[Federal Register Volume 84, Number 157 (Wednesday, August 14, 2019)]
[Proposed Rules]
[Pages 40353-40371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16916]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 257

[EPA-HQ-OLEM-2018-0524; FRL-9997-74-OLEM]
RIN 2050-AG98


Hazardous and Solid Waste Management System: Disposal of Coal 
Combustion Residuals From Electric Utilities; Enhancing Public Access 
to Information; Reconsideration of Beneficial Use Criteria and Piles

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In this action, EPA is proposing the following targeted 
changes to the April 17, 2015 Coal Combustion Residuals Final Rule 
based on stakeholder input: Revisions to the annual groundwater 
monitoring and corrective action report requirements, establishing an 
alternate risk-based groundwater protection standard for boron, and 
revisions to the publicly accessible CCR website requirements. The 
Agency is also proposing to address two provisions of the final rule 
that were remanded back to EPA on August 21, 2018 by the U.S. Court of 
Appeals for the D.C. Circuit. First, EPA is proposing to revise the CCR 
beneficial use definition by replacing the mass-based numerical 
threshold with specific location-based criteria as the trigger for an 
environmental demonstration. Second, EPA is proposing to introduce a 
single approach to consistently address the potential environmental and 
human health issues associated with piles of CCR, regardless of the 
location of the pile and whether the CCR is destined for disposal or 
beneficial use.

DATES: Comments. Comments must be received on or before October 15, 
2019. Public Hearing. The EPA will hold a public hearing on October 2, 
2019, in the Washington, DC metropolitan area.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0524, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Land and Emergency Management Docket, Mail Code 
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    The hearing will be held in the Washington, DC metropolitan area. 
The exact location of the hearing will be posted in the docket for this 
proposal and on EPA's CCR website (https://www.epa.gov/coalash) in 
advance of the hearing. The hearing will convene at 9:00 a.m. (local 
time) and will conclude at 8:00 p.m. (local time).
    Please note that if this hearing is held at a U.S. government 
facility, individuals planning to attend the hearing should be prepared 
to show valid picture identification to the security staff in order to 
gain access to the meeting room. Please note that the REAL ID Act, 
passed by Congress in 2005, established new requirements for entering 
federal facilities. For purposes of the REAL ID Act, EPA will accept 
government-issued IDs, including driver's licenses, from the District 
of Columbia and all states and territories except from American Samoa. 
If your identification is issued by American Samoa, you must present an 
additional form of identification to enter the federal building where 
the public hearing will be held. Acceptable alternative forms of 
identification include: Federal employee badges, passports, enhanced 
driver's licenses, and military identification cards. For additional 
information for the status of your state regarding REAL ID, go to: 
https://www.dhs.gov/real-id-enforcement-brieffrequently-asked-questions. Any objects brought into the building need to fit through 
the security screening system, such as a purse, laptop bag, or small 
backpack. Demonstrations will not be allowed on federal property for 
security reasons.

FOR FURTHER INFORMATION CONTACT: Jesse Miller, Materials Recovery and 
Waste Management Division, Office of Resource Conservation and Recovery 
(5304-P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number: (703) 308-1180; email address: 
miller.jesse@epa.gov. For more information on this rulemaking please 
visit https://www.epa.gov/coalash.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-
0524, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to

[[Page 40354]]

make. The EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e., on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

B. Participation in Public Hearing

    The EPA will begin pre-registering speakers for the hearing upon 
publication of this document in the Federal Register. To register to 
speak at the hearing, please use the online registration form available 
on EPA's CCR website (https://www.epa.gov/coalash) or contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
register to speak at the hearing. The last day to pre-register to speak 
at the hearing will be September 26, 2019. On September 30, 2019, the 
EPA will post a general agenda for the hearing on EPA's CCR website 
(https://www.epa.gov/coalash).
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule. 
Additionally, requests to speak will be taken the day of the hearing at 
the hearing registration desk. The EPA will make every effort to 
accommodate all speakers who arrive and register, although preferences 
on speaking times may not be able to be fulfilled.
    Each commenter will have 5 minutes to provide oral testimony. The 
EPA encourages commenters to provide the EPA with a copy of their oral 
testimony electronically (via email) or in hard copy form. If EPA is 
anticipating a high attendance, the time allotment per testimony may be 
shortened to no shorter than 3 minutes to accommodate all those wishing 
to provide testimony and have pre-registered. All comments and 
materials received at the public hearing will be placed in the docket 
for this rule, as well as a transcript from this hearing. While EPA 
will make every effort to accommodate all speakers who arrive and 
register the day of the hearing, opportunities to speak may be limited 
based upon the number of preregistered speakers. Therefore, EPA 
strongly encourages anyone wishing to speak to preregister.
    The EPA may ask clarifying questions during the oral presentations 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral comments and 
supporting information presented at the public hearing. Commenters 
should notify the person listed in the FOR FURTHER INFORMATION CONTACT 
section if they will need specific equipment or if there are other 
special needs related to providing comments at the hearings. Verbatim 
transcripts of the hearings and written statements will be included in 
the docket for the rulemaking.
    Please note that any updates made to any aspect of the hearing is 
posted online at https://www.epa.gov/coalash. While the EPA expects the 
hearing to go forward as set forth above, please monitor our website or 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to determine if there are any updates. The EPA does not intend 
to publish a document in the Federal Register announcing updates.
    The EPA will not provide audiovisual equipment for presentations 
unless we receive special requests in advance. Commenters should notify 
the person listed in the FOR FURTHER INFORMATION CONTACT section when 
they pre-register to speak that they will need specific equipment. If 
you require the service of a translator or special accommodations, such 
as audio description, please pre-register for the hearing and describe 
your needs by September 26, 2019. We may not be able to arrange 
accommodations without advanced notice.

C. Submitting CBI

    Do not submit information that you consider to be CBI 
electronically through https://www.regulations.gov or email. Send or 
deliver information identified as CBI to only the following address: 
ORCR Document Control Officer, Mail Code 5305-P, Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
Attn: Docket ID No. EPA-HQ-OLEM-2018-0524.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or DC-ROM that you mail to the 
EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. If you submit a CD-ROM or disk that 
does not contain CBI, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 Code of 
Federal Regulations (CFR) part 2.

D. Docket

    The EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2018-0524. The EPA has previously established a docket 
for the April 17, 2015, CCR final rule under Docket ID No. EPA-HQ-RCRA-
2009-0640, and the docket number supporting the March 15, 2018 proposed 
rule is EPA-HQ-OLEM-2017-0286. All documents in the docket are listed 
in the https://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy form. Publicly available docket materials are available 
either electronically at https://www.regulations.gov or in hard copy at 
the EPA Docket Center (EPA/DC), EPA WJC West Building, Room 3334, 1301 
Constitution Ave. NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. 
The telephone number for the Public Reading Room is (202) 566-1744, and 
the telephone number for the EPA Docket Center is (202) 566-1742.

II. General Information

A. Does this action apply to me?

    This rule applies to the disposal and beneficial use of CCR 
generated by electric utilities and independent power producers that 
fall within the North American Industry Classification System (NAICS) 
code 221112 and may affect the following entities: Electric utility 
facilities and independent power producers that fall under the NAICS 
code 221112. This discussion is not intended to be exhaustive, but 
rather provides a guide for readers regarding entities likely to be 
regulated by this action. This discussion lists the types of entities 
that EPA is now aware could potentially be regulated by this action. 
Other types of entities could also be regulated. To determine whether 
your entity is regulated by this action, you should carefully examine 
this proposal, as well as the applicability criteria found in Sec.  
257.50 of title 40 of the Code of Federal Regulations. If you have 
questions regarding the applicability of this action to a particular 
entity, consult

[[Page 40355]]

the person listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    The EPA is proposing to amend the regulations governing the 
disposal of CCR in landfills and surface impoundments in order to 
address certain issues raised by stakeholders that have arisen since 
the April 15, 2015 publication of the CCR rule and which were not 
addressed in the March 15, 2018 proposal (83 FR 11584) or the July 30, 
2018 final rule (83 FR 36435). These issues are presented in Units IV 
through VIII of this proposal.
    In this proposal, EPA is not reconsidering, proposing to reopen, or 
otherwise soliciting comment on any other provisions of the final CCR 
rule beyond those specifically identified in this proposal. The EPA 
will not respond to comments submitted on any issues other than those 
specifically identified in this proposal and they will not be 
considered part of the rulemaking record.

C. What is the Agency's authority for taking this action?

    These regulations are established under the authority of sections 
1008(a), 2002(a), 4004, 4005 and 7004(b) of the Solid Waste Disposal 
Act of 1970, as amended by the Resource Conservation and Recovery Act 
of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments 
of 1984 (HSWA) and the Water Infrastructure Improvements for the Nation 
(WIIN) Act of 2016, 42 U.S.C. 6907(a), 6912(a), 6944, 6945 and 6974(b).

D. What are the incremental costs and benefits of this action?

    This action is expected to result in net costs amounting to between 
$0.43 million and $3.8 million per year. Further information on the 
economic effects of this action can be found in Unit IX of this 
preamble.

III. Background

    On April 17, 2015, EPA finalized national regulations to regulate 
the disposal of CCR as solid waste under subtitle D of the Resource 
Conservation and Recovery Act (RCRA) titled, ``Hazardous and Solid 
Waste Management System; Disposal of Coal Combustion Residuals from 
Electric Utilities,'' (80 FR 21302) (2015 CCR rule or CCR rule). The 
CCR rule established national minimum criteria for existing and new CCR 
landfills, existing and new CCR surface impoundments, and all lateral 
expansions of these types of CCR units that are codified in Subpart D 
of Part 257 of Title 40 of the Code of Federal Regulations (CFR).\1\ 
The criteria consist of location restrictions, design and operating 
criteria, groundwater monitoring and corrective action, closure 
requirements and post-closure care, and recordkeeping, notification and 
internet posting requirements. The rule also required any existing 
unlined CCR surface impoundment that is contaminating groundwater above 
a regulated constituent's groundwater protection standard to stop 
receiving CCR and either retrofit or close, except in limited 
circumstances.
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    \1\ Unless otherwise noted, all part and section references in 
this preamble are to Title 40 of the CFR.
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    The 2015 CCR rule was challenged by several different parties, 
including a coalition of regulated entities and a coalition of 
environmental organizations. See USWAG et al v. EPA, No. 15-1219 (D.C. 
Cir.). Four of the claims, a subset of the provisions challenged by the 
industry and environmental Petitioners, were settled. As part of that 
settlement, on April 18, 2016, EPA requested the Court to remand the 
four claims back to the Agency. On June 14, 2016, the United States 
Court of Appeals for the District of Columbia Circuit (D.C. Circuit 
Court of Appeals) granted EPA's motion.
    On September 13, 2017, EPA granted petitions from the Utility Solid 
Waste Activities Group (USWAG) and AES Puerto Rico LLP, requesting the 
Agency initiate rulemaking to reconsider certain provisions of the 2015 
final rule.\2\ The EPA determined that it was appropriate and in the 
public interest to reconsider certain provisions of the 2015 CCR rule, 
in light of the issues raised in the petitions and the new authorities 
in the WIIN Act. In light of that decision, EPA requested that the D.C. 
Circuit Court of Appeals hold the case in abeyance until the Agency had 
completed its reconsideration. The EPA subsequently requested that the 
Court remand certain provisions of the 2015 CCR rule on the ground that 
the Agency is reconsidering the provisions. Included in that request 
were two sets of provisions related to the beneficial use of CCR: (1) 
The 12,400-ton threshold in the beneficial use definition, and (2) the 
requirements for ``piles'' of CCR located on-site of a utility and 
those that are located off-site but destined for beneficial use. In 
October 2017, the D.C. Circuit Court of Appeals directed EPA to file a 
status report with the Court indicating its schedule for addressing 
issues contained in the petitions for reconsideration. In the status 
report filed in November 2017, EPA stated that it anticipated it would 
complete its reconsideration of all provisions in two phases. The first 
phase would be proposed in March 2018 and finalized no later than June 
2019 and the second phase would be proposed no later than September 30, 
2018 and finalized no later than December 2019. The EPA proposed the 
Phase One rule on March 15, 2018 (83 FR 11584) and on July 30, 2018, 
finalized several revisions included in the Phase One proposal (83 FR 
36435). In the July 30, 2018, final rule, EPA adopted two alternative 
performance standards that either Participating State Directors in 
states with approved CCR permit programs (participating states) or EPA 
where EPA is the permitting authority to (1) suspend groundwater 
monitoring requirements if there is evidence that there is no potential 
for migration of hazardous constituents to the uppermost aquifer during 
the active life and post-closure care of the CCR unit; and (2) issue 
technical certifications in lieu of the current requirements to have 
professional engineers issue certifications. The Agency also 
established health-based groundwater protection standards (GWPS) for 
four constituents (cobalt, lead, lithium and molybdenum) that do not 
have established Maximum Contaminant Levels. Finally, the Agency 
extended the deadline by which facilities must cease the placement of 
waste in CCR units closing for cause in two situations: Where the 
facility has detected a statistically significant increase above a GWPS 
from an unlined surface impoundment; and where the unit is unable to 
comply with the aquifer location restriction. In both of these 
situations, the deadline for waste placement was revised to October 31, 
2020. Provisions included in the March 15, 2018 proposal that were not 
included in July 30, 2018 final rule will be addressed in a subsequent 
action.
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    \2\ The USWAG and AES Puerto Rico rulemaking petitions are 
available in the docket to this rulemaking.
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    On August 21, 2018, the D.C. Circuit Court of Appeals issued its 
decision. Of greatest relevance to this proposed rule, the Court 
granted EPA's request to remand the challenged beneficial use 
provisions back to EPA in order to allow the Agency to complete its 
administrative reconsideration.

IV. Proposal To Revise the Beneficial Use Criteria

    In the 2015 CCR rule, EPA established a Beneficial Use definition 
to distinguish between legitimate beneficial uses of CCR and the 
disposal of CCR. The Beneficial Use definition is comprised of four 
criteria: (1) The CCR must provide a functional benefit; (2)

[[Page 40356]]

the CCR must substitute for the use of a virgin materials, conserving 
natural resources that would otherwise need to be obtained through 
practices such as extraction; (3) the use of the CCR must meet relevant 
product specifications, regulatory standards, or design standards, when 
available, and where such specifications or standards have not been 
established, CCR may not be used in excess quantities; and (4) when 
unencapsulated use of CCR involves placement on the land of 12,400 tons 
or more in non-roadway applications, the user must demonstrate and keep 
records, and provide such documentation upon request, that 
environmental releases to groundwater, surface water, soil, and air are 
comparable to or lower than those from analogous products made without 
CCR, or that environmental releases to groundwater, surface water, 
soil, and air will be at or below relevant regulatory and health-based 
benchmarks for human and ecological receptors during use. See, Sec.  
257.53 and 80 FR 21349-54 (April 15, 2015). Criteria one through three 
of the Beneficial Use definition still remain as finalized in the 2015 
CCR rule. In this action, EPA is proposing to eliminate the mass-based 
numerical threshold used to trigger an environmental demonstration, and 
replace it with specific location-based criteria derived from the 
existing location criteria for CCR disposal units. The EPA is also 
soliciting comments and information that could be used to select a new 
mass-based numerical threshold.
    The EPA's current regulations at Sec.  257.53 require that to be 
considered a ``beneficial use,'' when unencapsulated CCR is placed on 
the land in amounts greater than 12,400 tons, in non-roadway 
applications, the user must demonstrate that releases to environmental 
media (i.e., groundwater, surface water, soil, air) are comparable to 
or lower than those from analogous products made without CCR or that 
releases to environmental media will be at or below relevant regulatory 
and health-based benchmarks for human and ecological receptors during 
use. The Agency established this environmental criterion to ensure that 
unencapsulated uses of CCR would be conducted in an environmentally 
protective manner. This fourth criterion was designed to address both 
the concern that large-scale fills were effectively operating as 
landfills and the documented risks associated with the placement of 
unencapsulated CCR in or near water sources. See 80 FR 21351-52 (April 
15, 2015). A numerical threshold was established to determine when 
further analysis was warranted. The 12,400-ton threshold criterion was 
based on data collected in response to the 2010 Steam Electric Power 
Generating Effluent Guidelines Questionnaire (``the Effluent Guidelines 
Questionnaire''),\3\ representing the smallest size CCR landfill. The 
EPA selected this threshold largely because the 2014 risk assessment 
demonstrated that at these volumes the potential risks warrant 
regulation. See 80 FR 21352 (April 15, 2015). In addition, EPA noted 
that the threshold of 12,400 tons was generally consistent with three 
state regulations identified in a 2013 Notice of Data Availability: \4\ 
North Carolina and Wisconsin, which had established 5,000 cubic yards 
of CCR as a threshold, and West Virginia which had a threshold of 
10,000 cubic yards (which equates to about 6,000-12,000 tons). See 80 
FR 21351 (April 15, 2015).
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    \3\ Additional information on this questionnaire can be found on 
EPA's website: https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-questionnaire.
    \4\ 78 FR 46943-44 (August 2, 2013).
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    After the final rule was issued, EPA received a letter \5\ alleging 
that the 12,400-ton criterion was based on erroneous data that had been 
submitted to the Agency (available in the docket for the 2015 CCR 
rule). The letter concluded that the facility had incorrectly reported 
data in cubic yards rather than in cubic feet as requested in the 
survey questionnaire form. Based on their calculations, the letter 
claimed that the smallest landfill in the survey questionnaire data is 
approximately 74,800 tons and requested that EPA update the fourth 
beneficial use criterion to reflect this higher value.
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    \5\ See letter from Kenneth Kastner, Hogan Lovells US LLP, on 
behalf of Headwaters Resources, Inc., to U.S. Environmental 
Protection Agency, dated April 1, 2015; available in the docket to 
this rulemaking.
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    The petition for rulemaking \6\ submitted by USWAG included a 
request to correct the numerical threshold for the beneficial use 
definition (based on the letter previously discussed). Considering the 
numerical threshold issue raised by the petitioner, EPA has 
preliminarily determined that it is appropriate and in the public 
interest to reconsider the numerical threshold criterion in the final 
rule.
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    \6\ USWAG's petition for rulemaking is available in the docket 
to this rulemaking.
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    As part of this reconsideration, EPA conducted a focused review of 
currently available data from three sources: (1) Data collected in 
response to the Effluent Guidelines Questionnaire; (2) available risk 
information from the risk assessment for the 2015 rule; and (3) 
information from state beneficial use programs.\7\
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    \7\ Many state environmental agencies have requirements and 
programs to manage the beneficial use of non-hazardous solid waste 
including coal combustion residuals.
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    Effluent Guidelines Questionnaire Data. The Agency first reviewed 
the reported landfill data received in response to the Effluent 
Guidelines Questionnaire. After reviewing this data, EPA identified 
several additional data points in which some facilities mistakenly 
reported data in cubic yards rather than cubic feet. While this dataset 
can still provide useful information on typical landfill sizes, EPA was 
not able to independently confirm the accuracy of every individual 
value. A review of the full database would not be practicable; at a 
minimum it would require EPA to contact each facility that provided 
information to confirm whether the facility had made any errors in 
reporting its data. No member of the public or stakeholders provided 
additional data to support the contention that the smallest CCR 
landfill is approximately 74,800 tons, or information that would allow 
EPA to independently confirm that value.
    Available Risk Information. The Agency next reviewed the results of 
the 2014 Human and Ecological Risk Assessment of Coal Combustion 
Residuals (``the 2014 Risk Assessment'') to determine whether the model 
results for landfills could be used to draw conclusions about 
structural fill and other unencapsulated uses of CCR.\8\ The EPA 
focused on the model runs for arsenic (III), which was found to be the 
primary risk driver associated with unlined landfills in the 2014 Risk 
Assessment. To identify the relevant subset of model runs, EPA queried 
the risk assessment results for unlined landfills with no surface water 
interception and plumes that reached the receptor within the 10,000-
year evaluation window (i.e., non-zero risk). These limits were placed 
to eliminate confounding factors that could obscure trends.
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    \8\ The Agency's review is documented in the Analysis of Model 
Results from 2014 Risk Assessment of Coal Combustion Residuals: 
Impacts of Total Mass Disposed and Distance to Receptor on Risk, 
which is available in the docket for this rulemaking.
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    The EPA plotted the queried data to visualize any relationships 
that exist between risk and distance to receptor (meters), total mass 
disposed (tons), or mass disposed per area (tons/acre). Significant 
relationships were identified for distance to receptor and total mass 
disposed, but not for mass disposed per

[[Page 40357]]

area. Although the identified relationships are relevant to 
unencapsulated beneficial uses, the data used to identify these 
relationships are based on the characteristics of existing landfills. 
However, unencapsulated beneficial uses are not subject to the same 
siting and construction requirements as the landfills modeled in the 
2014 Risk Assessment. As a result, unencapsulated beneficial uses of an 
equivalent size have the potential to be placed closer to receptors, in 
more permeable soils or in other areas that will tend to increase risk. 
Therefore, the potential high-end risks associated with unencapsulated 
uses will tend to be higher than those modeled for landfills. This 
makes it difficult to extrapolate the landfill data to unencapsulated 
uses and to identify a numerical cutoff for proximity or size at which 
these uses will start to pose concern. Therefore, EPA concluded these 
data cannot be used directly to select national beneficial use 
criteria.
    State Beneficial Use Programs. From the sources discussed above, 
EPA identified relationships between risk and both the tonnage of CCR 
placed in the environment and the distance from the CCR to receptors, 
but the Agency was unable to use these data as the basis for national-
scale beneficial use criteria. Therefore, the Agency reviewed existing 
state beneficial use programs to understand the basis for similar state 
criteria. The Agency reviewed the 2012 ASTSWMO Beneficial Use Coal 
Combustion Residuals Survey Report (``the 2012 ASTSWMO Report'').\9\ 
The 2012 ASTSWMO Report summarizes the results from a survey conducted 
in October 2011 through March 2012 to which 46 states responded and 
includes information from their 2006 Beneficial Use Survey Report. The 
2012 ASTSWMO Report states that 35 out of 46 States restrict the 
beneficial use of CCR by statute, regulation, policy, or local 
ordinance. The Agency initially focused on six states (i.e., Alaska, 
Illinois, North Carolina, South Carolina, Wisconsin, and West Virginia) 
that reported the use of numerical criteria to distinguish between 
small- and large-scale fills in the 2012 ASTSWMO Report. The EPA also 
gathered additional information on state beneficial use regulations 
through state websites and follow-up telephone calls with some states. 
Specifically, the Agency reviewed six additional state beneficial use 
programs that either were mentioned in submitted comments on the June 
2010 proposed rule or were recommended for consideration by one of the 
other states reviewed (i.e., Kentucky, Maryland, New York, 
Pennsylvania, Virginia, and Wyoming).
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    \9\ ASTSWMO, ``Beneficial Use of Coal Combustion Residuals 
Survey Report'', September 2012, which is available in the docket to 
this rulemaking.
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    Of the six states (Alaska, North Carolina, South Carolina, 
Illinois, Wisconsin, and West Virginia) identified in the 2012 ASTSWMO 
Report, four have requirements based on the amount of CCR applied in a 
fill project by total mass (Illinois--10,000; and North Carolina--
80,000 tons), mass per area (North Carolina--8,000 tons/acre) or volume 
(Wisconsin--5,000 and West Virginia--10,000 cubic yards).\10\ Of the 
other six states (Kentucky, Maryland, New York, Pennsylvania, Virginia, 
and Wyoming) reviewed that were not from the 2012 ASTSWMO Report, only 
one additional state (Pennsylvania) has requirements based by total 
mass (100,000 tons) and mass per area (10,000 tons/acre). Uses at or 
greater than these amounts trigger some form of design, operation, 
construction and/or maintenance requirements or some form of 
notification to the state, landowner, deed record office and/or the 
public. Only one state (West Virginia) prohibited all fill uses above 
the established criteria (10,000 cubic yards). Based on EPA's review of 
these specific state beneficial use programs, none of the identified 
size criteria are based on an analysis of the potential risks 
associated with the specified mass or volume. Instead, these values are 
based on considerations such as the size of previously completed fill 
projects or consensus values agreed upon by state, industry and citizen 
groups. However, many of these states have additional criteria in place 
for fill applications that either directly or indirectly address 
potential risks. Under these state programs, the proposed use of CCR is 
prohibited if the placement of CCR does not meet these additional 
criteria, regardless of the amount of CCR used. In describing state 
programs in this section, the Agency uses the state terminology for 
clarity. These additional criteria include:
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    \10\ With a typical compacted density for fly ash between 1,120 
to 1,500 kg/m\3\, the reported volumetric limits correspond to an 
upper bound somewhere between 4,700 and 12,600 tons. This range is 
similar to the lower end of mass limits reported by other states.
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     Three states (Wisconsin, North Carolina, and Pennsylvania) 
require placement of the CCR to be a minimum distance above the 
groundwater table. One state (Wisconsin) requires placement to be 5 
feet above the groundwater table and another (Pennsylvania) requires it 
to be 8 feet above the groundwater table. The third state (North 
Carolina) prohibits placement within 4 feet of the seasonal high 
groundwater table.
     Three states (Wisconsin, Illinois, and Pennsylvania) 
require chemical analysis of either the CCR bulk content or leachate to 
demonstrate that concentrations either present in or released from the 
ash are below specified levels.
     Two states (North Carolina and Pennsylvania) require a 
minimum setback distance from wetlands--one of 50 feet and another of 
100 feet. One of the states (Pennsylvania) also has a limit of 300 feet 
from an ``exceptional value wetland.''
     Two states (North Carolina and Pennsylvania) prohibit 
placement within the 100-year flood plain.
     Two states (North Carolina and Pennsylvania) limit 
placement near water bodies, requiring a setback distance of 50 and 100 
feet (respectively) from any surface water body. One of the states 
(Pennsylvania) also has a limit of 300 feet from any exceptional 
quality water body.
     Two states (North Carolina and Wisconsin) impose 
restrictions on proximity to residences. One state (North Carolina) 
required a minimum setback distance of 300 feet from any private 
dwelling or 50 feet from any property boundary. The other (Wisconsin) 
prohibited placement of CCR in any area zoned for residential use.
     Two states (Wisconsin and Pennsylvania) require a minimum 
setback distance, one of 200 feet and another of 300 feet from water 
supply wells.
     One state (Pennsylvania) requires a setback of 100 feet 
from sinkholes or any area draining to a sinkhole.
     One state (Pennsylvania) requires a setback of 25 feet 
from bedrock outcrops.
    Several of the remaining states evaluate all uses including fill 
uses on a case-by-case basis, regardless of size, typically requiring a 
site-specific assessment that considers potential risks before 
approving the placement of unencapsulated CCR in fill applications. 
Based on the 2012 and 2006 ASTSWMO reports, and additional state 
beneficial use programs looked at by EPA, factors that these states 
consider in their review include: Test data on the chemical and 
physical characteristics of the wastes; benefit assessment based on 
suitable physical, chemical, or agronomic properties of the wastes; 
special conditions that limit use; and evaluations of potential risks 
to human health.

[[Page 40358]]

    The EPA solicits comments and information on specific state 
criteria that would represent an appropriate trigger for an 
environmental demonstration such as, numerical limits, setbacks (to 
wetlands, private residences), proximity to water (water body, water 
supply well), specific criteria for CCR use, and any other requirements 
that state beneficial use programs have in place (e.g., specific areas 
prohibited from CCR use) to supplement the information on the group of 
12 states reviewed by the Agency.
    Based on the Agency's review of these sources of information, EPA 
is proposing to eliminate the mass-based numerical threshold and 
replace it with specific location-based criteria, derived from the 
existing location criteria for CCR disposal units, to trigger an 
environmental demonstration. As discussed further below, the available 
information does not appear to provide strong support for a single 
numerical mass-based threshold as a general matter; however, EPA 
solicits comments on whether to retain a mass-based threshold. Assuming 
EPA determines a threshold to be appropriate, EPA also solicits 
comments on whether an appropriate value for a mass threshold to 
trigger an environmental demonstration should be based on the state 
beneficial use programs' lower tonnage thresholds, discussed above, or 
to retain the current 12,400-ton numerical criterion. The EPA also 
requests comment on whether a combination of the mass-based threshold 
and location-based criteria would be an appropriate trigger to require 
an environmental demonstration for unencapsulated uses. Generally, 
having some type of threshold is a reasonable approach since there may 
potentially be some relatively small volume uses or dry locations where 
an environmental demonstration is not necessary. The Agency notes that 
two of the four proposed approaches discussed in this preamble would be 
of particular interest to those entities that use small volumes of CCR. 
Both of these approaches include a numerical threshold where 
unencapsulated uses involving an amount of CCR less than the threshold 
would not trigger the need for an environmental demonstration. 
Nevertheless, EPA also solicits comment on whether the environmental 
demonstration required under the beneficial use definition's fourth 
criterion should be conducted for all unencapsulated CCR uses. All four 
of these approaches are discussed below.

A. Location-Based Criteria Instead of a Mass-Based Numerical Value

    Based on the above considerations, EPA is proposing to eliminate 
the mass-based numerical threshold and instead replacing it with 
specific location-based criteria, which are largely derived from the 
current location criteria for CCR disposal units, to trigger an 
environmental demonstration. The specific location-based criteria EPA 
is proposing in this action are: Distance from the uppermost aquifer; 
placement in a wetland; placement in an unstable area; placement in a 
flood plain; distance from a fault area; and placement in a seismic 
zone. The EPA considered information developed for the 2015 CCR rule 
and the state beneficial use programs discussed above. As mentioned 
previously, modeled risks in the 2014 Risk Assessment show that where 
the CCR is placed in the environment can be a sensitive variable. In 
addition, the conditions in certain areas, such as wetlands or other 
areas addressed by the current CCR location criteria for disposal 
units, are generally recognized as having the potential to impact the 
structural integrity of a disposal unit negatively and as such, 
increase the risks to human health or the environment, e.g., through 
leaching of contaminants into groundwater. Several states have 
established requirements to protect specific sensitive areas found in 
each state, by prohibiting CCR from being placed for fill uses. Some of 
these requirements are also similar to the existing location 
restrictions for CCR units, e.g., address the same site conditions. 
Based on these considerations, EPA is proposing to revise the fourth 
criterion of the Beneficial Use definition by adopting certain location 
criteria (based on the location criteria for CCR disposal units) as 
triggers for the environmental demonstration. Before the placement of 
any amount of unencapsulated CCR in areas meeting the location-based 
criteria can occur for a proposed use, an affirmative demonstration 
that releases to environmental media (i.e., groundwater, surface water, 
soil and air) are comparable to or lower than those from analogous 
products made without CCR, or will be at or below relevant regulatory 
and health-based benchmarks for human and ecological receptors during 
use, is necessary in order to be considered a ``beneficial use.'' The 
EPA is proposing the following location-based criteria: Distance from 
the uppermost aquifer; placement in a wetland; placement in an unstable 
area; placement in a flood plain; distance from a fault area; and 
placement in a seismic zone. The EPA solicits comment on additional 
location criteria based on state beneficial use programs for distance 
from a water body and distance from a water supply well.
1. Distance From the Uppermost Aquifer
    The current CCR regulations restrict placement of CCR units within 
1.52 meters (five feet) of the upper limit of the uppermost aquifer or 
to demonstrate that there will not be an intermittent, recurring, or 
sustained direct hydraulic connection between any portion of the base 
of the CCR unit and the uppermost aquifer due to normal fluctuations in 
groundwater elevations (including groundwater elevations during the wet 
season). See Sec.  257.60(a). For placement of CCR in fill 
applications, state programs have similar requirements, but they are 
specific to groundwater. Two states (Wisconsin and Pennsylvania) 
prohibit placement of CCR within 5 and 8 feet (respectively) of the 
groundwater table, while a third state (North Carolina) prohibits 
placement within 4 feet of the seasonal high groundwater table. The EPA 
is proposing a location-based criterion that when unencapsulated CCR is 
placed at a site for beneficial use within 5 feet of the upper limit of 
the uppermost aquifer that the environmental demonstration under the 
existing regulation would be triggered to assess the potential 
environmental releases from the CCR use under consideration. The EPA 
chose this value to be consistent with the current federal location 
criteria for CCR disposal units. The EPA solicits comments on (i) 
adopting a location criterion based on the distance to the uppermost 
aquifer and whether North Carolina's 4 feet of the seasonal groundwater 
table, the 8-foot value in Pennsylvania's requirements or Wisconsin's 
criterion of 5-feet from the groundwater table is more appropriate; and 
(ii) whether there are other existing state restrictions that are 
appropriate for EPA to consider in establishing a criterion for 
distance to the groundwater table to trigger an environmental 
demonstration.
2. Placement in a Wetland
    The current regulations restrict placement of CCR units in wetlands 
except if the owner or operator makes specific demonstrations that the 
CCR unit will not degrade sensitive wetland ecosystems. See in Sec.  
257.61. The current regulations define a wetland by reference to the 
definition in Sec.  232.2. For placement of CCR in fill applications, 
two states (North Carolina and Pennsylvania) require a minimum

[[Page 40359]]

setback distance from wetlands of 50 and 100 feet (respectively), and 
300 feet from an exceptional value wetland. The EPA is proposing to 
adopt a provision that when unencapsulated CCR is placed at a site for 
beneficial use in a wetland that the environmental demonstration would 
be triggered to assess potential environmental releases from the 
proposed CCR use. This means that an environmental demonstration is 
required before the placement of any amount of unencapsulated CCR can 
occur for a proposed use in a wetland. The EPA considered this 
criterion to ensure consistency with the location criteria for CCR 
disposal units. However, EPA requests comment on whether a different 
definition of a wetland is more appropriate in this context. The EPA 
also solicits comments on (i) adopting a location criterion based on a 
distance to wetlands; (ii) whether the 50-foot value in North Carolina, 
the 100-foot value in Pennsylvania's requirements or the criterion of 
300 feet from an exceptional value wetland is a more appropriate 
distance; (iii) whether prohibiting the placement of CCR for beneficial 
use in wetlands is more consistent with the CCR disposal regulations; 
and (iv) whether other state restrictions exist that are appropriate 
for EPA to consider in establishing a criterion for distance to wetland 
in triggering an environmental demonstration.
3. Placement in an Unstable Area
    The current CCR disposal regulations restrict the placement of CCR 
in sites classified as unstable areas unless the owner or operator 
demonstrates that engineering measures have been incorporated into the 
unit's design to ensure the structural components will not be 
disrupted. See Sec.  257.64. In the current rule, unstable areas are 
locations that are susceptible to natural or human-induced events or 
forces capable of impairing the integrity of some or all of the 
structural component responsible for preventing releases from a CCR 
unit. See Sec.  257.53. For CCR fill applications, one state 
(Pennsylvania) prohibits placement within 100 feet of a sinkhole or any 
area draining to a sinkhole. Sinkholes are commonly found in unstable 
areas, such as karst terrains, where the types of rock below the land 
surface can naturally be dissolved by groundwater circulating through 
the rock \11\ that can result in a collapse of the land surface. The 
EPA is proposing to adopt a provision that when unencapsulated CCR is 
placed for beneficial use in an unstable area, the environmental 
demonstration would be triggered. This means that an environmental 
demonstration is required before the placement of any amount of 
unencapsulated CCR can occur for a proposed use in an unstable area. 
The environmental demonstration is reasonable in order to assess any 
environmental releases that may result from the shifting of the placed 
CCR and potential structural failure of any engineering controls (e.g., 
tears in liners), if employed, that could cause contaminants to leach 
into groundwater from the movement of the unstable area. The EPA 
solicits comments on (i) adopting a location criterion based on 
placement in an unstable area; (ii) whether prohibiting the placement 
of CCR for beneficial use in unstable areas is more consistent with the 
CCR disposal regulations and the Pennsylvania requirement; and (iii) 
whether other state provisions are appropriate for EPA to consider in 
establishing a criterion for placement of unencapsulated CCR for 
beneficial use in sites classified as unstable areas.
---------------------------------------------------------------------------

    \11\ U.S. Geological Survey. ``What is a sinkhole?'' A copy of 
the USGS web page is available in the docket to this rulemaking.
---------------------------------------------------------------------------

4. Placement in a Flood Plain
    In the current CCR rule (as well as part 258 requirements for 
municipal solid waste landfills), EPA restricts siting of disposal 
units in the 100-year flood plain. See Sec. Sec.  257.3-1 and 258.11. 
For CCR fill applications, two states (North Carolina and Pennsylvania) 
prohibit the placement of CCR within a 100-year flood plain. The EPA is 
proposing to incorporate a similar provision when unencapsulated CCR is 
placed at a site for beneficial use in the 100-year flood plain that 
the environmental demonstration would be triggered due to the potential 
environmental releases posed by flooding in these areas. The EPA 
solicits comments on (i) adopting a location criterion based on 
placement of CCR in a flood plain; and (ii) whether prohibiting the 
placement of unencapsulated CCR for beneficial use within a 100-year 
flood plain is more consistent the current CCR rule (as well as part 
258 requirements for municipal solid waste landfills) and with some 
state restrictions.
5. Distance From a Fault Area
    In addition to these location criteria, the current regulations 
prohibit the location of CCR units within 60 meters (200 feet) of a 
fault that has had displacement in Holocene time, unless the owner or 
operator demonstrates that an alternate setback distance of less than 
200 feet will prevent damage to the structural integrity of the unit. 
See Sec.  257.62. None of the reviewed states included a similar 
location restriction. However, a few of the reviewed states are located 
in areas with significant seismic activity. The EPA is proposing to 
adopt a provision that when unencapsulated CCR is placed for beneficial 
use within 200 feet of a fault and within a seismic impact zone that 
the environmental demonstration would be triggered. The environmental 
demonstration is reasonable in order to assess any environmental 
releases resulting from the shifting of the placed CCR and potential 
failure of any engineering controls (e.g., tears in the liners), if 
employed, that could cause contaminants to leach into the groundwater 
from the seismic activity. Therefore, while this consideration may not 
be of significance for the other individual states that EPA reviewed, 
the Agency considers this to be relevant and appropriate on a national 
scale because many states across the nation have these types of areas. 
The EPA solicits comments on (i) adopting a location criterion based on 
a distance of within 200 feet from a fault area to trigger an 
environmental demonstration; and (ii) whether prohibiting the placement 
of CCR for beneficial use within fault areas is more consistent with 
the CCR disposal regulations.
6. Placement in a Seismic Zone
    The current CCR disposal rule also prohibits the location of CCR 
units within seismic impact zones unless the owner or operator makes a 
demonstration that all containment structures are designed to resist 
the maximum horizontal acceleration in lithified earth materials from a 
probable earthquake. See Sec.  257.63. None of the reviewed states 
included a similar location restriction. However, a few of the reviewed 
states are located in areas with significant seismic activity. The EPA 
is proposing to adopt a provision that when unencapsulated CCR is 
placed for beneficial use within a seismic impact zone that the 
environmental demonstration would be triggered. Fill applications 
typically involve the placement of large amounts of CCR and in some 
situations may require the use of engineering controls, such as liners. 
As with landfills, large-scale fill applications located in seismic 
areas can encounter structural stability issues (i.e., the placed CCR 
shifts and engineering controls fail), (e.g., tears in the liner). The 
environmental demonstration is reasonable in order to assess any 
environmental releases resulting from a probable earthquake that may 
cause the placed CCR to shift

[[Page 40360]]

and potential failure of any engineering controls (e.g., tears in the 
liners), if employed, that could cause contaminants to leach into the 
groundwater from the seismic activity. Therefore, while this 
consideration may not be of significance for the other individual 
states that EPA reviewed, the Agency considers this to be relevant and 
appropriate on a national scale because many states across the nation 
have these types of areas. The EPA solicits comments on (i) adopting a 
location criterion based on placement of CCR in a seismic zone to 
trigger an environmental demonstration; and (ii) whether prohibiting 
the placement of CCR for beneficial use within seismic impacts zones is 
more consistent with the CCR disposal regulations.
    The EPA also considered adopting the following additional location 
criteria, largely-based on state beneficial use program provisions: 
Distance from a water body and distance from a water supply well.
7. Distance From a Water Body
    For placement of CCR in fill applications, two states (North 
Carolina and Pennsylvania) require a minimum setback distance within 50 
and 100 feet from a water body; and within 300 feet of an exceptional 
value or high-quality water body. The modeled risks in the 2014 Risk 
Assessment show that distance to receptor is a sensitive variable. 
Therefore, EPA solicits comment on adopting a provision that when 
unencapsulated CCR is placed at a site for beneficial use within 50 
feet from a water body the environmental demonstration under the 
existing regulation would be triggered to assess environmental 
releases. The EPA intends the term ``water body'' to mean perennial and 
intermittent streams and rivers. This criterion generally would be 
consistent with the approach taken by North Carolina and Pennsylvania. 
This value, which represents the least restrictive state requirement, 
will ensure that the federal provision is not inconsistent with 
existing state programs, as a regulated entity could always comply with 
both the EPA and the state provision, including any more stringent 
state requirement. The EPA solicits comments on (i) adopting a location 
criterion based on a distance from a water body; (ii) whether the 50-
foot criterion in North Carolina, the 100-foot criterion in 
Pennsylvania's requirements or the criterion prohibiting placement 
within 300 feet of an exceptional value or high-quality water body 
(also in Pennsylvania's requirements) is more appropriate; and (iii) 
whether other state restrictions exist that are appropriate for EPA to 
consider in establishing a criterion for distance to water bodies to 
trigger an environmental demonstration. The EPA is considering such a 
provision and could finalize it without a subsequent proposal.
8. Distance From a Water Supply Well
    For placement of CCR in fill applications, three states (Wisconsin, 
North Carolina and Pennsylvania) require a minimum setback of 200 and 
300 feet from water supply wells. Modeled risks in the 2014 Risk 
Assessment show that distance to receptor is a sensitive variable. 
Therefore, EPA solicits comments on adopting a provision that when 
unencapsulated CCR is placed at a site for beneficial use within 200 
feet from a water supply well the environmental demonstration would be 
triggered to assess the risks to potential receptors. The EPA 
considered this criterion to ensure consistency with existing state 
programs. This value, which represents the least restrictive state 
requirement, will ensure that the federal provision is not inconsistent 
with existing State programs, as a regulated entity could always comply 
with both the EPA and the State provision, including any more stringent 
state requirement. The EPA solicits comments on (i) adopting a location 
standard based on a distance from a water supply well; (ii) whether 
either the 200-foot distance in North Carolina or 300-foot distance in 
both North Carolina's and Pennsylvania's requirements is more 
appropriate; and (iii) whether other state restrictions exist that are 
appropriate for EPA to consider in establishing a criterion for 
distance to water supply well to trigger an environmental 
demonstration. The EPA is considering such a provision and could 
finalize it without a subsequent proposal.
    The EPA solicits comments on (i) revising the fourth criterion's 
trigger for an environmental demonstration from a mass-based threshold 
amount to any or all of the above location criteria; (ii) information 
on other state beneficial use programs with location-based provisions; 
(iii) the potential impacts to state beneficial use programs in setting 
location criteria based on the location criteria for CCR disposal units 
in the 2015 CCR Rule; and (iv) whether prohibiting the placement of CCR 
for beneficial use within wetlands, seismic impacts zones, unstable 
areas, and flood plains is more consistent with the CCR disposal 
regulations. In response to concerns from commenters that there may be 
some situations where the location-based criteria prevent placement of 
CCR in appropriate uses, the Agency also solicits comment and 
information on these specific situations where EPA should consider 
exemptions for any of the proposed location-based criteria.

B. Mass-Based Numerical Value

    As discussed previously, EPA also considered selecting a new value 
to replace the existing 12,400-ton numerical threshold based on the 
numerical values that state beneficial use programs have in place and 
the available risk information. Of the state programs EPA looked at, 
several state programs have values lower than the existing 12,400-ton 
threshold based on mass (Illinois 10,000 tons); or by volume (Wisconsin 
5,000 cubic yards; West Virginia 10,000 cubic yards). North Carolina 
and Pennsylvania have both lower and upper values based on mass per 
unit area (8,000 tons per acre; 10,000 tons per acre); and mass of 
total CCR used in a fill project (80,000 tons; 100,000 tons). As 
discussed earlier, none of the numerical criteria in the identified 
State programs were based on an analysis of the potential risks 
associated with the specified mass or volume. Instead, the States based 
the values on considerations such as the size of previously completed 
fill projects or consensus values agreed upon by state, industry and 
citizen groups.
    The current mass-based criteria of 12,400 tons is similar to the 
lower end of identified state limits. Although the analysis of model 
runs from the 2014 Risk Assessment demonstrates that potential risks 
will tend to decrease as the mass of CCR decreases, the Agency cannot 
define an exact relationship between risk and small changes in mass for 
prospective uses. The EPA identified individual model runs with risks 
above 1 x 10-5 for the smallest modeled landfill of 8,023 
tons; however, it is not possible to estimate the likelihood that such 
risks will occur at these lower tonnages based on the limited number of 
model runs for small landfills. As EPA acknowledged in the 2015 CCR 
rule, the following factors are more critical than the volumes of CCR 
in whether the use may present a risk of concern: ``the characteristics 
of the CCR, the amount of material and the manner in which it is 
placed, and (perhaps most important) the site conditions.'' See 80 FR 
21348 (April 15, 2015). Thus, for these smaller uses, EPA explained 
that the Agency ``. . . expects potential users of unencapsulated CCR 
below this threshold to work with the states to determine the potential 
risks of the proposed use at the site and to adopt the appropriate 
controls necessary to

[[Page 40361]]

address risks'' See 80 FR 21352 (April 15, 2015).
    The EPA also is aware that Alaska and Virginia have already taken 
steps to adopt the 12,400-ton threshold into their state regulations. 
Because EPA anticipates that there will likely be little practical 
difference between the current threshold of 12,400 tons and the lower 
end of the state limits in terms of the number of fill applications 
that would be affected, EPA considered retaining the existing value in 
the interest of minimizing disruption to the states and industry. 
However, EPA solicits comment on whether that preliminary conclusion is 
accurate, as well as the potential impact of this consideration on 
state programs (e.g., whether other states have not incorporated the 
current requirement).
    The available information does not appear to provide strong support 
for a new numerical value to replace the existing 12,400-ton mass-based 
threshold. Nevertheless, EPA is still considering whether to adopt a 
new numerical value for the existing mass-based threshold. The EPA, 
therefore, solicits comments on whether (i) the state beneficial use 
programs' tonnage thresholds discussed above are appropriate for 
revising the numerical criterion to trigger an environmental 
demonstration; (ii) the existing 12,400 ton-numerical threshold is 
appropriate and reasonable; (iii) the Agency's preliminary conclusion 
that retaining the existing numerical value minimizes disruption; and 
(iv) whether there are potential impacts to state beneficial use 
programs. The EPA is also requesting (i) information on other numerical 
criterion that states use to trigger other requirements, either those 
listed in this proposal or other state beneficial use programs that EPA 
did not review, that would also represent an appropriate trigger for 
further analysis of unencapsulated uses; and (ii) other state criteria, 
either those listed in this proposal or incorporated in other state 
beneficial use programs, that would also form an appropriate basis for 
national criteria to trigger an environmental demonstration.

C. Use Both Mass- and Location-Based Criteria

    The EPA also requests comment on whether to adopt a combination of 
the mass-based threshold and location-based criteria to trigger an 
environmental demonstration for unencapsulated uses. Under such an 
approach, the environmental demonstration for unencapsulated uses would 
be triggered by either a mass-based threshold or any of the location-
based criteria. Under such an approach, uses that exceed a mass-based 
threshold would need to conduct an environmental demonstration, even if 
they did not involve placement in areas that meet the location 
criterion. The EPA, therefore, requests comment on whether the 
thresholds from the state beneficial use programs listed above or other 
states not listed above would represent an appropriate basis on which 
to trigger the environmental demonstration.
    The EPA also solicits comment on any alternative approaches to 
combining the mass- and location-based criteria to ensure that both the 
largest uses and those with the greatest potential for risk would 
conduct an environmental demonstration.

D. All Unencapsulated Uses Demonstrate Environmental Analysis

    In general, having some type of threshold is a reasonable approach 
since there may potentially be some relatively small volume uses or dry 
locations where an environmental demonstration is not necessary. 
Nevertheless, EPA also solicits comment on whether the environmental 
analysis of the beneficial use definition's fourth criterion should be 
demonstrated in all cases rather than limiting the fourth criterion to 
only the largest or most environmentally concerning beneficial use 
circumstances. Under such an approach, every unencapsulated beneficial 
use of CCR in non-roadway applications would have to make an 
appropriate environmental demonstration of whether releases to 
environmental media from the beneficial use are likely to be of 
concern. Under this approach, it is possible that the Agency could also 
develop additional guidance \12\ and offer technical direction 
regarding the nature and extent of the environmental demonstration that 
would be needed depending on the site-specific considerations related 
to the particular proposed beneficial use of CCR in question. The EPA 
also solicits comment on the use of guidance to determine what an 
appropriate environmental demonstration would be in particular site-
specific circumstances. The EPA is considering all such approaches or 
provisions and could finalize it without a subsequent proposal.
---------------------------------------------------------------------------

    \12\ In 2016, EPA released the ``Methodology for Evaluating 
Beneficial Uses (BU) of Industrial Non-Hazardous Waste Secondary 
Materials'' and the ``Beneficial Use Compendium: A Collection of 
Resources and Tools to Support Beneficial Use Evaluations'' to help 
the beneficial use community evaluate the potential for adverse 
impacts to human health and the environment associated with the 
beneficial use of secondary materials, including CCR.
---------------------------------------------------------------------------

    The EPA also solicits comment on whether the regulations should 
impose a notification requirement upon a person placing unencapsulated 
CCR on the land in accord with the regulatory criteria. Many state 
programs require notice to the state, landowner, deed record office 
and/or the public. The EPA is considering such a provision and could 
finalize it without a subsequent proposal.

E. Applicability of the Revised BU Definition

    The EPA proposes that all beneficial use applications or projects 
not completed before the effective date of a final rule would be 
subject to the revised beneficial use criteria. This is consistent with 
what the Agency required in the 2015 final rule in terms of 
applicability of the new beneficial use definition. The EPA solicits 
comment on whether this approach is reasonable and whether there are 
other factors, such as a project's completion timeframe, that should 
also be considered into the Agency's applicability approach.

V. Proposal To Revise Requirements Applicable to Piles

    Under the current regulation, CCR piles are defined as any ``non-
containerized accumulation of solid, non-flowing CCR that is placed on 
the land.'' See Sec.  257.53. This definition closely mirrors the RCRA 
definition of disposal, which is defined in part as the ``placing of 
any solid waste or hazardous waste into or on any land or water so that 
such solid waste or hazardous waste or any constituent thereof may 
enter the environment or be emitted into the air or discharged into any 
waters, including ground waters.'' See 42 U.S.C. 6903(3). Under this 
regulation, CCR piles constitute disposal and are consequently subject 
to all regulatory criteria applicable to CCR landfills. In contrast, 
activities that meet the definition of a beneficial use are not 
considered disposal, even if they involve the direct placement on the 
land of ``non-containerized'' CCR. See Sec. Sec.  257.50(g) and 257.53 
(definitions of CCR landfill and CCR pile); 80 FR 21327-30 (April 17, 
2015). Since promulgation of the 2015 CCR rule, questions have been 
raised about the requirements that apply to piles of unencapsulated CCR 
placed on the land prior to beneficial use.
    The current regulation distinguishes piles of CCR on-site (at an 
electric utility or independent power producer site) from temporary 
piles of CCR off-site (at

[[Page 40362]]

a beneficial use site), based on whether CCR from the pile could fairly 
be considered to be in the process of being beneficially used. See 
Sec.  257.53 (definition of CCR pile); 80 FR 21356 (April 17, 2015). 
While the CCR from the pile on-site may someday be beneficially used, 
it is not currently in the process of being beneficially used, and even 
when some amount is transported away, a new amount from the utility may 
replace it. See Id. The extended placement of CCR directly on the land 
in such a manner is a potential source of uncontrolled releases. To 
address these potential releases, the regulation requires that the pile 
be containerized (i.e., that the facility adopt measures to control 
these releases, and any resulting exposures to human health and the 
environment). Such measures include placement of CCR on an impervious 
base such as asphalt, concrete or geomembrane; leachate and run off 
collection; and walls or wind barriers. See Id. If CCR is not 
containerized, the pile is a CCR pile and subject to the same 
requirements as a CCR landfill. See Id.
    In contrast, the regulations treat CCR stored off-site at a 
beneficial use site in a temporary pile to be in the process of being 
beneficially used (even though a pile is not itself a beneficial use). 
If the CCR is temporarily placed at a beneficial use site and meets the 
regulatory definition of a beneficial use, the pile is not a CCR pile 
and is not subject to disposal requirements. See Id. Thus, if the 
temporary pile contains less than the 12,400-ton threshold amount of 
CCR identified in criterion 4 of the beneficial use definition, 
criteria 1-3 must be met. For a temporary pile exceeding the threshold 
amount in the beneficial use definition, all four criteria must be met, 
including the environmental demonstration, which generally requires the 
user to evaluate the potential releases from the pile. One way to meet 
the environmental demonstration is to control releases from the pile. 
See 40 CFR 257.53; 80 FR 21347-54 (April 17, 2015). Thus, the 
regulation seeks to achieve the same end result--controlling releases 
and potential exposures--through different regulatory mechanisms.
    In response to the May 2017 petitions from AES Puerto Rico LP and 
USWAG, EPA has reconsidered its current approach of distinguishing 
between on-site and off-site piles; and is proposing to replace it with 
a single regulatory mechanism applicable to all temporary placement of 
CCR on the land, whether the CCR is on-site or off-site, and whether 
the CCR is subsequently destined for disposal or beneficial use. The 
EPA is not proposing to revise the general standard that already 
applies to both on-site and off-site piles (``to control releases from 
the pile''). However, EPA considers that a single regulatory approach 
would consistently address the potential environmental and human health 
issues associated with such piles, which are largely unrelated to 
whether the pile is on the land on-site or off-site and whether the CCR 
is destined for disposal or beneficial use.
    The EPA is, therefore, proposing to establish a single set of 
requirements applicable to all temporary placement of unencapsulated 
CCR on the land, whether destined for beneficial use or disposal, that 
maintains the current standard applicable to both on-site and off-site 
piles under the current regulation. Rather than characterizing such 
activities as either disposal or beneficial use, EPA considers that 
these activities are better characterized as ``storage,'' with criteria 
established pursuant to the authority in section 1008(a)(3) to control 
releases. Therefore, EPA is proposing a definition of a CCR storage 
pile to distinguish between the activities that will be considered 
storage and those that will be considered disposal. Specifically, EPA 
is proposing to define a CCR storage pile as a temporary accumulation 
of unencapsulated CCR on the land, whether on-site or off-site. As a 
second element, EPA is proposing to include in the definition a 
requirement to control releases of CCR (e.g., from windblown dust, or 
from stormwater or run-on and run-off) to the environment. 
Accumulations of unencapsulated CCR in enclosed structures, would not 
be required to meet either the definition of a CCR storage pile or the 
landfill requirements in part 257. The accumulation of unencapsulated 
CCR that does not meet all elements of the proposed definition of a CCR 
storage pile, including the requirement to control releases of CCR, 
would be considered to be disposal when placed on the land, and would 
be subject to the part 257 landfill regulations.
    Accordingly, in this action, EPA is proposing several revisions to 
Sec.  257.53 and conforming changes in Sec.  257.2.

A. The Definition of a CCR Storage Pile

    The EPA is proposing to establish criteria to distinguish 
activities that constitute the temporary storage of unencapsulated CCR 
in a pile from those activities that are truly disposal and therefore 
need to comply with the part 257 requirements. Specifically, EPA is 
proposing to define a CCR storage pile as ``any temporary accumulation 
of solid, non-flowing CCR placed on the land that is designed and 
managed to control releases of CCR to the environment.''
1. Definition of a Temporary Accumulation
    As noted in the preamble to the 2015 CCR rule, EPA considered 
placing a time limit on a pile; as an alternative regulatory strategy, 
a limit (e.g., 180 days) would have been established on the amount of 
time that the CCR would have been allowed to be maintained in a pile 
without regulation as a CCR landfill. See 80 FR 21355 (April 17, 2015). 
The EPA rejected this option because it would have been difficult to 
oversee and verify the actual time when CCR had been placed in a pile 
and when the CCR was subsequently removed. See Id. In this action, in 
place of establishing a time limit, EPA is proposing to define the 
properties of a temporary accumulation and allow the use of several 
criteria to identify a temporary pile. Specifically, EPA is proposing 
to define a temporary accumulation as an accumulation on the land that 
is neither permanent nor indefinite.
    To demonstrate that the accumulation on the land is temporary, at 
some point, all of the CCR must be removed from the pile at the site. 
To ensure that a temporary accumulation is identifiable, EPA is 
proposing that the entity engaged in the activity must have a record, 
such as a contract, purchase order, facility operation and maintenance 
plan, or fugitive dust control plan, documenting that all of the CCR in 
the pile will be completely removed according to a specific timeline.
    The criterion requiring possession of a record is designed to be 
flexible and account for the practical realities of current practices; 
pile removal is contingent on business activities, which are performed 
according to agreements and schedules, such as for the sale of CCR, for 
hauling services for the disposal of CCR, or purchase orders for 
products made with CCR from the pile. The EPA is not proposing to 
require any particular type of a record be used to demonstrate that a 
pile is temporary; however, an appropriate, useful record should 
contain verifiable information about amounts of CCR to be sold/
purchased/removed and the timeline of removal activities.
    The EPA solicits comment on whether the criterion requiring 
possession of a record to show that the CCR will be removed can be 
feasibly implemented. Namely, EPA requests comment about (i) specific 
cases where piles are temporary but records are not available; and (ii) 
an alternative criterion inclusive

[[Page 40363]]

of such cases. For example, EPA is considering whether utilities with 
on-site landfills possess or could develop verifiable records to show 
that the CCR from piles will be transported for disposal at the 
utility-owned landfill in a timely manner (e.g., do utilities with on-
site landfills, or could utilities with on-site landfills, keep 
schedules of daily on-site operation, and would such schedules 
sufficiently provide the needed information). Similarly, EPA is 
considering whether cement kilns and concrete batch plants can match 
purchase orders for products made with CCR to piles of CCR, or if 
alternative records are readily available to demonstrate that the CCR 
in a pile will be used. The EPA is also seeking comment about whether 
purchase orders for construction materials are sufficiently forward-
looking to allow the piles of CCR that are set up early in a 
construction season to be matched up with construction projects 
beginning late in the construction season, or if a grace period should 
be allowed for cement kilns and concrete batch plants supplying 
construction materials with CCR, to put applicable agreements in place 
(e.g., 90-120 days after the start of the construction season). The EPA 
also requests comment and information on additional or alternative 
criteria crucial for demonstrating that a pile is temporary and/or 
effectuating the timely removal of CCR.
2. Proposed Requirement To Control Releases
    The EPA is proposing to include in the definition of CCR storage 
pile a requirement to control releases to be consistent with the 
definition of disposal in 42 U.S.C. 6903(3). As stated in that 
definition, disposal includes the ``placing of any solid waste or 
hazardous waste into or on any land or water so that such solid waste 
or hazardous waste or any constituent thereof may enter the environment 
or be emitted into the air or discharged into any waters, including 
groundwaters.''
    When significant and persistent volumes of unencapsulated CCR are 
present, similarities exist in the potential risks posed to human 
health, groundwater resources, or the air between the placement of CCR 
in piles and placement in CCR landfills, if inappropriately managed. 
See 80 FR 21356 (April 17, 2015). The same pollution control measures, 
such as liners, leachate collection systems, and groundwater 
monitoring, would appropriately control releases and address the 
potential adverse effects from both the piles of significant and 
persistent volumes and CCR landfills.
    The EPA's proposal is designed to address these potential risks. 
Under the proposed definition, temporary accumulations are limited to 
the amount of CCR specified to be used as documented in the relevant 
record, and all of the CCR will be removed. Therefore, by defining a 
CCR storage pile as a temporary accumulation, EPA would effectively 
limit the amount of unencapsulated CCR that will be placed and persist 
in one location. Due to these factors, EPA considers that it is not 
necessary to impose on CCR storage piles the same set of technical 
requirements as for CCR landfills, but that meeting the requirement to 
control releases of CCR in the definition of a CCR storage pile would 
result in no reasonable probability of adverse effects on human health 
and the environment from the management of CCR on-site or off-site.
    Moreover, none of these concerns are present when CCR is stored in 
enclosed structures. The EPA's proposed definition, therefore, would 
explicitly exclude CCR contained in enclosed structures. In Unit V.B of 
this preamble (Definition of an Enclosed Structure), EPA is proposing 
to identify the structural properties and design and operational 
elements of an enclosed structure, modeled after the requirements in 
Sec.  264.1100 for units in which hazardous wastes are stored or 
treated not to be subject to the definition of land disposal.
    The definition of disposal in 42 U.S.C. 6903(3) regards all 
environmental media, and consistent with this definition of disposal, 
EPA's requirement to control releases of CCR would apply to all 
environmental media. Releases covered by the requirement to control 
releases in the proposed definition of the CCR storage pile would at a 
minimum, include releases through wind-blown dust, surface transport by 
precipitation runoff and releases to soil and to groundwater.
    Meeting the requirement to control releases would mean having to 
account for normal conditions and operating procedures. The EPA is 
proposing that one way for the entities engaged in the activity to meet 
the requirement is by designing and managing piles such that the 
releases are consistent with the terms of federal, state or local 
regulations for surface water, groundwater, soil or air protection. 
Examples of federal, state, or local regulations include stormwater 
discharge permits for construction sites; nation-wide effluent limits 
for relevant industry sectors (e.g., cement, concrete and gypsum 
facilities, and power plants); states' groundwater protection plans; 
and states' requirements for implementing control measures to prevent 
releases from storage piles of CCR. Releases that are specifically 
authorized under federal, state and local regulations for surface 
water, groundwater, soil or air protection would be allowed under this 
proposal. Situations in which CCR is being swept away and released to 
soil, water or air in violation of existing local, state and federal 
requirements, would be considered to be evidence of disposal.
    Examples of measures that might be used to control releases from a 
CCR storage pile include: Periodic wetting, application of surfactants, 
tarps or wind barriers to suppress dust; tarps or berms for preventing 
contact with precipitation and controlling run-on/runoff; and 
impervious storage pads, geomembrane liners or tarps for soil and 
groundwater protection. The EPA is not proposing to impose a specific 
set of control measures in every case, as the amount of CCR stored and 
the prevailing weather conditions may affect which controls are 
appropriate. Therefore, EPA intends to provide the entities engaged in 
the activity with flexibility to determine the control measures most 
appropriate to meet the requirement to control releases at a given 
site. This flexibility also ensures that EPA's requirements do not 
contradict any state or local requirements for the use of prescribed 
controls. However, if control measures are not used or are inadequate 
for prevailing conditions, increasing the likelihood of CCR being swept 
away, then the entity engaged in the activity would not have met the 
requirement to control releases, and the accumulation of CCR would be 
considered to be disposal. Visible dust, run-on/runoff and ponding of 
the water at the bottom of the pile, point to an issue with the choice 
of control measures.
    The EPA's understanding is that for many beneficial uses, 
beneficial users are implementing measures to protect the mechanical 
and chemical properties of CCR. These measures frequently match the 
controls necessary to meet the proposed requirement to control 
releases. Furthermore, several federal, state and local government 
regulations for environmental protection require the use of pollution 
controls that would also meet the requirement. Below is a brief summary 
of EPA's understanding of current beneficial use handling practices and 
existing regulations that would apply to control releases.
    Fly Ash used in concrete. The EPA's understanding is that the 
handling of fly ash marketed for beneficial use in concrete production 
is consistent across

[[Page 40364]]

the industry; fly ash is collected in a dry powder form and directed to 
silos, domes, or buildings at concrete batch plant sites in a self-
contained system from start to end. The reason for the containment is 
that fly ash provides mechanical and chemical benefits when used in 
concrete, making it a valuable ingredient and fully warranting the 
protection of its properties through handling and storage.
    Flue Gas Desulphurization (FGD) gypsum used in wallboard. The EPA's 
further understanding is that FGD gypsum may be transferred down a 
conveyer belt directly from an electric utility or independent power 
producer to a wallboard plant. Generally, it will either be contained 
in a building or stored on a pad.\13\
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    \13\ In order to be subject to RCRA, the material must be a 
solid waste. When FGD gypsum used for wallboard manufacture is a 
product rather than a waste or discarded material, and its use meets 
product specifications, FGD gypsum would not be regulated under the 
CCR rule. See, 80 FR at 21348. Note that whether the FGD gypsum is 
being managed as a ``waste'' or a ``product'' is a fact-specific 
determination, https://www.epa.gov/coalash/frequent-questions-about-beneficial-use-coal-ash.
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    CCR used as raw feed at cement kilns. The EPA's understanding is 
that the CCR used as a source of silica for production of clinker at 
cement kilns is generally stored on concrete pads or within partial 
enclosures composed of a concrete pad, overhead cover and several, but 
not all four sides. Placement of CCR on concrete pads controls releases 
to soil and groundwater, and federal, state and local regulations 
impose further requirements to control releases to air and surface 
water. For example, at cement kilns, fugitive dust from raw material 
storage, which includes piles of CCR, must be controlled to an opacity 
standard in Sec.  60.62(b), and this opacity standard limits the 
allowed particulate matter (PM) emissions; \14\ moreover, federal 
regulations require National Pollutant Discharge Elimination System 
(NPDES) permit coverage and compliance with stormwater effluent 
discharge standards in 40 CFR part 411, subpart C.\15\
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    \14\ Examples of emission control measures implemented in 
Portland cement manufacturing facilities for raw materials, such as 
CCR, can be found at: Bhatty, Javed I., Miller, F. MacGregor, and 
Kosmatka, Steven H.; editors, Innovations in Portland Cement 
Manufacturing, SP400, Portland Cement Association, Skokie, Illinois, 
U.S.A, 2004; page 656. This book is available in the docket to this 
rulemaking.
    \15\ U.S. EPA, ``Developing your Stormwater Pollution Prevention 
Plan: A Guide for Industrial Operators.'' EPA 833-B-09-002. June 
2015. Available in the docket to this rulemaking.
---------------------------------------------------------------------------

    CCR used in construction. NPDES permits are also required for 
construction activities that disturb at least one acre, including sites 
that are part of a larger common plan of development that will 
ultimately disturb at least one acre.\16\ The EPA has authorized most 
states to administer the NPDES permitting program; \17\ however, where 
EPA has not authorized states to implement the NPDES program and EPA 
maintains the NPDES permitting authority, the Agency issues a 
Construction General Permit (CGP). The CGP requires implementation of 
pollution prevention controls to minimize the stormwater discharges of 
pollutants and also requires dust minimization and 
suppression.18 19 States and localities also require dust 
control during construction.20 21
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    \16\ See, Sec.  122.26(a)(1)(ii), (a)(9)(i)(B), (b)(14)(x), and 
(b)(15)(i). Exclusions exist if the construction site disturbs less 
than five acres, and the rainfall erosivity factor (``R'' in the 
revised universal soil loss equation, or RUSLE) value is less than 
five during the period of construction activity. For more 
information, please see EPA's web page on ``Rainfall Erosivity 
Factor Calculator for Small Construction Sites'' at https://www.epa.gov/npdes/rainfall-erosivity-factor-calculator-small-construction-sites.
    \17\ A copy of EPA's web page titled ``Authorization Status for 
EPA's Construction and Industrial Stormwater Programs'' is available 
in the docket to this rulemaking.
    \18\ A copy of EPA's web page titled ``2017 Construction General 
Permit (CGP)'' is available in the docket to this rulemaking.
    \19\ A copy of EPA's 2017 Construction General Permit is 
available in the docket to this rulemaking.
    \20\ Examples include: http://bentoncleanair.org/windblown-dust/urban-fugitive-dust-policy/.
    \21\ Examples include: https://www.michigan.gov/documents/deq/deq-ead-caap-genpub-FugDustMan_313656_7.pdf; https://www.arb.ca.gov/drdb/sb/curhtml/R345.pdf; https://www.tceq.texas.gov/airquality/stationary-rules/pm; https://www.pacode.com/secure/data/025/chapter123/s123.1.html.
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    The EPA requests comment on whether this proposal will 
appropriately address the risks associated with the potential releases 
from piles of CCR in all circumstances. The EPA asks if in some cases, 
it is acceptable to manage releases retroactively. For example, are 
there situations in which CCR will only enter the topmost layer of soil 
over the time the CCR is in place at the site, in which retroactive 
management of these releases combined with an active management of 
releases to air and water, could avoid all reasonable probability of 
adverse effects on human health and the environment. For example, 
commenters may have information to show that the placement of CCR at a 
construction site, which typically occurs over a brief, one-time 
period, is precisely one such situation in which releases to soil and 
groundwater can retroactively be managed by removing the CCR and the 
contaminated soil beneath it, at the completion of the project. The EPA 
also seeks comment and data on whether there are additional situations 
where piles are commonly in place for a short period of time (e.g., 90 
days or less), at the end of which the CCR is fully removed and 
presents no reasonable probability of adverse effects on human health 
or the environment, thus supporting an exemption from having to meet 
the requirement to control releases. The EPA also asks for information 
about key characteristics of such piles that would make them readily 
identifiable in practice. Further, EPA requests comment on whether 
requiring that a pile must be temporary is a key element of controlling 
risks associated with the potential releases from piles of CCR; for 
example, do commenters have information to show that the size of a pile 
is sufficiently controlled by the ability to use pollution control 
measures to control releases of CCR and that the temporary element is 
not needed. The EPA also solicits comment on the existence of any data 
documenting instances in which releases from temporary placement of CCR 
on the land caused adverse effects even though releases had been 
managed consistently with current regulatory standards. Finally, EPA 
solicits comment on whether specific state criteria for storage, or any 
other criteria, would form a more appropriate basis for a national 
storage standard.

B. The Definition of an Enclosed Structure

    The EPA is proposing to define an enclosed structure by identifying 
structural properties and design and operational elements that would 
ensure CCR is appropriately contained. Entities containing CCR within 
such structures would not be subject to the definition of CCR storage 
pile or CCR landfill requirements in the part 257 regulations. The 
proposed key properties and elements are modeled after the requirements 
in Sec.  264.1100 for units in which hazardous wastes are stored or 
treated not to be subject to the definition of land disposal.
    From Sec.  264.1100 requirements, EPA is proposing to omit the 
requirements that are specifically relevant to the containment of 
hazardous waste and liquid waste. Examples of such requirements pertain 
to the control of fumes using pressure gradients, provisions for 
contact between the structure and hazardous wastes, or the need for a 
system of containment barriers to contain liquid wastes.
    The EPA is also proposing to omit the requirement that the ``no 
visible fugitive emissions'' standard and Method 22--Visual 
Determination of Fugitive Emissions from Material Sources and

[[Page 40365]]

Smoke Emissions from Flares in 40 CFR part 60, appendix A, be met. 
Rather than requiring a potentially challenging-to-oversee-and-enforce 
observation and recording procedure, EPA is proposing to include in the 
design and operational elements of an enclosed structure a performance 
standard stating that enclosed structures must be designed and operated 
to prevent the release of fugitive dust emissions through openings, 
including doors, windows and vents.
    The remaining Sec.  264.1100 requirements, which EPA proposes to 
adopt, pertain to full containment of waste, as well as to the 
structural stability and integrity of the enclosure. Stability and 
integrity are marked by the ability to withstand external loads from 
seismic and climatic conditions, as well as any internal loads from 
daily operating activities, such as the operating of heavy equipment 
inside the enclosure.

C. The Definitions of a CCR Pile and CCR Landfill

    The EPA is also proposing to revise the definition of a CCR pile to 
be consistent with the above proposals. In the current definition, EPA 
distinguishes between piles on-site (which were almost always regulated 
as landfills) and piles off-site, (which, if temporary, were generally 
considered to be beneficial use, subject only to the four criteria in 
the definition). The current regulation also distinguishes between on-
site piles that are not containerized and those that are containerized. 
See 80 FR 21356 (April 17, 2017); Sec.  257.53. In this action, EPA is 
proposing to maintain the term CCR pile to identify accumulations of 
CCR that will be subject to the disposal requirements. However, as 
discussed previously, EPA is proposing to treat all piles on- and off-
site the same, such that the only piles of CCR subject to the disposal 
requirements are those accumulations that do not meet the definition of 
a CCR storage pile. Consequently, EPA is proposing to delete from the 
current definition of CCR pile the phrase ``non-containerized'' and the 
sentence ``CCR that is beneficially used off site is not a CCR pile.'' 
While EPA is proposing to maintain the term CCR pile, EPA also requests 
comment whether the term and the definition remain necessary or should 
instead, be deleted.
    In another conforming change, EPA is also proposing to revise the 
definition of a CCR landfill to include accumulations of CCR on the 
land that do not meet the definition of a CCR storage pile. This 
proposed change would apply to the definition of CCR landfill in 
Sec. Sec.  257.2 and 257.53.

VI. Proposal To Revise the Annual Groundwater Monitoring and Corrective 
Action Report Requirements

    Section 257.90(e) requires owners and operators of CCR units to 
prepare an annual groundwater monitoring and corrective action report. 
This annual report must document the status of the groundwater 
monitoring and corrective action program for the CCR unit, summarize 
key actions completed, describe any problems encountered, discuss 
actions to resolve the problems, and project key activities for the 
upcoming year. The CCR rule also specifies the minimum information that 
must be included in the annual report. For example, one of the current 
requirements is to provide all the monitoring data obtained under the 
groundwater monitoring and corrective action program for the year 
covered by the report. The CCR regulations further require the owner or 
operator to include in the report a summary including the number of 
groundwater samples that were collected for analysis for each 
background and downgradient well, the dates the samples were collected, 
and whether the samples were required by the detection monitoring or 
assessment monitoring programs. See Sec.  257.90(e)(3). Except for 
certain inactive CCR surface impoundments, owners and operators were 
required to prepare the initial annual report no later than January 31, 
2018, and post the report to its publicly accessible CCR website within 
30 days of preparing the report. See Sec. Sec.  257.90(e) and 
257.107(d). For eligible inactive CCR surface impoundments,\22\ the 
deadline to prepare the initial annual report is August 1, 2019. See 
Sec.  257.100(e)(5)(ii).
---------------------------------------------------------------------------

    \22\ For more information on eligible inactive CCR surface 
impoundments, see the preamble to the direct final rule published on 
August 5, 2016 (81 FR 51802).
---------------------------------------------------------------------------

    The Agency reviewed the annual reports available on the CCR 
websites and observed that some facilities provided groundwater 
monitoring data in formats that were clear and easy for the public to 
understand, while some did not. Many reports contained a concise 
summary in the beginning of the report to orient the reader to the 
stage of groundwater monitoring that the facility was in, whether any 
constituents have been determined to be present at statistically 
significant levels above background (for part 257 Appendix III 
constituents) or a groundwater protection standard (for part 257 
Appendix IV constituents), and the groundwater monitoring data in a 
table format. In other reports, it was difficult to tell whether the 
analytical results corresponded to background or downgradient wells, 
whether the CCR unit was operating under the detection or assessment 
monitoring program, when the assessment monitoring program was 
initiated for the CCR unit, or whether the facility had initiated 
corrective action for the unit. In addition, several facilities only 
provided laboratory printouts of the data, potentially making it 
difficult for the public and other stakeholders to put the results into 
context within the overall groundwater monitoring program.
    The purpose of requiring posting of the annual reports is to allow 
the public, states and EPA to easily see and understand the groundwater 
monitoring data. To accomplish this purpose, the Agency is considering 
two possible revisions to the annual groundwater monitoring and 
corrective action reporting requirements.
    First, EPA is proposing to amend Sec.  257.90 by adding new 
paragraph (e)(6). This new provision would establish minimum set of 
requirements that would need to be addressed in the summary discussion 
of the status of the groundwater monitoring and corrective action 
programs for the CCR unit. This summary would be placed at the 
beginning of the annual report (e.g., as part of the report's executive 
summary) for readers to readily access the information. The minimum 
requirements for this summary would include stating whether the CCR 
unit was operating pursuant to the detection monitoring program under 
Sec.  257.94 or the assessment monitoring program under Sec.  257.95, 
identifying those constituents and the corresponding wells, if any, for 
which the facility had determined that there is a statistically 
significant increase over background levels for constituents listed in 
Appendix III (or if operating under the assessment monitoring program, 
constituents in Appendix IV that were detected at statistically 
significant levels above the groundwater protection standard), the date 
when the assessment monitoring program was initiated for the CCR unit, 
and describing any corrective measures initiated or completed (to 
include the dates of these actions), including the remedy, during the 
annual reporting period.
    Second, the Agency solicits comment on whether to amend Sec.  
257.90 to require that the groundwater monitoring analytical results 
and related information be presented in a standardized format such as 
multiple tables and included in the annual

[[Page 40366]]

report. As noted, the purpose of requiring posting of the groundwater 
reports is to allow members of the public, as well as the states and 
EPA, to easily see and understand the groundwater monitoring data. The 
EPA requests comment on whether the regulations need to establish a 
standardized format for these reports in order to accomplish this 
purpose. Possible examples of what form these formats could take are 
available for review in the docket to this rulemaking.\23\ The Agency 
also requests comment on formats that could be used.
---------------------------------------------------------------------------

    \23\ See EPA memorandum titled ``Annual Groundwater Monitoring 
Report Data Examples''; dated July 1, 2019.
---------------------------------------------------------------------------

    Information about the groundwater wells could include the following 
data elements: Well identification number, sampling date, latitude and 
longitude in decimal degrees, groundwater elevation including well 
depth to groundwater and total depth of groundwater, and whether the 
groundwater well is upgradient or downgradient of the CCR unit. The 
well information provides context for each sample and therefore helps 
the members of the public understand the sampling results. This 
information is already collected and reported in the groundwater 
sampling and analysis plan under Sec.  257.93 and so the information is 
readily available to the facility.
    Sample information could be provided in a table that contains 
fields including sampling date, sampling time, sampling phase (i.e., 
background, detection monitoring, assessment monitoring, corrective 
action), whether the groundwater well is upgradient or downgradient of 
the CCR unit, and analytical methods listed separately for every method 
used to analyze the constituent concentrations. Appendix III to Part 
257--Constituents for Detection Monitoring could contain concentrations 
in milligrams per liter (unless otherwise specified) of the following: 
Boron, calcium, chloride, fluoride, pH (standard units), sulfate, and 
total dissolved solids (TDS). Appendix IV to part 257--Constituents for 
Assessment Monitoring could contain concentrations in milligrams per 
liter (unless otherwise specified) of the following: Antimony, arsenic, 
barium, beryllium, cadmium, chromium, cobalt, lead, lithium, mercury, 
molybdenum, radium 226-228 combined (pCi/L), selenium, and thallium. It 
is recommended that each constituent concentration identify the 
detection limit for the analytical method used with data qualifiers 
specified for non-detect samples.
    The EPA solicits comment both on requiring a standardized format 
and on the elements of the format. The EPA believes that a required 
standardized format would increase transparency and enable the general 
public, as well as federal, state, and local officials, to more easily 
understand the groundwater monitoring data and thus plan for and 
evaluate the appropriate next steps to protect public health and the 
environment.

VII. Establishing an Alternative Risk-Based Groundwater Protection 
Standard for Boron

    The 2015 CCR rule required the owner or operator of a CCR unit to 
set the groundwater protection standard (GWPS) at the Maximum 
Contaminant Level (MCL) or to background for all constituents in 
Appendix IV to part 257 that are detected at a statistically 
significant level above background. MCLs are levels of constituent 
concentrations promulgated under section 1412 of the Safe Drinking 
Water Act. If no MCL exists for a detected constituent, then the GWPS 
was required to be set at background.
    On March 15, 2018, EPA proposed to add boron to the list of 
constituents in Appendix IV of part 257 that trigger corrective action. 
See 83 FR 11588-89. The EPA is still considering the comments received 
in response to this and has made no decision on whether to add boron to 
Appendix IV.
    In the July 2018 final rule, EPA established specific GWPS for each 
of the four constituents now listed in Appendix IV without MCLs, to be 
used in place of the default background concentrations currently 
required under Sec.  257.95(h)(2). See 83 FR 36443-45 (July 30, 2018). 
Consistent with this decision, if EPA does finalize the addition of 
boron to Appendix IV, an alternative risk-based GWPS should be 
established since boron does not have an MCL. Accordingly, EPA is 
proposing to establish an alternate risk-based GWPS for boron, which 
would be finalized only if boron is ultimately added to Appendix IV.
    The EPA is proposing to adopt a standard for boron using the same 
methods that were used to develop the standards established in the July 
30, 2018 final rule. See 83 FR 36443-45. Specifically, the Agency is 
proposing to adopt 4,000 micrograms per liter ([micro]g/L) as the GWPS 
for boron, if boron is added to Appendix IV. This level was derived 
using the same methodology that EPA proposed to require States to use 
to establish alternative GWPS in the March 15, 2018 proposed rule (see 
83 FR 11598-99, 11613), and that EPA ultimately used to develop the 
revised GWPS in the July 30, 2018 final rule. The methodology follows 
Agency guidelines for assessment of human health risks of an 
environmental pollutant. This means that EPA has established this GWPS 
at the concentration to which the human population could be exposed to 
on a daily basis without an appreciable risk of deleterious effects 
over a lifetime.
    The EPA used the equations in the Risk Assessment Guidance for 
Superfund (RAGS) Part B to calculate these revised GWPS.\24\ RAGS Part 
B provides guidance on using drinking water ingestion rates and 
toxicity values to derive risk-based remediation goals. The use of 
these methods, consistent with EPA risk assessment guidelines will 
protect sensitive populations. The EPA relied upon relevant exposure 
information from the 2008 Child-Specific Exposure Factors Handbook,\25\ 
the Exposure Factors Handbook: 2011 Edition \26\ and the 2014 Human 
Health Evaluation Manual, Supplemental Guidance: Update of 
Standard.\27\ Values based on residential receptors were used to 
capture the range of current and future potential receptors. The EPA 
identified toxicity values according to the hierarchy established in 
the 2003 Office of Solid Waste and Emergency Response Directive 9285.7-
53,\28\ which encourages prioritization of values from sources that are 
current, transparent and publicly available, and that have been peer 
reviewed. Finally, EPA used the same toxicity values (reference doses) 
that were used in the risk assessment supporting the 2015 CCR Rule. 
Cancer slope factors (CSF) were not identified for boron. The proposed 
GWPS for boron was set using a target based on a Hazard Quotient (HQ) 
equal to 1.
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    \24\ Risk Assessment Guidance for Superfund (RAGS) Part B can be 
accessed at https://www.epa.gov/risk/risk-assessment-guidance-superfund-rags-part-b.
    \25\ U.S. EPA, ``Child-Specific Exposure Factors Handbook'', 
EPA/600/R-06/096F, September 2008. This document is available in the 
docket to this rulemaking.
    \26\ U.S. EPA, ``Exposure Factors Handbook: 2011 Edition'', EPA/
600/R-090/052F, September 2011. This document is available in the 
docket to this rulemaking.
    \27\ U.S. EPA, ``2014 Human Health Evaluation Manual, 
Supplemental Guidance: Update of Standard Default Exposure 
Factors.'' This document is available in the docket to this 
rulemaking.
    \28\ U.S. EPA, ``Human Health Toxicity Value in Superfund Risk 
Assessments'', OSWER Directive #9285.7-53, December 5, 2003. This 
document is available in the docket to this rulemaking.
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VIII. Revisions to the Publicly Accessible CCR Website Requirements

    In the 2015 CCR rule, pursuant to section 7004(b)(2), the Agency

[[Page 40367]]

promulgated a requirement for owners and operators of any CCR unit to 
establish and maintain a publicly accessible internet site, titled 
``CCR Rule Compliance Data and Information.'' Section 7004(b)(3) 
directs EPA to provide for, encourage, and assist ``[p]ublic 
participation in the development, revision, implementation, and 
enforcement of any regulation, guideline, information, or program under 
this chapter.'' To achieve these ends, internet postings are required 
for various elements identified in the following sections of the CCR 
regulations: Location restrictions; design criteria; operating 
criteria; groundwater monitoring and corrective action; closure and 
post closure care. Consistent with the statutory directive, the 
websites are to make the notices and relevant information required by 
the regulations available to the public in a manner that will encourage 
and assist public participation in the implementation of the 
regulations. This necessarily means, for example that the posted 
documents must be clearly identifiable as documents, reports, 
demonstrations, etc., to those attempting to access them. The Agency 
considers the internet the most widely accessible and effective means 
for gathering and disseminating information to the public and the 
states.
    The EPA has observed that some of the publicly accessible websites 
that owners and operators of CCR facilities have established in 
response to the CCR regulations in practice, fail to make the posted 
documents publicly accessible. For example, a number of CCR websites 
require either some sort of registration whereby personal information 
identifying the user must be provided before members of the public are 
granted ``access'' to the website. The Agency has seen other websites 
where a user must submit a request for each document individually and 
the requested document is subsequently emailed to the user. Still other 
websites have been designed such that the posted ``publicly available'' 
documents cannot be downloaded or printed from the website. The EPA 
does not consider these kinds of practices to be consistent with the 
requirement that the information be made publicly available. The EPA 
acknowledges that the current regulation does not define the term 
``publicly available,'' or contain detailed requirements that such 
websites must meet; nor are these practices explicitly prohibited. To 
avoid any further confusion, EPA is proposing to amend the current 
regulation to clearly specify that facilities must ensure that all 
information required to be on the websites must be made available to 
any member of the public, including through printing and downloading, 
without any requirement that the public wait to be ``approved'', or 
provide information in order to access the website.
    Another issue EPA has noticed is that the internet addresses for 
many of the publicly accessible CCR websites have changed; for some 
sites, more than once. It is very difficult for the public, states, and 
EPA to access the information required to be posted on these websites 
if the URL's change without notice. The EPA website has a ``contact 
us'' form whereby anyone can submit a comment or question to EPA that 
can be accessed at https://www.epa.gov/coalash/forms/contact-us-about-coal-ash. It would be very helpful if when a facility decides to change 
their web address they would submit a comment to that effect so that 
EPA can update its website that lists the CCR facilities nationwide and 
includes their web addresses. The Agency is therefore proposing to 
amend the regulations to require that facilities notify EPA within 14 
days of changing their CCR website address, to allow EPA to update the 
Agency's website with the correct URL address.
    Similar to the difficulties that arise when a facility changes its 
web address for its CCR website, as discussed above, EPA has also 
noticed that when there is a question or problem with a publicly 
accessible CCR website, such as a broken link or a document that will 
not download, it can be difficult to reach the appropriate contact at 
the facility who has knowledge of the information posted to the CCR 
website. Therefore, the Agency is requesting comment on whether each 
CCR website should be required to have a mechanism (e.g., a ``contact 
us'' electronic form on the CCR website) for the public to bring to the 
attention of the facility issues of information accessibility.

IX. The Projected Economic Impacts of This Action

A. Introduction

    The EPA estimated the costs and benefits of this action in an 
Economic Analysis (EA) which is available in the docket for this 
action. The EA estimates the incremental costs and cost savings 
attributable to the provisions of this action, against the baseline 
costs and practices in place as a result of the 2015 CCR final rule 
and, in some cases, existing federal and state regulations governing 
specific project types. The EA estimates that the net annualized impact 
of this proposed regulatory action over a 40-year period of analysis 
will be annual costs of between $0.43 million and $3.8 million. The 
costs are roughly evenly attributable to the two provisions in the 
rule. This action is not considered an economically significant action 
under Executive Order 12866.

B. Affected Universe

    The proposed rule affects entities in a number of different sectors 
who obtain quantities of CCR for use in a range of beneficial use 
applications and place it in ``piles'' prior to using or disposing it. 
The universe also includes entities that beneficially use CCR in 
applications that are (a) unencapsulated, (b) applied to land, and (c) 
not part of the construction of roadways. The types of facilities and 
applications potentially affected include: (1) Highway and non-road 
construction projects that use CCR for flowable fill, structural fill, 
embankments, soil modifications/stabilization, mineral filler in 
asphalt, and aggregate; (2) local authorities that use CCR for snow and 
ice control on roadways; (3) agricultural projects that use FGD gypsum 
as a soil amendment; and (4) oil/gas field services that use CCR in 
flowable fill or similar forms to stabilize wells. A number of other 
potentially affected sectors appear to already have operations 
consistent with the provisions in the proposed rule and are not 
expected to change operations or incur any costs. These include cement 
kilns, concrete batch plants, and mining applications.
    While the sectors affected are large, the number of operations and 
projects using CCR in a manner that would be affected by the rule is 
limited; the EA estimates that at most, roughly 700 operations across 
all sectors would be affected by either or both provisions. This number 
reflects the number of individual projects for construction; the number 
of companies affected is likely lower. In addition, some or all of 
these projects and operations may already be operating in a manner 
consistent with the requirements of the proposed rule, due to existing 
state and federal regulations.

C. Baseline Costs

    The baseline costs for this rule are not explicitly estimated 
because they represent part of standard operating costs across multiple 
project types and sectors. The baseline does assume that entities are 
subject to the relevant (i.e., beneficial use-related) costs of 
compliance with EPA's 2015 CCR rule, as well as the costs of compliance 
with other federal and state regulations that address various 
transportation,

[[Page 40368]]

construction, and waste management practices.

D. Costs and Benefits of the Proposed Rule

    The costs to comply with this proposed rule for facilities that are 
not currently operating in compliance includes, for the management of 
CCR piles, the cost of ensuring that the releases from CCR piles are 
controlled. For the preparation of a Criteria 4 (of the definition of 
``beneficial use of CCR'') investigation two costs are relevant. The 
first are the costs to determine whether the proposed Criterion 4 
location-based standards apply to a specific project and the 
preparation of a demonstration consistent with Criterion 4. The second 
are the per-project costs to demonstrate compliance with the proposed 
rule's location standards.
    The EA estimates that number of facilities/operations that will 
employ new practices to control releases from piles is between 0 
(assuming that all existing operations are already compliant due to 
other federal and state regulations) and 536; the annual costs 
associated with changing operations are estimated to range from $0 to 
roughly $3.2 million. These costs are assumed to apply every year to 
the same number of facilities and construction projects, which may 
overstate costs to the extent that management changes at permanent 
facilities may occur only once.
    The EA estimates that the number of projects requiring 
investigation of the applicability of location-based standards under 
Criterion 4 is between 359 and 585; in most cases these are the same 
facilities and operations that are affected by the requirement for 
managing CCR in piles. The annual costs associated with conducting 
these investigations ranges from roughly $0.26 million to roughly $0.47 
million, again assuming a consistent number of projects require 
assessment every year. Further, the EA estimates that 16 to 43 projects 
would trigger a location-based standard and therefore require a 
demonstration consistent with Criterion 4. The annual costs associated 
with developing these demonstrations are estimated to range from $0.044 
million to $0.12 million. Therefore, the total annual costs associated 
with the location-based standards for Criterion 4 are estimated to 
range from $0.26 million to $0.47 million, though these costs may be 
overestimated because they assume that all projects will conduct all 
six location-based standards investigations (even if a single 
investigation indicates that a Criterion 4 demonstration must be made), 
and that new project in new locations occur in the same frequency every 
year.
    The EA also estimates the costs to owners and operators of CCR 
management units who will have to revise their groundwater monitoring 
and corrective action reports, as well as the costs to owners and 
operators of CCR management units who will have to amend their websites 
to comply with the rule's reporting and documentation requirements. The 
economic analysis estimates that approximately 700 CCR management units 
and 5 websites will be affected by these respective provisions, 
resulting in annualized costs of roughly $0.1 million.
    The total costs estimated for this EA across these two provisions 
are therefore estimated to range roughly between $0.43 million and $3.8 
million.
    Benefits associated with the rule are not quantified due to the 
uncertainty about the extent and location of behavior changes. However, 
improved control of releases from CCR piles and elimination of releases 
of CCR in areas where location restrictions apply would likely improve 
ecological and human health by reducing the risk of exposures to 
arsenic and other toxic metals.

X. Statutory and Executive Orders Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review because this 
action may raise novel legal or policy issues arising out of legal 
mandates, the President's priorities or the principles set forth in the 
Executive Order. Any changes made in response to OMB recommendations 
have been documented in the docket. The EPA prepared an analysis of the 
potential costs and benefits associated with this action. This Economic 
Analysis (EA), entitled Economic Analysis; Hazardous and Solid Waste 
Management System: Disposal of Coal Combustion Residuals from Electric 
Utilities; Enhancing Public Access to Information; Reconsideration of 
Beneficial Use Criteria and Piles, is summarized in Unit IX of this 
preamble and the EA is available in the docket for this proposal.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is expected to be an Executive Order 13771 regulatory 
action. Details on the estimated costs of this proposed rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 1189.31, OMB control 
number 2050-0053. This is an amendment to the ICR approved by OMB for 
the Final Rule: Hazardous and Solid Waste Management System; Disposal 
of Coal Combustion Residuals from Electric Utilities published April 
17, 2015 in the Federal Register at 80 FR 21302. You can find a copy of 
the ICR in the docket for this action, and it is briefly summarized 
here. This rulemaking, specifically the provision clarifying the type 
and magnitude of non-groundwater releases that would require a facility 
to comply with some or all of the corrective action procedures set 
forth in Sec. Sec.  257.96-257.98, increases the paperwork burden 
attributable to provisions of the April 17, 2015 CCR Final Rule.
    Respondents/affected entities: Coal-fired electric utility plants 
that will be affected by the rule.
    Respondent's obligation to respond: The recordkeeping, 
notification, and posting are mandatory as part of the minimum national 
criteria being promulgated under Sections 1008, 4004, and 4005(a) of 
RCRA.
    Estimated number of respondents: 1,336.
    Frequency of response: The frequency of response varies.
    Total estimated burden: EPA estimates the total annual burden to 
respondents to be an increase in burden of approximately 7,829 hours 
from the currently approved burden. Burden is defined at 5 CFR 
1320.3(b).
    Total estimated cost: The total estimated annual cost of this rule 
is a cost increase of approximately $445,055. This cost is composed of 
approximately $445,055 in annualized labor costs and $0 in capital or 
operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities

[[Page 40369]]

under the RFA. The small entities subject to the requirements of this 
action are beneficial users of CCR spread amongst several industries 
including construction, snow and ice control, the production of gypsum 
wallboard, agriculture, and oil/gas field services. This action is 
expected to result in net cost amounting to approximately $0.43 million 
per year to $3.8 million per year. Costs will accrue to all regulated 
entities, including small entities. Because fewer than 20% of small 
entities in any sector will experience impacts, and because impacts 
will fall below 1% of revenues for small entities in all sectors, this 
action will not have a significant economic impact on a substantial 
number of small entities. Further information on the economic effects 
of this action can be found in Unit IX of this preamble and in the 
Economic Analysis, which is available in the docket for this action.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector. The costs involved in this action are imposed only by 
participation in a voluntary federal program. UMRA generally excludes 
from the definition of ``federal intergovernmental mandate'' duties 
that arise from participation in a voluntary federal program.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. For the ``Final Rule: Hazardous and Solid Waste 
Management System; Disposal of Coal Combustion Residuals from Electric 
Utilities'' published April 17, 2015 (80 FR 21302), EPA identified 
three of the 414 coal-fired electric utility plants (in operation as of 
2012) as being located on tribal lands; however, they are not owned by 
tribal governments. These are: (1) Navajo Generating Station in 
Coconino County, Arizona, owned by the Arizona Salt River Project; (2) 
Bonanza Power Plant in Uintah County, Utah, owned by the Deseret 
Generation and Transmission Cooperative; and (3) Four Corners Power 
Plant in San Juan County, New Mexico owned by the Arizona Public 
Service Company. The Navajo Generating Station and the Four Corners 
Power Plant are on lands belonging to the Navajo Nation, while the 
Bonanza Power Plant is located on the Uintah and Ouray Reservation of 
the Ute Indian Tribe. Thus, Executive Order 13175 does not apply to 
this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. This action's health and risk assessments are contained in 
the document titled ``Human and Ecological Risk Assessment of Coal 
Combustion Residuals,'' which is available in the docket for the 2015 
CCR rule as docket item EPA-HQ-RCRA-2009-0640-11993.
    As ordered by E.O. 13045 Section 1-101(a), for the ``Final Rule: 
Hazardous and Solid Waste Management System; Disposal of Coal 
Combustion Residuals from Electric Utilities'' published April 17, 2015 
(80 FR 21302), EPA identified and assessed environmental health risks 
and safety risks that may disproportionately affect children in the 
revised risk assessment. The results of the screening assessment found 
that risks fell below the criteria when wetting and run-on/runoff 
controls required by the rule are considered. Under the full 
probabilistic analysis, composite liners required by the rule for new 
waste management units showed the ability to reduce the 90th percentile 
child cancer and non-cancer risks for the groundwater to drinking water 
pathway to well below EPA's criteria. Additionally, the groundwater 
monitoring and corrective action required by the rule reduced risks 
from current waste management units. This action does not adversely 
affect these requirements and EPA believes that this rule will be 
protective of children's health.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. For the 2015 CCR rule, EPA analyzed the 
potential impact on electricity prices relative to the ``in excess of 
one percent'' threshold. Using the Integrated Planning Model (IPM), EPA 
concluded that the 2015 CCR rule may increase the weighted average 
nationwide wholesale price of electricity between 0.18 percent and 0.19 
percent in the years 2020 and 2030, respectively. As the proposed rule 
represents a cost savings rule relative to the 2015 CCR rule, this 
analysis concludes that any potential impact on wholesale electricity 
prices will be lower than the potential impact estimated of the 2015 
CCR rule; therefore, this proposed rule is not expected to meet the 
criteria of a ``significant adverse effect'' on the electricity markets 
as defined by Executive Order 13211.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in EPA's 
Regulatory Impact Analysis (RIA) for the CCR rule, which is available 
in the docket for the 2015 CCR final rule as docket item EPA-HQ-RCRA-
2009-0640-12034.
    The EPA's risk assessment did not separately evaluate either 
minority or low-income populations. However, to evaluate the 
demographic characteristics of communities that may be affected by the 
CCR rule, the RIA compares the demographic characteristics of 
populations surrounding coal-fired electric utility plants with broader 
population data for two geographic areas: (1) One-mile radius from CCR 
management units (i.e., landfills and impoundments) likely to be 
affected by groundwater releases from both landfills and impoundments; 
and (2) watershed catchment areas

[[Page 40370]]

downstream of surface impoundments that receive surface water run-off 
and releases from CCR impoundments and are at risk of being 
contaminated from CCR impoundment discharges (e.g., unintentional 
overflows, structural failures, and intentional periodic discharges).
    For the population as a whole 24.8 percent belong to a minority 
group and 11.3 percent falls below the Federal Poverty Level. For the 
population living within one mile of plants with surface impoundments 
16.1 percent belong to a minority group and 13.2 percent live below the 
Federal Poverty Level. These minority and low-income populations are 
not disproportionately high compared to the general population. The 
percentage of minority residents of the entire population living within 
the catchment areas downstream of surface impoundments is 
disproportionately high relative to the general population, i.e., 28.7 
percent, versus 24.8 percent for the national population. Also, the 
percentage of the population within the catchment areas of surface 
impoundments that is below the Federal Poverty Level is 
disproportionately high compared with the general population, i.e., 
18.6 percent versus 11.3 percent nationally.
    Comparing the population percentages of minority and low income 
residents within one mile of landfills to those percentages in the 
general population, EPA found that minority and low-income residents 
make up a smaller percentage of the populations near landfills than 
they do in the general population, i.e., minorities comprised 16.6 
percent of the population near landfills versus 24.8 percent nationwide 
and low-income residents comprised 8.6 percent of the population near 
landfills versus 11.3 percent nationwide. In summary, although 
populations within the catchment areas of plants with surface 
impoundments appear to have disproportionately high percentages of 
minority and low-income residents relative to the nationwide average, 
populations surrounding plants with landfills do not. Because landfills 
are less likely than impoundments to experience surface water run-off 
and releases, catchment areas were not considered for landfills.
    The CCR rule is risk-reducing with reductions in risk occurring 
largely within the surface water catchment zones around, and 
groundwater beneath, coal-fired electric utility plants. Since the CCR 
rule is risk-reducing and this action does not add to risks, this 
action will not result in new disproportionate risks to minority or 
low-income populations.

List of Subjects in 40 CFR Part 257

    Environmental protection, Waste treatment and disposal.

    Dated: July 29, 2019.
Andrew R. Wheeler,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 257 as follows:

PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL 
FACILITIES AND PRACTICES

0
1. The authority citation for part 257 continues to read as follows:

    Authority:  42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), 6945(d); 
33 U.S.C. 1345(d) and (e).

0
2. In Sec.  257.2 revise the definition of ``CCR landfill'' to read as 
follows:


Sec.  257.2  Definitions.

* * * * *
    CCR landfill means an area of land or an excavation that receives 
CCR and which is not a surface impoundment, an underground injection 
well, a salt dome formation, a salt bed formation, an underground or 
surface coal mine, or a cave. For purposes of this subpart, a CCR 
landfill also includes sand and gravel pits and quarries that receive 
CCR, CCR piles, any practice that does not meet the definition of a 
beneficial use of CCR, and any accumulation of CCR on the land that 
does not meet the definition of a CCR storage pile.
* * * * *
0
3. Amend Sec.  257.53 by:
0
a. Revising paragraph (4) the definition of ``Beneficial use of CCR'' 
and the definitions of ``CCR landfill or landfill'' and ``CCR pile''; 
and
0
b. Adding in alphabetical order the definitions of ``CCR storage 
pile'', ``Enclosed structure'' and ``Temporary accumulation''.
    The revisions and additions read as follows:


Sec.  257.53  Definitions.

* * * * *
    Beneficial use of CCR means the CCR meet all of the following 
conditions:
    (4) When unencapsulated use of CCR involves the placement on the 
land in the following areas: (a) Within 1.52 meters (five feet) of the 
upper limit of the uppermost aquifer; (b) in a wetland; (c) in an 
unstable area (d) within a 100-year flood plain; (e) within 60 meters 
(200 feet) of a fault area; (f) or within a seismic impact zone in non-
roadway applications, the user must demonstrate and keep records, and 
provide such documentation upon request, that environmental releases to 
groundwater, surface water, soil and air are comparable to or lower 
than those from analogous products made without CCR, or that 
environmental releases to groundwater, surface water, soil and air will 
be at or below relevant regulatory and health-based benchmarks for 
human and ecological receptors during use.
* * * * *
    CCR landfill or landfill means an area of land or an excavation 
that receives CCR and which is not a surface impoundment, an 
underground injection well, a salt dome formation, a salt bed 
formation, an underground or surface coal mine, or a cave. For purposes 
of this subpart, a CCR landfill also includes sand and gravel pits and 
quarries that receive CCR, CCR piles, any practice that does not meet 
the definition of a beneficial use of CCR, and any accumulation of CCR 
on the land that does not meet the definition of a CCR storage pile.
    CCR pile means any accumulation of solid, non-flowing CCR that is 
placed on the land and that is not a CCR storage pile.
    CCR storage pile means any temporary accumulation of solid, non-
flowing CCR placed on the land that is designed and managed to control 
releases of CCR to the environment. CCR contained in an enclosed 
structure is not a CCR storage pile. Examples of control measures to 
control releases from CCR storage piles include: Periodic wetting, 
application of surfactants, tarps or wind barriers to suppress dust; 
tarps or berms for preventing contact with precipitation and 
controlling run-on/runoff; and impervious storage pads or geomembrane 
liners for soil and groundwater protection.
* * * * *
    Enclosed structure means:
    (1) A completely enclosed, self-supporting structure that is 
designed and constructed of manmade materials of sufficient strength 
and thickness to support themselves, the CCR, and any personnel and 
heavy equipment that operate within the structure, and to prevent 
failure due to settlement, compression, or uplift; climatic conditions; 
and the stresses of daily operation, including the movement of heavy 
equipment within the structure and contact of such equipment with 
containment walls;
    (2) Has containment walls that are designed to be sufficiently 
durable to withstand any movement of personnel,

[[Page 40371]]

CCR, and handling equipment within the structure;
    (3) Is designed and operated to ensure containment and prevent 
fugitive dust emissions from openings, such as doors, windows and 
vents, and the tracking of CCR from the structure by personnel or 
equipment.
* * * * *
    Temporary accumulation means an accumulation on the land that is 
neither permanent nor indefinite. To demonstrate that the accumulation 
on the land is temporary, all CCR must be removed from the pile at the 
site. The entity engaged in the activity must have a record in place, 
such as a contract, purchase order, facility operation and maintenance, 
or fugitive dust control plan, documenting that all of the CCR in the 
pile will be completely removed according to a specific timeline.
* * * * *
0
4. In Sec.  257.90 add paragraph (e)(6) to read as follows:


Sec.  257.90  Applicability.

* * * * *
    (e) * * *
    (6) A section at the beginning of the annual report that provides 
an overview of the current status of groundwater monitoring and 
corrective action programs for the CCR unit. At a minimum, the summary 
must specify:
    (i) At the start of the current annual reporting period, whether 
the CCR unit was operating under the detection monitoring program in 
Sec.  257.94 or the assessment monitoring program in Sec.  257.95;
    (ii) At the end of the current annual reporting period, whether the 
CCR unit was operating under the detection monitoring program in Sec.  
257.94 or the assessment monitoring program in Sec.  257.95;
    (iii) If it was determined that there was a statistically 
significant increase over background levels for one or more 
constituents listed in appendix III to this part pursuant to Sec.  
257.94(e):
    (A) Identify those constituents listed in appendix III to this part 
and the names of the monitoring wells associated with such an increase; 
and
    (B) Provide the date when the assessment monitoring program was 
initiated for the CCR unit.
    (iv) If it was determined that there was a statistically 
significant increase above the groundwater protection standard for one 
or more constituents listed in appendix IV to this part pursuant to 
Sec.  257.95(g):
    (A) Identify those constituents listed in appendix IV to this part 
and the names of the monitoring wells associated with such an increase;
    (B) Provide the date when the assessment of corrective measures was 
initiated for the CCR unit; and
    (C) Provide the date when the assessment of corrective measures was 
completed for the CCR unit.
    (v) Whether a remedy was selected pursuant to Sec.  257.97 during 
the current annual reporting period, and if so, the date of remedy 
selection; and
    (vi) Whether remedial activities were initiated or are ongoing 
pursuant to Sec.  257.98 during the current annual reporting period.
* * * * *
0
5. In Sec.  257.107 revise paragraph (a) to read as follows:


Sec.  257.107  Publicly accessible internet site requirements.

    (a) Each owner or operator of a CCR unit subject to the 
requirements of this subpart must maintain a publicly accessible 
internet site (CCR website) containing the information specified in 
this section. The owner or operator's website must be titled ``CCR Rule 
Compliance Data and Information.'' The website must ensure that all 
information required to be posted is immediately available to anyone 
visiting the site, without requiring any prerequisite, such as 
registration or a requirement to submit a document request. All 
required information must be clearly identifiable and must be able to 
be printed and downloaded by anyone accessing the site. If the owner/
operator changes the URL at any point, they must notify EPA via the 
``contact us'' form on EPA's CCR website within 14 days of making the 
change.
* * * * *
[FR Doc. 2019-16916 Filed 8-13-19; 8:45 am]
BILLING CODE 6560-50-P


