Introduction

Hello, my name is Todd Hendricks. I am a Professional Geologist. I have a Bachelor of Science and a
Master of Science degree in Geology, 27 years of geological experience, and have worked in the Solid
Waste Branch of the Division of Waste Management for over 18 years.
I make these comments as a citizen, on my own time. I speak for myself, not my employer.
It is understandable that those in the utility industry who generate CCR wastes do not want to be doubleregulated. I do not envy their position. However, I assert that although the federal CCR Rule is indeed, a
regulation (i.e., a law, rule, or other order prescribed by authority), it does virtually nothing with
respect to the act of regulation; it simply defines parameters for lawsuits.
The proposed state regulatory package is - at best - premature. Both litigation and legislation are pending
regarding the RCRA coal combustion residuals (CCR) Rule, and a rewrite of the rule is underway. It is
also unclear what modifications will be made as a result of the change of presidential administrations.
The only certainty is that the requirements of a revised CCR Rule, if there is one, will be different than
the requirements of the present rule.
Authority for states to establish permit programs for coal combustion residuals was included in the Water
Resources Development Act (WRDA), S. 2848, that was passed by the U.S. Senate on September 15,
2016 by a vote of 95-3.
http://www.epw.senate.gov/public/_cache/files/14099077-b2cf-45d5-8598-1eb5da2758da/inhofe-boxermanagers-edw16925.pdf
The Senate legislation is different from the bill passed by the U.S. House in July 2015 H.R. 1734, the
Improving Coal Combustion Residuals Regulation Act of 2015.
https://www.congress.gov/bill/114th-congress/house-bill/1734/text
Differences between the House and Senate versions must be reconciled. However, it is clear that each bill
enjoyed broad bipartisan support sufficient to override a presidential veto.
Additionally, it was widely reported on October 24, 2016 that as a product of federal litigation, EPA had
initiated a rewrite of the CCR Rule, which it plans to release within the next twelve months.
It is remarkably imprudent to incorporate the present verbiage (and present requirements) of the CCR
Rule into state regulations before the final verbiage (and final requirements) are even known.
At a minimum, implementation of the proposed state regulations should be postponed until the outcome
of pending federal litigation and legislation and the concurrent revision of the RCRA CCR Rule is
complete. By far, the best course of action at this point in time is to leave the present requirements of 401
KAR Chapters 30, 40, and 45 in effect for these facilities until the federal regulations are in a reasonably
final form.

Permit-By-Rule Provision of 401 KAR Chapter 46

The pending federal legislation proposes the delegation of authority to state programs with permitting
programs that meet or exceed the federal requirements. Although they incorporate large parts of the
federal rule by reference, the proposed state regulations do not constitute a permitting program per se,
because a permit-by-rule is preemptively granted without any independent state agency review or
oversight of the siting, design, construction, operation, environmental monitoring, and reporting regarding
CCR units. It is unlikely that a permit-by-rule proposal such as that included in 401 KAR Chapter 46
would allow Kentucky to achieve authorization under a revised federal regulation.
Composition of CCR Wastes
CCR wastes are compositionally inappropriate for permits-by-rule. It is commonly asserted that Coal
Combustion Residuals are low-hazard. However, this is not always the case, and a growing body of
evidence shows significant potential hazards to human health and the environment due to releases from
some CCR units. Analysis of groundwater and leachate from CCR units in Kentucky has shown elevated
levels of heavy metals, sulfate, boron, and other contaminants.
One facility is conducting groundwater corrective action for contamination of karst springs with arsenic
leaching from an inactive surface impoundment. Hundreds of thousands of gallons of arseniccontaminated groundwater per day are captured and pumped to the active surface impoundment for
dilution and discharge through a permitted outfall.
At another facility, state laboratory analysis of one recent sample of fluid (presumably leachate) flowing
from the toe of a closed CCR landfill showed 9.81 mg/L of arsenic, which is 981 times the maximum
contaminant level (MCL).
Fluids containing arsenic at this level may be characteristically hazardous because of toxicity. Contained
landfills are regulated to the highest standards of any solid or special waste sites or facilities, but I have
never seen leachate analysis from a contained landfill that indicated that the leachate itself could be
characteristically hazardous.
It is notable that 40 CFR 261.4(b) (4) lists certain CCRs and associated wastes as exempt from hazardous
waste classification. Among these are fly ash, bottom ash, flue gas desulfurization sludge, coal pile
runoff, boiler cleaning solutions, boiler blowdown, process water treatment and demineralizer
regeneration wastes, cooling tower blowdown, air heater and precipitator washes, effluents from floor and
yard drains and sumps, and wastewater treatment sludge.
Mill rejects and pyrites are wastes generated by some CCR facilities, mostly those using roller mills to
crush the coal for combustion. (The terms mill rejects and pyrites are often used interchangeably,
although pyrites are a subset of mill rejects.) Historically, these materials have been disposed in surface
impoundments and landfills throughout the state.
USEPA states that pyrites can be characteristically hazardous in some cases. According to industry
publications, a facility burning bituminous coal can be expected to produce between 750 to 1200 tons of
pyrites per year per 100 megawatt capacity. So, one 750 megawatt plant could produce 5,625 to 9,000
tons of pyrites in a single year.

Since the effective date of the CCR Rule (April 17, 2015), these wastes are no longer exempt from
classification as hazardous waste. Therefore, facilities producing such wastes are obligated to perform the
appropriate testing to determine whether the subject mill rejects and pyrites are characteristically
hazardous, and dispose of them properly.
EPS Violations
The environmental performance standards of 401 KAR 30:031 prohibit special waste sites from polluting
groundwater above an MCL. However, some of these facilities already have MCL exceedances in
groundwater. Given that a permit-by-rule is a type of permit for activities that the legislature has
determined are sufficiently low-hazard that a written permit is unnecessary, will it be possible for CCR
units that already have MCL exceedances to remain permits-by-rule? If a facility violates an EPS in 401
KAR 30:031, it seems implausible to argue that the facility or the waste is low-hazard.
In the proposed regulation, 401 KAR 46:120 Section 1 seems to require a higher standard of performance
for beneficial use when compared to surface impoundments and landfills. Subsection 2 states that a
beneficial use is deemed to have a permit-by-rule only if it is in compliance with 401 KAR Chapter 46
and the environmental performance standards of 401 KAR 30:031. However, Section 1 (1) allows
landfills and surface impoundments remain permits-by-rule even when the CCR unit is in violation of the
provisions of Chapter 46 as well as 401 KAR 30:031. This makes no environmental sense, given that
human and environmental receptors do not distinguish between contaminants produced from a landfill, a
surface impoundment, or a beneficial use facility.
CCR units, especially those with confirmed groundwater pollution or those in corrective action, should
retain full, written, formal permits, and those CCR facilities lacking them presently should be issued full,
written, formal permits.
Self-Regulation and Self-Certification
A significant weakness of the federal CCR Rule is that it relies on self-regulation by the facilities and
self-certification by Professional Engineers regarding every aspect of the siting, design, construction,
operation, environmental monitoring, and reporting regarding CCR units. The subject Professional
Engineers are paid by the regulated entity, creating at least an apparent conflict-of-interest. No
independent oversight (like that provided by the Energy and Environment Cabinet under Chapters 30, 40,
and 45 of the Kentucky Administrative Regulations) is involved.
EPA states in the narrative associated with the CCR Rule that licensure of Professional Engineers in each
of the 50 states and oversight and discipline by boards of licensure ensures that the engineers involved are
practicing ethically and within their competence regarding these facilities.
However, inquiries to the Kentucky Board of Licensure for Professional Engineers and Land Surveyors
have revealed that no engineer has, at any time, been disciplined for any aspect of any work performed at
Solid Waste or Special Waste sites or facilities.
It is possible that the independent review of siting, design, operation, and construction by Professional
Engineers and Professional Geologists employed by the EEC assists consulting engineers in proper siting,

design, construction, operation, environmental monitoring, and reporting regarding CCR units, making
discipline by the licensing board unnecessary.
However, recent self-certification of monitoring systems by engineers has not been sufficient.
Specifically, information available to the cabinet indicates that of two facilities that constructed
monitoring wells in an effort to meet the CCR Rule without seeking advance approval from KDWM as
required by 401 KAR 6:350, both installed wells incorrectly. One site not only installed all of their CCR
wells out-of-compliance regarding the construction standards of 401 KAR 6:350, they retrofitted all of
their existing wells that were in compliance, bringing them out of compliance.
In another case, at least one well at an ash impoundment was reported to have been installed through 8.6
feet of gray wet ash (i.e., waste) and one foot of gray wet clay (possibly the bottom liner). No well
drilled through waste is acceptable from a monitoring standpoint. The subject well should be overdrilled,
grouted, and replaced.
In the absence of independent oversight by EEC, it is possible that aggrieved citizens may be forced to
file complaints against Professional Engineers to the Kentucky State Board of Licensure for Professional
Engineers and Land Surveyors. Consulting engineers themselves may also be a target of citizen lawsuits.
Enforcement by Citizen Lawsuits
Enforcement by citizen lawsuits is likely to be slow, ineffective, inconsistent, and unnecessarily
expensive. Release of contaminants into the environment may continue unabated for months or years
while the case winds its way through court.
In some cases, affected citizens may be financially unable to pursue litigation. This could make a clean,
healthy environment unattainable to the affected party. All Kentuckians deserve a clean, healthy
environment, not just those who can afford to pursue lawsuits.
Courtroom regulation and enforcement is a poor substitute for application review, permit issuance, and
independent oversight and enforcement by a state government agency. Moreover, money spent on
lawsuits by the utilities could be better used to mitigate environmental releases and close CCR units.
In citizen lawsuits, decisions regarding compliance will be made by judges who may have no scientific
training or environmental regulatory experience. Like judges, citizens often lack the training, expertise,
resources, and time to ascertain whether facilities are reporting in complete accordance with the CCR
Rule.
For instance, with regard to groundwater, a geologically competent but unethical person could minimize
the appearance of contamination by adjusting well locations and depths, construction details, sample
collection methods, analytical testing methods, method detection limits, reporting limits, and statistical
methodology.
Independent regulatory oversight is necessary. Trust but verify.

Financial Assurance
Current regulations require bond for the closure of CCR landfills, and bond for corrective action.
Presently, The Kentucky Division of Waste Management holds $48,378,953.00 in financial assurance to
ensure proper closure of Special Waste Landfills used for the disposal of CCR. One landfill that is under
construction and another that is proposed would result in the posting of another $4,383,895.00 and
$8,785,000.00 respectively, bringing the total bond to $61,547,848.00.
If the proposed regulations become effective, all of permit requirements and all of the requirements of
401 KAR Chapter 45 will become null and void for CCR units regulated under Chapter 46, including the
financial assurance required under 401 KAR Chapter 45. All financial assurance will be returned to the
utilities. As a consequence, in the event of the bankruptcy of a utility owning CCR unit, the relevant unit
or units will have to be closed under Superfund, which is both slow and expensive for the taxpayers.
Unnecessary delays could result in greater costs to the taxpayers and greater impacts to human health and
the environment.
Financial Assurance should not only be retained for CCR landfills, it should be extended to include
closure of all surface impoundments.
Exempt CCR Units
CCR Landfills permitted under 401 KAR Chapter 45 that ceased accepting waste before October 19, 2015
and all CCR Units at facilities that ceased production of electricity prior to October 19, 2015 are exempt
from the federal CCR Rule pursuant to 40 CFR 257.50. Given these exemptions and the fact that that
these Special Waste disposal facilities operated pursuant to 401 KAR Chapter 45, it is appropriate that
they close pursuant to 401 KAR Chapter 45. This includes both landfills and surface impoundments.
401 KAR 46:120, Section 5(2)
This language in this subsection conflicts with existing statute and regulation. In particular, the word
invalidate does not appear in KRS 224.10-100. Instead, the statute uses the terms issue, continue in
effect, revoke, modify, suspend, or deny. In 401 KAR 40:040, the applicable terms are modify,
suspend, revoke, and discontinue.
Groundwater Monitoring
401 KAR 46:110 Section 8 incorporates the federal CCR groundwater monitoring requirements in
totality.
Unfortunately, the federal CCR Rule is not a good fit geologically for Kentucky, where some 40% of the
land area overlies karst geology. No specific provision for monitoring karst groundwater via springs is
made in the CCR Rule. Only wells are specified as monitoring points in the regulation.
Some CCR unit owners and operators, their attorneys, and their consulting engineers are interpreting 40
CFR 257.91 to mean that only wells installed in accordance with the CCR Rule can be acceptable
monitoring points under the rule, and that existing state monitoring systems, (which are the product of
site-specific geological evaluation) and the data collected from them are irrelevant for the purpose of the
federal CCR Rule.

However, 40 CFR 257.91(a) (2) states, All potential contaminant pathways must be monitored. A well
or a spring (including those permitted under a state program) that has confirmed exceedances attributable
to releases from a CCR unit is situated on a contaminant pathway, and must be monitored.
Concurrence
The Concurrence provisions in 401 KAR 46:120 Section 2 are completely unnecessary, and provide no
apparent benefit to human health and the environment.
If they occur, concurrence determinations should be routine compliance determinations (i.e., inspections),
even if not requested. In lieu of that, affected citizens should be able to ask for a determination of
concurrence or compliance.
Borrow Areas
Borrow areas can be a large part of the area of a CCR facility, and can have significant environmental
impacts. Presently, borrow areas are regulated and permitted under 401 KAR Chapter 45. However, I see
no mention of borrow areas in the federal CCR Rule. In lieu of regulation under 401 KAR Chapter 46,
will surface mining permits be required for borrow areas?
Citizen Input
401 KAR Chapter 46 includes a notable lack of citizen input. There appears to be no provision for public
notice and no public comment period in the proposed regulation. A utility can just build a landfill if their
engineers certify it, provided nobody sues them.
Is it beneficial to have a system where a 200-acre landfill with a 100-acre borrow area can be built and
self-certified by people who are paid by the utilities, without any state or local input?
Waste Streams and Sources
Present permits issued under 401 KAR Chapter 45 restrict Special Waste landfills to specified waste
streams from specified sources. The federal CCR Rule provides for no such limitations, nor does 401
KAR Chapter 46.
It is therefore conceivable that a utility could build a landfill and accept waste from any other facility,
including out-of-state waste, without state or local input.
Incompatibility with Statute: KRS 322A
As stated previously, a significant weakness of the federal CCR Rule is that it relies on self-regulation by
the facilities and self-certification by Professional Engineers regarding every aspect of the siting, design,
construction, operation, environmental monitoring, and reporting regarding CCR units.
KRS 322A establishes licensure for Professional Geologists. However, 401 KAR 46:110 Section 8
incorporates by reference and without modification the requirement in the CCR Rule that Professional
Engineers certify all geological studies, groundwater monitoring systems, monitoring reports, and all
aspects of groundwater assessment and corrective action.

Incorporation of the federal regulation by reference without modification has the effect of prohibiting a
Professional Geologist from the independent practice of geology regarding CCR facilities to which he or
she is entitled by law. This represents a violation of KRS 224.10-100 (28).
Incompatibility with Statute: KRS 224.10-100
The proposed regulations show multiple incompatibilities with state law, a situation which is prohibited
by KRS 224.10-100. No determination of whether state or local law is being followed is built into the
federal CCR Rule.
According to USEPA, requirements of the CCR Rule are in addition to state and local requirements.
However, self-certifying consulting engineers may not be sufficiently familiar with state and local
requirements to even know which requirements apply.
This is complicated by the possibility that citizens aggrieved by violation of state or local law may be
unable to sue under the citizen lawsuit provisions of RCRA.
KRS 224.10-100, Powers and duties of cabinet states, the cabinet shall have the authority, power, and
duty to, among other things:
(5) Provide for the prevention, abatement, and control of all water, land, and air pollution, including but
not limited to that related to particulates, pesticides, gases, dust, vapors, noise, radiation, odor, nutrients,
heated liquid, or other contaminants;
(18) Issue, after hearing, orders abating activities in violation of this chapter, or the provisions of this
chapter, or the regulations promulgated pursuant thereto and requiring the adoption of the remedial
measures the cabinet deems necessary;
(19) Issue, continue in effect, revoke, modify, suspend, or deny under such conditions as the cabinet may
prescribe and require that applications be accompanied by plans, specifications, and other information
the cabinet deems necessary for the following permits:
(c)
Permits for the establishment or construction and the operation or maintenance of waste disposal
sites and facilities;
(22) Require, by regulation, that any person engaged in any operation regulated pursuant to this
chapter install, maintain, and use at such locations and intervals as the cabinet may prescribe any
equipment, device, or test and the methodologies and procedures for the use of the equipment, device, or
test to monitor the nature and amount of any substance emitted or discharged into the ambient air or
waters or land of the Commonwealth and to provide any information concerning the monitoring to the
cabinet in accordance with the provisions of subsection (23) of this section;
(23)
Require by regulation that any person engaged in any operation regulated pursuant to this
chapter file with the cabinet reports containing information as to location, size, height, rate of emission
or discharge, and composition of any substance discharged or emitted into the ambient air or into the
waters or onto the land of the Commonwealth, and such other information the cabinet may require;

(28) Promulgate administrative regulations not inconsistent with the provisions of law administered by
the cabinet;
This is not passive language. It requires the cabinet to act with respect to actual or suspected sources of
pollution, and to provide for the prevention, abatement, and control of all pollution. It does not provide
for the cabinet to adopt a regulation wherein facilities known to be polluting self-regulate, self-monitor,
and self-certify their compliance. It does not envision a regulation where citizens affected by pollution
that adversely impacts their property, their health, or the environment must rely on lawsuits for
mitigation.
Ultimately, what is needed is a state regulation creating a permitting program consistent with KRS
224.10-100 that meets the minimum requirements of the federal standards (once the federal standards are
finalized). Until then, the Commonwealth should leave its current regulations in effect.