impose a. requ.irem.ent, it knows how to do so. See e>g,t 257,:tm(b)(i) (requiring that within six. months of determining th at an existing OCR surface impoundment has not demonstrated compliance with the location standard for placement above the uppermost aquifer, the owner or operator must close the unit). The fact that, the closure performance standards under Section 257,10a in. no way speaks to the issue of ash being, in contact with groundwater indicates that EP did. not intend for this to be a factor when determining the method of closure under the OCR rule. That EP did uot intend for the existence of ash in contact with groundwater to be a factor when determ ining the closure method Is farther' borne out by its lack of objection to Tennessee Valley Authority's ("TVA") decision to close the OCR surface impoundm ents at six of its coal-fired power plants by leaving CCR. in place. A review of TVA's June 2016 Final Environmental. Impact Statem ent ("PEIS") makes clear that ash may remain, in contact with groundwater after closure of certain of its impoundments 7 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00008 (see e.g., comm ent 31 and response). Despite this feet, in EPA's June 21, 2016 letter to TVA addressing the FEIS, EP "concur! red] with TVA's preferred alternative to close identified facilities in place according to the OCR rule.* This is the case because the CCR rale's closure criteria at Section 257,102 arc intended to address ju st th a t--closure. To the extent groundwater contamination needs to he addressed, such issues are addressed by the rule's post-closure care maintenance requirements at Section 257,104. which require owners and operators to maintain the integrity and effectiveness of the final cover system, maintain the groundwater monitoring system, and. m onitor the groundwater for a. minimum of 30 years, and, if appropriate, implement corrective action m easures as required under Sects ms 257.96TM.98. As a result, if CCR in an im poundm ent th at was closed by leuwng CCR in place is in contact with groundwater, releases from the unit to groundwater--including any potential releases from. CCR. contained, in groundwater--will be detected by the nnit's groundwater monitoring system, and will be addressed, as necessary, through the rule's corrective action program. Im portantly, pursuant to Section 257.97(b), any remedy must, among other things; (i) attain the ground water protection standard; (it) control th e source of releases so as to reduce or eliminate, to the maximum, extent feasible, further releases of Appendix IV' constituents info the environment; and (In) remove from the environment as much of the contaminated material that was released from the CCR unit as is feasible. nd in. accordance with Section 2.57.97(c), the owner or operator must consider, among other things, (I) "the long- and short-term effectiveness and protectiveness of the potential. remedy'1; and (ii) "the effectiveness of the remedy in controlling the source to reduce further releases.'1 Thus, the CCR rule requires that. CCR-contaminated groundwater he cleaned up to a. level that meets the applicable groundwater protection standards. Finally, ERA'S introduction of a potential "engineering set of solutions" when discussing the closure-m-place performance standard. In the withdrawn guidance also incorrectly confites the CCR rule's closure requirem ents with its corrective action provisions. Notably, EP deleted this precise language regarding the "installatio n of] the necessary engineering m easures," when it: revised the December 2016 guidance this past August, See Attachment "2." The reason for this is precisely the same as the reason that the language regarding submerged ash in the underlying aquifer was deleted from, the guidance: the aforementioned conflation problem. As noted, above, the CCR rule does not compel a particular closure option; either m ethod is acceptable, provided, the closure performance standard is met. To the extent any ash remains in contact with groundwater after a. unit is closed with CCR in place, it will he addressed through post-closure care, including, to the extent required, corrective action, which is protective: of .human health, and the environm ent; attains the groundwater protection standards; and controls the sources of releases so as to reduce or eliminate, to the m aximum extent practicable, further releases o f Appendix IV constituents into the environment. EPA*s statement, on p. 2.1407 of the rule's preamble that the remedy m ust be designed and implemented "so that releases to groundwater aro addressed without unnecessary delay" indicates that although the agency was well aware there would be some cases in which. CCR. would remain In contact with the groundwater after 8 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00009 cIostiref it expected the owner or operator of the unit to address these releases through the rule's corrective action program, which requires a site-specific assessm ent of, among other factors, the geological and hydrogeological features influencing the movement,, chemical, and physical character of any contaminants in the groundwater in. order to determine the best m ethod of environmental protection. Until, such, tim e the CCR rule's corrective action requirements are triggered and the owner or operator completes the assessment of corrective measures required under Section 257.96, it cannot'be known what '"engineering set of solutions" will be appropriate for a particular Im poundment, Accordingly, EPA's suggestion in response "ACqe)" that a slurry wail and puoip-andtreat: system may he required to meet: the closure performance standards under certain circumstances is purely hypothetical, because until a facility's site-specific factors are examined and the assessment of corrective m easures has been completed, it is prem ature to identify a remedy. The CCR rule prescribes no particular corrective action m easures that must he taken and leaves it to owners and. operators to determine the appropriate remedy after considering myriad, site-specific factors. Sierra Club v. EPA 18cv3472 NDCA 9 Tier 2 ED 002061 00086955-00010 t DUKE V ENERGY: iiteSmf tVPSX/ f SS-QEast Main Stmt Ftmsfm. IM4SB Construction of a New Now-CCR Wastewater Pond within the Footprint of a Former OCR Surface Impoundment Issue W hether a new surface Im poundment may he constructed within, the footprint of a former CCE surface impoundment: closed by removal f CCE prior to meeting the groundw ater protection standard established pursuant to 257..95(h) for Appendix IV constituents. Short A nswer Although the dosure-by-removal-of-CCR perfomi.an.ee standard requires the owner or operator to demonstrate that: groundw ater monitoring concent rations for the excavated CCR surface impoundment do not exceed the applicable groundwater protection standard, nothing In the CCR rule prohibits construction, of a non~CCE wastewater pond within, the footprint of the former unit prior to meeting the groundwater protection, standard. Forcing owners and operators to wait until the groundwater protection, standard has been met is not supported by CCE rule preamble statements or the regulator}? text and would be contrary to EFA's intent behind retaining the closure" bywem-ovahohCCR option, in the final CCR rule. A n a ly sis The CCE. rule does not address, much, less prohibit the use of land area previously occupied by a CCE surface im poundm ent for a. non~CCR wastewater unit. The only provisions governing the construction, of a new unit in. the footprint of a former CCR surface Im poundm ent have to do with the construction of new CCR units. These provisions --which govern "'overfills"' and "retrofits"' --allow construction, and, operation of the new CCE unit to begin before the groundwater protection, standard, has been, m e t 'It would he illogical to interpret the rule as prohibiting the construction and ?Although a retrofitted CCR surface impoundment fs not technically a. now CCR surface .impoundment which 40 C.F..R, 25753 diTim's as a unit "that first receives CCR or commences construction niter October 14,20157' if is essentially the same as a new unit because "'retrofit'' means "to remove ail CCR and. contaminated soils and. sediments from the CCR surface impoundment, and to &mre the unit complies Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00011 operation of a non-CCR unit in the footprint of art. impoundment prior to meeting the groundwater protection standard, when the construction and operation of a CCR unit under the same circumstances is expressly allowed. The regulatory text and preamble language evince EPA's intent that an owner or operator of a CCR. unit that has been closed by removal of CCR. not wait until after the groundwater protection standard has been met before constructing a new unit wi thin the footprint of an excavated, unit. 40 CJFJR. 257.53 of the CCR rule defines an "overfill" as "a. new CCR landfill constructed over a dosed CCR surface im poundm ent."-*5 Pursuant to 40 ,F,R, 257,70(a)(2) (design criteria for new OCR land fills and any lateral, expansion, of a CCR landfill), "[pjriot to constr uction of an overfill the underlying surface im poundm ent must meet: the requirements of 257.1.02(d)/' which sets forth the per form ance standard when leaving CCR m place. This requirement is repeated in. the preamble where ERA explains that "overfills cannot be constructed unless the underlying foundation--Le., the existing CCR surface im poundm ent has first been dewatered, cajtped, and completely dosed," SO Fed Reg, 21.302, 21.373 (Apr. 17, 2015) (emphasis added). Sea id (expounding that the CCR rule "dearly prohibitfs] construction of a CCR landfill over a. OCR surface impoundment' unless the CCR in the underlying unit: has first been dew atered and. the unit is capped and completely closed") (emphasis added). Importantly, Section. 257.70(a)(2) does not refer to the entirety of Section 257,102, nor does if refer to Section 257.102(c); it only speaks to " 257.102(d)" (closure performance standard when leaving CCR in place), which includes no requirement that construction and operation of the unit m ust wait until, the groundw ater protection standard has been met. In the ease of closure by removal of CCR, once the CCR and all. liners contaminated with CCR waste and CCR waste leachate have been removed,3that excavated area. Is no taith (fat rtquUvnwnH in 257.72 |.|'P--liner design criteria for mov CCR surface impoundments and any lateral expansion of a CCR surface impt uidment. 40 C.F.R.. 257,53 (emphasis added), - Although the definition of "overfill" refers specifically to new CCR. landfills, nothing in the CCR rule prohibits other ases on top of dosed surface impoundments, provided such future uses do not compromise the closure performance standards set out in 40 C.F.R. 257.102(d). 5ERA explains, in the preamble to the CCR Rule that "(ojnee a facility has removed the waste and any liner, the presumption is that the source of contamination has been removed as well," 80 Fed, Reg, at 21.4:1.2 . Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00012 longer a CCR surface im poundm ent but: merely land on which an ash basin was formerly located; put simply, the CCR surface im poundm ent has ceased, to exist. Once construction of the new non-CCR wastewater pond has been, completed, Duke Energy Intends to ose it to hold non-CCR wastestreams, Nothing In. the raie prohibits such action, so long as Duke Energy takes appropriate steps to ensure that construction of tbe new non-CCR wastew ater pond will not hinder or frustrate any measures required to meet the groundwater protection standard. The CCR rule's retrofit provisions offer further support tor re-use of the land immediately after completion of CCR excavation activities. Pursuant to 40 C,F.R, '101(a)(1), an onlined CCR surface im poundm ent that has exceeded a groundw ater protection standard and is otherwise subject to the obligation to cease the receipt of CCR and. commence closure, may retrofit the unit and continue operating as a new unit, rather than close. Once the existing CCR surface im poundm ent has been retrofitted in accordance with the requirements of 40 CJP.R, 257,102(k) (criteria to retrofit an existing CCR surface impoundment), the owner or operator may begin placing CCR and non-CCR wastestreams in the unit. Although 40 C,F,E, 257,102(k)(l){iii) mokes clear that a CCR surface impoundment undergoing a retrofit remains subject to "the requirement to conduct any necessary corrective action/ owners and operators are not required to meet the groundw ater protection standard prior to placing CCR (much, less materials that are not CCR) in. the .retrofitted unit. There is no basis for requiring owners and operators to wait until the ground water protection standard, has been met before placing nmhCCR austestmii/rs in new wastewater ponds closed by removal of CCR when, owners and operators may retrofit CCR surface im poundm ents and immediately begin, placing CCR in those units, EPA's preamble discussion regarding closure of CCR units through removal and. decontamination directly supports immediate use of the land once excavation, of the unit has been completed, ERA explained in the proposed CCR rule that it Included ihfej |ci.osu.re-by-reotovaI-oi-CCEj provision to allow some flexibility in. the self-implementing scheme for facilities in their closure options, while providing protection tor health and the environment under either option.3 3 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00013 Although EPA anticipates that facilities will mostly likely not d ean dose their units,. given the expense and difficulty of such an operation, EPA belietm that they are generally preferablefw m ike standpoint of land re-use and redevelopment, and so wishes explicitly to allow for such action In. the proposed subtitle D rule, 75 Fed, Peg, 35128, 35208 (June 21, 2010) (emphasis added). Indeed) EPA retained closure by removal of CCR as a closure option, in the final CCR rule reiterating that "b'kcause clean closure is generally preferable from the standpoint of land re-use and redevelopment, EPA has explicitly identified this as an acceptable m eans of dosing a CCR u n it/' SO Fed Reg. at 21.412 (emphasis added). Thus, EPA recognized that although the ciosure~by~removaI~oi~CCR method generally would he more costly and burdensome, It was im portant to preserve if as an option, for those owners and operators who needed to reuse land on. which CCR surface im poundm ents formerly existed) whether due to space constraints or otherwise,. It is Implausible that EPA would have intended to allow for the construction of overfills Immediately after CCR surface impoundments have been capped in place or allow for immediate use of retrofitted, units, but require owners and operators closing units by removal of CCR to wait potentially decades until the groundwater protection standard has been met before reusing the land to construct new units. Such, an interpretation would, have the effect of prom oting closure hy cap-in-place over dosure-by-rem ovai--a result EPA surely did not intend--and he inimical to CPA's stated land re-use goal. Moreover, forcing owners and. operators to wait until the groundw ater protection standard has been met would lead to absurd, results hy forcing them to construct ne w wastewater ponds on greenfield sites, waste valuable resources on new infrastructure construction, and transport CCR significant distances for off-site disposal, thereby increasing environmental impacts. It is im portant to stress that despite the fact that Duke Energy's new non-CCR wastewater pond will not be used to store CCR wastestrearns, It will, he constructed with, a composite liner with geomembrane consistent w ith the liner design criteria requirements for new and retrofitted CCR surface im poundm ents at 40 C.F.R. 257.72., 4: Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00014 Accordingly, the new pond will be designed and constructed with precisely the same safeguards as new and retrofitted surface im poundm ents intended to hold. COL Pursuant to 40 J,R.. 257.1.02(c), Duke Energy m ost take necessary and appropriate actions to dem onstrate compliance w ith the groundw ater protection standard, In the event the new non-CCR wastewater pond leaks, this would he addressed by tbe m easures Duke Energy is taking to meet the groundw ater protection, standard. Thus, although construction of the new pond within the footprint of the former CCR surface im poundm ent will effectively deprive Duke Energy of the ability to dem onstrate that any exceedances of the ground w ater protection standard are being caused, by contamination from the new non-CCE wastewater pond, protection, of health, and the environment will be ensured, Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00015 Relationship Between the Resource Conservation and Recovery Act's Coal Combustion Residuals Rule and the Clean Water Act's National Pollutant Discharge Elimination System Permit Requirements h '> :> - ! I , promulgated under tie Resource Conservation and Recovery Act (RCRA), and the Clean Water Act fCWA) each address environmental impacts of the various noils at coal fired power plants. As a general matter, the Clean Water Act addresses instances in which, there are discharges to the tunsdtciional waters of the United States ("jurisdictional waters"), while the OCR title deals u hit the disposal units themselves (where they are located, specific design and operating enteric, structural stability requirements, groundwater monitoring and corrective action, closure of the units, etc,) and with their impacts or potential impacts to groundwater. The CCR rule establishes minimum national criteria which must be met by ail disposal units: the rule additionally recognizes that different: factors on a site specific basis are important for determining the best method of environmental protection at individual disposal unit sites and thus provides technical criteria to enable flexibility where appropriate to achieve the requirement,', of die rule. For example, in some cases, dewatering and leaving CCRs in place with Mtcunanls and monitoring may achieve flic necessary environmental protections and in fact offer a Mgmfieanth lower environmental footprint, and cost than removal and disposal offsite. On this page: y cesi re- ' - \ )' n i ' , . , ' ! V. \ ' ' U Reo a irei f 1 F tbiafnei re ' \ s * ' 1 Questions Regarding the Relationship Between the CCR Rule and CWA NPDES Ferin.it Requirements Now do the CCR rule and the CWA permit requirements generally work together with respect to iandfilh and surface impoundments that contain CCRs? The CCR. rule Is designed specifically to address releases to groundwater as well as nongroundwater releases front CCR. waste disposal units. Implementation of actions to comply with Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00016 the CCR rule, such. as dewatering of a CCR unit, must be done in compliance with other applicable laws, including' the Clean Water Act. Independent of the CCR. role, the CWA prohibits any point source discharge of a pollutant to a water o f the United States unless it is authorized by a 'National Pollutant Discharge Elimination System (NPDES) permit under CWA section 402, What role does dewatering o f CCR units play in complinnee with the CCR tuie? is a. facility that seeks to dewater a CCR surface impoundment required to obtain u CWA NPDESpermit? Mow does tins work and cam EPA help to ensure tim i N B P E S perm its are granted in a tim ely manner to allow de watering m id closure to proceed? Dewatering of CCR units is an important -.top in the process of closure of CCR. units in order to comply with the CCR. rule, and may acquire discharge to a jurisdictional waters, if the facility will need to discharge any of the water from the surface impoundment, into &jurisdictional water, then, as required by the Clean Water UL that facility will need an NPDES permit (or potentially a modification to an. existing permit.) for that discharge. The dewatering of a surface impoundment is a necessary first step in. ensuring that the eventual closure of the unit will meet the statutory standard under R.CR. o f "no reasonable probability of adverse effects on human health or the environment." Over the long-term the closure of the CCR. unit will, substantially reduce the significant health and environmental risks associated with, these units-~e,g,, front the potential catastrophic release, and/or contamination from teaching into groundwater, as well as into any hydro!ogicatly connected jurisdictional waters. In the short term the point source discharge will be subject to NPDES permit requirements under CWA section 402 which "restores and maintains the chemical, physical, and biological Integrity of the Nation's waters," EPA encourages the water and waste programs in the states to work, together in this area to ensure that closure of die CCR unit can proceed In a timely fashion while at the same time ensuring that NPDES permit conditions are in place to protect the receiving jurisdictional waters. Can the ground water, corrective action, d o sa re and pm i closure requirements under RCRA fs CCR m ie he implemented in a manner consistent with protection o f surface water under the CW A ? Can the closure in place option in the CCR m ie be conducted in a m anner consistent with protection o f surface water under ik e CW A? Yes,, the comprehensive requirements of the CCR. rale were designed specifically to address ail releases to groundwater as well as non groundwater releases, from CCR. disposal, units and the impacts of those releases on public health and the environment. The CCR. rule specifically provides a clos are in place option, and anticiptes tha owner/operators woud he able to utilize tins option in appropriais eircumstanees. Provided the roquirements of the CCR rule as well. as the CWA arc met, ihe CCR. rule1s elosure in place Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00017 option can be implemented consistent with protection of groundwater and surface water resources. See the closure requirements question below for more detail Does the issuance o f un NPDES permt covering dischargesfrom a CCM unit exempt the ow ner/opem tor fr o m a n y requirem ents under th e CCM rule? No, discharges covered by an NPDES permit are not a "solid waste" pursuant to RCR.A section 1004(27). The RCR exclusion only applies to "industrial discharges that are point sources subject to permits," le., to the discharges to jurisdictional waters, and not to any activity, including groundwater releases or contaminant migration, that, occurs pneu to that point. See title 40 of the Code of Federal Rgulations (CFE.) 261,4(a)(2)(ftTl.ns exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge"). For purposes of the RCR exclusion, ERA considers the '''actual point source discharge" to be the point at which a discharge roaches the jurisdictional waters, and not in the groundwater or otherwise prior to the jurisdictional water, Titus, the issuance of an NPDES permit for discharges from a facility's CCR surface impoundment would not exempt the ownerfoperator from any .requirements under the CCR. rule applicable to the disposal unit, such as the requirements to ensure the structural stability of the unit, to dean up all releases to the aquifer, and to meet all closure standards. am Releases and the Requirement Id Respond What is the scope o f ik e requirement to respond to "releases "? (a) Does the phrase "or immediately upon detection of a releasefrom a CCR unit" in 40 CFE 257,96(a) apply to both groundwater and non-groundwater releases? No. Section 257.96(a) establishes two different standards for triggering corrective action, one for groundwater releases and one lor non-groundwater releases. The requirement that a facility commence corrective action, "immediately upon detection of a release Dorn a t f 'R unit" applies only to non-groundwater releases. By contrast ERA interprets the regulation to require corrective action for groundwater releases only upon a determination that contaminants are present in amounts exceeding the groundwater protection, standards in 257.95(h).. Note, however that the regulations include other provisions that address releases form a CCR unit. For example, the inspection requirements for surface impoundments and landfills at 257.83 and 257.84 state that, if a deficiency or release Is identified during an inspection, the owner or operator must remedy the deficiency or release as soon as feasible and prepare documentation detailing the corrective measures taken, in addition, in the requirements for control of fugitive dust at 257,80 it states that in file annua! report the ownerfoperator must describe any corrective measures taken, in response to oilmen complaints. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00018 (h) Is afacility required to initiate corrective action to dean up groundwater contamination. even though the concentration does not exceed the groundwater protection standard? No, under tlie OCR; rule, a facility is not required to initiate corrective action to clean. up groundwater contamination if the a srtlamination is at levels below the groundwater protection standard established in the CCR rule. As noted, HPA interprets the regulation to require corrective action for groundwater releases only upon a determination that contaminants are present' in amounts exceeding the groundwater protection standards in 257.95(h) (that is, a stEiiisticidiy significant increase over background or the maximum contaminant level or MCX). (e) In settlement o f a portion o f the lawsuit challenging the CCR rule, EPA agreed to a remand on the issue ofdefining which non~graundwater releases are subject to thefull corrective action process. Please provide guidance on whatfacilities should do in ike interim. EPA has committed as part of a settlement agreement to revisit tfte question of whether the procedures to he used in cleaning up groundwater releases should apply to all non-groundwater releases, EF agreed that, in principle, tor some non"groundwater releases, it may not make sense to require facilities to follow the foil corrective action procedures In 257.96-257.98 in cleaning up or remedying the releases, and agreed to conduct a rulemaking on that narrow1issue, However, the requirement to clean up those releases remains unaffected. It Is true, however, that as currently written, the regulations do^ require compliance with, the ldi corrective action process, whethes pursuant to the obligation in section 257.90(d) or 257.96. Nevertheless, given the settlement, I PA would recommend that compliance determinations focus primarily on the rapid remediation of detected noil-groundwater releases, consistetti with 257.90(d), 257.73(d)(2) and 257.83(b)(5) rather than adherence to the specific corrective action procedures in 257,96-257.98, Use of Groundwater Data Obtained Prior to tie CCR Rule Can groundwater data th a t were not developed/obtmned under ik e CCR rate (e*g*> dam that existedprior to publication o f the rale} trigger the groundwater release assessment and corrective action requirements under ike CCR rule (Le**, 40 CFR 2S7M (df 25Z96-M }? If the pre-existing data and accompanying data analysis are as scientifically valid and consistent with the data ami analysis required and developed under the CCR rule and they provide equivalent confidence that the standard in. 257.96 la) has been met, such data would trigger the corrective as don requirements in 257.96-,98. Whether any pre-existing data are sufficiently credible to trigger the 257.96 corrective action process will necessarily be determined on a ease-by-ease basis. Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00019 Howevers, as a general matter*, if a facility lias arty data that indicate groundwater contamination may be occurring, lire facility should be taking appropriate steps without hesitation to address the issue or potential issues shown by the data or sampling results. Such steps could include additional well installation, sampling or analysis--for example it rhe data shows contamination hut the facility has not established an appropriate background level-or it could include actions to locate and address the potential source of the contamination. Because the CCR rule was designed to be seifilmplenienting, it contains detailed... prescriptive requirements, lor establishing a groundwater monitoring system and for sampling and analyzing groundwater. For example the data collection protocol includes numerous criteria that specify monitoring locations, frequency, and chemical parameters. See 25?,91, 257,93*257,95. The data collected are analyzed using specific statistical protocols that provide for comparison with background and Maximum Contaminant Levels, These statistical analyses are conducted for each constituent, in each monitoring well, using methodologies that meet specific performance standards. Sec 25?,93(f), (g), Data that have been developed following such protocols would be considered to he credible, scientifically valid, and suitable for determining whether or not a release has occurred requiring further action under the CCR rule. It is E.PA's expectation that foeillties will follow this exacting process and use it to determine whether and when corrective action is warranted. As the regulation is currently structured, the requirement to comply with the corrective action procedures in 257,96 is predicated on the defection of "any constituent ..at a statistically significant level exceeding the groundwater protection standard" (The groundwater protection standard is defined in 257,95(h) and is either the drinking water maximum contaminant i.e\H or the background level of the contaminant). To the extent a facility has scientifically valid/crediHfo data demonstrating that the standard in 257.96(a) has been, met (detection of "any constituent., at a statistically significant level" above a groundwater protection standard) the rule requires them to take action to begin assessing the situation and developing a remedy. f Pane Closure Requirements W im i are ik e opium s and the perfarmame standardsfa r eiomre &funits under ike CCS rule? Under the CCR rale, closure must he initiated upon the final receipt of waste {for example, where the unit has reached the end of its useful life or the owner/operafor has determined that the unit is no longer needed) or in response to a determination that the unit must close "for cause" (he,, that is the unit does not meet location standards, the unit, does not meet structural stability requirement'., or the unit is an unit net! surface impoundment that is contaminating groundwater). M.orero es, all units must prepare closure and post closure care plans by October 17, 201.6, and post them to the fa c ility CCR web site by November 16, 2016, Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00020 The CCR rule establishes two options for closure: clean closure or closure with waste in place. The regulations also establish performance standards for each option that must he met. H e two standards are described below: (a) Section 257.102(c) sets out the "dean closure" requirements and states that: an owner or operator may elect to dose a CCR unit by removing and decontaminating all areas affected by releases from the CCR. unit,. CCR removal and decontamination of the CCR. unit are complete when const!tuent concentrations throughout the CCR unit and any areas affected by releases from the CCR unit have been, removed and groundwater monitoring concenn aliens do not exceed the groundwater protection standard established pursuant to 257.95 (h) for constituents listed in appendix IV to this pad:. If a facility "dean, closes" a unit, that unit Is not subject to post-closure care (that is continued GW monitoring or corrective action) as the site essentially has been "cleaned up," fb) Section 257,102(d) sets out the requiranients/performance standards for closure with waste in place, t. Paragraph (d)t 1) - Must ensure that the CCR, unit is closed in a manner that at a minimum will "control, minimize, or eliminate to ike maximum extentfeasible, post-closure infiltration of liquids into the waste and releases of CCR, leachate, or contaminated run-off to the ground or surface waters or to the atmosphere: preelude the probability of future impoundment of water, sediment, or slurry; include measures that provide for slope su b d in , minimize the need, for future maintenance; and he completed m the shortest amount ot time consistent with, recognized and generally accepted good engineering practices" (emphasis added), if. Paragraph (d)(2) - Drainage and stabilization of CCR surface Impoundments before install me a final cover system, free liquids must be eliminated by removing liquid wastes or sobdiri mg the remaining waste and waste residues and remaining wastes must be stabilized sufficient to support: the final, cover system, lit, Paragraph (d)(3) - Sets out requirements for the final cover system. lu oidvr to%htsc a eon woh vwho*at place, the ha dttv mow used ad fo the perimroam v stand.tf<-R ro ^ 3 s7 llffoit flTton dean , Insure' and etorefi'e n:lh n j\tc :u ila< e tan be rejaalh pioles.fi' e, pn>\ ided llua the seqmole pcifo'mauve Uaudauh are me* 11 In. p<j "oniunce standards '03 dc.ih t <ware and the perilj ranee oundards ire ito-ure vt it's waMe'ii plue can be met, an onrer or operator nan detennuv v,hk h alter Mine m uppt opt late lor ;hen paruenhi ami, \ f.iei'itynkn nan choore in eleau Gore" a poo on n; a single un a ,md close fa rennmder ofili.U urii \\ rh n i 4e 11 pi fee I he t t 'R iah` Joes no: uqure nr owuei os ep.reiro' u>ure rev durene option <ncf the of 1res m sndi Mtuatsons flotse\or, the tin ihg must used d of the per Ini Efi'tuce st fEd mh ioi tin. ekiMue opt ion Ului', selected, and if t cartuot meet all ot the pet foi rnaare1 nauda'U4' fro one op~ton, in, n tf nuH inch ah of tlr, p., rfomrufee swrehids tor lue othet option I os evunplc `hhe facility is unable to meet 11re perfonnance standards for closure with waste m pin e for a pat ocular unlp (or portion of a nmd, it must clean dose the unfo for that portsonj. Whether any particular unit or facility can meet the performance standards foe Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00021 I a ihct and site-specific deteimination that will depend on a number o f tactual and engineering consideratioas, such as the hydrogeology of the site, the I engineernig ofihe unit, and the kinds of engineering measures available, i < example, d'a small \ smner o? a and ts Mihmemed n the muh hut** tender. a laedin mtglu lv adle ht meet idc I nerfoimnoee NUtodnul it ^losere with waste in okwe It bc m-aimuy ut Iht. and, by "t.<*.itst \ id >-at*g'' the sifom-.rgcd fittum td'the m>h. and mMaUhn: list, m vew iy engmeenne mes^nrcs-tO I on-4+fv h-fs^t-iIk' u '-h th dm mot amew f'w jhh?>fWutimt e M-endarsh m d 1^ 7 HCtdt V->noted hove. I :he t f 'K rid,' dm's nul requite an m\ ser nr operator in u-C one ciouuv op;, or tu er die otherj f I "niii s0!s cl pcrlnsrmoee -,u idewh can he inch Overall, dewatering and leaving OCRs in. place may offer important environmental safeguards and monitoring. Closure with waste in place may help avoid sizable transportation related impacts by eliminating the significant truck, traffic that would accompany offsite movement of Cf'Ks, In addition., this option may also allow owners and operators to clean close some units while consolidating all the (XRs in a single on-site unit. On-site CCR consolidation can. provide for greater land use options and flexibility. Closure with waste in. place may allow owners and operators to focus their long term monitoring, care and cleanup obligations on a single unit rather | than many units. I (Revised on August 7, 20171 Sierra Club v. EPA 18cv3472 NDCA Tier 2 ED 002061 00086955-00022