
[Federal Register: June 21, 2010 (Volume 75, Number 118)]
[Proposed Rules]               
[Page 35127-35264]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn10-29]                         
 

[[Page 35127]]

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Part II





Environmental Protection Agency





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40 CFR Parts 257, 261, 264 et al.



Hazardous and Solid Waste Management System; Identification and Listing 
of Special Wastes; Disposal of Coal Combustion Residuals From Electric 
Utilities; Proposed Rule


[[Page 35128]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257, 261, 264, 265, 268, 271 and 302

[EPA-HQ-RCRA-2009-0640; FRL-9149-4]
RIN-2050-AE81

 
Hazardous and Solid Waste Management System; Identification and 
Listing of Special Wastes; Disposal of Coal Combustion Residuals From 
Electric Utilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is 
proposing to regulate for the first time, coal combustion residuals 
(CCRs) under the Resource Conservation and Recovery Act (RCRA) to 
address the risks from the disposal of CCRs generated from the 
combustion of coal at electric utilities and independent power 
producers. However, the Agency is considering two options in this 
proposal and, thus, is proposing two alternative regulations. Under the 
first proposal, EPA would reverse its August 1993 and May 2000 Bevill 
Regulatory Determinations regarding coal combustion residuals (CCRs) 
and list these residuals as special wastes subject to regulation under 
subtitle C of RCRA, when they are destined for disposal in landfills or 
surface impoundments. Under the second proposal, EPA would leave the 
Bevill determination in place and regulate disposal of such materials 
under subtitle D of RCRA by issuing national minimum criteria. Under 
both alternatives EPA is proposing to establish dam safety requirements 
to address the structural integrity of surface impoundments to prevent 
catastrophic releases.
    EPA is not proposing to change the May 2000 Regulatory 
Determination for beneficially used CCRs, which are currently exempt 
from the hazardous waste regulations under Section 3001(b)(3)(A) of 
RCRA. However, EPA is clarifying this determination and seeking comment 
on potential refinements for certain beneficial uses. EPA is also not 
proposing to address the placement of CCRs in mines, or non-minefill 
uses of CCRs at coal mine sites in this action.

DATES: Comments must be received on or before September 20, 2010. EPA 
will provide an opportunity for a public hearing on the rule upon 
request. Requests for a public meeting should be submitted to EPA's 
Office of Resource Conservation and Recovery by July 21, 2010. See the 
FOR FURTHER INFORMATION CONTACT section for contact information. Should 
EPA receive requests for public meetings within this timeframe, EPA 
will publish a document in the Federal Register providing the details 
of such meetings.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2009-0640, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to rcra-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2009-0640. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the Docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-0272; Attention 
Docket ID No. EPA-HQ-RCRA-2009-0640.
     Mail: Send your comments to the Hazardous Waste Management 
System; Identification and Listing of Special Wastes; Disposal of Coal 
Combustion Residuals From Electric Utilities Docket, Attention Docket 
ID No., EPA-HQ-RCRA-2009-0640, Environmental Protection Agency, 
Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies.
     Hand Delivery: Deliver two copies of your comments to the 
Hazardous Waste Management System; Identification and Listing of 
Special Wastes; Disposal of Coal Combustion Residuals From Electric 
Utilities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2009-0640. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the http://
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. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Hazardous Waste 
Management System; Identification and Listing of Special Wastes; 
Disposal of Coal Combustion Residuals From Electric Utilities Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The Docket telephone 
number is (202) 566-0270. The Public Reading Room is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The

[[Page 35129]]

telephone number for the Public Reading Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Alexander Livnat, Office of Resource 
Conservation and Recovery, Environmental Protection Agency, 5304P; 
telephone number: (703) 308-7251; fax number: (703) 605-0595; e-mail 
address: livnat.alexander@epa.gov, or Steve Souders, Office of Resource 
Conservation and Recovery, Environmental Protection Agency, 5304P; 
telephone number: (703) 308-8431; fax number: (703) 605-0595; e-mail 
address: souders.steve@epa.gov. For technical information on the CERCLA 
aspects of this rule, contact Lynn Beasley, Office of Emergency 
Management, Regulation and Policy Development Division (5104A), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, [E-mail address and telephone number: 
Beasley.lynn@epa.gov (202-564-1965).]
    For more information on this rulemaking please visit http://
www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm.

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me?

    The proposed rule would apply to all coal combustion residuals 
(CCRs) generated by electric utilities and independent power producers. 
However, this proposed rule does not address the placement of CCRs in 
minefills. The U. S. Department of Interior (DOI) and EPA will address 
the management of CCRs in minefills in a separate regulatory action(s), 
consistent with the approach recommended by the National Academy of 
Sciences, recognizing the expertise of DOI's Office of Surface Mining 
Reclamation and Enforcement in this area.\1\ In addition, under either 
alternative proposal, EPA is not proposing to affect the current status 
of coal combustion residuals that are beneficially used.\2\ (See 
section IV. D for further details on proposed clarifications of 
beneficial use.) CCRs from non-utility boilers burning coal are not 
included within today's proposed rule. EPA will decide on an 
appropriate action for these wastes after completing this rulemaking 
effort.
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    \1\ The National Research Council (NRC) Committee on Mine 
Placement of Coal Combustion Wastes stated: ``The committee believes 
that OSM and its SMCRA state partners should take the lead in 
developing new national standards for CCR use in mines because the 
framework is in place to deal with mine-related issues.'' National 
Academy of Sciences. Managing Coal Combustion Residues in Mines; The 
National Academies Press, Washington, DC, 2006.
    \2\ The NRC committee recommended ``that secondary uses of CCRs 
that pose minimal risks to human health and the environment be 
strongly encouraged.'' Ibid.
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    The proposed rule may affect the following entities: electric 
utility facilities and independent power producers that fall under the 
North American Industry Classification System (NAICS) code 221112, and 
hazardous waste treatment and disposal facilities that fall under NAICS 
code 562211. The industry sector(s) identified above may not be 
exhaustive; other types of entities not listed could also be affected. 
The Agency's aim is to provide a guide for readers regarding those 
entities that potentially could be affected by this action. To 
determine whether your facility, company, business, organization, etc., 
is affected by this action, you should refer to the applicability 
criteria contained in section IV of this preamble. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting confidential business information (CBI). Do not 
submit information that you consider to be CBI through http://
www.regulations.gov or by e-mail. Send or deliver information 
identified as CBI only to the following address: RCRA CBI Document 
Control Officer, Office of Resource Conservation and Recovery (5305P), 
U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington DC 20460, Attention 
Docket No, EPA-HQ-RCRA-2009-0640. You may claim information that you 
submit to EPA as CBI by marking any part or all of the information as 
CBI (if you submit CBI on a disk or CD ROM, 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). Information 
so marked will not be disclosed, except in accordance with the 
procedures set forth in 40 CFR part 2. 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 the 
copy that does not contain CBI on disk or CD ROM, mark the outside of 
the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have questions 
about CBI or the procedures for claiming CBI, please contact: LaShan 
Haynes, Office of Resource Conservation and Recovery (5305P), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington DC 20460-0002, telephone (703) 605-0516, e-mail address 
haynes.lashan@epa.gov.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes, and explain your 
interest in the issue you are attempting to address.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs. The first 100-copied pages are free. 
Thereafter, the charge for making copies of Docket materials is 15 
cents per page.

C. Definitions, Abbreviations and Acronyms Used in This Preamble (Note: 
Any term used in this proposed rulemaking that is not defined in this 
section will either have its normal dictionary meaning, or is defined 
in 40 CFR 260.10.)

    Acre-foot means the volume of one acre of surface area to a depth 
of one foot.
    Beneficial Use of Coal Combustion Products (CCPs) means the use of 
CCPs that provides a functional benefit; replaces the use of an 
alternative material, conserving natural resources that would otherwise 
need to be obtained through practices such as extraction; and meets 
relevant product specifications and regulatory standards (where these 
are available). CCPs that are used in excess quantities (e.g., the 
field-applications of FGD gypsum in amounts that exceed scientifically-
supported quantities required for enhancing soil properties and/or crop

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yields), placed as fill in sand and gravel pits, or used in large scale 
fill projects, such as for restructuring the landscape, are excluded 
from this definition.
    Boiler slag means the molten bottom ash collected at the base of 
slag tap and cyclone type furnaces that is quenched with water. It is 
made up of hard, black, angular particles that have a smooth, glassy 
appearance.
    Bottom ash means the agglomerated, angular ash particles, formed in 
pulverized coal furnaces that are too large to be carried in the flue 
gases and collect on the furnace walls or fall through open grates to 
an ash hopper at the bottom of the furnace.
    CCR Landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this proposed rule, 
landfills also include piles, sand and gravel pits, quarries, and/or 
large scale fill operations. Sites that are excavated so that more coal 
ash can be used as fill are also considered CCR landfills.
    CCR Surface Impoundment or impoundment means a facility or part of 
a facility which is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials), which is designed 
to hold an accumulation of CCRs containing free liquids, and which is 
not an injection well. Examples of CCR surface impoundments are 
holding, storage, settling, and aeration pits, ponds, and lagoons. CCR 
surface impoundments are used to receive CCRs that have been sluiced 
(flushed or mixed with water to facilitate movement), or wastes from 
wet air pollution control devices, often in addition to other solid 
wastes.
    Cenospheres are lightweight, inert, hollow spheres comprised 
largely of silica and alumina glass.
    Coal Combustion Products (CCPs) means fly ash, bottom ash, boiler 
slag, or flue gas desulfurization materials, that are beneficially 
used.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization materials destined for disposal. 
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel 
combustion (FFC) wastes, when destined for disposal.
    Electric Power Sector (Electric Utilities and Independent Power 
Producers) means that sector of the power generating industry that 
comprises electricity-only and combined-heat-and-power (CHP) plants 
whose primary business is to sell electricity, or electricity and heat, 
to the public.
    Existing CCR Landfill means a landfill which was in operation or 
for which construction commenced prior to the effective date of the 
final rule. A CCR landfill has commenced construction if the owner or 
operator has obtained the Federal, State and local approvals or permits 
necessary to begin physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction of the CCR landfill to be completed 
within a reasonable time.
    Existing CCR Surface Impoundment means a surface impoundment which 
was in operation or for which construction commenced prior to the 
effective date of the final rule. A CCR surface impoundment has 
commenced construction if the owner or operator has obtained the 
Federal, State and local approvals or permits necessary to begin 
physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which can not be cancelled or modified without substantial 
loss--for physical construction of the CCR surface impoundment to be 
completed within a reasonable time.
    Flue Gas Desulfurization (FGD) material means the material produced 
through a process used to reduce sulfur dioxide (SO2) 
emissions from the exhaust gas system of a coal-fired boiler. The 
physical nature of these materials varies from a wet sludge to a dry 
powdered material, depending on the process, and their composition 
comprises either sulfites, sulfates or a mixture thereof.
    Fly ash means the very fine globular particles of silica glass 
which is a product of burning finely ground coal in a boiler to produce 
electricity, and is removed from the plant exhaust gases by air 
emission control devices.
    Hazard potential means the possible adverse incremental 
consequences that result from the release of water or stored contents 
due to failure of a dam (or impoundment) or mis-operation of the dam or 
appurtenances.\3\
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    \3\ The Hazard Potential Classification System for Dams was 
developed by the U.S. Army Corps of Engineers for the National 
Inventory of Dams (see https://rsgis.crrel.usace.army.mil/apex/
f?p=397:1:913698079375545). Hazard potential ratings do not provide 
an estimate of the probability of failure or mis-operation, but 
rather what the consequences of such a failure or mis-operation 
would be.
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    High hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation will probably cause loss of 
human life.
    Significant hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life, but can cause economic loss, environment damage, 
disruption of lifeline facilities, or impact other concerns.
    Low hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
    Less than low hazard potential surface impoundment means a surface 
impoundment not meeting the definitions for High, Significant, or Low 
Hazard Potential.
    Independent registered professional engineer or hydrologist means a 
scientist or engineer who is not an employee of the owner or operator 
of a CCR landfill or surface impoundment who has received a 
baccalaureate or post-graduate degree in the natural sciences or 
engineering and has sufficient training and experience in groundwater 
hydrology and related fields as may be demonstrated by state 
registration, professional certifications, or completion of accredited 
university programs that enable that individual to make sound 
professional judgments regarding groundwater monitoring, contaminant 
fate and transport, and corrective action.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or existing CCR surface 
impoundment made after the effective date of the final rule.
    Maximum Contaminant Level (MCL) means the highest level of a 
contaminant that is allowed in drinking water under the Safe Drinking 
Water Act (SDWA). MCLs are set as close to the MCL goals as feasible 
using the best available treatment technology and taking cost into 
consideration. MCLs are enforceable standards for drinking water.
    Minefill means a project involving the placement of CCRs in coal 
mine voids for use as fill, grouting, subsidence control, capping, mine 
sealing, and

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treating acid mine drainage, whether for purposes of disposal or for 
beneficial use, such as mine reclamation.
    Natural water table means the natural level at which water stands 
in a shallow well open along its length and penetrating the surficial 
deposits just deeply enough to encounter standing water at the bottom. 
This level is uninfluenced by groundwater pumping or other engineered 
activities.
    Organosilanes are organic compounds containing at least one carbon 
to silicon bond, and are typically used to promote adhesion.
    Potential damage case means those cases with documented MCL 
exceedances that were measured in ground water beneath or close to the 
waste source. In these cases, while the association with CCRs has been 
established, the documented exceedances had not been demonstrated at a 
sufficient distance from the waste management unit to indicate that 
waste constituents had migrated to the extent that they could cause 
human health concerns.
    Pozzolanic material means primarily vitreous siliceous materials, 
such as many types of CCRs that, when combined with calcium hydroxide 
and in the presence of water, exhibit cementitious properties.
    Proven damage case means those cases with (i) Documented 
exceedances of primary maximum contaminant levels (MCLs) or other 
health-based standards measured in ground water at sufficient distance 
from the waste management unit to indicate that hazardous constituents 
have migrated to the extent that they could cause human health 
concerns, and/or (ii) where a scientific study provides documented 
evidence of another type of damage to human health or the environment 
(e.g., ecological damage), and/or (iii) where there has been an 
administrative ruling or court decision with an explicit finding of 
specific damage to human health or the environment. In cases of co-
management of CCRs with other industrial waste types, CCRs must be 
clearly implicated in the reported damage.
    Sand and gravel pit, and/or quarry means an excavation for the 
commercial extraction of aggregate for use in construction projects. 
CCRs have historically been used to fill sand and gravel pits and 
quarries. CCRs are not known to be used to fill metal mines.
    Secondary Drinking Water Standards are non-enforceable federal 
guidelines regarding cosmetic effects (such as tooth or skin 
discoloration) or aesthetic effects (such as taste, odor, or color) of 
drinking water.
    Special Wastes means any of the following wastes that are managed 
under the modified subtitle C requirements: CCRs destined for disposal.
    Surface Water means all water naturally open to the atmosphere 
(rivers, lakes, reservoirs, ponds, streams, impoundments, seas, 
estuaries, etc.).
    Uniquely associated wastes means low-volume wastes other than those 
defined as CCRs that are related to the coal combustion process. 
Examples of uniquely associated wastes are precipitation runoff from 
coal storage piles at the electric utility, waste coal or coal mill 
rejects that are not of sufficient quality to burn as a fuel, and 
wastes from cleaning boilers used to generate steam.

CCPs Coal Combustion Products
CCRs Coal Combustion Residuals
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental Response, Compensation, and 
Liability Act
EPA U.S. Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
MCL Maximum Contaminant Level
m/L milligrams per liter
NPDES National Pollutant Discharge Elimination System
NRC National Response Center
PDWS Primary Drinking Water Standard
OSM Office of Surface Mining Reclamation and Enforcement, U.S. 
Department of the Interior
RCRA Resource Conservation and Recovery Act (42 USCA 6901)
RQ Reportable Quantity
SDWS Secondary Drinking Water Standard
SMCRA Surface Mining Control and Reclamation Act
[mu]g/L micrograms per liter
WQC Federal water quality criteria

D. The Contents of This Preamble Are Listed in the Following Outline

I. Background
    A. Why is EPA proposing two options?
    1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
    2. Brief Description of Today's Co-Proposals
    3. Summary of Estimated Regulatory Costs and Benefits
    B. What is the statutory authority for this action?
    C. Regulation of Wastes Under RCRA Subtitle C
    D. Regulation of Solid Wastes Under RCRA Subtitle D
    E. Summary of the 1993 and 2000 Regulatory Determinations
    F. What are CCRs?
    1. Chemical Constituents in CCRs
    2. Recent EPA Research on Constituent Leaching From CCRs
    G. Current Federal Regulations or Standards Applicable to the 
Placement of CCRs in Landfills and Surface Impoundments
II. New Information on the Placement of CCRs in Landfills and 
Surface Impoundments
    A. New Developments Since the May 2000 Regulatory Determination
    B. CCR Risk Assessment
    C. Damage Cases
III. Overview and Summary of the Bevill Regulatory Determination and 
the Proposed Subtitle C and Subtitle D Regulatory Options
    A. Summary of Subtitle C Proposal
    B. Summary of Subtitle D Proposal
IV. Bevill Regulatory Determination Relating to CCRs From Electric 
Utilities
    A. Basis for Reconsideration of May 2000 Regulatory 
Determination
    B. RCRA Section 8002(n) Study Factors Environmental Benefits
    C. Preliminary Bevill Conclusions and Impact of Reconsideration
    D. EPA Is Not Reconsidering the Regulatory Determination 
Regarding Beneficial Use
    1. Why is EPA not proposing to change the determination that 
CCRs that are beneficially used do not warrant federal regulation?
    2. What constitutes beneficial use?
    3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill 
Operations Is Not Considered a Beneficial Use
    4. Issues Associated With Unencapsulated Beneficial Uses
    E. Placement of CCRs in Minefilling Operations
    F. EPA Is Not Proposing To Revise the Bevill Determination for 
CCRs Generated by Non-Utilities
V. Co-Proposed Listing of CCRs as a Special Waste Under RCRA 
Subtitle C and Special Requirements for Disposal of CCRs Generated 
by Electric Utilities
    A. What is the basis for listing CCRs as a special waste?
    1. Criteria for Listing CCRs as a Special Waste and Background 
on 2010 Risk Assessment
    B. Background on EPA's 2010 Risk Assessment
    1. Human Health Risks
    2. Ecological Risks
    C. Consideration of Individual Listing Criteria
    1. Toxicity--Factor (i)
    2. Concentration of Constituents in Waste--Factor (ii)
    3. Migration, Persistence, Degradation, and Bioaccumulation--
Factors (iii), (iv), (v), and (vi)
    4. Plausible Types of Mismanagement, Quantities of the Waste 
Generated, Nature and Severity of Effects From Mismanagement--
Factors (vii), (viii) and (ix)
    5. Action Taken by Other Governmental Agencies or Regulatory 
Programs Based on the Health or Environmental Hazard Posed by the 
Waste or Waste Constituent--Factor (x)
    6. Other Factors--Factor (xi)
VI. Summary of the Co-Proposed Subtitle C Regulations
    A. Special Waste Listing
    B. Proposed Special Requirements for CCRs

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    1. Modification of Technical Standards Under 3004(x)
    i. Modification of CCR Landfills and Surface Impoundments From 
the Section 3004(o) Liner and Leak Detection Requirements
    ii. Fugitive Dust Controls
    iii. Special Requirements for Stability of CCR Surface 
Impoundments
    iv. Wet-Handling of CCRs, Closure, and Interim Status for 
Surface Impoundments
    v. Proposed Land Disposal Restrictions
    2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
    3. Proposed Treatment Standards for Wastewaters (Wet-Handled 
CCRs)
    4. Effective Date of the LDR Prohibitions
    C. Applicability of Subtitle C Regulations
    D. CERCLA Designation and Reportable Quantities
    1. Reporting Requirements
    2. Basis for RQs and Adjustments
    3. Application of the CERCLA Mixture Rule to Listed CCR
    4. Correction of Table of Maximum Observed Constituent 
Concentrations Identified by EPA
    E. Listing of CCR as Special Wastes To Address Perceived Stigma 
Issue
VII. How would the proposed subtitle C requirements be implemented?
    A. Effective Dates
    B. What are the requirements with which facilities must comply?
    1. Generators and Transporters
    2. Treatment, Storage, and Disposal Facilities (TSDs)
    C. RCRA Section 3010 Notification
    D. Permit Requirements
    1. Facilities Newly Subject to RCRA Permit Requirements
    2. Existing Interim Status Facilities
    3. Permitted Facilities
    E. Requirements in 40 CFR Parts 264 and 265
VIII. Impacts of a Subtitle C Rule on State Authorization
    A. Applicability of the Rule in Authorized States
    B. Effect on State Authorization
IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D 
Regulations
    A. Overview and General Issues
    1. Regulatory Approach
    2. Notifications
    B. Section-by-Section Discussion of RCRA Subtitle D Criteria
    1. Proposed Modifications to Part 257, Subpart A
    2. General Provisions
    3. Definitions
    4. Location Restrictions
    5. Design Requirements
    6. Operating Requirements
    7. Ground Water Monitoring/Corrective Action
    8. Closure and Post-Closure Care
    9. Financial Assurance
    10. Off-Site Disposal
    11. Alternative RCRA Subtitle D Approaches
X. How would the proposed subtitle D regulations be implemented?
    A. Effective Dates
    B. Implementation and Enforcement of Subtitle D Requirements
XI. Impact of a Subtitle D Regulation on State Programs
XII. Impacts of the Proposed Regulatory Alternatives
    A. What are the economic impacts of the proposed regulatory 
alternatives?
    B. Benefits Not Quantified in the RIA
    1. Non-Quantified Plant and Wildlife Protection Benefits
    2. Non-Quantified Surface Water Protection Benefits
    3. Non-Quantified Ambient Air Protection Benefits
    C. Comparison of Costs to Benefits for the Regulatory 
Alternatives
    D. What are the potential environmental and public health 
impacts of the proposed regulatory alternatives?
    1. Environmental and Public Health Impacts Estimated in the RIA
    2. Environmental and Public Health Impacts Not Estimated in the 
RIA
XIII. Other Alternatives EPA Considered
XIV. Is the EPA soliciting comments on specific issues?
XV. Executive Orders and Laws Addressed in This Action
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
APPENDIX to the Preamble: Documented Damages From CCR Management 
Practices

I. Background

A. Why is EPA proposing two options?

1. Basis of Why EPA Is Proceeding With Today's Co-Proposals
    EPA is revisiting its regulatory determination for CCRs under the 
Bevill amendment. This decision is driven in part by the failure of a 
surface impoundment retaining wall in Kingston, TN in December 2009. 
Deciding upon the appropriate course of action to address over 100 
million tons per year of CCRs is an extremely important step. In 
developing this proposal, EPA conducted considerable data gathering and 
analysis. While the public was able to comment on significant portions 
of our analyses in August 2007, as part of a Notice of Data 
Availability, there are differing views regarding the meaning of EPA's 
information and what course of action EPA should take. In part, the 
differing views are fueled by the complex data, analyses, legislation, 
implications of available options, possible unintended consequences, 
and a decision process, all of which pose considerations that could 
justify EPA selecting a RCRA subtitle C approach or selecting a RCRA 
subtitle D approach.
    Deciding whether or not to maintain the Bevill exemption for CCRs, 
entails an evaluation of the eight RCRA Section 8002(n) study factors:
     Source and volumes of CCRs generated per year
     Present disposal and utilization practices
     Potential danger, if any, to human health and the 
environment from the disposal and reuse of CCRs
     Documented cases in which danger to human health or the 
environment from surface runoff or leachate has been proved
     Alternatives to current disposal methods
     The cost of such alternatives
     The impact of the alternatives on the use of coal and 
other natural resources
     The current and potential utilization of CCRs

Ultimately, the approach selected will need to ensure that catastrophic 
releases such as occurred at the Tennessee Valley Authority's (TVA's) 
Kingston, Tennessee facility do not occur and that other types of 
damage cases associated with CCR surface impoundments and landfills are 
prevented. Thus, this process requires EPA to balance the eight 
factors, which ultimately rests on a policy judgment. This is further 
complicated in this case because the facts identified under each of the 
individual factors are even subject to widely varying perspectives. For 
example, in considering the alternatives to current disposal methods, 
some claim that RCRA subtitle C would significantly lessen beneficial 
use while others see beneficial use expanding as disposal becomes more 
costly; some see damage cases as substantial, while others note very 
few incidences of significant off-site contamination.
    Given the inherently discretionary nature of the decision, the 
complexities of the scientific analyses, and the controversy of the 
issue, EPA wants to ensure that the ultimate decision is based on the 
best available data, and is taken with the fullest possible extent of 
public input. As discussed in section IV in greater detail, there are a 
number of issues on which additional or more recent information would 
be useful in

[[Page 35133]]

allowing the Agency to reach a final decision. In the absence of this 
information, EPA has not yet reached a conclusion as to how to strike 
the appropriate balance among these eight factors and so is presenting 
two proposals for federal regulation of CCRs.
    As EPA weighs the eight Bevill study factors to reach our ultimate 
decision, EPA will be guided by the following principles, which are 
reflected in the discussions throughout this preamble. The first is 
that EPA's actions must ultimately be protective of human health and 
the environment. Second, any decision must be based on sound science. 
Finally, in conducting this rulemaking, EPA wants to ensure that our 
decision processes are transparent and encourage the greatest degree of 
public participation. Consequently, to further the public's 
understanding and ability to comment on all the issues facing the 
Agency, within this proposal, EPA identifies a series of scientific, 
economic, and materials management issues on which we are seeking 
comment from the public to strengthen our knowledge of the impact of 
EPA's decision.
    There are three key areas of analyses where EPA is seeking comment: 
The extent of existing damage cases, the extent of the risks posed by 
the mismanagement of CCRs, and the adequacy of State programs to ensure 
proper management of CCRs (e.g., is groundwater monitoring required of 
CCR landfills and surface impoundments). Since the 2007 NODA, EPA 
received new reports from industry and environmental and citizen groups 
regarding damage cases. Industry provided information indicating that 
many of EPA's listed proven damage cases do not meet EPA's criteria for 
a damage case to be proven. Environmental and citizen groups, on the 
other hand, reported that there are additional damage cases of which 
EPA is unaware. EPA's analysis, as well as the additional information 
from industry and environmental and citizen groups, which is in the 
docket for this proposal, needs to undergo public review, with the end 
result being a better understanding of the nature and number of damage 
cases. In addition, as discussed at length in sections II and IV, a 
number of technical questions have been raised regarding EPA's 
quantitative groundwater risk assessment. The Agency would implement 
similar technical controls under RCRA subtitle C or D. Therefore, a 
central issue is the adequacy of State programs. Under either 
regulatory approach, State programs will have key implementation roles. 
This is a very complex area to evaluate. For example, as EPA reports 
that 36% of the States do not have minimum liner requirements for CCR 
landfills, and 67% do not have liner requirements for CCR surface 
impoundments, we also observe that nearly all new CCR landfills and 
surface impoundments are constructed with liners. It should also be 
recognized that while states currently have considerable expertise in 
their State dam safety programs, those programs do not tend to be part 
of State solid waste or clean water act programs, and so, oversight may 
not be adequately captured in EPA's existing data. In several areas, 
there are these types of analytical tensions that warrant careful 
consideration by the public and EPA. This proposal requests states and 
others to provide further information on state programs, including the 
prevalence of groundwater monitoring at existing facilities (an area 
where our information is nearly 15 years old) and why state programs 
may address groundwater monitoring and risks differently for surface 
impoundments located proximate to rivers.
    The results of the risk analysis demonstrate significant risks from 
surface impoundments. A common industry practice, however, is to place 
surface impoundments right next to water bodies. While the Agency's 
population risk assessment analysis accounted for adjacent water 
bodies, the draft risk assessment that presents individual risk 
estimates does not account for the presence of adjacent water bodies in 
the same manner that the population risk assessment did. EPA is 
requesting public comment on the exact locations of CCR waste 
management units so that the Agency can more fully account for water 
bodies that may exist between a waste management unit and a drinking 
water well (and thus, could potentially intercept a contaminated 
groundwater plume). EPA is also requesting comments on how the risk 
assessment should inform the final decision.
    While the Agency believes the analyses conducted are sound, today's 
co-proposal of two options reflects our commitment to use the public 
process fully to ensure the best available scientific and regulatory 
impact analyses are considered in our decision. The final course of 
action will fully consider these legitimate and complex issues, and 
will result in the selection of a regulatory structure that best 
addresses the eight study factors identified in section 8002(n) of 
RCRA, and ensures protection of human health and the environment.
2. Brief Description of Today's Co-Proposals
a. Summary of Subtitle C Proposal
    In combination with its proposal to reverse the Bevill 
determination for CCRs destined for disposal, EPA is proposing to list 
as a special waste, to be regulated under the RCRA subtitle C 
regulations, CCRs from electric utilities and independent power 
producers when destined for disposal in a landfill or surface 
impoundment. These CCRs would be regulated from the point of their 
generation to the point of their final disposition, including during 
and after closure of any disposal unit. This would include the 
generator and transporter requirements and the requirements for 
facilities managing CCRs, such as siting, liners (with modification), 
run-on and run-off controls, groundwater monitoring, fugitive dust 
controls, financial assurance, corrective action, including facility-
wide corrective action, closure of units, and post-closure care (with 
certain modifications). In addition, facilities that dispose of, treat, 
or, in many cases, store, CCRs also would be required to obtain permits 
for the units in which such materials are disposed, treated, and 
stored. The rule would also regulate the disposal of CCRs in sand and 
gravel pits, quarries, and other large fill operations as a landfill.
    To address the potential for catastrophic releases from surface 
impoundments, we also are proposing requirements for dam safety and 
stability for impoundments that, by the effective date of the final 
rule, have not closed consistent with the requirements. We are also 
proposing land disposal restrictions and treatment standards for CCRs, 
as well as a prohibition on the disposal of treated CCRs below the 
natural water table.
b. Summary of Subtitle D Proposal
    In combination with today's proposal to leave the Bevill 
determination in place, EPA is proposing to regulate CCRs disposed of 
in surface impoundments or landfills under RCRA subtitle D requirements 
which would establish national criteria to ensure the safe disposal of 
CCRs in these units. The units would be subject to, among other things, 
location standards, composite liner requirements (new landfills and 
surface impoundments would require composite liners; existing surface 
impoundments without liners would have to retrofit within five years, 
or cease receiving CCRs and close); groundwater monitoring and 
corrective action standards for releases from the unit; closure and 
post-closure care

[[Page 35134]]

requirements; and requirements to address the stability of surface 
impoundments. We are also soliciting comments on requiring financial 
assurance. The rule would also regulate the disposal of CCRs in sand 
and gravel pits, quarries, and other large fill operations as a 
landfill. The rule would not regulate the generation, storage or 
treatment of CCRs prior to disposal. Because of the scope of subtitle D 
authority, the rule would not require permits, nor could EPA enforce 
the requirements. Instead, states or citizens could enforce the 
requirements under RCRA citizen suit authority; the states could also 
enforce any state regulation under their independent state enforcement 
authority.
    EPA is also considering a potential modification to the subtitle D 
option, called ``D prime'' in the following table. Under this option, 
existing surface impoundments would not have to close or install 
composite liners but could continue to operate for their useful life. 
In the ``D prime'' option, the other elements of the subtitle D option 
would remain the same.
3. Summary of Estimated Regulatory Costs and Benefits
    For the purposes of comparing the estimated regulatory compliance 
costs to the monetized benefits for each regulatory option, the 
Regulatory Impact Analysis (RIA) computed two comparison indicators: 
Net benefits (i.e., benefits minus costs), and benefit/cost ratio 
(i.e., benefits divided by costs). Table 1 below provides a summary of 
estimated regulatory costs and benefits for three regulatory options, 
based on the 7% discount rate base case and the 50-year period-of-
analysis applied in the RIA. Furthermore, this benefit and cost summary 
table displays ranges of net benefit and benefit/cost results across 
three different scenarios concerning the potential impacts of each 
option on the future annual beneficial use of CCRs under each option. 
The first scenario presents the potential impact scenario that assumes 
that the increased future annual cost of RCRA-regulated CCR disposal 
will induce coal-fired electric utility plants to increase beneficial 
use of CCRs. The second scenario presents a potential market stigma 
effect under the subtitle C option which will induce a decrease in 
future annual CCR beneficial use. The third scenario assumed that 
beneficial use of CCRs continues according to its recent trend line 
without any future change as a result of any of the regulatory options. 
The RIA estimates both the first and second scenario incrementally in 
relation to the third scenario no change trend line. Table 1 shows the 
range of impacts and associated ranges of net benefits and benefit-cost 
ratios across these three beneficial use scenarios for each regulatory 
option. While each of these three scenario outcomes may be possible, 
EPA's experience with the RCRA program indicates that industrial 
generators of RCRA-regulated wastes are often able to increase 
recycling and materials recovery rates after a subtitle C regulation. 
Section XII in this preamble provides additional discussion of these 
estimates.

    Table 1--Summary Table Comparison of Regulatory Benefits to Costs--Ranging Over All Three Beneficial Use
                                                    Scenarios
      [$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                      Subtitle C ``Special
                                            waste''                  Subtitle D           Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs:.........  $20,349..................  $8,095..................  $3,259.
    2. Regulatory Benefits:......  $87,221 to $102,191......  $34,964 to $41,761......  $14,111 to $17,501.
    3. Net Benefits (2-1)........  ($251,166) to $81,842....  ($6,927) to $33,666.....  ($2,666) to $14,242.
    4. Benefit/Cost Ratio (2/1)..  (11.343) to 5.022........  0.144 to 5.159..........  0.182 to 5.370.
B. Average Annualized Equivalent
 Values:*
    1. Regulatory Costs..........  $1,474...................  $587....................  $236.
    2. Regulatory Benefits:......  $6,320 to $7,405.........  $2,533 to $3,026........  $1,023 to $1,268.
    3. Net Benefits (2-1)........  ($18,199) to $5,930......  ($502) to $2,439........  ($193) to $1,032.
    4. Benefit/Cost Ratio (2/1)..  (11.347) to 5.022........  0.145 to 5.159..........  0.182 to 5.370.
----------------------------------------------------------------------------------------------------------------
\*\ Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.

B. What is the statutory authority for this action?

    These regulations are being proposed under the authority of 
sections 1008(a), 2002(a), 3001, 3004, 3005, and 4004 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), 42 U.S.C. 6907(a), 6912(a), 6921,6924, 
6925 and 6944. These statutes, combined, are commonly referred to as 
``RCRA.''
    RCRA section 1008(a) authorizes EPA to publish ``suggested 
guidelines for solid waste management.'' 42 U.S.C. 6907(a). Such 
guidelines must provide a technical and economic description of the 
level of performance that can be achieved by available solid waste 
management practices that provide for protection of human health and 
the environment.
    RCRA section 2002 grants EPA broad authority to prescribe, in 
consultation with federal, State, and regional authorities, such 
regulations as are necessary to carry out the functions under federal 
solid waste disposal laws. (42 U.S.C. 6912(a)).
    RCRA section 3001(b) requires EPA to list particular wastes that 
will be subject to the requirements established under subtitle C. (42 
U.S.C. 6921(b)). The regulation listing such wastes must be based on 
the listing criteria established pursuant to section 3001(a), and 
codified at 40 CFR 261.11.
    Section 3001(b)(3)(A) of RCRA established a temporary exemption for 
fly ash waste, bottom ash waste, slag waste, and flue gas emission 
control waste generated primarily from the combustion of coal or other 
fossil fuels, among others, and required the Agency to conduct a study 
of those wastes and, after public hearings and an opportunity for 
comment, determine whether these wastes should be regulated pursuant to 
subtitle C requirements (42 U.S.C. 6921 (b)(3)(A)).
    Section 3004 of RCRA generally requires EPA to establish standards 
applicable to the treatment, storage, and disposal of hazardous waste 
to ensure that human health and the environment are protected. 42 
U.S.C. 6924. Sections

[[Page 35135]]

3004(c) and (d) prohibit free liquids in hazardous waste landfills. 
Sections 3004(g) and (m) prohibit land disposal of hazardous wastes, 
unless, before disposal, those wastes meet treatment standards 
established by EPA that will ``substantially diminish the toxicity of 
the waste or substantially reduce the likelihood of migration of 
hazardous constituents from the waste so that short-term and long-term 
threats are minimized.'' (42 U.S.C. 6924(c), (d), (g), and (m)).
    RCRA section 3004(x) allows the Administrator to tailor certain 
specified requirements for particular categories of wastes, including 
those that are the subject of today's proposal, namely ``fly ash waste, 
bottom ash waste, and flue gas emission control wastes generated 
primarily from the combustion of coal or other fossil fuels'' (42 
U.S.C. 6924(x)). EPA is authorized to modify the requirements of 
sections 3004 (c), (d), (e), (f), (g), (o), and (u), and section 
3005(j), to take into account the special characteristics of the 
wastes, the practical difficulties associated with implementation of 
such requirements, and site-specific characteristics, including but not 
limited to the climate, geology, hydrology and soil chemistry at the 
site. EPA may only make such modifications, provided the modified 
requirements assure protection of human health and the environment. (42 
U.S.C. 6924(x)).
    RCRA section 3005 generally requires any facility that treats, 
stores, or disposes of wastes identified or listed under subtitle C, to 
have a permit. 42 U.S.C. 6925(a). This section also generally imposes 
requirements on facilities that become newly subject to the permitting 
requirements as a result of regulatory changes, and so can continue to 
operate for a period until they obtain a permit--i.e., ``interim status 
facilities.'' 42 U.S.C. 6925(e), (i), (j). Congress imposed special 
requirements on interim status surface impoundments in section 3005(j). 
In order to continue receiving wastes, interim status surface 
impoundments are generally required to retrofit the impoundment within 
4 years, to install a double liner, with a leachate collection system, 
and groundwater monitoring. 42 U.S.C. 6925(j)(6). In addition, wastes 
disposed into interim status surface impoundments must meet the land 
disposal restrictions in EPA's regulations, or the unit must be 
annually dredged. 42 U.S.C. 6925(j)(11).
    RCRA Section 4004 generally requires EPA to promulgate regulations 
containing criteria for determining which facilities shall be 
classified as sanitary landfills (and not open dumps) so that there is 
no reasonable probability of adverse effects on health or the 
environment from disposal of solid wastes at such facilities.

C. Regulation of Wastes Under RCRA Subtitle C

    Solid wastes may become subject to regulation under subtitle C of 
RCRA in one of two ways. A waste may be subject to regulation if it 
exhibits certain hazardous properties, called ``characteristics,'' or 
if EPA has specifically listed the waste as hazardous. See 42 U.S.C. 
6921(a). EPA's regulations in the Code of Federal Regulations (40 CFR) 
define four hazardous waste characteristic properties: Ignitability, 
corrosivity, reactivity, or toxicity (See 40 CFR 261.21-261.24). All 
generators must determine whether or not a waste exhibits any of these 
characteristics by testing the waste, or by using knowledge of the 
process that generated the waste (see Sec.  262.11(c)). While not 
required to sample the waste, generators will be subject to enforcement 
actions if found to be improperly managing wastes that exhibit one or 
more of the characteristics.
    EPA may also conduct a more specific assessment of a waste or 
category of wastes and ``list'' them if they meet the criteria set out 
in 40 CFR 261.11. Under the third criterion, at 40 CFR 261.11(a)(3), a 
waste will be listed if it contains hazardous constituents identified 
in 40 CFR part 261, Appendix VIII, and if, after considering the 
factors noted in this section of the regulations, we ``conclude that 
the waste is capable of posing a substantial present or potential 
hazard to human health or the environment when improperly treated, 
stored, transported, or disposed of, or otherwise managed.'' We place a 
chemical on the list of hazardous constituents on Appendix VIII only if 
scientific studies have shown a chemical has toxic effects on humans or 
other life forms. When listing a waste, we also add the hazardous 
constituents that serve as the basis for listing the waste to 40 CFR 
part 261, Appendix VII.
    The regulations at 40 CFR 261.31 through 261.33 contain the various 
hazardous wastes that EPA has listed to date. Section 261.31 lists 
wastes generated from non-specific sources, known as ``F-wastes,'' that 
are usually generated by various industries or types of facilities, 
such as ``wastewater treatment sludges from electroplating operations'' 
(see EPA Hazardous Waste No. F006). Section 261.32 lists wastes 
generated from specific industry sources, known as ``K-wastes,'' such 
as ``Spent potliners from primary aluminum production'' (see EPA 
Hazardous Waste No. K088). Section 261.33 contains lists of commercial 
chemical products and other materials, known as ``P-wastes'' or ``U-
wastes,'' that become hazardous wastes when they are discarded or 
intended to be discarded.
    As discussed in greater detail later in this proposal, EPA is 
considering whether to codify a listing of CCRs that are disposed of in 
landfills or surface impoundments, in a new section of the regulations, 
as ``Special Wastes.'' EPA is considering creating this new category of 
wastes, in part, to reflect the fact that these wastes would be subject 
to modified regulatory requirements using the authority provided under 
section 3004(x) of RCRA (e.g., the modified CCR landfill and surface 
impoundment liner and leak detection system requirements, the effective 
dates for the land disposal restrictions, and the surface impoundment 
retrofit requirements).
    If a waste exhibits a hazardous characteristic or is listed under 
subtitle C, then it is subject to the requirements of RCRA subtitle C, 
and the implementing regulations found in 40 CFR parts 260 through 268, 
parts 270 to 279, and part 124. These requirements apply to persons who 
generate, transport, treat, store or dispose of such waste and 
establish rules governing every phase of the waste's management from 
its generation to its final disposition and beyond. Facilities that 
treat, store or dispose of hazardous wastes require a permit which 
incorporates all of the design and operating standards established by 
EPA rules, including standards for piles, landfills, and surface 
impoundments. Under RCRA subtitle C requirements, land disposal of 
hazardous waste is prohibited unless the waste is first treated to meet 
the treatment standards (or meets the treatment standards as generated) 
established by EPA that minimize threats to human health and the 
environment posed by the land disposal of the waste, or unless the 
waste is disposed in a unit from which there will be no migration of 
hazardous constituents for as long as the waste remains hazardous. In 
addition, RCRA subtitle C facilities are required to clean up any 
releases of hazardous waste or constituents from solid waste management 
units at the facility, as well as beyond the facility boundary, as 
necessary to protect human health and the environment. RCRA subtitle C 
also requires that permitted facilities demonstrate that they have 
adequate financial resources (i.e., financial assurance) for 
obligations, such as closure, post-closure care, necessary

[[Page 35136]]

clean up, and any liability from facility operations.
    The RCRA subtitle C requirements are generally implemented under 
state programs that EPA has authorized to operate in lieu of the 
federal program, based upon a determination that the state program is 
no less stringent than the federal program. In a state that operates 
under an authorized program, any revisions made to EPA requirements are 
generally effective as part of the federal RCRA program in that state 
only after the state adopts the revised requirement, and EPA authorizes 
the state requirement. The exception applies with respect to 
requirements implementing statutory provisions added to subtitle C by 
the 1984 Hazardous and Solid Waste Amendments to RCRA; such 
requirements are immediately effective in all states, and are enforced 
by EPA.
    All RCRA hazardous wastes are also hazardous substances under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This 
applies to wastes listed in Sec. Sec.  261.31 through 261.33, as well 
as any wastes that exhibits a RCRA hazardous characteristic. Table 
302.4 at 40 CFR 302.4 lists the CERCLA hazardous substances along with 
their reportable quantities (RQs). Anyone spilling or releasing a 
hazardous substance at or above its RQ must report the release to the 
National Response Center, as required in CERCLA Section 103. In 
addition, Section 304 of the Emergency Planning and Community Right-to-
Know Act (EPCRA) requires facilities to report the release of a CERCLA 
hazardous substance at or above its RQ to State and local authorities. 
Today's rule proposes an approach for estimating whether released CCRs 
exceed an RQ. Wastes listed as special wastes will generally be subject 
to the same requirements under RCRA subtitle C and CERCLA as are 
hazardous wastes, although as discussed elsewhere in this preamble, EPA 
is proposing to revise certain requirements under the authority of 
section 3004(x) of RCRA to account for the large volumes and unique 
characteristics of these wastes.

D. Regulation of Solid Wastes Under RCRA Subtitle D

    Solid wastes that are neither a listed and/or characteristic 
hazardous waste are subject to the requirements of RCRA subtitle D. 
Subtitle D of RCRA establishes a framework for Federal, State, and 
local government cooperation in controlling the management of 
nonhazardous solid waste. The federal role in this arrangement is to 
establish the overall regulatory direction, by providing minimum 
nationwide standards for protecting human health and the environment, 
and to providing technical assistance to states for planning and 
developing their own environmentally sound waste management practices. 
The actual planning and direct implementation of solid waste programs 
under RCRA subtitle D, however, remains a state and local function, and 
the act authorizes States to devise programs to deal with State-
specific conditions and needs. That is, EPA has no role in the planning 
and direct implementation of solid waste programs under RCRA subtitle 
D.
    Under the authority of sections 1008(a)(3) and 4004(a) of subtitle 
D of RCRA, EPA first promulgated the Criteria for Classification of 
Solid Waste Disposal Facilities and Practices (40 CFR part 257) on 
September 13, 1979. These subtitle D Criteria establish minimum 
national performance standards necessary to ensure that ``no reasonable 
probability of adverse effects on health or the environment'' will 
result from solid waste disposal facilities or practices. Practices not 
complying with the criteria constitute ``open dumping'' for purposes of 
the Federal prohibition on open dumping in section 4005(a). EPA does 
not have the authority to enforce the prohibition directly (except in 
situations involving the disposal or handling of sludge from publicly-
owned treatment works, where Federal enforcement of POTW sludge-
handling facilities is authorized under the CWA). States and citizens 
may enforce the prohibition on open dumping using the authority under 
RCRA section 7002. EPA, however, may act only if the handling, storage, 
treatment, transportation, or disposal of such wastes may present an 
imminent and substantial endangerment to health or the environment 
(RCRA 7003). In addition, the prohibition may be enforced by States and 
other persons under section 7002 of RCRA.
    In contrast to subtitle C, RCRA subtitle D requirements relate only 
to the disposal of the solid waste, and EPA does not have the authority 
to establish requirements governing the generation, transportation, 
storage, or treatment of such wastes prior to disposal. Moreover, EPA 
would not have administrative enforcement authority to enforce any RCRA 
subtitle D criteria for CCR facilities, authority to require states to 
issue permits for them or oversee those permits, nor authority for EPA 
to determine whether any state permitting program for CCR facilities is 
adequate. Subtitle D of RCRA also provides less extensive authority to 
establish requirements relating to the cleanup (or corrective action) 
and financial assurance at solid waste facilities.
    EPA regulations affecting RCRA subtitle D facilities are found at 
40 CFR parts 240 through 247, and 255 through 258. The existing part 
257 criteria include general environmental performance standards 
addressing eight major topics: Floodplains (Sec.  257.3-1), endangered 
species (Sec.  257.3-2), surface water (Sec.  257.3-3), ground water 
(Sec.  257.3-4), land application (Sec.  257.35), disease (Sec.  257.3-
6), air (Sec.  257.3-7), and safety (Sec.  257.3-8). EPA has also 
established regulations for RCRA subtitle D landfills that accept 
conditionally exempt small quantity generator hazardous wastes, and 
household hazardous wastes (i.e., ``municipal solid waste'') at 40 CFR 
Part 258, but these are of limited relevance to CCRs, which fall into 
neither category of wastes.

E. Summary of the 1993 and 2000 Regulatory Determinations

    Section 3001(b)(3)(A)(i) of RCRA (known as the Bevill exclusion or 
exemption) excluded certain large-volume wastes generated primarily 
from the combustion of coal or other fossil fuels from being regulated 
as hazardous waste under subtitle C of RCRA, pending completion of a 
Report to Congress required by Section 8002(n) of RCRA and a 
determination by the EPA Administrator either to promulgate regulations 
under RCRA subtitle C or to determine that such regulations are 
unwarranted.
    In 1988, EPA published a Report to Congress on Wastes from the 
Combustion of Coal by Electric Utility Power Plants (EPA, 1988). The 
report, however, did not address co-managed utility CCRs, other fossil 
fuel wastes that are generated by utilities, and wastes from non-
utility boilers burning any type of fossil fuel. Further, because of 
other priorities, EPA did not complete its Regulatory Determination on 
fossil fuel combustion (FFC) wastes at that time.
    In 1991, a suit was filed against EPA for failure to complete a 
Regulatory Determination on FFC wastes (Gearhart v. Reilly Civil No. 
91-2345 (D.D.C.), and on June 30, 1992, the Agency entered into a 
Consent Decree that established a schedule for EPA to complete the 
Regulatory Determinations for all FFC wastes. Specifically, FFC wastes 
were divided into two categories: (1) Fly ash, bottom ash, boiler slag, 
and flue gas emission control waste from the combustion of coal by 
electric utilities and independent commercial power

[[Page 35137]]

producers, and (2) all remaining wastes subject to RCRA Sections 
3001(b)(3)(A)(i) and 8002(n)--that is, large volume coal combustion 
wastes generated at electric utility and independent power producing 
facilities that are co-managed together with certain other coal 
combustion wastes; coal combustion wastes generated at non-utilities; 
coal combustion wastes generated at facilities with fluidized bed 
combustion technology; petroleum coke combustion wastes; wastes from 
the combustion of mixtures of coal and other fuels (i.e., co-burning of 
coal with other fuels where coal is at least 50% of the total fuel); 
wastes from the combustion of oil; and wastes from the combustion of 
natural gas.
    On August 9, 1993, EPA published its Regulatory Determination for 
the first category of wastes (58 FR 42466, http://www.epa.gov/epawaste/
nonhaz/industrial/special/mineral/080993.pdf), concluding that 
regulation under subtitle C of RCRA for these wastes was not warranted. 
To make an appropriate determination for the second category, or 
``remaining wastes,'' EPA concluded that additional study was 
necessary. Under the court-ordered deadlines, the Agency was required 
to complete a Report to Congress by March 31, 1999, and issue a 
Regulatory Determination by October 1, 1999.
    In keeping with its court-ordered schedule, and pursuant to the 
requirements of Section 3001(b)(3)(A)(i) and Section 8002(n) of RCRA, 
EPA prepared a Report to Congress on the remaining FFC wastes in March 
1999 (http://www.epa.gov/epaoswer/other/fossil/volume_2.pdf). The 
report addresses the eight study factors required by Section 8002(n) of 
RCRA for FFC wastes (see discussion in section IV. B).
    On May 22, 2000, EPA published its Regulatory Determination on 
wastes from the combustion of fossil fuels for the remaining wastes (65 
FR 32214, http://www.epa.gov/fedrgstr/ EPA-WASTE/2000/May/Day-22/
f11138.htm). In its Regulatory Determination, EPA concluded that the 
remaining wastes were largely identical to the high-volume monofilled 
wastes, which remained exempt based on the 1993 Regulatory 
Determination. The high volume wastes simply dominate the waste 
characteristics even when co-managed with other wastes, and thus the 
May 2000 Regulatory Determination addressed not only the remaining 
wastes, but effectively reopened the decision on CCRs that went to 
monofills.
    EPA concluded that these wastes could pose significant risks if not 
properly managed, although the risk information was limited. EPA 
identified and discussed a number of documented proven damage cases, as 
well as cases indicating at least a potential for damage to human 
health and the environment, but did not rely on its quantitative 
groundwater risk assessment, as EPA concluded that it was not 
sufficiently reliable. However, EPA concluded that significant 
improvements were being made in waste management practices due to 
increasing state oversight, although gaps remained in the current 
regulatory regime. On this basis, the Agency concluded to retain the 
Bevill exemption, and stated we would issue a regulation under subtitle 
D of RCRA, establishing minimum national standards. Those subtitle D 
standards have not yet been issued. (Today's proposal could result in 
the development of the subtitle D standards consistent with the May 
2000 Regulatory Determination, or with a revision of the determination, 
or the issuance of subtitle C standards under RCRA.)
    EPA also explicitly stated in the May 2000 Regulatory Determination 
that the Agency would continue to review the issues, and would 
reconsider its decision that subtitle C regulations were unwarranted 
based on a number of factors. EPA noted that its ongoing review would 
include (1) ``the extent to which [the wastes] have caused damage to 
human health or the environment;'' (2) the adequacy of existing 
regulation of the wastes; (3) the results of an NAS report regarding 
the adverse human health effects of mercury; \4\ and (4) ``risk posed 
by managing coal combustion solid wastes if levels of mercury or other 
hazardous constituents change due to any future Clean Air Act air 
pollution control requirements for coal burning utilities'' and that 
these efforts could result in a subsequent revision to the Regulatory 
Determination. For a further discussion of the basis for the Agency's 
determination, see section IV below.
---------------------------------------------------------------------------

    \4\ Toxicological Effects of Methylmercury, National Academy of 
Sciences, July 2000 (http://books.nap.edu/catalog.php?record_
id=9899#toc). EPA has not taken any actions regarding the May 2000 
Regulatory Determination as a result of the NAS report.
---------------------------------------------------------------------------

F. What are CCRs?

    CCRs are residuals from the combustion of coal. For purposes of 
this proposal, CCRs are fly ash, bottom ash, boiler slag (all composed 
predominantly of silica and aluminosilicates), and flue gas 
desulfurization materials (predominantly Ca-SOX compounds) that were 
generated from processes intended to generate power.
    Fly ash is a product of burning finely ground coal in a boiler to 
produce electricity. Fly ash is removed from the plant exhaust gases 
primarily by electrostatic precipitators or baghouses and secondarily 
by wet scrubber systems. Physically, fly ash is a very fine, powdery 
material, composed mostly of silica. Nearly all particles are spherical 
in shape.
    Bottom ash is comprised of agglomerated coal ash particles that are 
too large to be carried in the flue gas. Bottom ash is formed in 
pulverized coal furnaces and is collected by impinging on the furnace 
walls or falling through open grates to an ash hopper at the bottom of 
the furnace. Physically, bottom ash is coarse, with grain sizes 
spanning from fine sand to fine gravel, typically grey to black in 
color, and is quite angular with a porous surface structure.
    Boiler slag is the molten bottom ash collected at the base of slag 
tap and cyclone type furnaces that is quenched with water. When the 
molten slag comes in contact with the quenching water, it fractures, 
crystallizes, and forms pellets. This boiler slag material is made up 
of hard, black, angular particles that have a smooth, glassy 
appearance.
    Flue Gas Desulfurization (FGD) material is produced through a 
process used to reduce sulfur dioxide (SO2) emissions from 
the exhaust gas system of a coal-fired boiler. The physical nature of 
these materials varies from a wet sludge to a dry powdered material, 
depending on the process. The wet sludge generated from the wet 
scrubbing process using a lime-based reagent is predominantly calcium 
sulfite, while the wet sludge generated from the wet scrubbing process 
using a limestone-based reagent is predominantly calcium sulfate. The 
dry powdered material from dry scrubbers that is captured in a baghouse 
consists of a mixture of sulfites and sulfates.
    CCRs are managed in either wet or dry disposal systems. In wet 
systems, materials are generally sluiced via pipe to a surface 
impoundment. The material can be generated wet, such as FGD, or 
generated dry and water added to facilitate transport (i.e. sluiced) 
through pipes. In dry systems, CCRs are transported in its dry form to 
landfills for disposal.
1. Chemical Constituents in CCRs
    The chemical characteristics of CCRs depend on the type and source 
of coal, the combustion technology, and the pollution control 
technology employed. For the 1999 Report to Congress and the May 2000 
Regulatory Determination, EPA developed an extensive database

[[Page 35138]]

on the leaching potential of CCR constituents using the toxicity 
characteristic leaching procedure (TCLP) from a number of sources. More 
recent data on the composition of CCRs, including their leaching 
potential, have been collected and are discussed in the next sub-
section. The CCR constituent database (available in the docket to this 
proposal) contains data on more than 40 constituents. Table 2 presents 
the median compositions of trace element TCLP leachates of each of the 
main four types of large volume CCRs (fly ash, bottom ash, boiler slag, 
and FGD gypsum). (Additional information, including the range of TCLP 
values, is available in the docket or on-line in the documents 
identified in the footnotes to the following table.)

              Table 2--TCLP Median Compositions of Coal-Fired Utility Large-Volume CCRs \5\ (mg/l)
----------------------------------------------------------------------------------------------------------------
                   Constituent                        Fly ash       Bottom ash      Boiler slag         FGD
----------------------------------------------------------------------------------------------------------------
As..............................................           0.066           0.002           0.002           0.290
Ba..............................................           0.289           0.290           0.260           0.532
B...............................................           0.933           0.163             n/a              --
Cd..............................................           0.012           0.005          0.0018           0.010
Cr\VI\..........................................           0.203           0.010           0.003           0.120
Cu..............................................             n/a             n/a           0.050             n/a
Pb..............................................           0.025           0.005          0.0025           0.120
Hg..............................................          0.0001          0.0001          0.0002          0.0001
Se..............................................           0.020          0.0013          0.0025           0.280
Ag..............................................           0.005          0.0050          0.0001           0.060
V...............................................           0.111          0.0050           0.010              --
Zn..............................................           0.285           0.015           0.075              --
----------------------------------------------------------------------------------------------------------------
n/a = data not available.
-- = too few data points to calculate statistics.
Source: Data from supporting documentation to the 1993 Regulatory Determination; values below the detection
  limit were treated as one-half the detection limit.

    The composition of FGD gypsum depends on the position within the 
air emissions control system where the SO2 component is 
subject to scrubbing: If scrubbing takes place up stream of the removal 
of fly ash particulates, the FGD would actually comprise a mix of both 
components. Table 3 presents mean TCLP trace element compositions of 
FGD gypsum generated by a scrubbing operation that is located down 
stream from the particulate collection elements of the air emissions 
control system; it therefore represents an `end member' FGD gypsum.
---------------------------------------------------------------------------

    \5\ Compiled from Tables 3-1, 3-3, 3-5 and 3-7, in: Technical 
Background Document for the Report to Congress on Remaining Wastes 
from Fossil Fuel Combustion: Waste Characteristics, March 15, 1999 
(http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ffc2_
399.pdf).

Table 3--FGD Gypsum TCLP Compositions (mg/l) From: (1) Two Ohio Power Plants *\6\ (Mean Data); (2) 12 Samples of
                     Commercial Wallboard Produced From Synthetic Gypsum **\7\(Median Data)
----------------------------------------------------------------------------------------------------------------
                                                                               Bruce Mansfield  Synthetic Gypsum
                        Constituent                         Cardinal Plant *       Plant *             **
----------------------------------------------------------------------------------------------------------------
As........................................................            <0.006            0.0075           0.00235
Ba........................................................             0.373             0.270             0.043
B.........................................................             0.137            0.0255               n/a
Cd........................................................           0.00167           0.00055           0.00145
Cr........................................................           0.00587           0.00575            0.0047
Cu........................................................            <0.001            <0.001               n/a
Pb........................................................            <0.003            <0.003            0.0006
Hg........................................................          1.8x10-5          2.6x10-6           <0.0003
Se........................................................            0.0123            <0.011             0.044
V.........................................................            <0.001             0.002               n/a
Zn........................................................             0.170            0.0560               n/a
Ag........................................................               n/a               n/a          <0.00005
----------------------------------------------------------------------------------------------------------------
n/a = data not available.

    The contaminants of most environmental concern in CCRs are 
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
nickel, selenium, silver and thallium. Although these metals rarely 
exceed the RCRA hazardous waste toxicity characteristic (TC), because 
of the mobility of metals and the large size of typical disposal units, 
metals (especially arsenic) have leached at levels of concern from 
unlined landfills and surface impoundments. In addition, it should also 
be noted that since the Agency announced its May 2000 Regulatory 
Determination, EPA has revised the maximum contaminant level (MCL) for 
arsenic,\8\ without a corresponding revision of the TC. As a result, 
while arsenic levels are typically well below the TC, drinking water 
risks from contaminated groundwater due to releases from landfills and 
impoundments may still be high. Also, as discussed below, a 
considerable body of evidence has emerged indicating that the TCLP 
alone is not a good predictor

[[Page 35139]]

of the mobility of metals in CCRs under a variety of different 
conditions. This issue is further discussed in the following 
subsection.
---------------------------------------------------------------------------

    \6\ Compiled from: Table 3-5, in: An Evaluation of Flue Gas 
Desulfurization Gypsum for Abandoned Mine Land Reclamation, Rachael 
A. Pasini, Thesis, The Ohio State University, 2009.
    \7\ Compiled from: Table 10, in: Fate of Mercury in Synthetic 
Gypsum Used for Wallboard Production, J. Sanderson et al., USG 
Corporation, Final Report prepared for NETL, June 2008.
    \8\ See http://www.epa.gov/safewater/arsenic/regulations.html.
---------------------------------------------------------------------------

    From Tables 2 and 3 above, it is evident that each of the main four 
types of CCRs, when subjected to a TCLP leach test, yields a different 
amount of trace element constituents. EPA is soliciting public comments 
on whether, in light of these differences in the mobility of hazardous 
metals between the four major types of CCRs, regulatory oversight 
should be equally applied to each of these CCR types when destined for 
disposal.
2. Recent EPA Research on Constituent Leaching From CCRs
    Changes to fly ash and other CCRs are expected to occur as a result 
of increased use and application of advanced air pollution control 
technologies in coal-fired power plants. These technologies include 
flue gas desulfurization (FGD) systems for SO2 control, 
selective catalytic reduction (SCR) systems for NOX control, 
and activated carbon injection systems for mercury control. These 
technologies are being installed or are expected to be installed in 
response to federal regulations, state regulations, legal consent 
decrees, and voluntary actions taken by industry to adopt more 
stringent air pollution controls. Use of more advanced air pollution 
control technology reduces air emissions of metals and other pollutants 
in the flue gas of a coal-fired power plant by capturing and 
transferring the pollutants to the fly ash and other air pollution 
control residues. The impact of changes in air pollution control on the 
characteristics of CCRs and the leaching potential of metals is the 
focus of ongoing research by EPA's Office of Research and Development 
(ORD). This research is being conducted to identify any potential 
cross-media transfers of mercury and other metals and to meet EPA's 
commitment in the Mercury Roadmap (http://www.epa.gov/hg/roadmap.htm) 
to report on the fate of mercury and other metals from implementation 
of multi-pollutant control at coal-fired power plants.
    Over the last few years, in cooperation with Electric Power 
Research Institute (EPRI) and the utility industry, EPA obtained 73 
different CCRs from 31 coal-fired boilers spanning a range of coal 
types and air pollution control configurations. Samples of CCRs were 
collected to evaluate differences in air pollution control, such as 
addition of post-combustion NOX controls (i.e., selective 
catalytic reduction), FGD scrubbers, and enhanced sorbents for mercury 
capture. A series of reports have been developed to document the 
results from the ORD research: The first report (Characterization of 
Mercury-Enriched Coal Combustion Residuals from Electric Utilities 
Using Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, February 
2006; http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf) was 
developed to document changes in fly ash resulting from the addition of 
sorbents for enhanced mercury capture. The second report 
(Characterization of Coal Combustion Residuals from Electric Utilities 
Using Wet Scrubbers for Multi-Pollutant Control; EPA-600/R-08/077, July 
2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf) was 
developed to evaluate residues from the expanded use of wet scrubbers. 
The third report (Characterization of Coal Combustion Residues from 
Electric Utilities--Leaching and Characterization Data, EPA-600/R-09/
151, December 2009, http://www.epa.gov/nrmrl/pubs/600r09151/
600r09151.html) updates the data in the earlier reports and provides 
data on an additional 40 samples to cover the range of coal types and 
air pollution control configurations, including some not covered in the 
two previous reports.
    Data from these studies is being used to identify potential trends 
in the composition and leaching behavior of CCRs resulting from changes 
in air pollution controls. Summary data on the higher volume CCRs is 
provided for 34 fly ashes (Table 4) and 20 FGD gypsum samples (Table 
5). The report provides analysis of other types of CCRs (i.e., non-
gypsum scrubber residues (primarily scrubber sludge containing calcium 
sulfite), blended CCRs (non-gypsum scrubber residues, fly ash, and 
lime), and wastewater treatment filter cake). For each of the metals 
that are reported (Sb, As, Ba, B, Cd Cr, Co, Hg, Pb, Mo, Se, and Tl) 
from the leaching test results, ``box and whisker'' plots have been 
developed comparing the different materials and providing comparison to 
field leachate data.
    The purpose of this research was to try to understand how power 
plant air pollution control residues, and their leaching potential, are 
likely to change with the increased use of multi-pollutant and mercury 
controls, anticipated in response to new Clean Air Act regulations. An 
initial focus was to identify appropriate leach testing methods to 
assess leaching potential under known or expected CCR management 
conditions (beneficial use or disposal). The EPA's Science Advisory 
Board and the National Academy of Sciences have in the past raised 
concerns over the use of single-point pH tests that do not reflect the 
range of actual conditions under which wastes are plausibly managed.\9\ 
Because metal leaching rates change with changing environmental 
conditions (especially pH), single point tests may not be the most 
accurate predictor of potential environmental release of mercury or 
other metals because they do not provide estimates of leaching under 
some disposal or reuse conditions that can plausibly occur.
---------------------------------------------------------------------------

    \9\ National Academy of Sciences, Managing Coal Combustion 
Residues in Mines; The National Academies Press, Washington, DC, 
2006.
---------------------------------------------------------------------------

    In response to these concerns, a review of available leaching test 
methods was conducted. A leaching test method \10\ based on research 
conducted at Vanderbilt University in the United States and the Energy 
Research Center of the Netherlands, among others, was selected to 
address some of these concerns.
---------------------------------------------------------------------------

    \10\ Kosson, D.S.; Van Der Sloot, H.A.; Sanchez, F.; 
Garrabrants, A.C., An Integrated Framework for Evaluating Leaching 
in Waste Management and Utilization of Secondary Materials. 
Environmental Engineering Science 2002, 19, 159-204.
---------------------------------------------------------------------------

    While EPA/ORD's research relied on the Vanderbilt method, similar 
methods (i.e, tests evaluating leaching at different plausible disposal 
pH values) have been used to evaluate the leaching behavior and support 
hazardous waste listings of other materials as well.\11\ Because of 
their general utility, the research methods have been drafted into the 
appropriate format and are being evaluated for inclusion in EPA's waste 
analytical methods guidance, SW-846 \12\

[[Page 35140]]

to facilitate their routine use for evaluating other wastes or reuse 
materials (http://www.epa.gov/osw/hazard/testmethods/sw846/index.htm).
---------------------------------------------------------------------------

    \11\ See 65 FR 67100 (November 8, 2000) for a discussion of 
EPA's use of multi-pH leach testing in support of listing a mercury-
bearing sludge from VCM-A production, and EPA/600/R-02/019, 
September 2001, Stabilization and Testing of Mercury Containing 
Wastes: Borden Catalyst.
    \12\ Five different methods have been developed for use 
depending upon the information needed and the waste form.
    1. Draft Method 1313--Liquid-Solid Partitioning as a Function of 
Eluate pH using a Parallel Batch Extraction Test
    2. Draft Method 1314--Liquid-Solid Partitioning as a Function of 
Liquid-Solid Ratio Using an Up-flow Column Test
    3. Draft Method 1315--Mass Transfer in Monolithic or Compacted 
Granular Materials Using a Semi-dynamic Tank Leach Test
    4. Draft Method 1316--Liquid-Solid Partitioning as a Function of 
Liquid-Solid Ratio Using a Parallel Batch Test
    5. Draft Method 1317--Concise Test for Determining Consistency 
in Leaching Behavior
    The test methods were developed to identify differences in the 
constituent leaching rate resulting from the form of the tested 
material, as well as the effects of pH and the liquid/solid ratio. 
Fine grained materials (e.g., particle sizes of 2 mm or less) will 
have greater contact with leaching solutions (in a lab test) or 
rainfall (in the environment) than will solid materials such as 
concrete or CCRs that are pozzolanic when exposed to water. In 
applying these methods to CCRs or other materials, batch tests that 
are designed to reach equilibrium are used with fine-grained or 
particle-size reduced materials. For solid materials, the tests were 
designed to evaluate constituent leaching from the exposed surface 
(leaching of constituents that are either at the surface, or that 
have migrated over time to the surface), can be used. Testing at 
equilibrium provides an upper bound estimate of constituent leaching 
at each set of conditions tested. In some instances, these results 
may represent the real situation, since when rainfall percolation 
through a material in the environment is slow, the constituent 
concentration in the water passing through the materials may reach, 
or nearly reach equilibrium. Testing of solid (or ``monolithic'') 
materials evaluates constituent leaching from materials of low 
permeability for which most rainfall flows around the material 
rather than percolating through it. This results in less contact 
between the rainfall and the material, and so typically, a lower 
rate of constituent leaching. For monolithic materials, both the 
equilibrium and monolith tests are conducted to understand the 
likely initial rates of leaching from the monolith (while it remains 
solid), and the upper bound on likely leaching, when the monolith 
degrades over time, exposing more surface area to percolating 
rainwater, and typically, higher constituent leaching rates. It may 
also be possible to avoid the cost of testing solid, monolithic 
materials, if the material leaches at low constituent concentrations 
under the equilibrium testing conditions.
---------------------------------------------------------------------------

    For the ORD research, equilibrium batch test methods that identify 
changes in leaching at different pH and liquid/solid ratio values were 
used to evaluate CCRs resulting from different air pollution controls 
at coal-fired power plants. This allowed evaluation of leaching 
potential over a range of field conditions under which CCRs are 
anticipated to be managed during either disposal or beneficial use 
applications. Landfill field leachate data from EPA \13\ and EPRI \14\ 
studies were used to establish the range of pH conditions expected to 
be found in actual disposal. From this data set, and excluding the 
extreme values (below 5th percentile and above 95th percentile), a pH 
range of 5.4 and 12.4 was determined to represent the range of 
plausible management conditions (with regard to pH) for CCRs. This 
means that approximately 5% of the values had a pH below 5.4 and 
approximately 5% of the values had a pH greater than 12.4. However, it 
is important to note that 9 of the 34 fly ash samples generated a pH in 
deionized water (i.e., the pH generated by the tested material itself) 
below pH 5.4. Therefore, these results might understate CCR leaching 
potential if actual field conditions extend beyond the pH range of 5.4 
and 12.4.
---------------------------------------------------------------------------

    \13\ U.S. EPA (2000) Characterization and evaluation of landfill 
leachate, Draft Report. 68-W6-0068, Sept 2000.
    \14\ EPRI (2006) Characterization of Field Leachates at Coal 
Combustion Product Management Sites: Arsenic, Selenium, Chromium, 
and Mercury Speciation, EPRI Report Number 1012578. EPRI, Palo Alto, 
CA and U.S. Department of Energy, Pittsburgh, PA.
---------------------------------------------------------------------------

    In Tables 4 and 5, the total metals content of the fly ash and FGD 
gypsum samples evaluated is provided along with the leach test results. 
Reference indicators (i.e., MCL,\15\ TC,\16\ and DWEL \17\) are also 
provided to provide some context in understanding the leach results. It 
is critical to bear in mind that the leach test results represent a 
distribution of potential constituent release from the material as 
disposed or used on the land. The data presented do not include any 
attempt to estimate the amount of constituent that may reach an aquifer 
or drinking water well. Leachate leaving a landfill is invariably 
diluted in ground water to some degree when it reaches the water table, 
or constituent concentrations are attenuated by sorption and other 
chemical reactions in groundwater and sediment. Also, groundwater pH 
may be different from the pH at the site of contaminant release, and so 
the solubility and mobility of leached contaminants may change when 
they reach groundwater. None of these dilution or attenuation processes 
is incorporated into the leaching values presented. That is, no 
dilution and attenuation factor, or DAF,\18\ has been applied to these 
results. Thus, comparisons with regulatory health values, particularly 
drinking water values, must be done with caution. Groundwater transport 
and fate modeling would be needed to generate an assessment of the 
likely risk that may result from the CCRs represented by these data.
---------------------------------------------------------------------------

    \15\ MCL is the maximum concentration limit for contaminants in 
drinking water.
    \16\ TC is the toxicity characteristic and is a threshold for 
hazardous waste determinations.
    \17\ DWEL is the drinking water equivalent level to be 
protective for non-carcinogenic endpoints of toxicity over a 
lifetime of exposure. DWEL was developed for chemicals that have a 
significant carcinogenic potential and provides the risk manager 
with evaluation on non-cancer endpoints, but infers that 
carcinogenicity should be considered the toxic effect of greatest 
concern (http://www.epa.gov/safewater/pubs/gloss2.html#D).
    \18\ For example, EPA used a generic DAF values of 100 in the 
Toxicity Characteristic final regulation. (See: 55 FR 11827, March 
29, 1990)
---------------------------------------------------------------------------

    In reviewing the data and keeping these caveats in mind, 
conclusions to date from the research include:
    (1) Review of the fly ash and FGD gypsum data (Tables 4 and 5) show 
a range of total constituent concentration values that vary over a much 
broader range than do the leach data. This much greater range of 
leaching values only partially illustrates what more detailed review of 
the data shows: That for these CCRs, the rate of constituent release to 
the environment is affected by leaching conditions (in some cases 
dramatically so), and that leaching evaluation under a single set of 
conditions may, to the degree that single point leach tests fail to 
consider actual management conditions, lead to inaccurate conclusions 
about expected leaching in the field.
    (2) Comparison of the ranges of totals values and leachate data 
from the complete data set supports earlier conclusions 
5119 20 21 that the rate of constituent leaching cannot be 
reliably estimated based on total constituent concentration alone.
---------------------------------------------------------------------------

    \19\ Senior, C; Thorneloe, S.; Khan, B.; Goss, D. Fate of 
Mercury Collected from Air Pollution Control Devices; EM, July 2009, 
15-21.
    \20\ U.S. EPA, Characterization of Mercury-Enriched Coal 
Combustion Residuals from Electric Utilities Using Enhanced Sorbents 
for Mercury Control, EPA-600/R-06/008, Feb. 2006; http://
www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf.
    \21\ U.S. EPA, Characterization of Coal Combustion Residuals 
from Electric Utilities Using Wet Scrubbers for Multi-Pollutant 
Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/
600r08077/600r08077.pdf.
---------------------------------------------------------------------------

    (3) From the more complete data in Report 3, distinctive patterns 
in leaching behavior have been identified over the range of pH values 
that would plausibly be encountered for CCR disposal, depending on the 
type of material sampled and the element. This reinforces the above 
conclusions based on the summary data.
    (4) Based on the data (summarized in Table 4), on the leach results 
from evaluation of 34 fly ashes across the plausible management pH 
range of 5.4 to 12.4,
    [cir] The leach results at the upper end of the leachate 
concentration range exceed the TC values for As, Ba, Cr, and Se 
(indicated by the shading in the table).
    (5) Based on the data (summarized in Table 5), on the leach results 
from evaluation of 20 FGD gypsums across the plausible management pH 
range of 5.4 to 12.4,
    [cir] The leach results at the upper end of the leachate 
concentration ranges exceed the TC value for Se.
    (6) The variability in total content and the leaching of 
constituents within a material type (e.g., fly ash, gypsum) is such 
that, while leaching of many samples exceeds one or more of the 
available health indicators, many of the other samples within the 
material type may be lower than the available regulatory or health 
indicators.

[[Page 35141]]

Additional or more refined assessment of the dataset may allow some 
distinctions regarding release potential to be made among particular 
sources of some CCRs, which may be particularly useful in evaluating 
CCRs in reuse applications.
    EPA anticipates development of a fourth report that presents such 
additional analysis of the leaching data to provide more insight into 
constituent release potential for a wider range of CCR management 
scenarios, including beneficial use applications. This will include 
calculating potential release rates over a specified time for a range 
of management scenarios, including use in engineering and commercial 
applications using probabilistic assessment modeling (Sanchez and 
Kosson, 2005).\22\ This report will be made publicly available when 
completed.
---------------------------------------------------------------------------

    \22\ Sanchez, F., and D. S. Kosson, 2005. Probabilistic approach 
for estimating the release of contaminants under field management 
scenarios. Waste Management 25(5), 643-472 (2005).
---------------------------------------------------------------------------

    Finally, the Agency recognizes that this research has generated a 
substantial amount of data, and believes this data set can be useful as 
a reference for assessing additional CCR samples in the future. The 
docket for today's rule therefore includes the full dataset, in the 
form of a database to provide easier access to EPA's updated leach 
data.\23\
---------------------------------------------------------------------------

    \23\ The database, called ``Leach XS Lite'' can be used to 
estimate the leaching potential of CCRs under any specified set of 
pH or infiltration conditions that may occur in the field. While the 
database is presented as a ``Beta'' version, and may be further 
developed, the data presented in the data base are final data, from 
the three EPA research reports cited above.
[GRAPHIC] [TIFF OMITTED] TP21JN10.000


    Note: The dark shading is used to indicate where there could be 
a potential concern for a metal when comparing the leach results to 
the MCL, DWEL, or concentration level used to determine the TC. Note 
that MCL and DWEL values are intended to represent concentrations at 
a well and the point of exposure; leachate dilution and attenuation 
processes that would occur in groundwater before leachate reaches a 
well are not accounted for, and so MCL and DWEL values cannot be 
---------------------------------------------------------------------------
directly compared with leachate values.


[[Page 35142]]


[GRAPHIC] [TIFF OMITTED] TP21JN10.001


    Note: The dark shading is used to indicate where there could be 
a potential concern for a metal when comparing the leach results to 
the MCL, DWEL, or concentration level used to determine the TC. Note 
that MCL and DWEL values are intended to represent concentrations at 
a well and the point of exposure; leachate dilution and attenuation 
processes that would occur in groundwater before leachate reaches a 
well are not accounted for, and so MCL and DWEL values cannot be 
directly compared with leachate values.

G. Current Federal Regulations or Standards Applicable to the Placement 
of CCRs in Landfills and Surface Impoundments.

    CCR disposal operations are typically regulated by state solid 
waste management programs, although in some instances, surface 
impoundments are regulated under the states water programs. However, 
there are limited regulations of CCRs at the federal level.
    The discharge of pollutants from CCR management units to waters of 
the United States are regulated under the National Pollutant Discharge 
Elimination System (NPDES) at 40 CFR Part 122, authorized by the Clean 
Water Act (CWA). NPDES permits generally specify an acceptable level of 
a pollutant or pollutant parameter in a discharge. NPDES permits ensure 
that a state's mandatory standards for clean water and the federal 
minimums are being met. A number of the damage cases discussed in the 
preamble also involved surface water contamination, which were 
violations of the NPDES permit requirements.

II. New Information on the Placement of CCRs in Landfills and Surface 
Impoundments

A. New Developments Since the May 2000 Regulatory Determination.

    Since publication of the May 2000 Regulatory Determination, new 
information and data have become available, including additional damage 
cases, risk modeling, updated information on current management 
practices and state regulations associated with the disposal of CCRs, 
petitions from environmental and citizens groups for EPA to develop 
rules for the management of CCRs, an industry voluntary agreement on 
how they would manage CCRs, and a proposal from environmental and 
citizens groups for a CCR rule. Much of this new information was made 
available to the public in August 2007 through a Notice of Data 
Availability (NODA) at 72 FR 49714 (http://www.epa.gov/fedrgstr/EPA-
WASTE/2007/August/Day-29/f17138.pdf). EPA has received extensive 
comments from environmental groups, industry, states and others in 
response to the NODA and as we have moved toward rulemaking. All of the 
comments and subsequent information we have received are included in 
the docket to this proposal. The new information on risks and the 
damage cases are discussed briefly below and in more detail in 
subsequent sections of this proposed rule; a more detailed discussion 
of this new information is discussed in other sections of the preamble.
    At the time of the May 2000 Regulatory Determination, the Agency 
was aware of 14 cases of proven damages \24\ and 36 cases of potential 
damages resulting from the disposal of

[[Page 35143]]

CCRs. The Agency has since learned of an additional 13 cases of proven 
damages and 4 cases of potential damages, including a catastrophic 
release of CCRs from a disposal unit at the Tennessee Valley Authority 
(TVA) Kingston facility in Harriman, Tennessee in December 2008. In 
total, EPA has documented 27 cases of proven damages and 40 cases of 
potential damages resulting from the disposal of CCRs. Proven damage 
cases have been documented in 12 states, and potential damage cases--in 
17 states. See section II.C. and the Appendix to this proposal for more 
detailed discussions of EPA's CCR damage cases.
---------------------------------------------------------------------------

    \24\ As discussed later in the preamble, 11 of these documented 
cases of damage were to human health and the environment, while four 
of these cases were cases of ecological damage, one of which has now 
been reclassified as a potential damage case.
---------------------------------------------------------------------------

    As part of the process for making the May 2000 Regulatory 
Determination for CCRs, EPA prepared a draft quantitative risk 
assessment. However, because of time constraints, the Agency was unable 
to address public comments on the draft risk assessment in time for the 
Regulatory Determination. Between 2000 and 2006, EPA addressed the 
public comments and updated the quantitative risk assessment for the 
management of CCR in landfills and surface impoundments. The revised 
risk assessment was made available for public comment in the August 
2007 draft report titled ``Human and Ecological Risk Assessment of Coal 
Combustion Wastes.''
    In the May 2000 Regulatory Determination, the Agency concluded that 
the utility industry had made significant improvements in its waste 
management practices for new landfills and surface impoundments since 
the practices reflected in the 1999 Report to Congress, and that most 
state regulatory programs had similarly improved. To verify its 
conclusion, in 2005, the U.S. Department of Energy (DOE) and EPA 
conducted a joint study to collect more recent information on the 
management practices for CCRs by the electric power industry, and state 
programs in 11 states. The results of the study were published in the 
report titled ``Coal Combustion Waste Management at Landfills and 
Surface Impoundments, 1994-2004.'' Additionally, we are aware of at 
least one state (Maryland) that has recently amended its regulatory 
requirements for the management of CCRs.
    In February 2004, 125 environmental and citizens groups petitioned 
the EPA Administrator for a rulemaking prohibiting the disposal of coal 
power plant wastes into groundwater and surface water until such time 
as EPA promulgates federally enforceable regulations pursuant to RCRA. 
A copy of the petition is available at http://www.regulations.gov/
fdmspublic/component/main?/main=DocumentDetail&o=09000064801cf8d1.
    In October 2006, the utility industry through their trade 
association, the Utility Solid Waste Activities Group (USWAG) submitted 
to EPA a ``Utility Industry Action Plan for the Management of Coal 
Combustion Products.'' The plan outlines the utility industry's 
commitment to adopt groundwater performance standards and monitoring, 
conduct risk assessments prior to placement of CCRs in sand and gravel 
pits, and to consider dry-handling prior to constructing new disposal 
units.
    In January 2007, environmental and citizens groups submitted to EPA 
a ``Proposal for the Federal Regulation of Coal Combustion Waste.'' The 
proposal provides a framework for comprehensive regulation under 
subtitle D of RCRA for waste disposed of in landfills and surface 
impoundments generated by coal-fired power plants. Then in July 2009, 
environmental and citizens groups filed a second petition requesting 
that the EPA Administrator promulgate regulations that designate CCRs 
as hazardous waste under subtitle C of RCRA.\25\ In support of their 
petition, the environmental groups cited ``numerous reports and data 
produced by the Agency since EPA's final Regulatory Determination * * * 
which quantify the waste's toxicity, threat to human health and the 
environment, inadequate state regulatory programs, and the damage 
caused by mismanagement.'' A copy of the petition is available in the 
docket to this proposal. The Agency has, as yet, not made a decision as 
to whether to lift the Bevill exemption, and, while it has determined 
that federal regulation is appropriate, it has not made a determination 
as to whether regulations should be promulgated under subtitles C or D 
of RCRA. Consequently, EPA is deferring its response to the petitioner. 
However, the preamble discusses the issues raised in these petitions at 
length. In addition, the Agency is deferring its proposed response to 
the petitioners' request regarding the placement of CCRs in minefills 
as the Agency will work with OSM to address the management of CCRs in 
minefills in a separate rulemaking action. (See discussion in other 
parts of the preamble for the Agency's basis for its decisions.)
---------------------------------------------------------------------------

    \25\ This rulemaking petition was filed by: Earthjustice; the 
Sierra Club; the Environmental Integrity Project; the Natural 
Resources Defense Council; the Southern Environmental Law Center; 
and Kentucky Resources Council.
---------------------------------------------------------------------------

    In August 2007, EPA published a NODA (72 FR 49714, http://
www.epa.gov/fedrgstr/EPA-WASTE/2007/August/Day-29/f17138.htm) which 
made public, and sought comment on, the new information we received 
since the May 2000 Regulatory Determination through 2007, except for 
the July 2009 petition entitled, Petition for Rulemaking Pursuant to 
Section 7004(a) of the Resource Conservation and Recovery Act 
Concerning the Regulation of Coal Combustion Waste and the Basis for 
Reconsideration of the 2000 Regulatory Determination Concerning Wastes 
from the Combustion of Fossil Fuels. The new information included the 
joint DOE and EPA report entitled: Coal Combustion Waste Management at 
Landfills and Surface Impoundments, 1994-2004; the draft risk 
assessment; and EPA's damage case assessment. EPA also included in the 
docket to the NODA the February 2004 Petition for Rulemaking submitted 
by a number of environmental and citizens' groups to prohibit the 
placement or disposal of CCRs into ground water and surface water; and 
two suggested approaches for managing CCRs in landfills and surface 
impoundments. One approach is the Voluntary Action Plan that was 
formulated by the electric utility industry. The second approach was 
the January 2007 framework prepared by a number of environmental and 
citizens' groups proposing federal regulation under subtitle D of RCRA 
for CCRs generated by U.S. coal-fired power plants and disposed of in 
landfills and surface impoundments. The Agency received a total of 396 
comments on the NODA from 375 citizens and citizen and environmental 
groups, 16 industry groups, and 5 state and local government 
organizations. In general, citizens, citizens groups, and environmental 
groups commented that state regulations are inadequate and called on 
EPA to develop enforceable regulations for the disposal of CCRs under 
the hazardous waste provisions of RCRA. Industry groups, on the other 
hand, stated that the significant recent improvement in industry 
management and state regulatory oversight of CCR disposal demonstrates 
that the conditions that once led EPA to determine that federal 
subtitle D regulations were warranted no longer exist and therefore, 
further development of subtitle D regulations is no longer necessary. 
In September 2008, the Environmental Council of the States (ECOS) 
issued a resolution that states already have regulations in place that 
apply to CCRs, and a federal regulation is not necessary. The 2008 ECOS 
resolution was revised in March 2010 and calls upon EPA to conclude 
that

[[Page 35144]]

additional federal CCR regulations would be duplicative of most state 
programs, are unnecessary, and should not be adopted, but if adopted 
must be developed under RCRA subtitle D rather than RCRA subtitle C 
(see http://www.ecos.org/files/4018_file_Resolution_08_14_2010_
version.doc). Comments on the NODA are available in the docket to the 
NODA at http://www.regulations.gov, docket number EPA-HQ-RCRA-2006-
0796.
    Finally, in July and August of 2008, EPA conducted a peer review of 
the 2007 draft risk assessment ``Human and Ecological Risk Assessment 
of Coal Combustion Wastes.'' The peer review was conducted by a team of 
five experts in groundwater modeling, environmental fate and transport 
modeling, and human health and ecological risk assessment. EPA has 
revised its risk assessment based on the peer review comments. Results 
of the peer review and the revised risk assessment are included in the 
docket to this proposal. Also, see section II.B. below and the document 
titled ``What Are the Environmental and Health Effects Associated with 
Disposing of CCRs in Landfills and Surface Impoundments?'' available 
from the docket to this notice for more detailed discussions of the 
risk assessment.
    In summary, since the May 2000 Regulatory Determination, the Agency 
has (1) Documented an additional 17 cases of damage from the disposal 
of CCRs (13 proven and 3 potential); (2) gathered additional 
information on industry practices; (3) revised its risk assessment, 
based on comments received on the 1999 Report to Congress, conducted a 
peer review of the revised risk assessment, and further revised its 
risk assessment based on peer review comments and comments received on 
the August 2007 NODA; (4) received a voluntary action plan from the 
utility industry; (5) received two petitions for rulemaking from 
environmental and citizens groups; and (6) received a proposal for 
regulating the management of CCRs in landfills and surface impoundments 
from environmental and citizens groups. EPA has considered all of this 
information in making the decisions on the proposals in this notice.

B. CCR Risk Assessment

    In making the May 2000 Regulatory Determination for CCRs, EPA 
prepared a draft quantitative risk assessment based on groundwater 
modeling. However, commenters from all sides raised fundamental 
scientific questions with the study, and raised issues that went beyond 
groundwater modeling capability at the time. EPA was unable to address 
these issues in the available time, and therefore did not rely on the 
draft risk assessment as part of its basis in making its May 2000 
Regulatory Determination; rather we relied on the damage cases 
identified, as well as other information. In this regard, it is worth 
noting that EPA did not conclude that the available information 
regarding the extent or nature of the risks were equivocal. Rather, EPA 
noted that we had not definitively assessed the ground water risks, due 
to the criticisms of our draft risk assessment, but still concluded 
that there were ``risks from arsenic that we cannot dismiss.'' Largely 
what drove the risks in the original risk assessment were the old units 
that lacked liners and ground water monitoring (for landfills, only 57% 
of the units had liners and 85% of the units had ground water 
monitoring, while for surface impoundments, only 26% of the units had 
liners and only 38% of the units had ground water monitoring).
    Between 2000 and 2006, EPA addressed public comments and updated 
the quantitative risk assessment for the management of CCRs in 
landfills and surface impoundments. The purpose of the risk assessment 
is to identify CCR constituents, waste types, liner types, receptors, 
and exposure pathways with potential risks and to provide information 
that EPA can use as we continue to evaluate the risks posed by CCRs 
disposed of in landfills and surface impoundments. The risk assessment 
was designed to develop national human and ecological risk estimates 
that are representative of onsite CCR management settings throughout 
the United States. A revised draft risk assessment was made available 
to the public through the August 2007 NODA (which is discussed in other 
sections of the preamble) and is available at http://
www.regulations.gov/fdmspublic/component/
main?main=DocumentDetail&o=090000648027b9cc.
    EPA submitted the revised draft risk assessment report, together 
with public comments on the report in response to the 2007 NODA, to a 
peer review panel. EPA completed the risk assessment, taking into 
account peer review comments, in a final report titled ``Human and 
Ecological Risk Assessment of Coal Combustion Wastes,'' (September 
2009). The report, peer review comments, and EPA's response to the peer 
review comments are available in the docket for this proposal.
    For purposes of this rulemaking, EPA defined the target level of 
protection for human health to be an incremental lifetime cancer risk 
of no greater than one in 100,000 (10-5) for carcinogenic 
chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals. 
The hazard quotient is the ratio of an individual's chronic daily dose 
of a constituent to the reference dose for that constituent, where the 
reference dose is an estimate of the daily dose that is likely to be 
without appreciable risk of deleterious effects over a lifetime. These 
are the target levels that EPA typically uses in its listing decisions. 
(See, for example, the final rule for Nonwastewaters From Productions 
of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants (70 FR 9144) 
at http://www.epa.gov/wastes/laws-regs/state/revision/frs/fr206.pdf.)
    The results of this risk assessment provide further confirmation of 
the high risks presented in the mismanagement of CCRs disposed in 
landfills and surface impoundments. The assessment does confirm that 
there are methods to manage CCRs safely, although it calls into 
question the reliability of clay liners, especially in surface 
impoundments, and it points to very high potential risks from unlined 
surface impoundments.
    Specifically, the revised draft CCR risk assessment presents 
results at a typical exposure (50th percentile), as well as a high-end 
exposure (90th percentile) risk based on a probabilistic analysis. The 
revised draft CCR risk assessment results at the 90th percentile 
suggest that the management of CCRs in unlined or clay-lined waste 
management units (WMUs) result in risks greater than the risk criteria 
of 10-5 for excess cancer risk to humans or an HQ greater 
than 1 for noncancer effects to both human and ecological receptors 
which are the criteria generally used in EPA's listing determination 
procedure.\26\ While still above the criteria, clay-lined units tended 
to have lower risks than unlined units. However, it was the composite-
lined units that effectively reduced risks from all pathways and 
constituents below the risk criteria. More specifically:
---------------------------------------------------------------------------

    \26\ EPA's hazardous waste listing determination policy is 
described in the notice of proposed rulemaking for wastes from the 
dye and pigment industries at 59 FR 66075-66077 available at http://
www.epa.gov/fedrgstr/EPA-WASTE/1994/December/Day-22/pr-98.html and 
in the final rule for Nonwastewaters From Productions of Dyes, 
Pigments, and Food, Drug, and Cosmetic Colorants (70 FR 9144) at 
http://www.epa.gov/wastes/laws-regs/state/revision/frs/fr206.pdf.
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    [cir] For humans exposed via the groundwater-to-drinking-water 
pathway, estimated risks from clay-lined landfills that dispose of CCRs 
or

[[Page 35145]]

CCRs co-managed with coal refuse are lower than those for unlined 
landfills. However, the 90th percentile risk estimates, for arsenic 
that leaks from clay-lined landfills are still above the risk 
criteria--as high as 1 in 5,000 individual lifetime excess cancer 
risk.\27\ When landfills are unlined, estimated risks above the 
criteria occur for antimony and molybdenum, as well as arsenic (as high 
as 1 in 2,000 individual lifetime excess cancer risk). In addition to 
arsenic, clay-lined fluidized bed combustion (FBC) landfills also 
presented estimated 90th percentile risks above the criteria for 
antimony. However, unlined FBC landfills differed in that they were 
estimated to exceed the risk criteria only for arsenic.\28\ At the 50th 
percentile, only trivalent arsenic from CCRs codisposed with coal 
refuse was estimated to exceed the risk criteria with cancer risks of 1 
in 50,000.
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    \27\ Excess cancer risk means risk in addition to pre-existing, 
``background'' risk from other exposures.
    \28\ Unlined FBC landfills showed less risk as modeled; note 
that the number of FBC landfills modeled was very small (seven).
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    [cir] Arsenic and cobalt were the constituents with the highest 
estimated risks for surface impoundments. Clay-lined surface 
impoundments were estimated to present 90th percentile risks above the 
criteria for arsenic, boron, cadmium, cobalt, molybdenum, and nitrate. 
The 90th percentile clay-lined impoundment estimated risks and hazard 
quotients (HQs) were as follows: for arsenic, the estimated risk was as 
high as 1 in 140; cobalt's estimated HQ as high as 200, while the 
estimated HQs for boron, cadmium, molybdenum and nitrate ranged from 2 
to 20. The 90th percentile unlined surface impoundment estimates were 
above the criteria for constituents that include arsenic, lead, cobalt 
and selenium: estimated arsenic cancer risks are as high as 1 in 50, 
and non-cancer effects estimates for cobalt ranged from an estimated HQ 
of 0.9 to 500 depending on whether CCRs were co-managed with coal 
refuse. At the 50th percentile, the only surface impoundment results 
estimated to exceed the risk criteria were arsenic and cobalt: unlined 
impoundments had estimated arsenic cancer risks as high as 6 in 10,000, 
while clay-lined impoundments had estimated arsenic cancer risks as 
high as 1 in 5,000. The 50th percentile noncancer HQs due to cobalt in 
drinking water were estimated to be as high as 20 and 6 for unlined and 
clay-lined surface impoundments, respectively.
    [cir] Composite liners, as modeled in this assessment, effectively 
reduce risks from all constituents to below the risk criteria for both 
landfills and surface impoundments at the 90th and 50th percentiles.
    [cir] The model generally predicts that groundwater risks will 
occur centuries later for landfills than for surface impoundments. For 
the groundwater-to-drinking water pathway for unlined landfills, 
arrival times of the peak concentrations at a receptor well peaked in 
the hundreds or thousands of years, while unlined surface impoundment 
risks typically peaked within the first 100 years. Clay liners resulted 
in later arrival of peak risks, nearly always in the thousands of years 
for landfills but still in the first few hundred years for surface 
impoundments. Finally, while composite liners often resulted in a 
failure of the plume to reach groundwater wells, composite-lined 
landfills with plumes that were estimated to reach groundwater wells 
eventually had peak arsenic-in-groundwater concentrations at 
approximately 10,000 years, while composite-lined surface impoundments' 
plumes peaked in the thousands of years.
    [cir] For humans exposed via the groundwater-to-surface-water (fish 
consumption) pathway, unlined and clay-lined surface impoundments were 
estimated to pose risks above the criteria at the 90th percentile. For 
CCRs managed alone in surface impoundments, these exceedances came from 
selenium (estimated HQs of 3 and 2 for unlined and clay-lined units, 
respectively). For CCRs co-managed with coal refuse, these exceedences 
came from arsenic (3 in 100,000 and 2 in 100,000 estimated excess 
cancer risks for unlined and clay-lined units, respectively). All 50th 
percentile surface impoundment risks are estimated to be below the risk 
criteria. No constituents pose estimated risks above the risk criteria 
for landfills (including FBC landfills) at the 90th or 50th percentile.
    [cir] EPA also conducted a separate draft fugitive dust screening 
assessment which indicates that, without fugitive dust controls, there 
could be exceedances of the National Ambient Air Quality Standards for 
fine particulate matter in the air at residences near CCR 
landfills.\29\ The 1998 risk assessment \30\ also showed risks from 
inhalation of chromium in fugitive dust but at levels below the 
criteria.\31\
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    \29\ EPA's decision to address fugitive dust was based on a peer 
review comment to the draft Risk Assessment, stakeholder NODA 
comments, photographic documentation of fugitive dust associated 
with the hauling and disposal of CCRs, Agency efforts to control 
fugitive dust emissions from the TVA Kingston spill (see e.g., 
http://www.epakingstontva.com/EPA%20Air%20Audits%20and%20Reviews/
Kingston%20Fly%20Ash%20-%20EPA%20Audit.pdf), and OSHA's requirement 
for MSDS sheets for coal ash.
    \30\ Non-Groundwater Pathways, Human Health and Ecological Risk 
Analysis for Fossil Fuel Combustion Phase 2 (FFC2): Draft Final 
Report (http://www.epa.gov/osw/nonhaz/industrial/special/fossil/
ngwrsk1.pdf).
    \31\ All chromium present in the particulate matter was assumed 
to be in the more toxic, hexavalent form.
---------------------------------------------------------------------------

    EPA recognizes that there are significant uncertainties in national 
risk assessments of this nature, although it did attempt to address 
potential uncertainties through Monte Carlo and sensitivity analyses. 
Uncertainties discussed in the revised risk assessment include:
     The locations and characteristics of currently operating 
facilities;
     The failure to account for direct discharges to surface 
water;
     Changing conditions over the 10,000-year period modeled;
     Shifting populations and ecological receptors;
     Additive risks from multiple constituents or multiple 
pathways;
     Clean closure of surface impoundments;
     The speciation and bioavailability of constituents;
     The effect of compacting CCRs before disposal;
     The assumption that all disposal units are above the water 
table;
     Full mixing of the groundwater plume;
     The choice of iron sorbent in the soil;
     The appropriateness of the leachate data used and the 
treatment of nondetects;
     The distance to receptor wells and surface water bodies; 
and
     The potential conservativeness of human health benchmarks.
    The Agency, however, does solicit comment on several specific 
aspects of the underlying risk assessment. In particular, EPA requests 
comment on whether clay liners designed to meet a 1x10-7 cm/
sec hydraulic conductivity might perform differently in practice than 
modeled in the risk assessment. Thus, EPA solicits specific data on the 
hydraulic conductivity of clay liners associated with CCR disposal 
units. In addition to the effectiveness of various liner systems, the 
hydraulic conductivity of coal ash can be reduced with the appropriate 
addition of moisture followed by compaction to attain 95% of the 
standard Proctor

[[Page 35146]]

maximum dry density value.\32\ This concept, it has been reported, 
could potentially be taken further with the use of compaction coupled 
with the addition of organosilanes. According to recent studies, 
organosilanes could take the hydraulic conductivity to zero.\33\ EPA 
solicits comments on the effectiveness of such additives, including any 
analysis that would reflect long-term performance, as well as the 
appropriateness of a performance standard that would allow such control 
measures in lieu of composite liners. EPA has also observed that 
surface impoundments are often placed right next to surface water 
bodies which may present complex subsurface environments not considered 
by the groundwater model, and therefore EPA seeks data on the distance 
of surface impoundments to water bodies, site specific groundwater risk 
analysis which accounts for the presence of a nearby surface water 
body, and groundwater monitoring data associated with such sites.
---------------------------------------------------------------------------

    \32\ The standard and modified Proctor compaction tests (ASTM D 
698 and D 1557 respectively) are used to determine the maximum 
achievable density of soils and aggregates by compacting the soil or 
aggregate in a standardized mould at a standardized compactive 
force. The maximum dry density value (or maximum achievable dry 
density value) is determined by dividing the mass of the compacted 
material (weight divided by the gravitational force) by the volume 
of the compacted material.
    \33\ ``Organo-silane Chemistry: A Water Repellant Technology for 
Coal Ash and Soils,'' John L. Daniels, Mimi S. Hourani, and Larry S. 
Harper, 2009 World of Coal Ash Conference. Available at http://
www.flyash.info/2009/025-daniels2009.pdf and in the docket to this 
proposal.
---------------------------------------------------------------------------

    In characterizing CCRs and utilizing such data for the risk 
analysis, EPA gathered a variety of data over a long period of time. As 
a general matter, EPA finds these data to be an accurate 
characterization, and that the values are in line with recent studies 
EPA has conducted to characterize new air pollution controls. However, 
with respect to a few of the highest surface impoundment porewater 
concentrations (for arsenic in particular), questions have been raised 
regarding the representativeness of these individual data points. In 
one case, a facility with the highest arsenic pore water concentration 
(86.0 mg/L) involved values that were measured in a section of a 
surface impoundment where coal refuse (defined as coal waste from coal 
handling, crushing, and sizing operations) was disposed of at the water 
surface. Pore water samples taken in the coal ash sediment beneath the 
coal refuse involved concentrations of arsenic as low as 0.003 mg/L. 
Thus, there is the question of whether those pore water samples 
measured in the coal refuse represent what leaches out of the bottom of 
the surface impoundment.
    The next highest arsenic values (an average of 5.37 mg/L over 4 
samples with the highest concentration being 15.5 mg/L) came from site 
CASJ (known as SJA in the EPRI report). The concern is that arsenic in 
the pore water was orders of magnitude higher than in the pond water. 
That type of change doesn't appear to occur for other constituents in 
these samples or for arsenic in samples from other surface 
impoundments. EPA recently attempted to obtain further information that 
could assist us to better characterize these specific data, but the 
data are old, the impoundment is no longer in operation, and there are 
apparently no additional records upon which to draw conclusions.
    Additional high concentration values, especially for lead, are 
associated with ash data provided by Freeman United Mining, which 
acquired ash for a minefilling project. None of this ash data is 
associated with electric utilities, but rather with other coal 
combusters such as John Deere, American Cyanamid, and Washington 
University in St. Louis, Missouri. The Agency is uncertain whether the 
high lead levels are associated with lead levels in the source coal, 
the operations at these facilities, or whether other wastes were mixed 
with the CCRs.
    While these concerns are associated with a small fraction of the 
data, these data reflect the highest concentrations, and thus can be 
important considerations in the risk analysis. Based on the above 
concerns, EPA solicits comment on several questions.
     For the highest concentrations in EPA's database, such as 
the examples mentioned above, are there values that do not 
appropriately represent leaching to groundwater, and if so, why not?
     Are there any additional data that are representative of 
CCR constituents in surface impoundment or landfill leachate (from 
literature, state files, industry or other sources) that EPA has not 
identified?
     EPA understands that the disposal practices associated 
with coal refuse in surface impoundments may have improved based on the 
development of an industry guide.\34\ EPA solicits information on the 
degree to which coal refuse management practices have changed since the 
issuance of the guide and the impacts of those changes (e.g., have 
concentrations of arsenic been reduced in leach samples that have been 
taken at facilities operating in concert with the industry guide).
---------------------------------------------------------------------------

    \34\ Guidance for Comanagement of Mill Rejects at Coal-Fired 
Power Plants, Electric Power Research Institute, 1999. Available in 
the docket to this proposal.
---------------------------------------------------------------------------

     For CCR surface impoundments, are there any examples of 
pore water concentrations for arsenic increasing orders of magnitude 
over pond water concentrations?
    For more detailed discussions of the CCR risk assessment, see the 
document titled: ``What Are the Environmental and Health Effects 
Associated with Disposing of CCRs in Landfills and Surface 
Impoundments?'' and the report titled ``Human and Ecological Risk 
Assessment of Coal Combustion Wastes'' which are included in the docket 
to this notice.

C. Damage Cases

    Under the Bevill Amendment for the ``special waste'' categories of 
RCRA, EPA was statutorily required to examine ``documented cases in 
which danger to human health or the environment from surface runoff or 
leachate has been proved'' from the disposal of coal combustion wastes 
(RCRA Section 8002(n)). The criteria used to determine whether danger 
to human health and the environment has been proven are described in 
detail in the May 2000 Regulatory Determination at 65 FR 32224.\35\
---------------------------------------------------------------------------

    \35\ For definition of ``proven damage case,'' see section C in 
the Supplementary Information section.
---------------------------------------------------------------------------

    At the time of the May 2000 Regulatory Determination, the Agency 
was aware of 11 documented cases of proven damage to ground water and 
36 cases of potential damage to human health and the environment from 
the improper management of CCRs in landfills and surface impoundments. 
Additionally, the Agency determined that another four cases were 
documented cases of ecological damages.\36\ However, for the May 2000 
Regulatory Determination, EPA did not consider these ecological damage 
cases because all involved some form of discharge from waste management 
units to nearby lakes or creeks that would be subject to the Clean 
Water Act regulations. Moreover, EPA concluded that the threats in 
those cases were not substantial enough to cause large scale, system 
level ecological disruptions. On review, EPA has concluded that the 
ecological damage cases are appropriate for consideration because, 
while they might involve CWA violations, they nevertheless reflect 
damages from CCR disposal that might be handled under RCRA controls. 
And, while they may or may not have involved ``systems-level''

[[Page 35147]]

disruption, they were significant enough to lead to state response 
actions, e.g., fish advisories. EPA now believes that ecological 
damages warranting state environmental response are generally 
appropriate for inclusion as damage cases, and to fail to include them 
would lead to an undercounting of real and recognized damages. 
Accordingly, at the time of the May 2000 Regulatory Determination, in 
total, 15 cases of proven damages had occurred. Subsequently, one of 
the 15 proven damage cases has been reclassified as a potential damage 
case, resulting in a total of 14 proven cases of damage, as of the May 
2000 Regulatory Determination.
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    \36\ Ecological damages are damages to mammals, amphibians, 
fish, benthic layer organisms and plants.
---------------------------------------------------------------------------

    Since the May 2000 Regulatory Determination, additional damage 
cases, including ecological damage cases, have occurred, and were 
discussed in the August 2007 NODA. Specifically, EPA has gathered or 
received information on 135 alleged damage cases. Six of the alleged 
damage cases have been excluded from this analysis because they 
involved minefills, a management method which is outside the scope of 
this proposal, while sixty-two of the damage cases have not been 
further assessed because there was little or no information supporting 
the concerns identified. Of the remaining 67 damage cases evaluated, 
EPA determined that 24 were proven cases of damage (which includes the 
14 proven damage cases from the May 2000 Regulatory Determination); of 
the 24 damage cases, eight were determined to be proven damages to 
surface water and sixteen were determined to be proven damages to 
ground water, with four of the cases to groundwater being from unlined 
landfills, five coming from unlined surface impoundments, one was from 
a surface impoundment where it was unclear whether it was lined, and 
the remaining six cases coming from unlined sand and gravel pits. 
Another 43 cases (which includes the 36 potential damage cases from the 
May 2000 Regulatory Determination) were determined to be potential 
damages to groundwater or surface water; however, four of the potential 
damage cases were attributable to oil combustion wastes and thus are 
outside the scope of this proposal; therefore, resulting in 39 CCR 
potential damage cases. The remaining 10 alleged damage cases were not 
considered to be proven or potential damage cases due to a lack of 
evidence that damages were uniquely associated with CCRs; therefore, 
they were not considered to be CCR damage cases.
    Finally, within the last couple of years, EPA has learned of an 
additional five cases of claimed damage. Two of the cases involve the 
structural failure of the surface impoundment; i.e., dam safety and 
structural integrity issues, a pathway which EPA did not consider at 
the time of the May 2000 Regulatory Determination. These cases are (1) 
a 0.5 million cubic yard release of water and fly ash to the Delaware 
River at the Martin's Creek Power Plant in Pennsylvania in 2005, 
leading to a response action costing $37 million, and (2) the 
catastrophic failure of a dike at TVA's Kingston, Tennessee facility, 
leading to the release of 5.4 million cubic yards of fly ash sludge 
over an approximately 300 acre area and into a branch of the Emory 
River, followed by a massive cleanup operation overseen by EPA and the 
state of Tennessee. EPA classifies these as proven damage cases. 
Another case involved the failure of a discharge pipe at the TVA Widows 
Creek plant in Stevenson, Alabama, resulting in a 6.1 million gallon 
release from an FGD pond, leading to $9.2 million in cleanup costs. EPA 
did not classify this as a damage case, because samples at relevant 
points of potential exposure did not exceed applicable standards. Two 
other cases involved the placement of coal ash in large scale fill 
operations. The first case, the BBBS Sand and Gravel Quarries in 
Gambrills, Maryland, involved the disposal of fly ash and bottom ash 
(beginning in 1995) in two sand and gravel quarries. EPA considers this 
site a proven damage case, because groundwater samples from residential 
drinking wells near the site include heavy metals and sulfates at or 
above groundwater quality standards, and the state of Maryland is 
overseeing remediation. The second case is the Battlefield Golf Course 
in Chesapeake, Virginia where 1.5 million yards of fly ash were used as 
fill and for contouring of a golf course. Groundwater contamination 
above drinking water levels has been found at the edges and corners of 
the golf course, but not in residential wells. An EPA study in April 
2010 established that residential wells near the site were not impacted 
by the fly ash and, therefore, EPA does not consider this site a proven 
damage case. However, due to the onsite groundwater contamination, EPA 
considers this site to be a potential damage case. Thus, the Agency has 
classified three of the five new cases as proven damage cases, one as a 
potential damage case, and the other as not being a damage case (i.e., 
not meeting the criteria to be considered either a proven or potential 
damage case). This brings the total number of proven damage cases to 27 
and 40 potential cases of damage from the mismanagement of CCRs being 
disposed.
    The Martins Creek and TVA Kingston fly ash impoundment failures 
underscore the need for surface impoundment integrity requirements. In 
the case of the Martins Creek failure, 0.5 million cubic yards of fly 
ash slurry was released into the Delaware River when a dike failed. 
Fortunately, there are no homes in the path of the release and all the 
damage was confined to power plant property and the Delaware River. On 
the other hand, the 5.4 million cubic yards of fly ash sludge released 
as a result of the TVA Kingston impoundment failure covered an area of 
approximately 300 acres, flowed into a branch of the Emory River, 
disrupted power, ruptured a gas line, knocked one home off its 
foundation and damaged others. Fortunately, there were no injuries.
    While much of our risk modeling deals with ground water 
contamination, based on historical facts, EPA recognizes that failures 
of large CCR impoundments can lead to catastrophic environmental 
releases and large cleanup costs. It is critical to understand as well, 
however, that the structural integrity requirements and the 
requirements for conversion or retrofitting of existing or new 
impoundments are designed to avoid such releases and that the benefits 
of avoiding such catastrophic failures are very significant. As 
discussed in more detail in Section XII of today's proposal and as 
fully explained in our Regulatory Impact Analysis (RIA), EPA estimated 
the benefits of avoiding the future cleanup costs of or impoundment 
failures. Depending on the regulatory option chosen, the annualized 
benefits range from $29 million to $1,212 million per year, and the net 
present value of these ranges from $405 million to $16,732 million. In 
addition, the RIA did not quantify or monetize several other additional 
benefits consisting of future avoided social costs associated with 
ecological and socio-economic damages. These include avoided damages to 
natural resources, damages to property and physical infrastructure, 
avoided litigation costs associated with such events, and reduction of 
toxic chemical-contaminated effluent discharges from impoundments to 
surface waters.
    In December 2009, EPA received a new report from EPRI challenging 
our conclusions on many of the proven damage cases often noting that 
there was not significant off-site contamination.
    The report, ``Evaluation of Coal Combustion Product Damage Cases 
(Volumes 1 and 2), Draft Report,

[[Page 35148]]

November 2009,'' is available in the docket to this proposal. EPA 
solicits comments on EPRI's report and welcomes additional data 
regarding the proven damage cases identified by EPA, especially the 
degree to which there was off-site contamination.
    EPA notes that several stakeholders have very recently identified 
additional claimed damage cases, and the agency has not had the time to 
review them closely.\37\ Similarly, other stakeholders have recently 
provided valuable information on CCR risks, costs of different possible 
options, and characterization data, which EPA has also not had time to 
review in detail or to respond to. Generally, these reports include 
information that is relevant to today's proposal. EPA will review this 
information carefully as we proceed to a final rule, and we encourage 
commenters on the proposal to consider this material, which EPA has 
placed in the rulemaking docket, as they prepare comments.
---------------------------------------------------------------------------

    \37\ On February 24, the Environmental Integrity Project and 
EarthJustice issued a report on 31 'new' alleged CCRs damage cases 
which is available at: http://www.environmentalintegrity.org/news_
reports/documents/OutofControl-
MountingDamagesFromCoalAshWasteSites.pdf.
---------------------------------------------------------------------------

    For a more detailed discussion of the damage cases, see the 
Appendix to this notice, the table ``Summary of Proven Cases with 
Damages to Groundwater and to Surface Water'' at the end of the 
Appendix, and the document ``Coal Combustion Wastes Damage Case 
Assessments'' available at http://www.regulations.gov/fdmspublic/
component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015.

III. Overview and Summary of the Bevill Regulatory Determination and 
the Proposed Subtitle C and Subtitle D Regulatory Options

    In today's notice, EPA is reevaluating its August 1993 and May 2000 
Bevill Regulatory Determinations regarding CCRs generated at electric 
utilities and independent power producers. In the May 2000 
determination, EPA concluded that disposal of CCRs did not warrant 
regulation under RCRA subtitle C as a hazardous waste, but did warrant 
federal regulation as a solid waste under subtitle D of RCRA. However, 
EPA never issued federal regulations under subtitle D of RCRA for CCRs. 
(As noted previously, today's proposal could result in the development 
of subtitle D standards consistent with the May 2000 Regulatory 
Determination, or with a revision of the determination, or the issuance 
of subtitle C standards under RCRA.) Today, EPA is reconsidering this 
determination, and is soliciting comments on two alternative options: 
(1) to reverse the Bevill determination (with respect to disposal of 
CCRs in surface impoundments and landfills), and regulate such CCRs as 
special wastes under RCRA subtitle C, and (2) to leave the Bevill 
determination in place and regulate CCRs going to disposal under 
federal RCRA subtitle D standards. Today's co-proposal provides 
regulatory text for both options.
    In determining whether or not to exclude a Bevill waste from 
regulation under RCRA subtitle C, EPA must evaluate and weigh eight 
factors. In section IV. B. of this preamble, EPA discusses CCRs from 
electric utilities in light of these factors, and we highlight the 
considerations that might lead us to reversing the August 1993 and May 
2000 Regulatory Determinations (and therefore regulate CCR disposal 
under RCRA subtitle C), or to leave the determination in place (and 
regulate CCR disposal under RCRA subtitle D).
    At the same time, EPA continues to believe the Bevill exclusion 
should remain in place for CCRs going to certain beneficial uses, 
because of the important benefits to the environment and the economy 
from these uses, and because the management scenarios for these 
products are very different from the risk case being considered for CCR 
disposal in surface impoundments and landfills. EPA makes it clear that 
CCRs in sand and gravel pits, quarries, and other large fill operations 
is not beneficial use, but disposal. As such, it would be regulated 
under whichever option is finalized. EPA solicits comments, however, on 
whether unencapsulated uses of CCRs warrant tighter federal control.

A. Summary of Subtitle C Proposal

    In combination with its proposal to reverse the Bevill 
determination for CCRs destined for disposal, EPA is proposing to list 
as a special waste, CCRs from electric utilities and independent power 
producers when destined for disposal in a landfill or surface 
impoundment. These CCRs would be regulated under the RCRA subtitle C 
rules (as proposed to be amended here) from the point of their 
generation to the point of their final disposition, which includes both 
during and after closure of any disposal unit. In addition, EPA is 
proposing that all existing units that have not closed in accordance 
with the criteria outlined in this proposal, by the effective date of 
the final rule, would be subject to all of the requirements of subtitle 
C, including the permitting requirements at 40 CFR parts 124 and 270. 
As such, persons who generate, transport and treat, store or dispose of 
CCRs would be subject to the existing cradle-to-grave subtitle C waste 
management requirements at 40 CFR parts 260 through 268, parts 270 to 
279, and part 124 including the generator and transporter requirements 
and the requirements for facilities managing CCRs, such as siting, 
liners (with modification), run-on and run-off controls, groundwater 
monitoring, fugitive dust controls, financial assurance, corrective 
action, including facility-wide corrective action, closure of units, 
and post-closure care (with certain modifications). In addition, 
facilities that dispose of, treat, or, in many cases, store, CCRs also 
would be required to obtain permits for the units in which such 
materials are disposed, treated, and stored. EPA is also considering 
and seeking comment on a modification, which would not require the 
closure or installation of composite liners in existing surface 
impoundments; rather, these surface impoundments could continue to 
operate for the remainder of their useful life. The rule would also 
regulate the disposal of CCRs in sand and gravel pits, quarries, and 
other large fill operations as a landfill.
    To address the potential for catastrophic releases from surface 
impoundments, we also are proposing requirements for dam safety and 
stability for impoundments that, by the effective date of the final 
rule, have not closed consistent with the requirements. Finally, we are 
proposing land disposal restrictions and treatment standards for CCRs, 
as well as a prohibition on the disposal of treated CCRs below the 
natural water table.

B. Summary of Subtitle D Proposal

    In combination with its proposal to leave the Bevill determination 
in place, EPA is proposing to regulate CCRs disposed of in surface 
impoundments or landfills under the RCRA subtitle D requirements, which 
would establish national criteria to ensure the safe disposal of CCRs 
in these units. The units would be subject to, among other things, 
location standards, composite liner requirements (new landfills and 
surface impoundments would require composite liners; existing surface 
impoundments without liners would have to retrofit within five years, 
or cease receiving CCRs and close); groundwater monitoring and 
corrective action for releases from the unit standards; closure and 
post-closure care requirements; and requirements to address the 
stability of surface impoundments. We solicit comments on requiring 
financial assurance and on

[[Page 35149]]

how the requirements apply to surface impoundments that continue to 
receive CCRs after the effective date of the rule; specifically, EPA is 
requesting comment on an alternative under which existing surface 
impoundments would be allowed to continue to operate without requiring 
the facility to retrofit the unit to install a composite liner. The 
rule would also regulate the disposal of CCRs in sand and gravel pits, 
quarries, and other large fill operations as a landfill. The rule would 
not regulate the generation, storage or treatment of CCRs prior to 
disposal. Because of the scope of subtitle D authority, the rule would 
not require permits, nor could EPA enforce the requirements. Instead, 
states or citizens could enforce the requirements under RCRA citizen 
suit authority; the states could also enforce any state regulation 
under their independent state enforcement authority.
    EPA is also considering, and is seeking comment on, a potential 
modification to the subtitle D option, called ``D prime.'' Under the 
``D prime'' option, existing surface impoundments would not have to 
close or install composite liners but could continue to operate for 
their useful life. In the ``D prime'' option, the other elements of the 
subtitle D option would remain the same.

IV. Bevill Regulatory Determination Relating to CCRs From Electric 
Utilities

    As discussed in the preceding sections, EPA originally conditioned 
its May 2000 Regulatory Determination on continued review of, among 
other factors, ``the extent to which [the wastes] have caused damage to 
human health or the environment; and the adequacy of existing 
regulation of the wastes.'' (See 65 FR 32218.) Review of the 
information developed over the past ten years has confirmed EPA's 
original risk concerns, and has raised significant questions regarding 
the accuracy of the Agency's predictions regarding anticipated 
improvements in management and state regulatory oversight of these 
wastes. Consequently, the Agency has determined that reconsideration of 
its May 2000 Regulatory Determination is appropriate, and is 
revaluating whether regulation of CCRs under RCRA subtitle C is 
necessary in light of the most recent information. The scientific 
analyses, however, are complex and present legitimate questions for 
comment and further consideration. Thus, while EPA has concluded that 
federal regulation of this material is necessary, the Agency has yet 
not reached a conclusion as to whether the Bevill determination should 
be revised, or whether regulation under RCRA subtitle C or D is 
appropriate, but is soliciting comments on the two options described in 
the previous section.
    As stated earlier, EPA's application of its discretion in weighing 
the eight Bevill factors--and consequently our ultimate decision--will 
be guided by the following principles. The first is that EPA's actions 
must be protective of human health and the environment. Second, any 
decision must be based on sound science. Finally, in conducting this 
rulemaking, EPA will ensure that its decision processes are 
transparent, and encourage the greatest degree of public participation. 
Consequently, to further the public's understanding and ability to 
comment on the issues facing the Agency, EPA provides an extensive 
discussion of the technical issues associated with the available 
information, as well as the policy considerations and the key factors 
that will weigh in the Agency's ultimate decision.

A. Basis for Reconsideration of May 2000 Regulatory Determination

    EPA decided in May 2000 that regulation under RCRA subtitle C was 
not warranted in light of the trends in present disposal and 
utilization practices, the current and potential utilization of the 
wastes, and the concerns expressed against duplication of efforts by 
other federal and state agencies. In addition, EPA noted that the 
utility industry has made significant improvements in its waste 
management practices with respect to new management units over recent 
years, and most state regulatory programs are similarly improving. In 
particular, EPA noted that, of the new units constructed between 1985 
and 1995, 60% of the new surface impoundments were lined and 65% had 
groundwater monitoring. Further, the risk information available was 
limited, although we also noted that we expected that the limited 
number of damage cases identified in the Regulatory Determination was 
an underestimate. However, EPA did not conclude that the available 
information regarding the extent or nature of the risks were equivocal. 
However, the Agency noted that ``* * * we identified a potential for 
risks from arsenic that we cannot dismiss * * *.'' \38\ EPA further 
noted that ``[i]n the absence of a more complete groundwater risk 
assessment, we are unable at this time to draw quantitative conclusions 
regarding the risks due to arsenic or other contaminants posed by 
improper waste management.'' Existing older units that lacked liners 
and groundwater monitoring (for surface impoundments, only 26% of all 
units had liners and only 38% of all units had groundwater monitoring) 
were the major risk drivers in the study.
---------------------------------------------------------------------------

    \38\ See 65 FR 32216 at http://www.epa.gov/epawaste/nonhaz/
industrial/special/fossil/ff2f-fr.pdf.
---------------------------------------------------------------------------

    As discussed in greater detail in section II.B, EPA has revised the 
draft quantitative risk assessment made available when it solicited 
public comment on the 1999 Report to Congress to account for the 
concerns raised by the public during the public comment period. The 
results of these risk analyses show that certain management practices--
the disposal of both wet and dry CCRs in unlined waste management 
units, but particularly in unlined surface impoundments, and the 
prevalence of wet handling, can pose significant risks to human health 
and the environment from releases of CCR toxic constituents to ground 
water and surface water. The Agency has estimated that there are 
approximately 300 CCR landfills and 584 CCR surface impoundments or 
similar management units in use at roughly 495 coal-fired power plants. 
(Data also indicate that a small number of utilities dispose of CCRs 
off-site, typically near the generating utility.) Many of these units--
particularly surface impoundments--lack liners and groundwater 
monitoring systems. EPA's revised CCR risk assessment \39\ estimated 
the cancer risk from arsenic \40\ that leaches into groundwater from 
CCRs managed in units without composite liners to exceed EPA's typical 
risk thresholds of 10-4 to 10-6. For example, 
depending on various assumptions about disposal practices (e.g., 
whether CCRs are co-disposed with coal refuse), groundwater 
interception and arsenic speciation, the 90th percentile risks from 
unlined surface impoundments ranged from 2x10-2 to 
1x10-4. The risks from clay-lined surface impoundments 
ranged from 7x103 to 4x10-5. Similarly, estimated 
risks from unlined landfills ranged between 5x10-4 to 
3x10-6, and

[[Page 35150]]

from 2x10-4 to 5x10-9 for clay-lined landfills. 
EPA's risk assessment also estimated HQs above 1 for other metals, 
including selenium and lead in unlined and clay-lined units. EPA also 
notes in this regard that recent research indicates that traditional 
leach procedures (e.g., TCLP and SPLP) may underestimate the actual 
leach rates of toxic constituents from CCRs under different field 
conditions.
---------------------------------------------------------------------------

    \39\ ``Human and Ecological Risk Assessment of Coal Combustion 
Wastes,'' (April 2010).
    \40\ The risk estimates for arsenic presented in the revised 
risk assessment are based on the existing cancer slope factor of 1.5 
mg/kg/d-1 in EPA's Integrated Risk Information System 
(IRIS). However, EPA is currently evaluating the arsenic cancer 
slope factor and it is likely to increase. In addition, the National 
Resources Council (NRC) of the National Academy of Sciences (NAS) 
made new recommendations regarding new toxicity information in the 
NRC document, ``Arsenic in Drinking Water, 2001 Update.'' Using this 
NRC data analysis, EPA calculated a new cancer slope factor of 26 
mg/kg/d-1 which would increase the individual risk 
estimates by about 17 times.
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    Recent events also have demonstrated that, if not properly 
controlled, these wastes have caused greater damage to human health and 
the environment than EPA originally estimated in its risk assessments. 
On December 22, 2008, a failure of the northeastern dike used to 
contain fly ash occurred at the dewatering area of the TVA's Kingston 
Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4 
million cubic yards of fly ash sludge was released over an 
approximately 300 acre area. The ash slide disrupted power, ruptured a 
gas line, knocked one home off its foundation and damaged others. A 
root-cause analysis report developed for TVA, accessible at http://
www.tva.gov/kingston/rca/index.htm, established that the dike failed 
because it was expanded by successive vertical additions, to a point 
where a thin, weak layer of fly ash (`slime') on which it had been 
founded, failed by sliding. The direct costs to clean up the damage 
from the TVA Kingston incident are well into the billions, and is 
currently estimated to exceed $1.2 billion.\41\
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    \41\ $3.0 billion is EPA's ``social cost'' estimate assigned in 
the April 2010 RIA to the December 2008 TVA Kingston, TN impoundment 
release event. Social cost represents the opportunity costs incurred 
by society, not just the monetary costs for cleanup. OMB's 2003 
``Circular A-4: Regulatory Analysis'' (page 18) instructs Federal 
agencies to estimate ``opportunity costs'' for purpose of valuing 
benefits and costs in RIAs. This $3.0 billion social cost estimate 
is larger than TVA's $933 million to $1.2 billion cleanup cost 
estimate (i.e., TVA's estimate as of 03 Feb 2010), because EPA's 
social cost estimate consists of three other social cost elements in 
addition to TVA's cleanup cost estimate: (a) TVA cleanup cost, (b) 
response, oversight and ancillary costs associated with local, 
state, and other Federal agencies, (c) ecological damages, and (d) 
local (community) socio-economic damages. Appendix Q to the April 
2010 RIA provides EPA's documentation and calculation of these four 
cost elements, which total $3.0 billion in social cost.
---------------------------------------------------------------------------

    Although the TVA spill was the largest, it was not the only damage 
case to involve impoundment stability. A smaller, but still significant 
incident occurred in August 2005, when a gate in a dam confining a 40-
acre CCR surface impoundment in eastern Pennsylvania failed. The dam 
failure, a violation of the facility's state-issued solid waste 
disposal permit and Section 402 of the Clean Water Act, resulted in the 
discharge of 0.5 million cubic yards of coal-ash and contaminated water 
into the Oughoughton Creek and the Delaware River.
    Moreover, documented cases of the type of damage that EPA 
originally identified to result from improper management of CCR have 
continued to occur, leading EPA to question whether the risks that EPA 
originally identified have been sufficiently mitigated since our May 
2000 Regulatory Determination. As discussed in more detail below, and 
in materials contained in the docket, there is a growing record of 
proven damage cases to groundwater and surface water, as well as a 
large number of potential damage cases. Since the May 2000 Regulatory 
Determination, EPA has documented an additional 13 proven damage cases 
and 4 potential damage cases.
    Further, recently collected information regarding the existing 
state regulatory programs \42\ calls into question whether those 
programs, in the absence of national minimum standards, have 
sufficiently improved to address the gaps that EPA had identified in 
its May 2000 Regulatory Determination such that EPA can continue to 
conclude that in the absence of federal oversight, the management of 
these wastes will be adequate to protect human health and the 
environment. Many state regulatory programs for the management of CCRs, 
including requirements for liners and groundwater monitoring, are 
lacking, and while industry practices may be improving, EPA continues 
to see cases of inappropriate management or cases in which key 
protections (e.g., groundwater monitoring at existing units) are 
absent. Although the joint DOE and EPA study entitled, Coal Combustion 
Waste Management at Landfills and Surface Impoundments, 1994-2004, 
indicates that most new units appear to be better designed, in that 
they are lined and have installed groundwater monitoring systems, and 
therefore the total percentages of unprotected units have decreased, it 
appears that a large amount of waste is still being disposed into units 
that lack the necessary protections of liners, and groundwater 
monitoring. Furthermore, while corrective action has generally been 
taken at the proven damage cases, the RCRA regulatory program is 
designed to prevent contamination in the first place, if at all 
practicable, rather than one in which contamination is simply remedied 
after discovery.\43\ This information also highlights that EPA still 
lacks details regarding the manner and degree to which states are 
regulating the management of this material. All of these factors 
emphasize the need for prompt federal rulemaking and have led EPA to 
reconsider its May 2000 Regulatory Determination.
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    \42\ ASTSWMO Survey Conducted Feb.--Mar. 2009 (Excel 
spreadsheet) available in the docket for this proposal.
    \43\ As noted in Appendix I on Damage Cases, of the 16 proven 
cases of damages to groundwater, the Agency has been able to confirm 
that corrective actions have been completed in seven cases and are 
ongoing in the remaining nine cases. Corrective action measures at 
these CCR management units vary depending on site specific 
circumstances and include formal closure of the unit, capping, re-
grading of ash and the installation of liners over the ash, 
groundwater treatment, ground-water monitoring, installation of a 
barrier wall, and combinations of these measures.
---------------------------------------------------------------------------

    In sum, as a result of the significant new information accumulated 
on two of the four considerations specifically identified in the May 
2000 Regulatory Determination (65 FR 32218), the Agency has determined 
that reevaluation of its original conclusions in light of all of the 
RCRA Section 8002(n) study factors is necessary. Based on its 
consideration of these statutory factors, EPA has not yet reached a 
decision on whether to revise the Bevill Regulatory Determination. 
Rather, EPA has summarized the information available for each of the 
factors, and identifies those considerations on which EPA believes that 
critical information is lacking. Accordingly, EPA is soliciting further 
information and public input on each of these considerations that will 
factor into the Agency's determination as to whether regulation under 
RCRA subtitle C or D is warranted.
    As stated previously and as fully explained in Section XII of 
today's proposal and in our Regulatory Impact Analysis, our proposed 
requirements for surface impoundment structural stability and 
conversion or retrofitting of units, will have substantial benefits in 
avoided future clean up costs.

B. RCRA Section 8002(n) Study Factors

    Section 8002(n) of RCRA requires the Administrator to conduct a 
detailed and comprehensive study and submit a report on the adverse 
effects on human health and the environment, if any, of the disposal 
and utilization of fly ash waste, bottom ash waste, slag waste, flue 
gas emission control waste, and other by-product materials generated 
primarily from the combustion of coal or other fossil fuels. The study 
was to include an analysis of the eight factors required under section 
8002(n) of RCRA. EPA addressed these study factors in the 1988 and 1999 
Reports to

[[Page 35151]]

Congress. The findings of these two Reports to Congress were the basis 
for our decisions in the August 1993 and the May 2000 Regulatory 
Determinations to maintain the Bevill exemption for CCRs. In 
considering whether to retain or to reverse the August 1993 and May 
2000 Regulatory Determinations regarding the Bevill exemption of CCRs 
destined for disposal, we have reexamined the RCRA section 8002(n) 
study factors against the data on which we made the May 2000 Regulatory 
Determination, as well as the most recent data we have available.
    1. Source and volumes of CCR generated per year: In the mid-1990s, 
according to various sources, between 62 and 71 million tons of CCRs 
were generated by coal-fired electric power plants.\44\ In comparison, 
much larger volumes are being generated now (primarily due to the 
increase in coal-fired power plants), with 136 million tons of CCRs 
generated by coal-fired electric power plants in 2008.\45\
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    \44\ Cited in ``Technical Background Document for the Report to 
Congress on Remaining Wastes from Fossil Fuel Combustion: Industry 
Statistics and Waste Management Practices,'' March 1999.
    \45\ ACAA (American Coal Ash Association). 2009. 2008 Coal 
Combustion Product (CCP) Production & Use Survey Report. http://
acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_
Survey_Report_FINAL_100509.
---------------------------------------------------------------------------

    2. Present disposal and utilization practices: In 2008, 34% (46 
million tons) of CCRs were landfilled, 22% (29.4 million tons) were 
disposed into surface impoundments,\46\ nearly 37% (50.1 million tons) 
were beneficially used (excluding minefill operations), and nearly 8% 
(10.5 million tons) were placed in mines. This compares to 
approximately 23% (26.2 million tons) landfilled, 46% (53.2 million 
tons) disposed of into surface impoundments, 23% beneficially used 
(excluding minefill operations), and 8% (9 million tons) placed in 
mines in 1995. Thus, while the overall volume of CCRs going to disposal 
in surface impoundments and landfills has remained relatively constant, 
the total volume going to surface impoundments has decreased, and the 
total volume going to landfills has increased.
---------------------------------------------------------------------------

    \46\ Estimated from the 2009 ACAA survey and Energy Information 
Administration 2005 F767 Power Plant database.
---------------------------------------------------------------------------

    The Agency has estimated that there are approximately 300 CCR 
landfills and 584 CCR surface impoundments or similar management units 
in use at roughly 495 coal-fired power plants. The age of the disposal 
units varies considerably. For example, while there are new surface 
impoundments, 75% are greater than 25 years old, with 10% being greater 
than 50 years old. Similarly, information from an EPRI survey used in 
the 1999 Report to Congress indicates that the average planned life 
expectancy of a landfill is approximately 31 years, with about 12% 
having planned life expectancy over 50 years (with one planning for 
over 100 years). Many of these units--particularly surface 
impoundments, lack liners and ground water monitoring systems. EPA has 
estimated that in 2004, 31% of the CCR landfills and 62% of the CCR 
surface impoundments lacked liners, and 10% of the CCR landfills and 
58% of the CCR surface impoundments lacked groundwater monitoring.\47\ 
In the mid-1990s, there were approximately 275 CCR landfills and 286 
CCR surface impoundments in use.\48\ EPA does not believe the increased 
number of surface impoundments identified in today's rule reflects an 
actual change of practice, but rather more stringent definitions, as 
well as possibly, the greater availability of more accurate 
information. For example, much of the increase in surface impoundments 
likely results from counting units that receive wastewater that has 
been in contact with even small amounts of coal ash, and thus includes 
many units which were not included in EPA's mid-1990 estimates.
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    \47\ Estimated from the 1995 data reported in the May 2000 
Regulatory Determination and the data for new units from 1994 to 
2004 reported in the 2006 DOE/EPA report ``Coal Combustion Waste 
Management at Landfills and Surface Impoundments, 1994-2004.''
    \48\ Technical Background Document, Ibid.
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    a. Existing State Regulatory Oversight. The results of the joint 
DOE and EPA study entitled, Coal Combustion Waste Management at 
Landfills and Surface Impoundments, 1994-2004 indicates that of the 
states evaluated in this report, state regulations have generally 
improved since 2000. In addition, it would appear that the industry 
itself is changing and improving its management practices. For example, 
all new surface impoundments and nearly all new landfills (97%) 
identified in the survey that were constructed between 1994 and 2004 
were constructed with liners. Regarding the prevalence of groundwater 
monitoring at new units, the joint DOE/EPA study suggests that nearly 
all new landfills (98%) and most new surface impoundments (81%) 
constructed between 1994 and 2004 were constructed with groundwater 
monitoring systems. Moreover, the frequency of dry handling in 
landfills appears to have increased; approximately two-thirds of the 
new units are landfills, while the remaining one-third are surface 
impoundments. The number of new units from 1994 to 2004 was 56. 
Assuming that replacement continued at a rate of 5.6 per year since 
2004, we would have an additional 34 new units, but it would still be 
decades at this rate to replace the large collection of older units.
    The DOE/EPA study also identifies significant gaps that remain 
under existing state regulation. For example, only 19% (3 out of 19) of 
the surveyed surface impoundment unit permits included requirements 
addressing groundwater protection standards (i.e., contaminant 
concentrations that cannot be exceeded) or closure/post-closure care, 
and only 12% (2 out of 12) of surveyed units were required to obtain 
bonding or financial assurance. The EPA/DOE report also concluded that 
approximately 30 percent of the net disposable CCRs generated is 
potentially entirely exempt from the state solid waste permitting 
requirements \49\ (EPA/DOE Report at pages 45-46). For example, Alabama 
does not currently regulate CCR disposal under any state waste 
authority and does not currently have a dam safety program (although 
the state has an initiative to develop one). Texas (the largest coal 
ash producer) does not require permits for waste managed on-site.\50\ 
Tennessee currently does not regulate surface impoundments under its 
waste authority, but is now reconsidering this, in light of the TVA 
spill. Finally, a number of states only regulate surface impoundments 
under Clean Water Act authorities, and consequently primarily address 
the risks from effluent discharges to navigable waters, but do not 
require liners or groundwater monitoring.
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    \49\ 38.7 million tons of out of 129 million tons generated CCRs 
(Based on DOE/EIA 2004 data).
    \50\ In Texas, on-site means the same or geographically 
contiguous property which may be divided by public or private 
rights-of-way, provided the entrance and exit between the properties 
is at a cross-roads intersection, and access is by crossing, as 
opposed to going along, the right-of-way. Noncontiguous properties 
owned by the same person but connected by a right-of-way which he 
controls and to which the public does not have access, is also 
considered on-site property. (Title 30 TAC 335.1)
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    The Agency recognizes that these statistics may be difficult to 
interpret due to the limitations of the study. The study focused on 
only eleven states, which account for approximately half the CCRs 
generated in the U.S., and it may not address all of the existing 
regulatory requirements that states may or could impose through other 
authorities to control these units. As one example, the DOE/EPA report 
notes that four of the six states that do not require solid waste 
permits rely on other state authorities to regulate these units: ``In

[[Page 35152]]

Florida, if CCWs are disposed in an on-site landfill at a coal-fired 
electric generating plant authorized under the Florida Power Plant 
Siting Act (PPSA), no separate permits, including solid waste 
construction and operation permits, are required. Instead, the entire 
facility is covered under the PPSA certification, which will contain 
the same substantive requirements as would otherwise have been imposed 
by other permits.'' (EPA/DOE Report at page 46). The DOE/EPA report 
identified whether states tightened, relaxed, or were neutral with 
regard to program changes. From the time of the 1999 Report to Congress 
to 2005, most all programs were neutral, with a couple of programs 
tightening requirements and none relaxing requirements. Going back to 
the period of the 1988 Report to Congress to 2005, two states (Alabama 
and Florida) are reported to have relaxed portions of their standards, 
while not tightening any other portions of their program. Part of the 
difficulty in interpreting this information stems from the fact that 
the survey responses contained little or no details of the state 
requirements; rather, the responses merely indicated (by checking a 
box) whether states imposed some sort of requirement relating to the 
issue. Consequently, the Agency lacks detailed information on the 
content of the requirements, and whether, for example, performance 
based requirements or other state programs are used to address the 
risks from these units. EPA also received detailed comments on this 
report authored by several environmental groups, who criticized several 
of the general conclusions. These comments are included in the rule 
docket (see comment attachment submitted by Marty Rustan on behalf of 
Lisa Evans, Attorney, Earthjustice; EPA-HQ-RCRA-2006-0796-0446.5).
    A more recent survey conducted by the Association of State and 
Territorial Solid Waste Management Officials (ASTSWMO) seems to support 
the view that the states still have not yet adequately implemented 
regulatory programs over CCR management units, although like the DOE/
EPA study, it lacks details on the substance of the state requirements. 
According to a 2009 ASTSWMO survey of states with coal ash generation 
\51\ (available in the docket), of the 42 states with coal fired 
utilities, at least 36 have permit programs for landfills used to 
manage CCRs, and of the 36 states that have CCR surface impoundments, 
25 have permit programs. Permitting is particularly important to 
provide oversight and to approve implementation plans such as the 
placement of groundwater monitoring wells. Without a state permit 
program, regulatory flexibility is limited, and certification by an 
independent registered professional engineer is necessary. With regard 
to liner requirements, 36% (15 of the 42 states that responded to this 
question) do not have minimum \52\ liner requirements for CCR 
landfills, while 67% (24 of the 36 states that responded to this 
question) do not have CCR liner requirements for surface impoundments. 
Similarly, 19% (8 of the 42 states that responded to this question) do 
not have minimum groundwater monitoring requirements for landfills and 
61% (22 of the 36 states that responded to this question) do not have 
groundwater monitoring requirements for surface impoundments.\53\ These 
findings are particularly significant as groundwater monitoring for 
these kinds of units is a minimum for any credible regulatory regime. 
The 2009 ASTSWMO survey also indicates that only 36 percent of the 
states regulate the structural stability of surface impoundments, and 
only 31 percent of the states require financial assurance for surface 
impoundments. Because structural stability of surface impoundments is 
largely regulated by state dam safety programs which are separate from 
state solid waste programs, EPA recognizes that information from the 
dam safety programs would be a much more meaningful measure of state 
regulation of the structural stability of surface impoundments, and 
solicits such information.
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    \51\ ASTSWMO Survey Conducted Feb.-Mar. 2009 (Excel 
spreadsheet).
    \52\ For both landfills and surface impoundments, most of the 
states that responded to questions addressing their liner and 
groundwater monitoring program provisions had less stringent 
requirements, e.g., allowing variance, exemption, or a case-by-case 
evaluation. In the absence of state-specific information, we are 
unable to translate these statistics into a concrete number of 
affected waste units.
    \53\ Additionally, the July 2009 Petition pointed out 
deficiencies in state regulatory programs.
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    Thus, while the states seem to be regulating landfills to a greater 
extent, given the significant risks associated with surface 
impoundments, these results suggest that there continue to be 
significant gaps in state regulatory programs for the disposal of CCRs. 
(See Letter from ASTSWMO to Matt Hale dated April 1, 2009, a copy of 
which is in the docket to today's proposed rule for complete results of 
the survey.)
    EPA is also aware of some additional information from ASTSWMO. 
There are 15 states (Colorado, Florida, Indiana, Iowa, Kansas, 
Kentucky, Maryland, Minnesota, Mississippi, Montana, New York, North 
Carolina, Ohio, Pennsylvania, and Virginia) that were considering 
changes to their CCR regulations at the time of the ASTSWMO survey 
(February 2009). In late November 2009, ASTSWMO also identified 15 
states (Arizona, Delaware, Georgia, Idaho, Iowa, Kansas, Louisiana, 
Maryland, Mississippi, North Dakota, South Carolina, Tennessee, 
Washington, Wisconsin, and West Virginia) that had revised their CCR 
requirements since 2000. Finally, ASTSWMO identified 8 states (Georgia, 
Illinois, Indiana, Iowa, Montana, Ohio, Pennsylvania, and South 
Carolina) which are requiring groundwater monitoring at existing 
facilities that previously did not have groundwater monitoring.
    Several issues complicate this assessment, however. As noted 
previously, EPA lacks any real details regarding how states, in 
practice, oversee the management of these materials when treated as 
wastes. For example, some states may use performance based standards or 
implement requirements to control CCR landfills and surface 
impoundments under other state programs. Also, most of the new data 
primarily focuses on the requirements applicable to new management 
units, which represent approximately 10% of the disposal units. EPA has 
little, if any information, that describes the extent to which states 
and utilities have implemented requirements--such as groundwater 
monitoring, for existing units, for the many landfills and surface 
impoundments that receive CCRs. The information currently in the record 
with respect to existing units is fifteen years old. EPA expects that 
it would be unlikely that states would have required existing units to 
install liners, states would have been more likely to have imposed 
groundwater monitoring for such units over the last 15 years. Finally, 
as discussed in the next section, the fact that many of the surface 
impoundments are located adjacent to water bodies--which is not 
accounted for in EPA's groundwater risk assessment--may affect our 
assessment of the extent of the liner and groundwater monitoring 
requirements that would be necessary. Therefore, EPA solicits detailed 
comments specifically on the current management practices of state 
programs, not only under state waste authorities, but under other 
authorities as well. The adequacy of state regulation is one of the key 
issues before the Agency, as it will address some of the more 
significant questions remaining regarding the extent of the

[[Page 35153]]

risks presented by the disposal of CCRs. Accordingly, the Agency 
specifically solicits information, whether from state regulatory 
authorities or from members of the public, regarding details on the 
entire state regulatory structure, including the specific requirements 
that states have in place to regulate CCRs, and to provide oversight of 
these units. EPA would also welcome more detailed information regarding 
the states' historic practice in implementing its existing 
requirements, including for example, the states' record of enforcement 
and its practice in providing for public participation in the 
development and implementation of any existing permitting requirements. 
EPA is particularly interested in information on the extent to which 
states have implemented requirements applicable to the older, existing 
units, which represent the majority of the units into which CCRs are 
currently disposed (approximately 90%). EPA also requests information 
on the extent to which EPA's current information adequately reflects 
changes in industry practices, adopted independent of state 
requirements.
    b. Beneficial Use. In the May 2000 Regulatory Determination, EPA 
stated: ``The Agency has concluded that no additional regulations are 
warranted for coal combustion wastes that are used beneficially (other 
than for minefilling) and for oil and gas combustion wastes. We do not 
wish to place any unnecessary barriers on the beneficial use of fossil 
fuel combustion wastes so that they can be used in applications that 
conserve natural resources and reduce disposal costs.'' (65 FR 32214) 
(See separate discussion regarding minefilling in section IV. E of this 
preamble.) EPA identified specific beneficial uses as covered by the 
May 2000 determination. In particular, EPA stated that: ``Beneficial 
purposes include waste stabilization, beneficial construction 
applications (e.g., cement, concrete, brick and concrete products, road 
bed, structural fill, blasting grit, wall board, insulation, roofing 
materials), agricultural applications (e.g., as a substitute for lime) 
and other applications (absorbents, filter media, paints, plastics and 
metals manufacture, snow and ice control, waste stabilization).'' (See 
65 FR 32229) These beneficial uses are described in more detail in 
EPA's Report to Congress on Wastes from the Combustion of Fossil Fuels 
in March 1999 (see Volume 2, Section 3.3.5).
    Since EPA's Regulatory Determination in May 2000, there has been a 
significant increase in the use of CCRs and the development of 
established commercial sectors that utilize and depend on the 
beneficial use of CCRs. Additional uses have been identified; for 
example, the use of CCRs as ingredients in specific products, such as 
resin-bound products or mineral filler in asphalt. New applications of 
CCRs have been developed, which may hold great green house gas (GHG) 
benefits (for example, fly ash bricks and a process to use CO2 
emissions to produce cement). Further, EPA expects that uses could 
shift in the future because the composition and characteristics of CCRs 
are likely to change due to the addition of new air pollution controls 
at coal-fired utilities. (See section IV. D. below for a more detailed 
discussion on the beneficial use of CCRs.)
    3. Potential danger, if any, to human health and the environment 
from the disposal and reuse of CCRs:
    a. From Disposal. The contaminants of concern in CCRs include 
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
nickel, selenium, silver and thallium. Potential human exposure 
pathways for these contaminants from the disposal of CCRs are ground 
water ingestion, inhalation, and the consumption of fish exposed to 
contaminants. Ecological impacts include surface water contamination, 
contamination of wetlands, and aquatic life exposure to contaminants of 
concern. As discussed in section II. B, V., and the Regulatory Impact 
Analysis, the risks modeled for the 2010 risk assessment often exceeded 
EPA's typical regulatory levels of concern. With very few exceptions, 
the risks modeled for the 2010 risk assessment correspond with ground 
water exceedances of constituents observed in EPA's damage case 
assessments (e.g., arsenic, boron, cadmium, lead, molybdenum, and 
selenium were modeled and found to exceed the risk criteria in at least 
some instances, and were also found in at least some of the damage 
cases). Additionally, as discussed in section I.F.2, the potential 
exists for the chemical characteristics of certain CCRs (e.g., fly ash 
and FGD) to increase, which could result in increases in releases from 
management units, particularly if such wastes are placed in old unlined 
units, as a result of the increased use and application of advanced air 
pollution control technologies in coal-fired power plants. Further 
details on the results of EPA's quantitative groundwater risk 
assessment, and the technical issues that remain to be addressed, and 
on the unquantified human and ecological risks can be found in section 
II and in the Regulatory Impact Analysis for today's proposal.
    EPA also conducted a population risk assessment for the 
groundwater-arsenic pathway, as a complement to the individual risk 
analysis. While the RCRA program necessarily focuses on individual 
risks, and individual risks have been the basis of previous Bevill and 
hazardous waste determinations, the population risk estimate provides 
perspective, and was used to develop the Agency's cost benefit analyses 
of different regulatory approaches (discussed in section XII.A of this 
preamble). In this analysis, EPA calculated a best estimate that 
current risks from arsenic via the groundwater used as drinking water 
pathway are 2,509 total excess cancers, over a 75-year period.\54\ (A 
75-year period was used in this analysis to capture peak risk while the 
RIA generally covers 50 years.) These estimates are based on a cancer 
slope factor which represents the most recent science derived from a 
2001 National Resources Council review of arsenic toxicity. It should 
be noted that the analysis did not include risks from other pathways or 
constituents, as explained in section 5A of the Regulatory Impact 
Analysis for this proposal.
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    \54\ Chapter 5, Page 121 of the Regulatory Impact Analysis for 
this proposal.
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    Of the approximately 584 surface impoundments currently operating 
in the United States, a certain percentage of these have a great 
potential for loss of human life and environmental damage in the event 
of catastrophic failure. Based on the information collected from EPA's 
recent CERCLA 104(e) information request letters 109 impoundments have 
either a high or significant hazard potential rating,\55\ thirteen of 
which were not designed by a professional engineer. Of the total 
universe of surface impoundments, approximately 186 of these units were 
not designed by a professional engineer. Surface impoundments are 
generally designed to last the typical operating life of coal-fired 
boilers, on the order of 40 years. However, many impoundments are 
aging: 56 units are older than 50 years, 96 are older than 40 years, 
and 340 are between 26 and 40 years old. In recent years, problems have 
continued to arise from these units, which appear to be related to the 
aging infrastructure, and the fact that many units may be nearing the 
end of

[[Page 35154]]

their useful lives. For example, as a result of the administrative 
consent order issued after the December 2008 spill, TVA conducted 
testing which showed that another dike at TVA's Kingston, Tennessee 
plant had significant safety deficiencies. Further, in response to 
EPA's CERCLA 104(e) information request letter, a total of 35 units at 
25 facilities reported historical releases. These range from minor 
spills to a spill of 0.5 million cubic yards of water and fly ash. 
Additional details regarding these releases can be found in the docket 
for this rulemaking. EPA continues its assessments of CCR surface 
impoundments. The most recent information on these can be found on 
EPA's internet site at http://www.epa.gov/epawaste/nonhaz/industrial/
special/fossil/surveys2/index.htm#surveyresults.
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    \55\ 429 of these impoundments currently have no rating. Thus, 
the Agency expects the number of surface impoundments with a high or 
significant hazard rating may increase as additional impoundments 
are assigned ratings. See the definitions in the Summary section of 
this notice for the definitions of high and significant hazard 
potential.
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    b. From Beneficial Use. The risks associated with the disposal of 
CCRs stem from the specific nature of that activity and the specific 
risks it involves; that is, the disposal of CCRs in (often unlined) 
landfills or surface impoundments, with hundreds of thousands, if not 
millions, of tons placed in a single concentrated location. And in the 
case of surface impoundments, the CCRs are managed with water, under a 
hydraulic head, which promotes more rapid leaching of contaminants into 
neighboring groundwater than do landfills. The beneficial uses 
identified as excluded under the Bevill amendment for the most part 
present a significantly different picture, and a significantly 
different risk profile.
    In 1999 EPA conducted a risk assessment of certain agricultural 
uses of CCRs,\56\ since the use of CCRs in this manner was considered 
the most likely to raise concerns from a human health and environmental 
point of view. EPA's risk assessment estimated the risks associated 
with such uses to be within the range of 1x10-6. The results 
of the risk assessment, as well as EPA's belief that the use of CCRs in 
agricultural settings was the most likely use to raise concerns, 
resulted in EPA concluding that none of the identified beneficial uses 
warranted federal regulation, because ``we were not able to identify 
damage cases associated with these types of beneficial uses, nor do we 
now believe that these uses of coal combustion wastes present a 
significant risk to human health or the environment.'' (65 FR 32230, 
May 22, 2000.) EPA also cited the importance of beneficially using 
secondary materials and of resource conservation, as an alternative to 
disposal.
---------------------------------------------------------------------------

    \56\ 1998 Draft Final Report; Non-groundwater Pathways, Human 
Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 
2 (FFC2) and its appendices (A through J); available at http://
www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
---------------------------------------------------------------------------

    To date, EPA has still seen no evidence of damages from the 
beneficial uses of CCRs that EPA identified in its original Regulatory 
Determination. For example, there is wide acceptance of the use of CCRs 
in encapsulated uses, such as wallboard, concrete, and bricks because 
the CCRs are bound into products. The Agency believes that such 
beneficial uses of CCRs offer significant environmental benefits.
    As we discuss in other sections of this preamble, there are 
situations where large quantities of CCRs have been used 
indiscriminately as unencapsulated, general fill. The Agency does not 
consider this a beneficial use under today's proposal, but rather 
considers it waste management.

Environmental Benefits

    The beneficial use of CCRs offers significant environmental 
benefits, including greenhouse gas (GHG) reduction, energy 
conservation, reduction in land disposal (i.e., avoidance of potential 
CCR disposal impacts), and reduction in the need to mine and process 
virgin materials and the associated environmental impacts. 
Specifically:
    Greenhouse Gas and Energy Benefits. The beneficial use of CCRs 
reduces energy consumption and GHG emissions in a number of ways. One 
of the most widely recognized beneficial applications of CCRs is the 
use of coal fly ash as a substitute for Portland cement in the 
manufacture of concrete. Reducing the amount of cement produced by 
beneficially using fly ash as a substitute for cement leads to large 
supply chain-wide reductions in energy use and GHG emissions.\57\ For 
example, fly ash typically replaces between 15 and 30 percent of the 
cement in concrete, although the percentages can and have been higher. 
However, assuming a 15 to 30 percent fly ash to cement replacement 
rate, and considering the approximate amount of cement that is produced 
each year, would result in a reduction of GHG emissions by 
approximately 12.5 to 25 million tons of CO2 equivalent and 
a reduction in oil consumption by 26.8 to 53.6 million barrels of 
oil.\58\ This estimate is likely to underestimate the total benefits 
that can be achieved. As an added benefit, the use of fly ash generally 
makes concrete stronger and more durable. This results in a longer 
lasting material, thereby marginally reducing the need for future 
cement manufacturing and corresponding avoided emissions and energy 
use.
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    \57\ Waste and Materials-Flow Benchmark Sector Report: 
Beneficial Use of Secondary Materials--Coal Combustion Products, 
February 12, 2008.
    \58\ Avoided GHG and energy saving estimates based on energy and 
environmental benefits estimates in the EPA report entitled, ``Study 
on Increasing the Usage of Recovered Mineral Components in Federally 
Funded Projects Involving Procurement of Cement or Concrete'' 
available at http://www.epa.gov/osw/conserve/tools/epg/pdf/rtc/
report4-08.pdf.
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    Benefits From Reducing the Need To Mine and Process Virgin 
Materials. CCRs can be substituted for many virgin materials that would 
otherwise have to be mined and processed for use. These virgin 
materials include limestone to make cement, and Portland cement to make 
concrete; mined gypsum to make wallboard, and aggregate, such as stone 
and gravel for uses in concrete and road bed. Using virgin materials 
for these applications requires mining and processing them, which can 
impair wildlife habitats and disturb otherwise undeveloped land. It is 
beneficial to use secondary materials--provided it is done in an 
environmentally sound manner--that would otherwise be disposed of, 
rather than to mine and process virgin materials, while simultaneously 
reducing waste and environmental footprints. Reducing mining, 
processing and transport of virgin materials also conserves energy, 
avoids GHG emissions, and reduces impacts on communities.
    Benefits From Reducing the Disposal of CCRs. Beneficially using 
CCRs instead of disposing of them in landfills and surface impoundments 
also reduces the need for additional landfill space and any risks 
associated with their disposal. In particular, the U.S. disposed of 
over 75 million tons of CCRs in landfills and surface impoundments in 
2008, which is equivalent to the space required of 26,240 quarter-acre 
home sites under 8 feet of CCRs.
    While the Agency recognizes the need for regulations for the 
management of CCRs in landfills and surface impoundments, we strongly 
support the beneficial use of CCRs in an environmentally sound manner 
because of the significant environmental benefits that accrue both 
locally and globally. As discussed below in section XII.A, the current 
beneficial use of CCRs as a replacement for industrial raw materials 
(e.g., Portland cement, virgin stone aggregate, lime, gypsum) provides 
substantial annual life cycle environmental benefits for these 
industrial applications. Specifically,

[[Page 35155]]

beneficially using CCRs as a substitute for industrial raw materials 
contributes (a) $4.89 billion per year in energy savings, (b) $0.081 
billion per year in water savings, (c) $0.239 billion per year in GHG 
\59\ (i.e., carbon dioxide and methane) emissions reduction, and (d) 
$17.8 billion per year in other air pollution reduction. In addition, 
these applications also result in annual material and disposal cost 
savings of approximately $2.93 billion. All together, the beneficial 
use of CCRs provides $25.9 billion in annual national economic and 
environmental benefits (relative to 2005 tonnage).\60\
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    \59\ The RIA monetizes the annual tonnage of greenhouse gas 
effects associated with the CCR beneficial use life cycle analysis, 
based on the 2009 interim social cost of carbon (i.e., interim SCC) 
of Table III.H.6-3, page 29617 of the joint EPA and DOT-NHTSA 
``Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas 
Emission Standards and Corporate Average Fuel Economy Standards,'' 
Federal Register, Volume 74, No. 186, 28 Sept 2009. The value 
applied in the RIA is the $19.50 per ton median value from the $5 to 
$56 per ton range displayed in the 2007 column in that source. 
Furthermore, the RIA updated the 2007$ median value from 2007 to 
2009 dollars using the NASA Gross Domestic Product Deflator 
Inflation Calculator at http://cost.jsc.nasa.gov/inflateGDP.html. 
EPA is aware that final SCC values were published on March 9, 2010 
in conjunction with a Department of Energy final rule. EPA intends 
to use the final SCC values for the CCR final rule RIA. The final 
SCC values are published in the Department of Energy, Energy 
Efficiency & Renewable Energy Building Technologies Program, ``Small 
Electric Motors Final Rule Technical Support Document: Chapter 16--
Regulatory Impact Analysis,'' March 9, 2010 at http://
www1.eere.energy.gov/buildings/appliance_standards/commercial/sem_
finalrule_tsd.html).
    \60\ These benefits estimates are further discussed in Chapter 
5C of the RIA which is available in the docket for this proposal.
---------------------------------------------------------------------------

    However, as discussed in the next section, there are cases where 
large quantities of CCRs have been ``used'' indiscriminately as 
unencapsulated ``fill,'' e.g., to fill sand and gravel pits or 
quarries, or as general fill (e.g., Pines, Indiana and the Battlefield 
Golf Course in Chesapeake, Virginia \61\). Although EPA does not 
consider these practices to be legitimate beneficial uses, others 
classify them as such. In any case, EPA has concluded that these 
practices raise significant environmental concerns.
---------------------------------------------------------------------------

    \61\ These instances are associated with 7 proven damage cases 
and 1 potential damage case.
---------------------------------------------------------------------------

    4. Documented cases in which danger to human health or the 
environment from surface runoff or leachate has been proved: As 
described previously, EPA has identified 27 proven damage cases: 17 
cases of damage to groundwater, and ten cases of damage to surface 
water, seven of which are ecological damage cases. Sixteen of the 17 
proven damage cases to groundwater involved disposal in unlined units--
for the one additional unit, it is unknown whether there was a liner. 
We have also identified 40 potential damage cases to groundwater and 
surface water. These numbers compare to 14 proven damage cases and 36 
potential cases of damage when the Agency announced its Regulatory 
Determination in May 2000. The Agency believes that these numbers 
likely underestimate the number of proven and potential damage cases 
and that it is likely that additional cases of damage would be found if 
a more comprehensive evaluation was conducted, particularly since much 
of this waste has been (and continues to be) managed in unlined 
disposal units.
    Several of the new damage cases involve activities that differ from 
prior damage cases, which were focused on groundwater contamination 
from landfills and surface impoundments. These new cases present 
additional risk concerns that EPA did not evaluate in the May 2000 
Regulatory Determination. Specifically, some of the recent proven 
damage cases involved the catastrophic release due to the structural 
failure of CCR surface impoundments, such as the dam failures that 
occurred in Martins Creek, Pennsylvania and Kingston, Tennessee.
    In addition, a number of proven damage cases involve the large-
scale placement, akin to disposal, of CCRs, under the guise of 
``beneficial use.'' The ``beneficial use'' in these cases involved the 
filling of old, unlined quarries or gravel pits, or the regrading of 
landscape with large quantities of CCRs. For example, the 216-acre 
Battlefield Golf Course was contoured with 1.5 million yards of fly ash 
to develop the golf course. In late 2008, groundwater and surface water 
sampling was conducted. There were exceedances of primary drinking 
water standards in on-site groundwater for contaminants typically found 
in fly ash. In addition, there were exceedances of secondary drinking 
water standards in both on-site and off-site groundwater (in nine 
residential wells); however, the natural levels of both manganese and 
iron in the area's shallow aquifer are very high (0.14 mg/L to 0.24.mg/
L and 5.0 mg/L to 13.0 mg/L, respectively), and, thus, it could not be 
ruled out that the elevated levels of manganese and iron are a result 
of the natural background levels of these two contaminants. Surface 
water samples showed elevated levels of aluminum, chromium, iron, lead, 
manganese, and thallium in one or more on-site samples. The lone off-
site surface water sample had elevated levels of aluminum, iron, and 
manganese. In April 2010 EPA issued a Final Site Inspection Report \62\ 
which concluded that (i) metals contaminants were below MCLs and Safe 
Drinking Water Act action levels in all residential wells that EPA 
tested; (2) the residential well data indicate that metals are not 
migrating from the fly ash to residential wells; and (iii) there are no 
adverse health effects expected from human exposure to surface water or 
sediments on the Battlefield Golf Course site as the metal 
concentrations were below the ATSDR standards for drinking water and 
soil. Additionally, the sediments samples in the ponds were below EPA 
Biological Technical Assistance Group screening levels and are not 
expected to pose a threat to ecological receptors. Similarly, beginning 
in 1995, the BBBS sand and gravel quarries in Gambrills, Maryland, used 
fly ash and bottom ash from two Maryland power plants to fill excavated 
portions of two sand and gravel quarries. Groundwater samples collected 
in 2006 and 2007 from residential drinking water wells near the site 
indicated that, in certain locations, contaminants, including heavy 
metals and sulfates, were present at or above groundwater quality 
standards. Private wells in 83 homes and businesses in areas around the 
disposal site were tested. MCLs were exceeded in 34 wells [arsenic (1), 
beryllium (1), cadmium (6), lead (20),\63\ and thallium (6)]. SMCLs 
were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate 
(5)]. The state concluded that leachate from the placement of CCRs at 
the site resulted in the discharge of pollutants to waters of the 
state.
---------------------------------------------------------------------------

    \62\ http://www.epa.gov/reg3hwmd/CurrentIssues/finalr-
battlefield_golf_club_site/redacted_DTN_0978_Final_
Battlefield_SI_Report.pdf.
    \63\ It is uncertain whether lead exceedances were due to CCRs 
or lead in the plumbing and water holding tanks.
---------------------------------------------------------------------------

    Further details on these additional damage cases are provided in 
section II. C (above), and in the Appendix to this notice.
    As mentioned in section II.C, during the development of this 
proposal, EPA received new reports from industry and citizen groups 
regarding damage cases. Industry provided information that, they 
suggested, shows that many of EPA's listed proven damage cases do not 
meet EPA's criteria for a damage case to be proven. On the other hand, 
citizen groups recently identified additional alleged damage cases. The 
Agency has not yet had an opportunity to evaluate this additional 
information. EPA's analysis, as well as the additional information from 
industry and citizen groups, all of which is available in the docket to 
this proposed rule, would

[[Page 35156]]

benefit from public input and further review, in the interest of 
reaching a more complete understanding of the nature and number of 
damage cases. EPA encourages commenters to consider all of these 
analyses in developing their comments.
    5. Alternatives to current disposal methods: There are no 
meaningful disposal alternatives other than land disposal. Improved 
disposal management practices are practical (e.g., liners, groundwater 
monitoring, dust control), although EPA has not identified meaningful 
or practical treatment options prior to disposal, other than 
dewatering. (There are, however, available technologies, or 
technologies under development, to process CCRs now likely destined for 
disposal so that they can effectively be converted to appropriate 
beneficial uses.) The beneficial use of these materials as products 
continues to be an important alternative to disposal.
    6. The cost of such alternative disposal methods: The Agency has 
estimated the nationwide costs to the electric utility industry (or to 
electric rate payers) for each alternative considered for this 
proposal. These estimates are discussed in the regulatory impact 
analysis presented within section XII.A of this preamble.
    7. The impact of the alternative disposal methods on the use of 
coal and other natural resources: The alternative disposal methods 
mentioned above are not expected to impact the use of coal or other 
natural resources. However, we would note that some surface 
impoundments at coal-fired utilities are also used as wastewater 
treatment systems for other non-CCR wastewaters. Therefore, if 
facilities switch from wet to dry handling of CCRs, construction of 
alternative wastewater treatment systems could become necessary for 
other non-CCR wastewaters, especially if they involved acidic wastes 
that are currently neutralized by the coal ash. (Note that the issue of 
beneficial uses of CCRs is discussed below; if the effect of a subtitle 
C approach is to increase beneficial uses, it could lead to a decrease 
in the use of virgin materials like ingredients in cement making, 
aggregate, mined gypsum, etc. On the other hand, if the effect of that 
approach were to decrease beneficial uses, as some commenters 
suggested, it would have the opposite effect on the use of natural 
resources.)
    8. The current and potential utilization of CCRs: In 2008, nearly 
37% (50.1 million tons) of CCRs were beneficially used (excluding 
minefill operations) and nearly 8% (10.5 million tons) were placed in 
minefills. (This compares to 23% of CCRs that were beneficially used, 
excluding minefilling, at the time of the May 2000 Regulatory 
Determination, and represents a significant increase.)
    Parties have commented that any regulation of CCRs under RCRA 
subtitle C will impose a crippling stigma on their beneficial use, and 
eliminate or significantly curtail these uses, even if EPA were to 
regulate only CCRs destined for disposal, without modifying the 
regulatory status of beneficial reuse. On the other hand, other parties 
have commented that increasing the cost of disposal of CCRs through 
regulation under subtitle C will actually increase their usage in non-
regulated beneficial uses, simply as a result of the economics of 
supply and demand. States, at the same time, have commented that, by 
operation of state law, the beneficial use of CCRs would be prohibited 
under the states' beneficial use programs, if EPA designated CCRs as 
hazardous waste when disposed of in landfills or surface impoundments. 
At the time of the May 2000 Regulatory Determination, commenters had 
raised this similar concern, and without agreeing that regulation under 
RCRA subtitle C would necessarily affect the beneficial reuse of this 
material, EPA nevertheless strongly expressed concern that beneficial 
use not be adversely affected.
    EPA is interested in additional information supporting the claims 
that ``stigma'' will drive people away from the use of valuable 
products, or that states will prohibit the reuse of CCRs under their 
beneficial use programs if EPA regulates any aspect of CCR management 
under subtitle C. Specifically, the Agency requests that commenters 
provide analyses and other data and information that demonstrate this 
to be the case. To date, we have received statements and declarations 
that regulation under subtitle C will have devastating effects on 
beneficial uses of CCRs. In addition, for those commenters who suggest 
that regulating CCRs under subtitle C of RCRA would raise liability 
issues, EPA requests that commenters describe the types of liability 
and the basis, data, and information on which these claims are based. 
The issue of beneficial use and stigma are more fully discussed in 
section VI, where we discuss the alternative of regulating CCRs under 
subtitle C of RCRA. EPA would also be interested in suggestions on 
methods by which the Agency could reduce any stigmatic impact that 
might indirectly arise as a result of regulation of CCRs destined for 
disposal as a ``special'' waste under RCRA subtitle C.

C. Preliminary Bevill Conclusions and Impact of Reconsideration

    The Agency is proposing two different approaches to regulating 
CCRs: Regulation as a ``special'' waste listed under RCRA subtitle C if 
EPA decides to lift the Bevill exemption with respect to disposal; and 
regulation as a solid waste under RCRA subtitle D, if the Bevill 
exemption is retained for disposal. Under both of these approaches, 
requirements for liners and groundwater monitoring would be 
established, although there are differences with respect to the other 
types of requirements that can be promulgated by EPA under RCRA 
subtitle C and D. In addition, as discussed in greater detail below, 
one of the primary differences between the various approaches relates 
to the degree and extent of federal oversight, as this varies 
considerably between the alternatives. As noted previously, EPA has not 
yet reached a decision on whether to regulate CCRs under RCRA subtitle 
D or C, but continues to evaluate each of these options in light of the 
8002(n) factors.
    In determining the level of regulation appropriate for the 
management of CCRs, several considerations weigh heavily with the 
Agency; information on these issues will therefore be important for 
commenters to consider as they prepare their comments. One particularly 
critical question relates to the extent of the risks posed by the 
current management of this material, along with the corresponding 
degree of Federal oversight and control necessary to protect human 
health and the environment. As discussed in the preceding sections, 
since EPA's Regulatory Determination in May 2000, new information has 
called into question EPA's original assessment of the risks posed by 
the current management of CCRs that are disposed of. In summary, this 
includes (1) The results of EPA's 2010 risk assessment, which indicates 
that certain management practices--particularly units without composite 
liners and the prevalence of wet handling can pose significant risks; 
(2) the growing record of proven damage cases to ground water and 
surface water, as well as a large number of potential damage cases; (3) 
recent events, which have demonstrated that these wastes have caused 
greater damage to human health and the environment than originally 
estimated (i.e., catastrophic environmental impacts from surface 
impoundment breaches, and damage resulting from ``sham beneficial 
uses''); and (4) questions regarding the adequacy of

[[Page 35157]]

state regulatory programs for the management of CCRs, as many states 
appear to lack key protective requirements for liners and groundwater 
monitoring and a permitting program to ensure that such provisions are 
being properly implemented, even though overall industry practices 
appear to be improving. All of these considerations illustrate that in 
many cases CCRs have not been properly managed. The question is whether 
federal regulation is more appropriate under subtitle C or subtitle D 
of RCRA.
    Several significant uncertainties remain with respect to all of the 
identified considerations. For example, as discussed previously, the 
data and analyses associated with this proposal are complex, and 
several uncertainties remain in EPA's quantitative risk analysis. One 
of these uncertainties is the evolving character/composition of CCRs 
due to electric utility upgrades and retrofits needed to comply with 
the emerging CAA requirements, which could present new or otherwise 
unforeseen contaminant issues (e.g., hexavalent chromium from post-
NOX controls). Other uncertainties relate to the extent to 
which some sampled data with high concentrations used in the risk 
assessment accurately reflect coal ash leaching from landfills or 
surface impoundments, and the extent to which releases from surface 
impoundments located in close proximity to water bodies intercept 
drinking water wells. For example, as explained earlier in the 
preamble, some data reflected pore water taken in the upper section of 
a surface impoundment where coal refuse was placed. There were acid 
generating conditions and high concentrations of arsenic, but the data 
demonstrated that the underlying coal ash neutralized the acid 
conditions and greatly reduced the arsenic which leached from the 
bottom of the impoundment. There are also technical issues associated 
with releases from surface impoundments located in close proximity to 
water bodies which intercept drinking water wells. For example, surface 
impoundments are commonly placed next to rivers, which can intercept 
the leachate plume and prevent contamination of drinking water wells on 
the other side of the river. Also, in such circumstances the direction 
of groundwater flow on both sides of the river may be towards the 
river; thus, the drinking water well on the opposite side of a river 
may not be impacted.
    As mentioned previously, EPA has received additional reports on 
damage cases, one from industry and one from citizen groups. Closer 
analyses of these reports could have the potential to significantly 
affect the Agency's conclusions.
    An equally significant component of the overall picture, if not 
more so, relates to how effectively state regulatory programs address 
the risks associated with improper management of this material. As 
discussed earlier in this preamble, the continued damage cases and the 
reports on state regulatory programs call into question whether the 
trend in improving state regulatory regimes that EPA identified in May 
2000 has materialized to the degree anticipated in the Regulatory 
Determination. Although recent information indicates that significant 
gaps remain, EPA continues to lack substantial details regarding the 
full extent of state regulatory authority over these materials, and the 
manner in which states have in practice, implemented this oversight. 
Nevertheless, based on the information made available on state 
programs, the Agency is reticent to establish a regulatory program 
without any federal oversight. Thus, EPA seeks additional details on 
regulation of CCRs by states to ensure that EPA's understanding of 
state programs is as complete as possible. While EPA recognizes that 
the extent of regulation of CCRs varies between states, EPA is not yet 
prepared to draw overall conclusions on the adequacy of state programs, 
as a general matter. EPA is, therefore, requesting that commenters, and 
particularly state regulatory authorities, provide detailed information 
regarding the extent of available state regulatory authorities, and the 
manner in which these have been, and are currently implemented. In this 
regard, EPA notes that ``survey'' type information that does not 
provide these details is unlikely to be able to resolve the concerns 
arising from the recent information developed since the May 2000 
Regulatory Determination. EPA is also soliciting comments on the extent 
to which the information currently available to the Agency reflects 
current industry practices at both older and new units. For example, 
EPA would be particularly interested in information that indicates how 
many facilities currently have groundwater monitoring systems in place, 
how those systems are designed and monitored, and what, if anything, 
they have detected.
    EPA has identified several issues that will be relevant as it 
continues to evaluate the overall adequacy of state regulatory 
programs. Specifically, EPA intends to consider how state regulatory 
programs have, in practice, evaluated and imposed requirements to 
address: (1) Leachate collection; (2) groundwater monitoring; (3) 
whether a unit must be lined, and the type of liner needed; (4) the 
effectiveness of existing management units as opposed to new management 
units; (5) whether the state requires routine analysis of CCRs; (6) 
whether financial responsibility requirements are in place for the 
management of CCRs; (7) the extent of permit requirements, including 
under what authorities these disposal units are permitted, the types of 
controls that are included in permits, and the extent of oversight 
provided by the states, (8) whether state programs include criteria for 
siting new units; (9) the extent of requirements for corrective action, 
post-closure monitoring and maintenance; (10) the state's pattern of 
active enforcement and public involvement; and (11) whether or not 
these facilities have insurance against catastrophic failures.
    Directly related to the level of risk presented by improper 
management of CCRs, EPA is also weighing the differing levels of 
Federal oversight and control, and the practical implementation 
challenges, associated with the level and type of regulation under RCRA 
subtitles C and D. In the interest of furthering the public 
understanding of this topic, EPA presents an extensive discussion of 
the differences and concerns raised between regulation under subtitles 
C and D of RCRA, including a comparison of the advantages and 
disadvantages of each.
    The subtitle C approach proposed today would provide full national 
cradle-to-grave control over CCRs destined for disposal, consistently 
managed under federally enforceable standards and through federal 
permits, or permits issued by the states that EPA has authorized to 
regulate CCRs in lieu of EPA. Permits can be a particularly important 
mechanism, because they allow the regulatory Agency to scrutinize the 
design of disposal units and the management practices of the permit 
applicant. They also allow the regulator to tailor the permit 
conditions to the facility site conditions, including the ability to 
impose additional specific conditions where it deems current or 
proposed facility practices to be inadequate to protect human health or 
the environment, pursuant to the omnibus authority in RCRA section 
3005(c). Additionally, permitting processes provide the public and the 
local community the opportunity to participate in regulatory decisions. 
The combined requirements under subtitle C would effectively phase-out 
all wet handling of CCRs and prohibit the disposal of CCRs in surface 
impoundments. Moreover, the subtitle C approach is the only approach 
that

[[Page 35158]]

allows direct federal enforcement of the rule's requirements. The many 
damage cases, including more recent damage cases, suggest the value of 
control and oversight at the federal level.
    At the same time, EPA acknowledges concerns with a subtitle C 
approach on the part of states, the utilities, and users of CCR-derived 
products. The states have expressed concern that any federal approach, 
including a subtitle D approach, has the potential to cause disruption 
to the states' implementation of CCR regulatory programs under their 
own authority. For example, the state of Maryland has recently upgraded 
its disposal standards for CCRs under its state solid waste authority, 
and the new state regulations address the major points in today's 
proposal (except the stability requirement for impoundments and the 
prohibition against surface impoundments). The state has expressed 
concern about having to revise its regulations again, and re-permit 
disposal units under subtitle C of RCRA. A subtitle D approach, as 
described in today's proposal, would eliminate or significantly reduce 
these concerns. EPA acknowledges these concerns, and certainly does not 
wish to force the states to go through unnecessary process steps. EPA 
nevertheless solicits comment on this issue, including more specifics 
on the potential for procedural difficulties for state programs, and 
measures that EPA might adopt to try to mitigate these effects.
    Two additional substantive concerns with regulation of CCRs under 
subtitle C have been raised by commenters: the effect of listing CCRs 
as hazardous waste under RCRA on beneficial uses, and the availability 
of existing subtitle C landfill capacity to manage CCRs. As explained 
previously, EPA shares the concern that beneficial uses not be 
inadvertently adversely affected by the regulation of CCRs destined for 
disposal. EPA continues to believe that certain beneficial use, when 
performed properly, is the environmentally preferable destination for 
these materials and, therefore, wants to address any potential stigma 
that might arise from designating CCRs as hazardous wastes. Thus, EPA 
is seeking data and information, including detailed analyses, of why 
the subtitle C regulation outlined in today's proposal will have the 
impact that some commenters have identified. As explained at length in 
section VI of this preamble, EPA believes it can generally address the 
concerns that have been raised regarding the effect of subtitle C 
regulation on legitimate beneficial uses in today's proposal through 
several of the actions outlined in today's proposal. The most important 
of these is that EPA is not proposing to revise its May 2000 Regulatory 
Determination that beneficial uses retain the Bevill exemption and do 
not warrant federal regulation. Nevertheless, EPA agrees that 
``stigma'' is an important consideration in the Agency's decision, and 
solicits information and data that will help the Agency quantify the 
potential effects of any stigma arising from association with CCR 
disposal regulated under subtitle C.
    On the question of hazardous waste disposal capacity, EPA believes 
that management patterns of CCRs will continue: That landfills and 
surface impoundments currently receiving CCRs will obtain interim 
status and convert to RCRA subtitle C status, and that the proposal 
will not shift disposal patterns in a way that substantially increases 
the disposal of CCRs off-site from generating utilities to commercial 
hazardous waste landfills. Therefore, EPA's regulatory analysis assumes 
disposal patterns will remain generally the same. As commenters have 
pointed out, CCRs do, in theory, have the potential to overwhelm the 
current hazardous waste capacity in the United States. EPA's Biennial 
Report indicates that approximately two million tons of hazardous waste 
are disposed of annually in hazardous waste landfills, and EPA 
estimates that the current total national commercial hazardous waste 
landfill disposal capacity is between 23.5 and 30.3 million tons, while 
the annual amount of CCRs currently going to land disposal is 46 
million tons (with an additional 29.4 million tons going to surface 
impoundments).\64\ These figures illustrate the very large volume of 
CCR material involved, and how it could overwhelm existing subtitle C 
disposal capacity. While a DOE survey reports that 70% of disposal 
involves ``company on-site'' disposal units and 30% involves ``off-
site'' disposal units, DOE indicated that off-site disposal capacity 
can be company owned or commercial disposal units. In communications 
with USWAG, they indicated, in some cases smaller facilities may send 
ash to a commercial operation, but believed that is in no way 
representative of the industry as a whole. In some cases, the disposal 
facility may be operated by a contractor for the utility, and the 
landfill is a captive facility that does not receive other industrial 
wastes. At the same time, EPA points out that, to the extent that new 
capacity is needed, the implementation of today's rule, if the subtitle 
C alternative is selected, will take place over a number of years, 
providing time for industry and state permitting authorities to address 
the issue. However, this is an issue on which EPA would find further 
information to be helpful. Therefore, EPA solicits detailed information 
on this topic, to aid in further quantifying the extent to which 
existing capacity may be insufficient. For example, EPA is interested 
in detailed information on the volume of CCRs now going off-site for 
disposal; the nature of off-site disposal sites (e.g., commercial 
subtitle D landfills versus dedicated CCR landfills owned by the 
utility); and the amount of available land on utility sites for added 
disposal capacity.
---------------------------------------------------------------------------

    \64\ These figures reflect the total current capacity, not 
annual capacity. The annual capacity is significantly less: 
modifications to annual capacity would require modifications to 
existing permits.
---------------------------------------------------------------------------

    Finally, the states have expressed concern that the RCRA subtitle C 
requirements will be considerably more expensive for them to implement 
than a RCRA subtitle D regulation, without providing commensurate 
benefits. For example, the states have reported that regulation under 
RCRA subtitle C, versus subtitle D, would cost them an additional $17 
million per year to implement. EPA acknowledges the concern that the 
RCRA subtitle C requirements can be costly to implement, and could put 
more pressure on diminishing state budgets. However, were states to 
utilize the subtitle D requirements of today's proposal, the cost of 
implementing a RCRA subtitle D program will also be expensive. Thus, 
EPA is aware of the pressures on state budgets and will consider 
potential impacts when making a final determination for this 
rulemaking. Nevertheless, in the event that EPA determines that RCRA 
subtitle C regulation is warranted, it will be because EPA has 
determined that there are serious environmental and human health risks 
that can only be remedied by regulation under subtitle C. Further, 
under the subtitle C scenario, we believe that most states should be 
able to address any shortfalls through hazardous waste generator or 
disposal fees. EPA specifically solicits comments from states as to the 
extent to which such fees would be able to offset the costs of 
administering permit, inspection, and enforcement programs.
    EPA notes that its estimates of costs of compliance with the 
subtitle C requirements have increased since its estimates in the 1999 
Report to Congress; as explained later in this preamble, EPA believes 
these costs are commensurate with the benefits to be derived from the 
controls, and that the costs of regulation under RCRA subtitle D are 
substantial as well. For example,

[[Page 35159]]

one of the major potential costs under either the subtitle C or 
subtitle D option is associated with the required closure of all 
existing surface impoundments that do not meet the rule's technical 
requirements, which EPA is proposing under both the subtitle C and 
subtitle D co-proposals. Further, the technical unit design and 
groundwater monitoring requirements that will effectively protect human 
health and the environment under either option are quite similar. 
Finally, EPA is proposing to modify certain aspects of the RCRA 
subtitle C framework to address some of the practical implementation 
challenges associated with applying the existing regulatory framework 
to these wastes. However, commenters have suggested that EPA has 
underestimated the costs of compliance under the subtitle C 
requirements upstream of surface impoundments and landfills (e.g., for 
storage). Commenters, however, have not provided specific cost 
estimates associated with storage of CCRs. EPA specifically solicits 
substantiating detail from commenters.
    One disadvantage of a RCRA subtitle C approach, compared to a RCRA 
subtitle D approach, is that the subtitle C approach, in most states, 
will not go into effect as quickly as subtitle D. That is, the subtitle 
C regulations require an administrative process before they become 
effective and federally enforceable (except in the two states that are 
not authorized to manage the RCRA program). The RCRA hazardous waste 
implementation and authorization process is described in detail in 
sections VII and VIII of this preamble. But to summarize, federal 
regulations under subtitle C would not go into effect and become 
federally enforceable until RCRA-authorized states \65\ have adopted 
the requirements under their own state laws, and EPA has authorized the 
state revisions. Under the RCRA subtitle C regulations, when EPA 
promulgates more stringent regulations, states are required to adopt 
those rules within one year, if they can do so by regulation, and two 
years if required by legislative action. If a state does not adopt new 
regulations promptly, EPA's only recourse is to withdraw the entire 
state hazardous waste program. If EPA determines that a subtitle C rule 
is warranted, the Agency will place a high priority on ensuring that 
states promptly pick up the new rules and become authorized, and EPA 
will work aggressively toward this end. Three decades of history in the 
RCRA program, however, suggest that this process will take two to five 
years (if not longer) for rules to become federally enforceable.\66\
---------------------------------------------------------------------------

    \65\ Currently, all but two states are authorized for the base 
RCRA program.
    \66\ In addition, existing facilities would generally operate 
under self-implementing interim status provisions until the state 
issued a RCRA permit, which is a several year process, although 
presumably the facility might remain under state solid waste 
permits, depending on state law.
---------------------------------------------------------------------------

    At the same time, EPA believes there may be benefits in a RCRA 
subtitle D approach that establishes specific self-implementing 
requirements that utilities and others managing regulated CCRs would 
have to comply with, even in the absence of permitting or direct 
regulatory oversight. EPA recognizes that many of the states have 
regulatory programs in place, albeit with varying requirements, for the 
disposal of CCRs, and that industry practices have been improving. The 
RCRA subtitle D approach would complement existing state programs and 
practices by filling in gaps, and set forth criteria for disposing of 
CCRs to meet the national minimum standards that are designed to 
address key risks identified in damage cases and the risk assessment--
including the risk of surface impoundment failure, which has been 
identified as a concern appropriate for control.
    The co-proposed RCRA subtitle D option is less costly than the co-
proposed RCRA subtitle C option, according to EPA's Regulatory Impact 
Assessment. The main differences in the costs are based on the 
assumption that there will be less compliance, or slower compliance, 
under a RCRA subtitle D option. In addition, the industry and state 
commenters suggested that a RCRA subtitle D approach would eliminate 
two of their concerns: (1) That a RCRA subtitle C approach would 
inappropriately stigmatize uses of CCRs that provide significant 
environmental or economic benefits, or that (according to those 
commenters) hold significant potential promise, and (2) that the volume 
of CCR wastes generated--particularly if requirements of a RCRA 
subtitle C regulation led to more off-site disposal--would overwhelm 
existing subtitle C capacity based on the large volumes of CCRs that 
are generated and would need to be disposed of. It would also reduce or 
eliminate expressed industry concerns about the effect of RCRA subtitle 
C requirements on plant operations, and state concerns related to the 
burden of the RCRA subtitle C permitting process. Related to the 
capacity issue, these same commenters have also suggested that, under 
the RCRA subtitle C regulations, future cleanup of poorly sited or 
leaking disposal sites (including historical or legacy sites) would be 
considerably more expensive, especially where off-site disposal was 
chosen as the option. (EPA's RIA does not quantify this last issue, but 
the RIA does discuss two recent cases as examples; EPA solicits more 
detailed comment on this issue, preferably with specific examples.) As 
stated earlier, EPA does not have sufficient information to conclude 
that regulation under RCRA subtitle C will stigmatize CCRs destined for 
beneficial use, for the reasons discussed elsewhere in today's 
preamble, and the Agency does not at this point have reason to assume 
that use of off-site commercial disposal of CCRs will increase 
significantly.
    EPA also notes that many of the requirements discussed above would 
go into effect more quickly under RCRA subtitle D. Under subtitle D of 
RCRA, EPA would set a specific nationwide compliance date and industry 
would be subject to the requirements on that date, although as 
discussed elsewhere in today's preamble, EPA's ability to enforce those 
requirements is limited. (Of course, certain requirements, such as 
closure of existing surface impoundments, would have a delayed 
compliance date set to reflect practical compliance realities, but 
other requirements, for example, groundwater monitoring or the 
requirement that new surface impoundments be constructed with composite 
liners could be imposed substantially sooner than under a RCRA subtitle 
C rule.) The possible exception would be if EPA decided to establish 
financial assurance requirements through a regulatory process currently 
underway that would establish financial assurance requirements for 
several industries pursuant to CERCLA 108(b), including the Electric 
Power Generation, Transmission and Distribution Industry. For a more 
detailed discussion of these issues see section IX.
    However, there are also disadvantages to any approach under RCRA 
subtitle D. Subtitle D provides no Federal oversight of state programs 
as it relates to CCRs. It establishes a framework for Federal, state, 
and local government cooperation in controlling the management of 
nonhazardous solid waste. The Federal role in this arrangement is to 
establish the overall regulatory direction, by providing minimum 
nationwide standards for protecting human health and the environment, 
and to provide technical assistance to states for planning and 
developing their own environmentally sound waste management practices. 
The co-proposed subtitle D alternative in this proposal would establish 
national minimum

[[Page 35160]]

standards specifically for CCRs for the first time. The actual planning 
and direct implementation of solid waste programs under RCRA subtitle 
D, however, remain state and local functions, and the act authorizes 
states to devise programs to deal with state-specific conditions and 
needs.
    In further contrast to subtitle C, RCRA subtitle D requirements 
would regulate only the disposal of solid waste, and EPA does not have 
the authority to establish requirements governing the transportation, 
storage, or treatment of such wastes prior to disposal. Under RCRA 
sections 4004 and 4005(a), EPA cannot require that facilities obtain a 
permit for these units. EPA also does not have the authority to 
determine whether any state permitting program for CCR facilities is 
adequate. This complicates the Agency's ability to develop regulations 
that can be effectively implemented and tailored to individual site 
conditions. Moreover, EPA does not have the authority to enforce the 
regulations, although, the ``open dumping'' prohibition may be enforced 
by states and citizens under section 7002 of RCRA.

D. EPA Is Not Reconsidering the Regulatory Determination Regarding 
Beneficial Use

    As noted previously, in the May 2000 Regulatory Determination, EPA 
concluded that federal regulation was not warranted for the beneficial 
uses identified in the notice, because: ``(a) We have not identified 
any other beneficial uses that are likely to present significant risks 
to human health or the environment; and (b) no documented cases of 
damage to human health or the environment have been identified. 
Additionally, we do not want to place any unnecessary barriers on the 
beneficial uses of coal combustion wastes so they can be used in 
applications that conserve natural resources and reduce disposal 
costs.'' (See 65 FR 32221) EPA did not conduct specific risk 
assessments for the beneficial use of these materials, except as noted 
below and elsewhere in this preamble. Instead, it generally described 
the uses and benefits of CCRs, and cited the importance of beneficially 
using secondary materials and of resource conservation, as an 
alternative to disposal. However, EPA did conduct a detailed risk 
assessment of certain agricultural uses of CCRs,\67\ since the use of 
CCRs in this manner is most likely to raise concerns from an 
environmental point of view. Overall, EPA concluded at the time that 
the identified uses of CCRs provided significant benefits 
(environmental and economic), that we did not want to impose an 
unnecessary stigma on these uses and therefore, we did not see a 
justification for regulating these uses at the federal level.
---------------------------------------------------------------------------

    \67\ Draft Final Report; Non-groundwater Pathways, Human Health 
and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 
(FFC2) and its appendices (A through J); available at http://
www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm.
---------------------------------------------------------------------------

    Since EPA's Regulatory Determination in May 2000, the Agency has 
gathered additional information. In addition to the evolving character/
composition of CCRs due to electric utility upgrades and retrofits 
needed to comply with the emerging CAA requirements, which could 
present new or otherwise unforeseen contaminant issues (e.g., 
hexavalent chromium from post-NOX controls), changes 
include: (1) A significant increase in the use of CCRs, and the 
development of established commercial sectors that utilize and depend 
on the beneficial use of CCRs, (2) the recognition that the beneficial 
use of CCRs (and, in particular, specific beneficial uses of CCRs, such 
as using fly ash as a substitute for Portland cement in the production 
of concrete) provide significant environmental benefits, including the 
reduction of GHG emissions, (3) the development of new applications of 
CCRs, which may hold even greater GHG benefits (for example, fly ash 
bricks and a process to use CO2 emissions to produce cement), (4) new 
research by EPA and others indicating that the standard leach tests--
e.g., the Toxicity Characteristic Leaching Procedure (TCLP) that have 
generally been used may not accurately represent the performance of 
varying types of CCRs under variable field conditions, (5) new studies 
and research by academia and federal agencies on the use of CCRs, 
including studies on the performance of CCR-derived materials in 
concrete, road construction,\68\ and agriculture,\69\ and studies of 
the risks that may or may not be associated with the different uses of 
CCRs, including uses of unencapsulated CCRs, and (6) the continuing 
development of state ``beneficial use'' regulatory programs under state 
solid waste authorities.
---------------------------------------------------------------------------

    \68\ See http://www.epa.gov/osw/partnerships/c2p2/cases/
index.htm.
    \69\ See http://www.epa.gov/osw/partnerships/c2p2/pubs/fgd-
fs.pdf.
---------------------------------------------------------------------------

    Some of these changes confirm or strengthen EPA's Regulatory 
Determination in May 2000 (e.g., the growth and maturation of state 
beneficial use programs and the growing recognition that the beneficial 
use of CCRs is a critical component in strategies to reduce GHG 
emissions); other developments raise critical questions regarding this 
determination (e.g., the potentially changing composition of CCRs as a 
result of improved air pollution control and the new science on metals 
leaching). EPA solicits information and data on these developments and 
how the beneficial use of CCRs will be affected (e.g., increased use of 
fly ash in cement and concrete).
    However, on balance, after considering all of these issues and the 
information available to us at this time, EPA believes that the most 
appropriate approach toward beneficial use is to leave the May 2000 
Regulatory Determination in place, as the Agency, other federal 
agencies, academia, and society more broadly investigate these critical 
questions and clarify the appropriate beneficial use of these 
materials. This section provides EPA's basis for leaving the Bevill 
exemption in place for these beneficial uses, although as discussed 
throughout this section, EPA is also soliciting comment on 
unencapsulated uses of CCRs and whether they should continue to be 
exempted as a beneficial use under the Bevill exemption.
    EPA is proposing this approach in recognition that some uses of 
CCRs, such as encapsulated uses in concrete, and use as an ingredient 
in the manufacture of wallboard, provide benefits and raise minimal 
health or environmental concerns. That is, from information available 
to date, EPA believes that encapsulated uses of CCR, as is common in 
many consumer products, does not merit regulation. On the other hand, 
unencapsulated uses have raised concerns and merit closer attention. 
For example, the placement of unencapsulated CCRs on the land, such as 
in road embankments or in agricultural uses, presents a set of issues, 
which may pose similar concerns as those that are causing the Agency to 
propose to regulate CCRs destined for disposal. Still, the amounts and, 
in some cases, the manner in which they are used--i.e., subject to 
engineering specifications and material requirements rather than 
landfilling techniques--are very different from land disposal. EPA also 
notes that stakeholders, such as Earthjustice have petitioned EPA to 
ban particular uses of CCR; for example, the placement of CCRs in 
direct contact with water bodies.
    Due to such issues as the changing characteristics of CCRs, as a 
result of more widespread use of air pollution control technologies and 
the new information becoming available on the

[[Page 35161]]

leaching of metals from CCRs, we are considering approaches such as, 
better defining beneficial use or developing detailed guidance on the 
beneficial use of CCRs to supplement the regulations. The Agency 
solicits information and data on these and other approaches that EPA 
could take in identifying when uses of CCRs constitute a ``beneficial 
use,'' and consequently will remain exempt.
    Other alternative approaches--for example, to regulate the 
beneficial use of CCRs under the regulations that apply to ``use 
constituting disposal,'' to prohibit unencapsulated uses outright, 
including CCRs used in direct contact with water matrices, including 
the seasonal high groundwater table, or to require front-end CCR and 
site characterization through the use of leach tests adapted for 
specific uses of CCR, prior to CCR management decisions--could address 
concerns that have been expressed over the land placement of CCRs. 
However, EPA is trying to balance concerns that proposing one or more 
of these alternatives might have the effect of stifling economic 
activities and innovation in areas that have potential for 
environmental benefits, while also providing adequate protection of 
human health and the environment.
    At the same time, EPA recognizes that seven proven damage cases 
involving the large-scale placement, akin to disposal, of CCRs has 
occurred under the guise of ``beneficial use''--the ``beneficial'' use 
being the filling up of old quarries or gravel pits, or the regrading 
of landscape with large quantities of CCRs. EPA did not consider this 
type of use as a ``beneficial'' use in its May 2000 Regulatory 
Determination, and does not consider this type of use to be covered by 
the exclusion. Therefore, today's proposed rule explicitly removes 
these types of uses from the category of beneficial use, such that they 
would be subject to the management standards that EPA finally 
promulgates. EPA also seeks information and data on whether it should 
take a similar approach in today's proposal to unencapsulated uses of 
CCRs, such as the placement of unencapsulated CCRs on the land--e.g., 
agricultural uses. Alternatively, EPA is also soliciting comment on 
whether the Agency should promulgate standards allowing such uses, on a 
site-specific basis, based on a site specific risk assessment, taking 
into consideration, inter alia, the CCRs character and composition, 
their leaching potential under the range of conditions under which CCRs 
will be managed, and the context in which the CCRs will be applied, 
such as location, volume, rate of application, and proximity to water.
    Before getting into a detailed discussion of the materials in 
question, EPA would reiterate that CCRs, when beneficially used will 
conserve resources, provide improved material properties, reduce GHG 
emissions, lessen the need for waste disposal units, and provide 
significant domestic economic benefits (as noted above in section XII). 
At the same time, EPA recognizes that there are important issues and 
uncertainties associated with specific uses of specific CCRs, that 
there has been considerable recent and ongoing research on these uses, 
and that the composition of CCRs are likely changing as a result of 
more aggressive air pollution controls. EPA is particularly concerned 
that we avoid the possibility of cross-media transfers stemming from 
CAA regulations requiring the removal of hazardous air pollutants 
(e.g., arsenic, mercury, selenium) from utility stacks being released 
back into the soil and groundwater media through inappropriate 
``beneficial'' uses.
    EPA has received numerous comments on specific uses of CCRs, and we 
have been working with states to help them develop effective beneficial 
use programs (which apply to a wide range of secondary materials, not 
just CCRs). EPA, other federal agencies, and academia have conducted 
research on specific uses, and have provided guidance and best 
management practices on using CCRs in an environmentally sound manner 
in a range of applications. For example, EPA, working with the Federal 
Highway Administration (FHWA), DOE, the American Coal Ash Association 
(ACAA), and USWAG issued guidance in April 2005 on the appropriate use 
of coal ash in highway construction. EPA understands that the 
composition of CCRs, the nature of different CCR uses, and the specific 
environment in which CCRs are used, can affect the effectiveness and 
the environmentally sound use of particular projects. In today's 
proposal, EPA is suggesting that an appropriate balance can be met by 
(1) determining that the placement of CCRs in sand and gravel pits, as 
well as the use of large volumes of CCRs in restructuring landscapes to 
constitute disposal, rather than the beneficial use of CCRs, and at the 
same time (2) leaving in place its determination that the beneficial 
uses of CCRs--e.g., those identified in the May 2000 Regulatory 
Determination as clarified in this notice--should not be prohibited 
from continuing. As described later in this section of today's notice, 
EPA solicits comment on whether an alternative approach is appropriate, 
particularly for unencapsulated uses of CCRs on the land.
1. Why is EPA not proposing to change the determination that CCRs that 
are beneficially used do not warrant federal regulation?
    As an initial matter, we would note that for some of the beneficial 
uses, CCRs are a raw material used as an ingredient in a manufacturing 
process that have never been ``discarded,\70\'' and thus, would not be 
solid wastes under the existing hazardous waste rules. For example, 
synthetic gypsum is a product of the FGD process at coal-fired power 
plants. In this case, the utility designs and operates its air 
pollution control devices to produce an optimal product, including the 
oxidation of the FGD to produce synthetic gypsum. In this example, 
after its production, the utility treats FGD as a valuable input into a 
production process, i.e., as a product, rather than as something that 
is intended to be discarded. Wallboard plants are sited in close 
proximity to power plants for access to raw material, with a 
considerable investment involved. Thus, FGD gypsum used for wallboard 
manufacture is a product rather than a waste or discarded material. 
This use and similar uses of CCRs that meet product specifications 
would not be affected by today's proposed rule in any case, regardless 
of the option taken.
---------------------------------------------------------------------------

    \70\ In order for EPA to regulate a material under RCRA, the 
material must be a solid waste, which the statute defines as 
materials that have been discarded. See Section 1004(27) of RCRA for 
definition of solid waste.
---------------------------------------------------------------------------

    With that said, today's proposed action would leave in place EPA's 
May 2000 Regulatory Determination that beneficially used CCRs do not 
warrant federal regulation under subtitle C or D of RCRA. As EPA stated 
in the May 2000 Regulatory Determination, ``In the [Report to 
Congress], we were not able to identify damage cases associated with 
these types of beneficial uses, nor do we now believe that these uses 
of coal combustion wastes present a significant risk to human health 
and the environment. While some commenters disagreed with our findings, 
no data or other support for the commenters' position was provided, nor 
was any information provided to show risk or damage associated with 
agricultural use. Therefore, we conclude that none of the beneficial 
uses of coal combustion wastes listed above pose risks of concern.'' 
(See 65 FR 32230.) Since that time, EPA is not aware of data or other 
information to indicate that existing

[[Page 35162]]

efforts of states, EPA and other federal agencies are not adequate to 
address environmental issues associated with the beneficial uses of 
CCRs, that were originally identified in the Regulatory Determination. 
Therefore, at this time, EPA is not proposing to reverse that 
determination. Specifically: (1) EPA believes today's proposal will 
ensure that inappropriate beneficial use situations, like the 
Gambrills, MD site, will be regulated as disposal; (2) many states are 
developing effective beneficial use programs which, in many cases, 
allow the use of CCRs as long as they are demonstrated to be non-
hazardous materials, and (3) EPA does not wish to inhibit or eliminate 
the significant and measurable environmental and economic benefits 
derived from the use of this valuable material without a demonstration 
of an environmental or health threat.
    EPA also wants to make clear that wastes that consist of or contain 
these Bevill-exempt beneficially used materials, including demolition 
debris from beneficially used CCRs in wallboard or concrete that were 
generated because the products have reached the end of their useful 
lives--would also not be listed as a special waste subject to subtitle 
C of RCRA, from the point of their generation to their ultimate 
disposal.
    In summary, EPA continues to believe that the beneficial use of 
CCRs, when performed properly and in an environmentally sound manner, 
is the environmentally preferable outcome for CCRs and, therefore, is 
concerned about regulatory decisions that would limit beneficial uses, 
including research on beneficial uses. Thus, EPA is not proposing to 
modify the existing Bevill exemption for CCRs (sometimes referred to as 
CCPs when beneficially used), and instead is proposing to leave the 
current determination in place. However, EPA recognizes that there is a 
disparity in the quality of state programs dealing with beneficial 
uses, uncertainty relative to the future characteristics of CCRs and, 
therefore, uncertainty concerning the risks associated with some 
beneficial uses. At the same time, EPA recognizes the potential 
environmental benefits with regard to the uses of CCRs. For these 
reasons, EPA is requesting information and data on the appropriate 
means of characterizing beneficial uses that are both protective of 
human health and the environment and provide benefits. EPA is also 
requesting information and data demonstrating where the federal and 
state programs are or have been inadequate in being environmentally 
protective and, conversely, where states have, or are developing, 
increasingly effective beneficial use programs.
    As previously discussed, and discussed in section VI, some 
stakeholders have commented that EPA should not regulate CCRs when 
disposed of in landfills or surface impoundments as a hazardous waste, 
because such an approach would stigmatize the beneficial use of CCRs, 
and these uses would disappear. Although it remains unclear whether any 
stigmatic effect from regulating CCRs destined for disposal as 
hazardous waste would decrease the beneficial use of CCRs, and 
irrespective of whether EPA ultimately concludes to promulgate 
regulations under RCRA subtitles C or D, EPA is convinced that 
regulating the beneficial use of CCRs under RCRA subtitle C as 
hazardous waste would be unnecessary, in light of the potential risks 
associated with these uses. For example, use of fly ash as a 
replacement for Portland cement is one of the most environmentally 
beneficial uses of CCRs (as discussed below), yet regulating this 
beneficial use under RCRA subtitle C requirements would substantially 
increase the cost and regulatory difficulties of using this material, 
without providing any corresponding risk reduction. Regulating the use 
of coal ash as a cement ingredient under RCRA subtitle C would subject 
the coal ash to full hazardous waste requirements up to the point that 
it is made into concrete, including requirements for generators, 
manifesting for transportation, and permits for storage. In addition, 
ready-mix operators would be subject to the land disposal restrictions 
and other requirements, as use of the concrete would constitute 
disposal if placed on the land. EPA instead is proposing an approach 
that would allow beneficial uses to continue, under state controls, EPA 
guidance, and current industrial standards and practices. Where 
specific problems are identified, EPA believes they can be safely 
addressed, but we do not believe that an approach that eliminates a 
wide range of uses that would add considerably to the costs of the 
rule, and that would disrupt and potentially close ongoing businesses 
legitimately using CCRs is justified, on the strength of the existing 
evidence.
    EPA's May 2000 Regulatory Determination not to regulate various 
beneficial uses under the hazardous waste requirements, and today's 
proposal to leave that determination in place, does not conflict with 
EPA's view that certain beneficial uses, e.g., use in road construction 
or agriculture, should be conducted with care, according to appropriate 
management practices, and with appropriate characterization of the 
material and the site where the materials would be placed. In this 
respect, CCRs are similar to other materials used in this manner--
including raw materials derived from quarried aggregates, secondary 
materials from other industrial processes, and materials derived from 
natural ores. Rather, EPA concludes that, based on our knowledge of how 
CCRs are used, that potential risks of these uses do not warrant 
federal regulation, but can be addressed, if necessary, in other ways, 
as discussed previously, such as the State of Wisconsin has an 
extensive beneficial use program that supports the use of CCRs in a 
variety of circumstances, including in road base construction and 
agriculture uses, provided certain criteria are met. Similarly, EPA is 
working with the U.S. Department of Agriculture to develop guidance on 
the use of FGD gypsum in agriculture.
2. What constitutes beneficial use?
    As discussed previously, EPA is not proposing to change the 
regulatory status of those CCRs that are beneficially used. However, 
because EPA is proposing to draw a distinction between CCRs that are 
destined for disposal and those that are beneficially used, we believe 
it is necessary and appropriate to distinguish between beneficial use 
and operations that would constitute disposal operations--such as large 
volumes of CCRs that are used in sand and gravel pits or for 
restructuring the landscape. EPA believes the following criteria can be 
used to define legitimate beneficial uses appropriately, and are 
consistent with EPA's approach in the May 2000 Regulatory 
Determination, although such criteria were not specifically identified 
at that time:
    [cir] The material used must provide a functional benefit. For 
example, CCRs in concrete increase the durability of concrete--and are 
more effective in combating degradation from salt water; synthetic 
gypsum serves exactly the same function in wallboard as gypsum from 
ore, and meets all commercial specifications; CCRs as a soil amendment 
adjusts the pH of soil to promote plant growth.
    [cir] The material substitutes for the use of a virgin material, 
conserving natural resources that would otherwise need to be obtained 
through practices, such as extraction. For example, the use of FGD 
gypsum in the manufacture of wallboard (drywall) decreases the need to 
mine natural gypsum, thereby conserving the natural resource and 
conserving energy that otherwise would be needed to mine natural 
gypsum; the use of fly ash in

[[Page 35163]]

lieu of portland cement reduces the need for cement. CCRs used in road 
bed replace quarried aggregate or other industrial materials. These 
CCRs substitute for another ingredient in an industrial or commercial 
product.
    [cir] Where relevant product specifications or regulatory standards 
are available, the materials meet those specifications, and where such 
specifications or standards have not been established, they are not 
being used in excess quantities. Typically, when CCRs are used as a 
commercial product, the amount of CCRs used is controlled by product 
specifications, or the demands of the user. Fly ash used as a 
stabilized base course in highway construction is part of many 
engineering considerations, such as the ASTM C 593 test for compaction, 
the ASTM D 560 freezing and thawing test, and a seven day compressive 
strength above 2760 (400 psi). If excessive volumes of CCRs are used--
i.e., greater than were necessary for a specific project,--that could 
be grounds for a determination that the use was subject to regulations 
for disposal.
    [cir] In the case of agricultural uses, CCRs would be expected to 
meet appropriate standards, constituent levels, prescribed total loads, 
application rates, etc. EPA has developed specific standards governing 
agricultural application of biosolids. While the management scenarios 
differ between biosludge application and the use of CCRs as soil 
amendments, EPA would consider application of CCRs for agriculture uses 
not to be a legitimate beneficial use if they occurred at constituent 
levels or loading rates greater than EPA's biosolids regulations 
allow.\71\ EPA also recognizes that the characteristics of CCRs are 
such that total concentrations of metals, as biosolids are assessed, 
may not be the most appropriate standard, as CCRs have been shown to 
leach metals with significant variability.
---------------------------------------------------------------------------

    \71\ See 40 CFR part 503.

    EPA is proposing that these criteria be included in the regulations 
as part of the definition of beneficial use. EPA requests comment on 
these criteria, as well as suggestions for other criteria that may need 
to be included to ensure that legitimate beneficial uses can be 
identified and enforcement action can be taken against inappropriate 
uses.
    Each of the uses identified in the May 2000 Regulatory 
Determination, CCRs can and have been utilized in a manner that is 
beneficial. The discussion that follows provides a brief summary of how 
certain of the beneficial uses meet the various criteria. EPA solicits 
comment on the need to provide a formal listing of all beneficial uses. 
To this end, EPA solicits comment on whether additional uses of CCRs 
have been established since the May 2000 Regulatory Determination that 
have not been discussed elsewhere in today's preamble should be 
regarded as beneficial. Of particular concern in this regard are 
reports that CCRs are being used in producing counter tops, bowling 
balls, and in the production of makeup. The Agency solicits comment on 
whether use of CCRs in consumer products of this kind can be safely 
undertaken. The Agency further solicits comments for any new uses of 
CCR, as well as the information and data that supports that it is 
beneficially used in an environmentally sound manner. The concern with 
such an alternative is that new and innovative uses that are not on the 
list would be subject to disposal regulations, until EPA revised its 
rule.
    In the uses where the CCR is encapsulated in the product, such as 
cement, concrete, brick and concrete products, wallboard, and roofing 
materials--the CCRs provide a functional benefit--that is, the CCRs 
provide a cementitious or structural function, the CCRs substitute for 
cement, gypsum, and aggregate and thus save resources that would 
otherwise need to be mined and processed, and the CCRs are subject to 
product specifications, such as ASTM standards. Some of the uses, such 
as CCRs in paints and plastics not only provide benefits, but EPA 
generally does not consider materials used in these ways to be waste--
that is, they have not been discarded. Use of CCRs in highway projects 
is a significant practice covering road bed and embankments. CCRs used 
according to FHA/DOT standards provide an important function in road 
building, replacing material that would otherwise need to be obtained, 
such as aggregate or clay. In many cases, the CCRs can lead to better 
road performance. For snow and ice controls, the beneficial use is 
limited to boiler slag and bottom ash, which replaces fine aggregate 
that would otherwise need to be used to prevent skidding, and amounts 
used are in line with the materials they replace.\72\
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    \72\ According to the ACAA survey, 80% of boiler slag--a 
vitreous material often used as an abrasive--is reused, although 
industry has reported that the demand for boiler slag products is 
high, and virtually all of the slag is currently used.
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3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill 
Operations Is Not Considered a Beneficial Use
    As indicated earlier, EPA has identified several proven damage 
cases associated with the placement of CCRs in sand and gravel pits. 
There has also been significant community concern with large-scale fill 
operations. Because of the damage cases and the concern that sand and 
gravel pits and large scale fill operations are essentially landfills 
under a different name, EPA is clarifying and, thus, proposing to 
define the placement of CCRs in sand and gravel pits and large scale 
fill projects as land disposal that would be subject to either the 
proposed RCRA subtitle C or D regulations. Sites that are excavated so 
that more coal ash can be used as fill are also considered CCR 
landfills.
    However, EPA recognizes that we need to define or provide guidance 
on the meaning of ``a large scale fill operation.'' EPA solicits 
comments on appropriate criteria to distinguish between legitimate 
beneficial uses and inappropriate operations, such as, for example, a 
comparison to features associated with relatively small landfills used 
by the utility industry, and whether characteristics of the materials 
would allow their safe use for a particular application in a particular 
setting (i.e., characterize both the materials for the presence of 
leachable metals and the area where the materials will be placed).
4. Issues Associated With Unencapsulated Beneficial Uses
    Since the May 2000 Regulatory Determination, the major issues 
associated with the placement of CCRs on the land for beneficial use 
has involved the Gambrills, MD site which involves a sand and gravel 
pit and the Battlefield golf course, which was a large scale fill 
operation. These are the types of operations that EPA is proposing 
would be subject to any disposal regulations proposed in today's rule. 
However, because the Gambrills and Battlefield sites involved the 
unencapsulated placement of CCRs on the land, it raises questions 
regarding the beneficial use of unencapsulated uses of CCRs; 
accordingly, in this section, the Agency presents information on the 
issues on which it is specifically soliciting comment.
    First, we identify the array of environmental issues associated 
with unencapsulated uses. CCRs can leach toxic metals at levels of 
concern, so depending on the characteristics of the CCR, the amount of 
material placed, how it is placed, and the site conditions, there is a 
potential for environmental concern.
     The importance of characterizing CCRs prior to their 
utilization is that CCRs from certain facilities may be acceptable 
under particular beneficial

[[Page 35164]]

use scenarios, while the same material type from a different facility 
or from the same facility, but generated under different operating 
conditions (e.g., different air pollution controls or configurations) 
may not be acceptable for the same management scenario. Changes in air 
pollution controls will result in fly ash and other CCRs presenting new 
contaminant issues (e.g., hexavalent chromium from post-NOx controls). 
Additionally, as described in section I. F. 2, there is significant 
variability in total metals content and leach characteristics.
     The amount of material placed can significantly impact 
whether placement of unencapsulated CCRs causes environmental risks. 
There are great differences between the amount of material disposed of 
in a landfill and in beneficial use settings. For example, a stabilized 
fly ash base course for roadway construction may be on the order of 6 
to 12 inches thick under the road where it is used--these features 
differ considerably from the landfill and sand and gravel pit 
situations where hundreds of thousands to millions of tons of CCRs are 
disposed of and for which damage cases are documented.
     Unencapsulated fly ash used for structural fill is 
moistened and compacted in layers, and placed on a drainage layer. By 
moistening and compacting the fly ash in layers, the hydraulic 
conductivity can be greatly reduced, sometimes achieving levels similar 
to liner systems. This limits the transport of water through the ash 
and thus acts to protect groundwater. The drainage layer prevents 
capillary effects and thus also limits the amount of water that remains 
in contact with the fly ash. Although EPA is not aware of the use of 
organosilanes for beneficial use operations in the U.S., if mixed with 
fly ash, it is reported to be able to essentially render the fly ash 
impermeable to water, and thus there may be emerging placement 
techniques that can also greatly influence the environmental 
assessment.
     Site conditions are important factors. Hydraulic 
conductivity of the subsurface, the rainfall in the area, the depth to 
groundwater, and other factors (e.g., changes in characteristics due to 
the addition of advanced air pollution controls) are important 
considerations in whether a specific beneficial use will remain 
protective of the environment.
    Second, EPA notes the work and research being done by states, 
federal agencies, and academics to assess, provide guidance on, or 
regulate to address the environmental issues that may be associated 
with beneficial use. In addition to the recent EPA research on 
constituent leaching from CCRs described earlier in the preamble, a few 
highlights include:
     Many states have beneficial use programs. The ASTSWMO 2006 
Beneficial Use Survey Report states: ``A total of 34 of the 40 
reporting States, or 85 percent, indicated they had either formal or 
informal decision-making processes or beneficial use programs relating 
to the use of solid wastes.'' \73\

    \73\ Part of EPA's efforts with the states is to support the 
development of a national database on state beneficial use 
determinations. Information on the beneficial use determination 
database can be found on the Northeast Waste Management Officials' 
Association (NEWMOA) Web site at http://www.newmoa.org/solidwaste/
bud.cfm. This database helps states share information on beneficial 
use decisions providing for more consistent and informed decisions.
---------------------------------------------------------------------------

(http://www.astswmo.org/files/publications/solidwaste/
2007BUSurveyReport11-30-07.pdf) For example, Wisconsin's Department of 
Natural Resources has developed a regulation (NR 538 Wis. Adm. Code), 
which includes a five-category system to allow for the beneficial use 
of industrial by-products, including coal ash. The state has approved 
CCRs in a full range of uses, including road construction and 
agricultural uses.

     EPA and USDA are conducting a multi-year study on the use 
of FGD gypsum in agriculture. The results of that study should be 
available in late 2012.
     EPA developed an easy to use risk model for assessing the 
use of recycled industrial materials in highways. This model is shared 
with states to facilitate assessments to determine if such beneficial 
use projects will be environmentally protective.\74\
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    \74\ See a Final Report titled, ``Use of EPA's Industrial Waste 
Management Evaluation Model (IWEM) to Support Beneficial Use 
Determinations'' at http://www.epa.gov/partnerships/c2p2/pubs/iwem-
report.pdf and the Industrial Waste Management Evaluation Model 
(IWEM) at http://www.epa.gov/osw/nonhaz/industrial/tools/iwem.
---------------------------------------------------------------------------

     There is also considerable study and research by states 
and academic institutions, which EPA views as valuable in not only 
guiding the parties to appropriate uses, but also in informing EPA. A 
few examples are:
    [cir] Li L, Benson CH, Edil TB, Hatipoglu B. Groundwater impacts 
from coal ash in highways. Waste and Management Resources 
2006;159(WR4):151-63.
    [cir] Friend M, Bloom P, Halbach T, Grosenheider K, Johnson M. 
Screening tool for using waste materials in paving projects (STUWMPP). 
Office of Research Services, Minnesota Dept. of Transportation, 
Minnesota; 2004. Report nr MN/RC-2005-03.
    [cir] Sauer JJ, Benson CH, Edil TB. Metals leaching from highway 
test sections constructed with industrial byproducts. University of 
Wisconsin--Madison, Madison, WI: Geo Engineering, Department of Civil 
and Environmental Engineering; 2005 December 27, Geo Engineering Report 
No. 05-21.
    Overall, federal agencies, states, and others are doing a great 
amount of work to promote environmentally sound beneficial use 
practices, to advance our understanding, and to consider emerging 
science and practices. Furthermore, the beneficial use of CCRs is a 
world wide activity, so there is also considerable work and effort from 
around the globe. In Europe, nearly all CCRs are beneficially used, and 
when used are considered to be products rather than wastes. Sweden, for 
example, actively supports the use of CCRs in road construction, and 
has conducted long-term tests of its use in this manner.
    While recognizing the many beneficial use opportunities for CCRs, 
EPA believes it is imperative to gather a full range of views on the 
issue of unencapsulated uses in order to ensure the protection of human 
health and the environment. EPA is fully prepared to reconsider our 
proposed approach for these uses if comments provide information and 
data to demonstrate that it is inappropriate. For example, previous 
risk analyses do not address many of the use applications currently 
being implemented, and have not addressed the changes to CCR 
composition with more advanced air pollution control methods and 
improved leachate characterization. In addition, some scientific 
literature indicates that the uncontrolled (i.e., excessive) 
application of CCRs can lead to the potentially toxic accumulation of 
metals (e.g., in agricultural applications \75\ and as fill material 
\76\). Thus, while EPA does not want to negatively impact the 
legitimate beneficial use of CCRs unnecessarily, we are also aware of 
the need to fully consider the risks, management practices, state 
controls, research, and any other pertinent information. Thus, to help 
EPA determine whether to revise

[[Page 35165]]

its approach and regulate, for example, unencapsulated uses of CCRs on 
the land, we solicit comments on whether to regulate, and if so, the 
most appropriate regulatory approach to be taken. For example, EPA 
might consider a prohibition on these uses, except where, as part of a 
case-by-case, or material-by-material petition process where 
appropriate characterization of the material is used (including taking 
into account the pH to which the material will be exposed) and a risk 
assessment, approved by a regulatory Agency, shows that the risks were 
within acceptable ranges.\77\ Moreover, if regulating these uses under 
the RCRA hazardous waste authority is deemed warranted, the risk 
assessment would have to be approved, through a notice-and-comment 
process, by EPA or an authorized state. EPA expects that the risk 
assessment would be based on actual leach data from the material. (See 
request for comment below on material characterization.)
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    \75\ See, for example, ``Effects of coal fly ash amended soils 
on trace element uptake in plant,'' S.S. Brake, R.R. Jensen, and J. 
M. Mattox, Environmental Geology, November 7, 2003 available at 
http://www.springerlink.com/content/3c5gaq2qrkr5unvp/fulltext.pdf.
    \76\ See information regarding the Town of Pines Groundwater 
Plume at http://www.epa.gov/region5superfund/npl/sas_sites/
INN000508071.htm. Also see additional information for this site at 
http://www.epa.gov/region5/sites/pines/#updates.
    \77\ As part of the petition application, the petitioner would 
also need to demonstrate that the CCRs are being beneficially used.
---------------------------------------------------------------------------

    In reaching its decision on whether to regulate unencapsulated 
uses, EPA would be interested in comments and data on the following:
     We would like comment on whether persons should be 
required to use a leaching assessment tool in combination with the 
Draft SW-846 leaching test methods described in Section I. F. 2 and 
other tools (e.g., USEPA's Industrial Waste Management Evaluation Model 
(IWEM)) to aid prospective beneficial users in calculating potential 
release rates over a specified period of time for a range of management 
scenarios, including use in engineering and commercial applications 
using probabilistic assessment modeling.
     As discussed previously, EPA is working with USDA to study 
agricultural use of FGD gypsum to provide further knowledge in this 
area. The Agency is interested in comments relating to the focus of 
these assessments, the use of historical data, the impact of pH on 
leaching potential of metals, the scope of management scenarios, the 
variable and changing nature of CCRs, and variable site conditions. 
Commenters interested in the EPA/USDA effort should consider the 
characteristics of FGD gypsum (see http://www.epa.gov/epawaste/
partnerships/c2p2/pubs/fgdgyp.pdf) and information on the current study 
(see http://www.epa.gov/epawaste/partnerships/c2p2/pubs/fgd-fs.pdf).
     If EPA determines that regulations are needed, should EPA 
consider removing the Bevill exemption for such unencapsulated uses and 
regulate these under RCRA subtitle C or should EPA develop regulations 
under RCRA subtitle D?
     If materials characterization is required, what type of 
characterization is most appropriate? If the CCRs exceed the toxicity 
characteristic at pH levels different from the TCLP, should they be 
excluded from beneficial use? When are total levels relevant? EPA 
solicits information and data on the extent to which states request and 
evaluate CCR characterization data prior to the use of unencapsulated 
CCRs (keeping in mind that EPA ORD studies generally show that 
measurement of total concentrations for metals do not correlate well 
with metal leachate concentrations).
     If regulations are developed, should they cover specific 
practices, for example, restricting fill operations to those that 
moisten and compact fly ash in layers to attain 95% of the standard 
Proctor maximum dry density value and provide a drainage layer? Are 
such construction practices largely followed now?
     Historically, EPA has proposed or imposed conditions on 
other types of hazardous wastes destined for land placement (e.g., 
maximum application rates and risk-based concentration limits for 
cement kiln dust used as a liming agent in agricultural applications 
(see 64 FR 45639; August 20, 1999); maximum allowable total 
concentrations for non-nutritive and toxic metals in zinc fertilizers 
produced from recycled hazardous secondary materials (see 67 FR 48393; 
July 24, 2002). Comments are solicited as to whether EPA should 
establish standards or rely on implementing states to impose CCR-/site-
specific limits based on front-end characterization that ensures 
individual beneficial uses remain protective.
     Whether to exclude from beneficial use unencapsulated uses 
in direct contact with water bodies (including the seasonal high 
groundwater table)?

E. Placement of CCRs in Minefilling Operations

    In today's proposal, EPA is not addressing its Regulatory 
Determination on minefilling, and instead will work with the OSM to 
develop effective federal regulations to ensure that the placement of 
coal combustion residuals in minefill operations is adequately 
controlled. In doing so, EPA and OSM will consider the recommendations 
of the National Research Council (NRC), which, at the direction of 
Congress, studied the health, safety, and environmental risks 
associated with the placement of CCRs in active and abandoned coal 
mines in all major U.S. coal basins. The NRC published its findings on 
March 1, 2006, in a report entitled ``Managing Coal Combustion Residues 
(CCRs) in Mines,'' which is available at http://books.nap.edu/
openbook.php?isbn=0309100496.
    The report concluded that the ``placement of CCRs in mines as part 
of coal mine reclamation may be an appropriate option for the disposal 
of this material. In such situations, however, an integrated process of 
CCR characterization, site characterization, management and engineering 
design of placement activities, and design and implementation of 
monitoring is required to reduce the risk of contamination moving from 
the mine site to the ambient environment.'' The NRC report recommended 
that enforceable federal standards be established for the disposal of 
CCRs in minefills to ensure that states have specific authority and 
that states implement adequate safeguards. The NRC Committee on Mine 
Placement of Coal Combustion Wastes also stated that OSM and its SMCRA 
state partners should take the lead in developing new national 
standards for CCR use in mines because the framework is in place to 
deal with mine-related issues. Consistent with the recommendations of 
the National Academy of Sciences, EPA anticipates that the U.S. 
Department of the Interior (DOI) will take the lead in developing these 
regulations. EPA will work closely with DOI throughout that process. 
Therefore, the Agency is not addressing minefilling operations in this 
proposed rule.

F. EPA Is Not Proposing To Revise the Bevill Determination for CCRs 
Generated by Non-Utilities

    In this notice, EPA is not proposing to revise the Bevill exclusion 
for CCRs generated at facilities that are not part of the electric 
power sector and which use coal as the fuel in non-utility boilers, 
such as manufacturing facilities, universities, and hospitals. The 
Agency lacks sufficient information at this time to determine an 
appropriate course of action for the wastes from these facilities.
    Industries that primarily burn coal to generate power for their own 
purposes (i.e., non-utilities), also known as combined heat and power 
(CHP) plants, are primarily engaged in business activities, such as 
agriculture, mining, manufacturing, transportation, and education. The 
electricity that they generate is mainly for their own use, but

[[Page 35166]]

any excess may be sold in the wholesale market.\78\ According to the 
Energy Information Administration (EIA), CHPs produced 2.7% of the 
total electricity generated from coal combustion in 2007 \79\ and 
burned 2.3% of the total coal consumed for electricity generation (24 
million tons) \80\ at 2,967 facilities.\81\ EPA estimates that CHPs 
generate approximately 3 million tons of CCRs annually or an average of 
just over 1,000 tons per facility. This is in comparison to electric 
utilities, which generated 136 million tons of CCRs in 2008, or an 
average of approximately 275,000 tons per facility. In addition, these 
manufacturing facilities generate other types of waste, many of which 
are generated in much larger quantities than CCRs, and thus, they are 
likely to be mixed or co-managed together. As a result, the composition 
of any co-managed waste might be fundamentally different from the CCRs 
that are generated by electric utilities. Presently, EPA lacks critical 
data from these facilities sufficient to address key Bevill criteria 
such as current management practices, damage cases, risks, and waste 
characterization. Thus, EPA solicits information and data on CCRs that 
are generated by these other industries, such as volumes generated, 
characteristics of the CCRs, whether they are co-managed with other 
wastes generated by the industry, as well as other such information. In 
addition, EPA does not currently have enough information on non-
utilities to determine whether a regulatory flexibility analysis would 
be required under the Regulatory Flexibility Act, nor to conduct one if 
it is necessary. Therefore, the Agency has decided not to assess these 
operations in today's proposal, and will instead focus on the nearly 
98% of CCRs that are generated at electric utilities.
---------------------------------------------------------------------------

    \78\ Energy Information Administration (http://www.eia.doe.gov/
cneaf/electricity/page/prim2/toc2.html#non).
    \79\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile1_
1.pdf.
    \80\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile4_
1.pdf.
    \81\ http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile2_
3.pdf.
---------------------------------------------------------------------------

V. Co-Proposed Listing of CCRs as a Special Waste Under RCRA Subtitle C 
and Special Requirements for Disposal of CCRs Generated by Electric 
Utilities

    One of the alternatives in today's co-proposal is to add a new 
category of wastes that would be subject to regulation under subtitle C 
of RCRA, by adding to 40 CFR part 261, Subpart F--Special Wastes 
Subject to Subtitle C Regulations for CCRs destined for disposal. Under 
this alternative, the Agency further proposes to list CCRs destined for 
disposal as a special waste and CCRs would then be subject to 
regulation under 40 CFR parts 260 through 268 and 270 to 279 and 124, 
and subject to the notification requirements of section 3010 of RCRA. 
This listing would apply to all CCRs destined for disposal. This 
section provides EPA's basis for regulating CCRs under subtitle C of 
RCRA when disposed. As described in this preamble, the proposed listing 
would not apply to CCRs that are beneficially used (see section IV), 
CCRs that are part of a state or federally required cleanup that 
commenced prior to the effective date of the final rule (see section 
VI), or CCRs generated by facilities outside the electric power sector 
(see section IV).

 A. What is the basis for listing CCRs as a special waste?

    Many of the underlying facts on which EPA would rely on to support 
its proposed special waste listing have been discussed in the previous 
sections, which lay out reasons why the Agency may decide to reverse 
the Bevill Regulatory Determination and exemption. Rather than repeat 
that discussion here, EPA simply references the discussion in the 
earlier sections. In addition, EPA would be relying on the various risk 
assessments conducted on CCRs to provide significant support for a 
listing determination. EPA's risk assessment work includes four 
analyses: (1) U.S. EPA 1998, ``Draft Final Report: Non-groundwater 
Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel 
Combustion Phase 2 (FFC2)'' (June 5, 1998) referred to hereafter as the 
1998 Non-groundwater risk assessment (available in docket  F-
1999-FF2P-FFFFF in the RCRA Information Center, and on the EPA Web site 
at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/
ngwrsk1.pdf); (2) preliminary groundwater and ecological risk screening 
of selected constituents in U.S. EPA 2002, ``Constituent Screening for 
Coal Combustion Wastes,'' (contractor deliverable dated October 2002, 
available in docket EPA-HQ-RCRA-2006-0796 as Document  EPA-HQ-
RCRA-2006-0796-0470); referred to hereafter as the 2002 screening 
analysis; (3) U.S. EPA 2010a, ``Human and Ecological Risk Assessment of 
Coal Combustion Wastes'' (April 2010) available in the docket for this 
proposed rule, and referred to hereafter as the 2010 risk assessment; 
and (4) U.S. EPA 2010b, ``Inhalation of Fugitive Dust: A Screening 
Assessment of the Risks Posed by Coal Combustion Waste Landfills--
DRAFT'' available in the docket for this proposed rule. As explained 
below, the 2010 risk assessment correlates closely with the listing 
criteria in EPA's regulations.
1. Criteria for Listing CCRs as a Special Waste and Background on 2010 
Risk Assessment
    In making listing determinations under subtitle C of RCRA, the 
Agency considers the listing criteria set out in 40 CFR 261.11. EPA 
considered these same criteria in making the proposed special waste 
listing decision.
    The criteria provided in 40 CFR 261.11(a)(3) include eleven factors 
that EPA must consider in determining whether the waste poses a 
``substantial present or potential hazard to human health and the 
environment when improperly treated, stored, transported or disposed of 
or otherwise managed.'' Nine of these factors, as described generally 
below, are incorporated or are considered in EPA's risk assessment for 
the waste streams of concern:
    [cir] Toxicity (Sec. 261.11(a)(3)(i)) is considered in developing 
the health benchmarks used in the risk assessment modeling.
    [cir] Constituent concentrations (Sec. 261.11(a)(3)(ii)) and the 
quantities of waste generated (Sec. 261.11(a)(3)(viii)) are combined in 
the calculation of the levels of the CCR constituents that pose a 
hazard.
    [cir] Potential of the hazardous constituents and any degradation 
products to migrate, persist, degrade, and bioaccumulate (sections 
261(a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v), and 
261.11(a)(3)(vi)) are all considered in the design of the fate and 
transport models used to determine the concentration of the 
contaminants to which individuals are exposed.
    [cir] Two of the factors, plausible mismanagement and the 
regulatory actions taken by other governmental entities based on the 
damage caused by the constituents ((Sec. Sec.  261.11(a)(3)(vii) and 
261.11(a)(3)(x)), were used in establishing the waste management 
scenario(s) modeled in the risk assessment.
    One of the remaining factors of the eleven listed in 261.11(a)(3) 
is consideration of damage cases (Sec.  261.11(a)(3)(ix)); these are 
discussed in section II. C. The final factor allows EPA to consider 
other factors as appropriate (Sec.  261.11(a)(3)(xi)).
    As discussed earlier, EPA conducted analyses of the risks posed by 
CCRs and determined (subject to consideration of public comment) that 
it would meet the criteria for listing set forth in 40 CFR 
261.11(a)(3). The criteria for listing determinations found at 40 CFR 
part

[[Page 35167]]

261.11 require the Administrator to list a solid waste as a hazardous 
waste (and thus subject to subtitle C regulation) upon determining that 
the solid waste meets one of three criteria in 40 CFR 261.11(a)(1)-(3). 
As just noted, the criteria considered by EPA in determining that 
listing is warranted pursuant to 40 CFR 261.11(a)(3) are:
     Whether the waste contains any of the toxic constituents 
listed in Appendix VIII of 40 CFR part 261 (Hazardous Waste 
Constituents) and, after considering the following factors, the 
Administrator concludes that the waste is capable of posing a 
substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported or disposed 
of, or otherwise managed:
    (i) The nature of the toxicity presented by the constituent.
    (ii) The concentration of the constituent in the waste.
    (iii) The potential of the constituent or any toxic degradation 
product of the constituent to migrate from the waste into the 
environment under the types of improper management considered in 
paragraph (vii).
    (iv) The persistence of the constituent or any toxic degradation 
product of the constituent.
    (v) The potential for the constituent or any toxic degradation 
product of the constituent to degrade into non-harmful constituents and 
the rate of degradation.
    (vi) The degree to which the constituent or any degradation product 
of the constituent bioaccumulates in ecosystems.
    (vii) The plausible types of improper management to which the waste 
could be subjected.
    (viii) The quantities of the waste generated at individual 
generation sites or on a regional or national basis.
    (ix) The nature and severity of the human health and environmental 
damage that has occurred as a result of the improper management of 
wastes containing the constituent.
    (x) Action taken by other governmental agencies or regulatory 
programs based on the health or environmental hazard posed by the waste 
or waste constituent.
    (xi) Such other factors as may be appropriate.
    In 1994, EPA published a policy statement regarding how the Agency 
uses human health and environmental risk estimates in making listing 
decisions, given the uncertainty that can co-exist with risk estimates. 
Specifically:

    ``* * * the Agency's listing determination policy utilizes a 
``weight of evidence'' approach in which risk is a key factor * * * 
however, risk levels themselves do not necessarily represent the 
sole basis for a listing. There can be uncertainty in calculated 
risk values and so other factors are used in conjunction with risk 
in making a listing decision. * * *. EPA's current listing 
determination procedure * * * uses as an initial cancer risk ``level 
of concern'' a calculated risk level of 1 x 10-5 (one in 
one hundred thousand) * * * (1) Waste streams for which the 
calculated high-end individual cancer-risk level is 1 x 10 
-5 or higher generally are considered candidates for a 
list decision * * * (2) Waste streams for which these risks are 
calculated to be 1 x 10 -4 or higher * * * generally will 
be considered to pose a substantial present or potential hazard to 
human health and the environment and generally will be listed as 
hazardous waste. Such waste streams fall into a category 
presumptively assumed to present sufficient risk to require their 
listing as hazardous waste. However, even for these waste streams 
there can in some cases be factors which could mitigate the high 
hazard presumption. These additional factors * * * will also be 
considered by the Agency in making a final determination. (3) Waste 
streams for which the calculated high-end individual cancer-risk 
level is lower than 1 x 10-5 generally are considered 
initial candidates for a no-list decision. (4) Waste streams for 
which these risks are calculated to be 1 x 10-6 or lower, 
and lower than 1.0 HQs or EQs for any non-carcinogens, generally 
will be considered not to pose a substantial present or potential 
hazard to human health and the environment and generally will not be 
listed as hazardous waste. Such waste streams fall into a category 
presumptively assumed not to pose sufficient risk as to require 
their listing as hazardous waste. However, even for these waste 
streams, in some cases, there can be factors that could mitigate the 
low hazard presumption. These also will be considered by the Agency 
in making a final determination. (5) Waste streams where the 
calculated high-end individual cancer-risk level is between 1 x 
10-4 and 1 x 10-6 fall in the category for 
which there is a presumption of candidacy for either listing (risk > 
10-5) or no listing (risk < 10-5). However, 
this presumption is not as strong as when risks are outside this 
range. Therefore, listing determinations for waste streams would 
always involve assessment of the additional factors discussed below. 
* * * Additional factors. b. The following factors will be 
considered in making listing determinations, particularly for wastes 
falling into the risk range between 1 x 10-4 and 1 x 
10-6. (1) Certainty of waste characterization; (2) 
Certainty in risk assessment methodology; (3) Coverage by other 
regulatory programs; (4) Waste volume; (5) Evidence of co-
occurrence; (6) Damage cases showing actual impact to human health 
or the environment; (7) Presence of toxicant(s) of unknown or 
unquantifiable risk.'' See 59 FR 66075-66077, December 22, 1994.

B. Background on EPA's 2010 Risk Assessment

1. Human Health Risks
    Individuals can be exposed to the constituents of concern found in 
CCRs through a number of exposure routes. Potential contaminant 
releases from landfills and surface impoundments include: leaching to 
ground water; overland transport from erosion and runoff; and air 
emissions. The potential of human exposure from any one of these 
exposure pathways for a particular chemical is dependent on the 
physical and chemical characteristics of the chemical, the properties 
of the waste stream, and the environmental setting. EPA has conducted a 
peer-reviewed risk assessment of potential human health risks from CCR 
constituents leaching to groundwater that subsequently migrate either 
to a nearby drinking water well, or to nearby surface water, and is 
ingested as drinking water or through fish consumption (U.S. EPA 
2010a). EPA has also performed preliminary analyses of human health 
effects from CCR constituents that have eroded or have run off from CCR 
waste management units (U.S. EPA 2002), and of human health effects 
from breathing windblown particulate matter from CCR landfill disposal 
operations (the 1998 risk assessment and U.S. EPA 2010b).
    Longstanding EPA policy is for EPA risk assessments to include a 
characterization of the risks at two points on a distribution (i.e., 
range) of risk estimates: a central tendency estimate that represents 
conditions likely to be encountered in a typical exposure situation, 
and a high end estimate that represents conditions likely to be 
encountered by individuals with higher exposures (U.S. EPA 1995).\82\ 
Examples of factors that would influence a nearby resident's exposure 
are the residence's distance from a CCR waste management unit, and an 
individual's behavior or activity patterns. In the 2010 risk 
assessment, the high end risk estimates are the 90th percentile 
estimates from a probabilistic analysis.
---------------------------------------------------------------------------

    \82\ Guidance for Risk Characterization, U.S. Environmental 
Protection Agency, 1995; accessible at http://www.epa.gov/OSA/spc/
pdfs/rcguide.pdf, which states that ``For the Agency's purposes, 
high end risk descriptors are plausible estimates of the individual 
risk for those persons at the upper end of the risk distribution,'' 
or conceptually, individuals with ``exposure above about the 90th 
percentile of the population distribution''. As suggested in the 
Guidance, we also provide 50th percentile results as the central 
tendency estimate of that risk distribution.
---------------------------------------------------------------------------

    The comparisons that EPA used in this rule to judge whether either 
a high end or central tendency estimated risk

[[Page 35168]]

is of concern are the risk criteria discussed in the 1995 policy. As 
noted under that policy, for an individual's cancer risk, the risk 
criteria are in the range of 1 x 10-6, or one in one million 
``excess'' (above and beyond pre-existing risk) probability of 
developing cancer during a lifetime, to 1 x 10-4 (one in ten 
thousand),\83\ with 1 x 10-5 (one in one hundred thousand) 
being the ``point of departure'' for listing a waste and subjecting it 
to regulation under subtitle C of RCRA.\84\ For human non-cancer 
hazard, the risk criterion is an estimated exposure above the level at 
which no adverse health effects would be expected to occur (expressed 
as a ratio of the estimated exposure to the exposure at which it is 
likely that there would be no adverse health effects; this ratio is 
also called a hazard quotient (HQ), and a risk of concern equates to a 
HQ greater than one, or, in certain cases of drinking water exposure, 
water concentrations above the MCL established under the Safe Drinking 
Water Act.
---------------------------------------------------------------------------

    \83\ See 40 CFR 300.430.
    \84\ As noted previously, EPA's hazardous waste listing 
determination policy is described in the notice of proposed 
rulemaking for wastes from the dye and pigment industries at 59 FR 
66075-66077.
---------------------------------------------------------------------------

    The exposure pathways for humans that EPA has evaluated for CCR 
landfills and surface impoundments are nearby residents' groundwater 
ingestion and air inhalation, and fish consumption by recreational 
fishers.
2. Ecological Risks
    For ecological non-cancer hazards that are modeled, the risk 
criterion is a hazard quotient that represents impacts on individual 
organisms, with a risk of concern being an estimated HQ greater than 
one. In some instances, EPA also considered documented evidence of 
ecological harm, such as field studies published in peer-reviewed 
scientific literature. Such evidence is often sufficient to determine 
adverse ecological effects in lieu of or in addition to modeling 
potential ecological risks.
    Two types of exposures can occur for ecological receptors: 
exposures in which ecological receptors inhabit a waste management unit 
directly, and exposures in which CCRs or its chemical constituents 
migrate, or move, out of the waste management unit and contaminate 
nearby soil, surface water, or sediment.

C. Consideration of Individual Listing Criteria

    CCRs contain the following Appendix VIII toxic constituents: 
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
nickel, selenium, silver, and thallium. These Appendix VIII 
constituents are frequently found in CCRs, as has been reported by the 
U.S. EPA (1988, 1999, 2002, 2006, 2008, and 2010).\85\ These are 
discussed below with respect to the factors outlined in Sec.  
261.11(a)(3)(i)-(xi), and the Agency's findings. In the following 
discussion of the eleven listing factors, we combined factors iii 
(Migration), iv (Persistence), v (Degradation) and vi 
(Bioaccumulation); and factors vii (Plausible Types of Mismanagement), 
viii (Quantities of the Waste Generated), and ix (Nature and Severity 
of Effects from Mismanagement) for a more lucid presentation of our 
arguments.
---------------------------------------------------------------------------

    \85\ Full references: U.S. EPA (Environmental Protection 
Agency). 1988. Wastes from the Combustion of Coal by Electric 
Utility Power Plants--Report to Congress. EPA-530-SW-88-002. U.S. 
EPA Office of Solid Waste and Emergency Response. Washington, DC. 
November.
    U.S. EPA (Environmental Protection Agency). 1999. Report to 
Congress: Wastes from the Combustion of Fossil Fuels--Volume II, EPA 
530-S-99-010. Office of Solid Waste. March.
    U.S. EPA (Environmental Protection Agency). 2002. Constituent 
Screening for Coal Combustion Wastes. Draft Report prepared by 
Research Triangle Institute for Office of Solid Waste, Washington, 
DC. September.
    U.S. EPA (Environmental Protection Agency). 2006. 
Characterization of Mercury-Enriched Coal Combustion Residuals from 
Electric Utilities Using Enhanced Sorbents for Mercury Control. EPA 
600/R-06/008. Office of Research and Development. Research Triangle 
Park, NC. January.
    U.S. EPA (Environmental Protection Agency). 2008. 
Characterization of Coal Combustion Residuals from Electric 
Utilities Using Wet Scrubbers for Multi-Pollutant Control. EPA/600/
R-08/077. Report to U.S. EPA Office of Research and Development, Air 
Pollution Control Division. Research Triangle Park, NC. July.
    U.S. EPA (Environmental Protection Agency). 2010. Human and 
Ecological Risk Assessment of Coal Combustion Wastes. Office of 
Resource Conservation and Recovery, Washington, DC. April.
---------------------------------------------------------------------------

1. Toxicity--Factor (i)
    Toxicity is considered in developing the health benchmarks used in 
risk assessment modeling. The Agency for Toxic Substances and Disease 
Registry (ATSDR) ToxFAQs,\86\ the EPA Integrated Risk Information 
System (IRIS),\87\ and the Toxicology Data Network (TOXNET) of the 
National Institutes of Health \88\ are all sources of toxicological 
data on the Appendix VIII hazardous constituents found in CCRs. (The 
information from these data sources on the toxicity of the metals 
identified is included in the docket to today's proposed rule.) Two 
types of ingestion benchmarks are developed. For carcinogens, a cancer 
slope factor (CSF) is developed. A CSF is the slope of the curve 
representing the relationship between dose and cancer risk. It is used 
to calculate the probability that the toxic nature of a constituent 
ingested at a specific daily dose will cause cancer. For non-
carcinogens, a reference dose (RfD) is developed. The RfD (expressed in 
units of mg of substance/kg body weight-day) is defined as an estimate 
(with uncertainty spanning perhaps an order of magnitude) of a daily 
exposure to the human population (including sensitive subgroups) that 
is likely to be without an appreciable risk of deleterious effects 
during a lifetime. The constituents of concern associated with CCRs 
include antimony, arsenic, barium, beryllium, cadmium, hexavalent 
chromium, lead, mercury, nickel, selenium, silver, and thallium. Based 
on the information in ASTDR's Tox FAQs, EPA's IRIS system and TOXNET, 
the Agency believes that the metals identified are sufficiently toxic 
that they are capable of posing a substantial present or potential 
hazard to human health and the environment when improperly treated, 
stored, transported disposed of, or otherwise managed. A brief summary 
of the toxic effects associated with these constituents is presented 
below, including for the four Appendix VIII hazardous constituents that 
were estimated in the draft groundwater risk assessment to pose high-
end (90th percentile) risks at or above the risk criteria in one or 
more situations, and that were also found to present risk to human 
health in one or more damage cases (arsenic, cadmium, lead, and 
selenium):
---------------------------------------------------------------------------

    \86\ http://www.atsdr.cdc.gov/toxfaq.html.
    \87\ http://cfpub.epa.gov/ncea/iris/
index.cfm?fuseaction=iris.showSubstanceList&list_type=alpha&view=B.
    \88\ http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB.
---------------------------------------------------------------------------

    Arsenic. Ingestion of arsenic has been shown to cause skin cancer 
and cancer in the liver, bladder and lungs.\89\
---------------------------------------------------------------------------

    \89\ ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/
toxfaq.html.
---------------------------------------------------------------------------

    Antimony. Antimony is associated with altered glucose and 
cholesterol levels, myocardial effects, and spontaneous abortions. EPA 
has set a limit of 145 ppb in lakes and streams to protect human health 
from the harmful effects of antimony taken in through water and 
contaminated fish and shellfish.\90\
---------------------------------------------------------------------------

    \90\ Ibid.
---------------------------------------------------------------------------

    Barium. Barium has been found to potentially cause gastrointestinal 
disturbances and muscular weaknesses when people are exposed to it at 
levels above the EPA drinking water standards for relatively short 
periods of time.\91\
---------------------------------------------------------------------------

    \91\ Ibid.

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[[Page 35169]]

    Beryllium. Beryllium can be harmful if you breathe it. If beryllium 
air levels are high enough (greater than 1,000 ug/m\3\), an acute 
condition can result. This condition resembles pneumonia and is called 
acute beryllium disease.\92\
---------------------------------------------------------------------------

    \92\ Ibid.
---------------------------------------------------------------------------

    Cadmium and Lead. Cadmium and lead have the following effects: 
kidney disease, lung disease, fragile bone, decreased nervous system 
function, high blood pressure, and anemia.\93\
---------------------------------------------------------------------------

    \93\ Ibid.
---------------------------------------------------------------------------

    Hexavalent Chromium. Hexavalent chromium has been shown to cause 
lung cancer when inhaled.\94\
---------------------------------------------------------------------------

    \94\ Ibid.
---------------------------------------------------------------------------

    Mercury. Exposure to high levels of metallic, inorganic, or organic 
mercury can permanently damage the brain, kidneys, and developing 
fetus.\95\
---------------------------------------------------------------------------

    \95\ Ibid.
---------------------------------------------------------------------------

    Nickel. The most common harmful health effect of nickel in humans 
is an allergic reaction. Approximately 10-20% of the population is 
sensitive to nickel. The most common reaction is a skin rash at the 
site of contact. Less frequently, some people who are sensitive to 
nickel have asthma attacks following exposure to nickel. Some 
sensitized people react when they consume food or water containing 
nickel or breathe dust containing it.\96\
---------------------------------------------------------------------------

    \96\ Ibid.
---------------------------------------------------------------------------

    Selenium. Selenium is associated with selenosis.\97\
---------------------------------------------------------------------------

    \97\ Ibid.
---------------------------------------------------------------------------

    Silver. Exposure to high levels of silver for a long period of time 
may result in a condition called arygria, a blue-gray discoloration of 
the skin and other body tissues.\98\
---------------------------------------------------------------------------

    \98\ Ibid.
---------------------------------------------------------------------------

    Thallium. Thallium exposure is associated with hair loss, as well 
as nervous and reproductive system damage.\99\
---------------------------------------------------------------------------

    \99\ Ibid.
---------------------------------------------------------------------------

2. Concentration of Constituents in Waste--Factor (ii)
    A CCR constituent database was developed for the Regulatory 
Determination in May 2000 and in followup work leading to today's co-
proposal. This database contained data on the total CCR constituents 
listed above, as well as many others, with the Appendix VIII 
constituents found in varying concentrations (see Table 6).\100\
---------------------------------------------------------------------------

    \100\ Additional data on the waste characteristics of fly ash 
and FGD are presented in section I.F.2.

           Table 6--Total Metals Concentrations Found in CCRs
                                  [ppm]
------------------------------------------------------------------------
           Constituent                 Mean       Minimum      Maximum
------------------------------------------------------------------------
Antimony.........................         6.32      0.00125         3100
Arsenic..........................         24.7      0.00394          773
Barium...........................       246.75        0.002         7230
Beryllium........................          2.8        0.025           31
Cadmium..........................         1.05     0.000115       760.25
Chromium.........................         27.8        0.005         5970
Lead.............................           25       0.0074         1453
Mercury..........................         0.18     0.000035        384.2
Nickel...........................           32       0.0025        54055
Selenium.........................       2.4075       0.0002          673
Silver...........................       0.6965            0         3800
Thallium.........................         1.75         0.09          100
------------------------------------------------------------------------

    The data in Table 6 show that many of these metals are contained in 
CCRs at relatively high concentrations, such that if CCRs were 
improperly managed, they could leach out and pose a substantial present 
or potential hazard to human health or the environment when improperly 
treated, stored, transported or disposed of or otherwise managed. The 
risk assessment that was conducted confirms this finding, as do the 
many damage cases that have been documented and presented in today's 
co-proposal, including documents contained in the docket to today's 
proposed rule.
3. Migration, Persistence, Degradation, and Bioaccumulation--Factors 
(iii), (iv), (v), and (vi)
    The potential of the hazardous constituents and any degradation 
products to migrate, persist, degrade and/or bioaccumulate in the 
environment are all factors that EPA considered and evaluated in the 
design of the fate and transport models that were used in assessing the 
concentrations of the toxic constituents to which humans and ecological 
receptors may be exposed. However, before discussing the hazardous 
constituents in the fate and transport models, the Agency would note 
that the toxic constituents for CCRs are all toxic metals--antimony, 
arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, 
selenium, silver and thallium, which do not decompose or degrade with 
the passage of time. Thus, these toxic metals will persist in the 
environment for very long periods of time, and if they escape from the 
disposal site, will continue to provide a potential source of long-term 
contamination.
    The purpose of the risk assessment was to use the fate and 
transport models to assess likely migration of the CCR toxic 
constituents from different waste types through different exposure 
pathways, to receptors and to predict whether CCRs under different 
management scenarios may produce risks to human health and the 
environment. To estimate the risks posed by the management of CCRs in 
landfills and surface impoundments, the risk assessment estimated the 
release of the CCR toxic constituents from landfills and surface 
impoundments, the concentrations of these constituents in environmental 
media surrounding coal-fired utility power plants, and the risks that 
these concentrations pose to human and ecological receptors. The risk 
estimates were based on a groundwater fate and transport model in which 
constituents leached to groundwater consumed as drinking water, 
migrated to surface water and bioaccumulated in recreationally caught 
and consumed fish, and on direct ecological exposure. The specific 50th 
and 90th percentile risk assessment results for relevant Appendix VIII 
constituents are discussed below. While these results are based on a 
subset of CCR disposal units, they are likely representative of the 
risks posed by other similar disposal units. As discussed previously, 
the risk

[[Page 35170]]

assessment demonstrates that if CCRs are improperly managed, they have 
the potential to present a hazard to human health and the environment 
above a 1 x 10-4 to 1 x 10-6 cancer range or an 
HQ of 1. A detailed discussion of the modeling and risks from this 
pathway can be found in U.S. EPA 2009a (available in the docket for 
this proposal). This report presents the methodology, results, and 
uncertainties of EPA's assessment of human health risks resulting from 
groundwater contamination from coal-fired electric utilities.
    Ingestion of Groundwater: The risk assessment predicted that CCRs 
pose an estimated trivalent arsenic cancer risk of 4 in 10,000 for 
unlined landfills and 2 in 10,000 for clay-lined landfills at the 90th 
percentile. No cancer risks above 1 in 100,000 were found at the 50th 
percentile. The 90th percentile results also estimated that thallium is 
ingested at three times the reference dose and antimony at twice the 
reference dose for unlined landfills. For clay-lined landfills, only 
thallium is estimated to exceed the reference dose, with a 90th 
percentile ingestion of twice the reference dose.
    CCRs co-managed with coal refuse in landfills are estimated to pose 
arsenic cancer risks of 5 in 10,000 for an unlined landfill and 2 in 
10,000 for a clay-lined landfill at the 90th percentile. EPA estimates 
that arsenic poses a 2 in 100,000 risk of cancer at the 50th percentile 
for unlined landfills, but poses cancer risks of less than 1 in 100,000 
for clay or composite-lined landfills. For CCRs co-managed with coal 
refule, thallium is estimated at two times the reference dose in 
unlined landfills at the 90th percentile, but did not exceed the 
reference dose at the 0th percentile for any liner type.
    For unlined landfills managing FBC waste, arsenic is estimated to 
have a cancer risk of three in one hundred thousand at the 90th 
percentile. For clay-lined landfills managing FBC waste, arsenic is 
estimated to have a cancer risk of six in one hundred thousand at the 
90th percentile, while thallium is estimated to have an HQ of 4, and 
antimony is estimated to have an HQ of 3.
    The Appendix VIII constituents in CCRs managed in landfills are not 
all estimated to arrive at the drinking water well at the same time. 
For unlined landfills, the median number of years until peak well water 
concentrations are estimated to occur is approximately 2,800 to 9,700 
years for arsenic, 2,600 to 10,000 years for selenium, and 2,300 years 
for thallium. For clay-lined landfills, the median estimated time until 
peak well concentrations is approximately 4,000 to 10,000 years for 
arsenic, 5,100 to more than 10,000 years for selenium, and 4,300 years 
for thallium. Of the contaminated groundwater plumes that are estimated 
to reach the receptor wells from composite-lined units, the median time 
to peak well concentration as not estimated to sour in the 10,000 year 
time period that was modeled.\101\
---------------------------------------------------------------------------

    \101\ The risk model used by EPA evaluates conditions over a 
10,000 year period, and considers constituent concentrations during 
that period. In some cases, peak concentrations do not occur during 
the 10,000 year period.
---------------------------------------------------------------------------

    For surface impoundments, the risk estimates differ. CCRs managed 
alone, that is, without coal refuse in the same impoundment, are found 
to pose an arsenic cancer risk of 2 in 1,000 for unlined surface 
impoundments and 9 in 10,000 for clay-lined surface impoundments at the 
90th percentile. For unlined surface impoundments at the 90th 
percentile, selenium's HQ is two and lead's is three. At the 50th 
percentile, none of the constituents assessed for non-cancer effects 
exceed their reference dose in any scenario, but arsenic did pose 
estimated cancer risks of 1 in 10,000 and 6 in 100,000 for unlined and 
clay-lined units, respectively. For the surface impoundments with 
composite liners, arsenic did not exceed cancer risks of 1 in 100,000, 
nor did selenium exceed its reference dose.
    Co-disposed CCRs and coal refuse managed in surface impoundments 
resulted in the highest risks. For the 90th percentile, arsenic's 
estimated cancer risk is 2 in 100 and 7 in 1,000 for unlined and clay-
lined surface impoundments, respectively.\102\ At the 50th percentile, 
these units still resulted in estimated arsenic cancer risks of 6 in 
10,000 for the unlined surface impoundment and 2 in 10,000 for the 
clay-lined surface impoundment. Cadmium and lead both are estimated to 
exceed the reference dose by nine times at the 90th percentile for 
unlined surface impoundments. In clay-lined surface impoundments, 
cadmium has an estimated cadmium HQ of 3. When managed in surface 
impoundments with composite liners, these constituents' estimated 
cancer risks did not exceed 1 in 100,000, nor are they estimated to 
exceed their reference doses.
---------------------------------------------------------------------------

    \102\ Including data with very high leach levels in surface 
impoundments where pyritic wastes were managed. As mentioned 
earlier, management of CCRs with coal refuse may have changed, and 
some pore water data from the coal refuse may not represent the 
management of these materials today. EPA has solicited comments on 
these issues.
---------------------------------------------------------------------------

    As with landfills, the modeling shows differing arrival times of 
various constituents at the modeled well locations. Due to differences 
in behaviors when interacting in soil, some chemical constituents move 
more quickly than others through the subsurface environment. For 
unlined surface impoundments, the median number of years until peak 
well water concentrations would occur is estimated to be 74 years for 
hexavalent selenium and 78 years for arsenic. For clay-lined surface 
impoundments, the median number of years was estimated to be 90 years 
for hexavalent selenium and 110 years for trivalent arsenic. Of the 
plumes that did reach the receptor wells from composite-lined 
units,\103\ the median number of years was estimated to be 4,600 years 
for hexavalent selenium and 8,600 years for trivalent arsenic.
---------------------------------------------------------------------------

    \103\ In other words, based on the results from this subset of 
the total number of Monte Carlo realizations.
---------------------------------------------------------------------------

    While hexavalent chromium, and nickel were not modeled using the 
fate and transport models, they did show the potential for excess risk 
at the screening stage.\104\ Risk attenuation factors were developed 
for each of these constituents at the 50th and 10th percentiles. Here, 
attenuation refers to the dilution of the concentration of a 
constituent. Thus, the 10th percentile (not the 90th percentile) was 
developed to represent the high-end risks. These risk attenuation 
factors were calculated by dividing the screening risk results by the 
full-scale risk results, across all unit types combined, for the 
constituents modeled in the full-scale assessment. Using the risk 
attenuation factors, none of the constituents were estimated to exceed 
an HQ of 1 at either the 50th or 10th percentile for landfills. For 
surface impoundments, hexavalent chromium was estimated to exceed an HQ 
of 1 at the 50th percentile, while hexavalent chromium was estimated to 
exceed an HQ of 1 at the 10th percentile. The HQ for nickel under the 
surface

[[Page 35171]]

impoundment scenario was less than 1 using the 50th and 10th percentile 
values. However, the use of risk attenuation factors in place of 
probabilistic fate and transport modeling increases the uncertainty 
associated with these results. This analysis was conducted only for the 
drinking water exposure pathway.
---------------------------------------------------------------------------

    \104\ Previous risk assessment results for CCR (U.S. EPA, 1998) 
indicated concern for the groundwater pathway and limited concern 
for aboveground pathways for human and ecological receptors. The 
primary purpose of subsequent risk analyses was to update those 
results by incorporating new waste characterization data received 
since 1998 and by applying current data and methodologies to the 
risk analyses. The initial step in this process is screening and 
constituent selection for a more detailed analysis. The goal of 
screening is to identify CCR constituents, waste types, receptors, 
and exposure pathways with risks below the level of concern and 
eliminate those combinations from further analysis. The screening 
analysis (U.S. EPA, 2002) compared the 90th percentile leachate 
values directly to the human health benchmarks identified above. In 
other words, it was assumed that a human receptor was drinking 
leachate directly from a CCR landfill or surface impoundment with no 
attenuation or variation in exposure.
---------------------------------------------------------------------------

    Consumption of Recreationally Caught Fish: For the unlined, clay-
lined, or composite-lined landfills, none of the modeled Appendix VIII 
hazardous constituents posed a cancer risk greater than 1 in 100,000, 
nor did they exceed their reference doses. However, for surface 
impoundments co-disposing of CCRs with coal refuse, trivalent arsenic's 
90th percentile estimates are 3 in 100,000 and 2 in 100,000 excess 
cancer risk for unlined and clay-lined units, respectively. Pentavalent 
arsenic's 90th percentile estimate is 2 in 100,000 excess cancer risk 
for unlined impoundments. For all other liner and management unit 
scenarios at the 90th percentile, and all scenarios at the 50th 
percentile, there were no arsenic cancer risks above 1 in 100,000. 
Hexavalent selenium is estimated to result in exposures at three times 
the reference dose and twice the reference dose in the unlined and 
clay-lined surface impoundment scenarios, respectively, at the 90th 
percentile. However, selenium is not estimated to exceed the reference 
dose in the composite lined scenario at the 90th percentile, or any 
scenario at the 50th percentile.
    Particulate Matter Inhalation: Air emissions from CCR disposal and 
storage sites can originate from waste unloading operations, spreading 
and compacting operations, the re-suspension of particulates from 
vehicular traffic, and from wind erosion. Air inhalation exposures may 
cause adverse human health effects, either due to inhalation of small-
diameter (less than 10 microns) ``respirable'' particulate matter that 
causes adverse effects (PM10 and smaller particles which 
penetrate to and potentially deposit in the thoracic regions of the 
respiratory tract), which particles are associated with a host of 
cardio and pulmonary mortality and morbidity effects. See e.g. 71 FR at 
61151-62 and 61178-85 (Oct. 6, 2006); see also 40 CFR 50.6 and 50.13 
(National Ambient Air Quality Standards for thoracic coarse particles 
and fine particles).
    To evaluate the potential exposure of residents to particulate 
matter that live near landfills that have disposed of CCRs, EPA has 
performed a screening-level analysis using the SCREEN3 model. This 
analysis, in Inhalation of Fugitive Dust: A Screening Assessment of the 
Risks Posed by Coal Combustion Waste Landfills--DRAFT (U.S. EPA 2010b, 
copy of which is in the docket for this proposed rule), indicates that, 
without fugitive dust controls, there could be exceedances of the 
National Ambient Air Quality Standards (NAAQS) for fine particulate 
matter in the air at residences near CCR landfills. EPA requests 
comment and data on the screening analysis, on the results of any 
ambient air monitoring for particulate matter that has been conducted, 
where air monitoring stations are located near CCR landfills, along 
with information on any techniques, such as wetting, compaction, or 
daily cover that may be employed to reduce such exposures.
    A description of the modeling and risks from this pathway for 
disposal of CCRs in landfills and surface impoundments can be found in 
the Draft Final Report: Non-ground Water Pathways, Human Health and 
Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2); 
June 5, 1998.\105\ This analysis did not address the issue of 
enrichment of toxic constituents present in the finer, inhalable 
fraction of the overall particulate matter size distribution,\106\ but 
used the total constituent concentrations to represent the 
concentrations of constituents present on the inhaled particulate 
matter. Based on the analysis, at landfills, the highest estimated risk 
value was an individual excess lifetime risk of 4 in one million for 
the farmer, due to inhalation of chromium (all chromium present in the 
particulate matter was assumed to be in the more toxic, hexavalent 
form). For surface impoundments, the highest risk value was 2 in one 
million for the farmer (again assuming all chromium present was 
hexavalent). The Agency requests comment on the analysis, as presented 
in the draft final report, as well as any data, including air 
monitoring data that may be available regarding the potential for 
residents to be exposed to toxic constituents by this exposure pathway.
---------------------------------------------------------------------------

    \105\ http://www.epa.gov/epawaste/nonhaz/industrial/special/
fossil/ngwrsk1.pdf.
    \106\ See, for example, Vouk, V. and Piver, W. ``Metallic 
Elements in Fossil Fuel Combustion Products: Amounts and Form of 
Emissions and Evaluation of Carcinogenicity and Mutagenicity.'' Env 
Health Perspec 1983:47(201-225).
---------------------------------------------------------------------------

    Ecological Exposure: Where species were directly exposed to surface 
impoundments, the risk assessment found ecological risks due to 
selenium, silver, nickel, chromium, arsenic, cadmium, barium, lead, and 
mercury. For scenarios where species were exposed to constituents that 
had migrated from the groundwater to surface water and sediment, 
ecological risk exceedances were found for lead, selenium, arsenic, 
barium, antimony, and cadmium at the 90th percentile, but not at the 
50th percentile. EPA's risk assessment, confirmed by the existing 
damage cases and field studies published in the peer-reviewed 
scientific literature, show elevated selenium levels in migratory 
birds, and elevated contaminant levels in mammals as a result of 
environmental uptake, fish deformities, and inhibited fish reproductive 
capacity. Because of the large size of these management units, many 
being 100's of acres to one that is about 2,600 acres, receptors can 
often inhabit these waste management units. There are a number of 
recent references in the peer-reviewed scientific literature specific 
to CCRs managed in surface impoundments that confirm the 1998 risk 
assessment results and provide additional pertinent information of 
potential ecological damage. Hopkins, et al. (2006) \107\ observed 
deformities and reproductive effects in amphibians living on or near 
CCR disposal sites in Georgia. Rowe, et al. (2002) \108\ provided a 
thorough review of laboratory and field studies that relate to the 
impact of CCR surface impoundment management practices' on aquatic 
organisms and communities. Examples of studies cited in Rowe, et al. 
(2002) that illustrates the impact of CCRs on aquatic organisms in 
direct contact with surface impoundment waters and/or sediments include 
Benson and Birge (1985),\109\ Coutant, et al. (1978) \110\ and Rowe, et 
al. (2001),\111\ while examples of studies cited in Rowe, et al. 2002 
that illustrates the impact of CCRs on aquatic organisms in water 
bodies near CCR surface

[[Page 35172]]

impoundments include Lemly (1993),\112\ Sorensen, et al. (1982) \113\ 
and (1988).\114\ This latter category may reflect CCR impacts 
attributable to three constituent migration mechanisms: (1) NPDES-
permitted discharges from impoundments; (2) overtopping of 
impoundments; and (3) groundwater-to-surface-water discharges (modeled 
in US EPA 2010a), as well as other, non-CCR-related, sources of 
pollutants.
---------------------------------------------------------------------------

    \107\ Hopkins, W.A., S.E. DuRant, B.P. Staub, C.L. Rowe, and 
B.P. Jackson. 2006. Reproduction, embryonic development, and 
maternal transfer of contaminants in the amphibian Gastrophryne 
carolinensis. Environmental Health Perspectives. 114(5):661-666.
    \108\ Rowe, C., Hopkins, W., Congdon, G. ``Ecotoxicological 
Implications of Aquatic Disposal of Coal Combustion Residuals in the 
United States: A Review.'' Env Monit Assess 2002: 80(270-276).
    \109\ Benson, W. and Birge, W. ``Heavy metal tolerance and 
metallothionein induction in fathead minnows: results from field and 
laboratory investigations.'' Environ Toxicol Chem 1985:4(209-217).
    \110\ Coutant, C., Wasserman, C., Chung, M., Rubin, D., Manning, 
M. ``Chemistry and biological hazard of a coal-ash seepage stream.'' 
J. Water Poll. Control Fed. 1978:50(757-743).
    \111\ Rowe C., Hopkins, W., and Coffman, V. ``Failed recruitment 
of southern toads (Bufo terrestris) in a trace-element contaminated 
breeding habitat: direct and indirect effects that may lead to a 
local population sink.'' Arch. Environ. Contam. Toxicol. 
2001:40(399-405).
    \112\ Lemly A., ``Guidelines for evaluating selenium data from 
aquatic monitoring and assessment studies.'' Environ. Monit. Assess. 
1993:28(83-100).
    \113\ Sorensen, E., Bauer, T., Bell, J., Harlan, C. ``Selenium 
accumulation and cytotoxicity in teleosts following chronic, 
environmental exposure.'' Bull. Environ. Contam. Toxicol. 
1982:29(688-696).
    \114\ Sorenson, E. ``Selenium accumulation, reproductive status, 
and histopathological changes in environmentally exposed redear 
sunfish.'' Arch Toxicol 1988:61(324-329).
---------------------------------------------------------------------------

    Although chromium, beryllium, and silver were not modeled, they 
were analyzed using dilution attenuation factors developed for the 50th 
and 10th percentiles in the same manner as described above. The only 
exceedance of the HQ of 1 was for silver at the 10th percentile under 
the landfill scenario. The only exceedances of the ecological criteria 
for surface impoundments of the 40 CFR part 261 Appendix VIII 
constituents was for chromium at the 10th percentile. Since full-scale 
modeling was not conducted, the results for these constituents are 
uncertain.
4. Plausible Types of Mismanagement, Quantities of the Waste Generated, 
Nature and Severity of Effects From Mismanagement--Factors (vii), 
(viii) and (ix)
    As discussed earlier, approximately 46 million tons of CCRs were 
managed in calendar year 2008 in landfills (34%) and nearly 29.4 
million tons were managed in surface impoundments (22%).\115\ EPA has 
estimated that in 2004, 69% of the CCR landfills and 38% of the CCR 
surface impoundments had liners. As shown in the risk assessment and 
damage cases, the disposal of CCRs into unlined landfills and surface 
impoundments is likely to pose significant risks to human health and 
the environment. Additionally, documented damage cases have helped to 
confirm the actuality and magnitude of risks posed by these unlined 
disposal units.
---------------------------------------------------------------------------

    \115\ Estimated from the 2009 ACAA survey and Energy Information 
Administration 2005 F767 Power Plant database.
---------------------------------------------------------------------------

    The CCR waste stream is generated in very large volumes and is 
increasing. The ACAA estimates that the production of CCRs has 
increased steadily from approximately 30 million tons in the 1960s to 
over 120 million tons in the 2000s.\116\ A recent ACAA survey estimates 
a total CCR production of just over 136 million tons in 2008.\117\ This 
is a substantially large waste stream when compared to the 6.9 million 
tons of non-wastewater hazardous wastes disposed by all other sectors 
in 2007, and the 2 million tons of hazardous waste being reported as 
disposed of in landfills and surface impoundments in 2005.\118\
---------------------------------------------------------------------------

    \116\ ACAA (American Coal Ash Association). 2008. Production & 
Use Chart (1966-2007). http://www.acaa-usa.org/associations/8003/
files/Revised_1966_2007_CCP_Prod_v_Use_Chart.pdf.
    \117\ ACAA (American Coal Ash Association). 2009. 2008 Coal 
Combustion Product (CCP) Production & Use Survey Results. http://
www.acaa-usa.org/associations/8003/files/2007_ACAA_CCP_Survey_
Report_Form%2809-15-08%29.pdf.
    \118\ The National Biennial RCRA Hazardous Waste Report (2007) 
available at http://www.epa.gov/epawaste/inforesources/data/br07/
national07.pdf.
---------------------------------------------------------------------------

    EPA currently has documented evidence of proven damages to 
groundwater and surface water from 27 disposal sites and potential 
damages at 40 sites which are discussed in detail above and in the 
Appendix to this proposal. The damage cases resulting from CCR 
constituents migrating into groundwater were generally the same with 
those predicted in the risk assessment with respect to constituents 
which migrated, the concentrations reaching receptors, and the 
consequent magnitude of risk to those receptors. Of the constituents in 
Appendix VIII of Part 261, four were found at levels of concern in both 
the risk assessment and the damage cases (arsenic, cadmium, lead, and 
selenium). Two additional Appendix VIII (Part 261) constituents 
(chromium and nickel) were found in damage cases, and showed the 
potential for risk in the risk assessment, but were not modeled through 
fate and transport modeling. Finally, there were two Appendix VIII 
(Part 261) constituents (antimony and thallium) that were projected to 
be capable of migrating and reaching receptors at levels of concern in 
the risk assessment, but have yet to be identified in any of our 
groundwater damage cases.\119\
---------------------------------------------------------------------------

    \119\ While this could indicate a potential conservatism in the 
model with respect to these two constituents, it is more likely to 
result from a failure to sample for these constituents as 
frequently. This is consistent with the data reported in Table 4-29 
of the revised risk assessment (only 11 samples taken for antimony 
and thallium in surface impoundments versus hundreds for various 
other constituents).
---------------------------------------------------------------------------

    The damages to surface water from Appendix VIII (Part 261) 
constituents do not reflect a ground water to surface water pathway, 
but rather reflect surface water discharges. Five damage cases resulted 
in selenium fish consumption advisories consistent with the risk 
assessment's prediction that selenium consumption from fish in water 
bodies affected by CCR disposal units would result in excess ecologic 
and human health risk. We are aware that at least three of the fish 
advisories were subsequently rescinded when the criteria was reassessed 
and revised. The risk assessment also predicts that arsenic would pose 
such risks. However, while no arsenic fish advisories have been linked 
to CCR disposal at this time, the risk assessment predicts that 
selenium will migrate faster than arsenic.
    In addition to the impacts on human health from groundwater and 
surface water contaminated by CCR released from disposal units, the 
damage cases have also shown the following adverse effects to plants 
and wildlife: Elevated selenium levels in migratory birds, wetland 
vegetative damage, fish kills, amphibian deformities, snake metabolic 
effects, plant toxicity, mammal uptake, fish deformities, and inhibited 
fish reproductive capacity. Although these effects cannot easily be 
linked to the results of the risk assessment as was done for 
groundwater and surface water above, the risk assessment generally 
agreed with the damage cases because it sometimes showed very high 
risks to ecological receptors. For additional information on ecological 
damages, see the document titled ``What Are the Environmental and 
Health Effects Associated with Disposing of CCRs in Landfills and 
Surface Impoundments?'' in the docket to this proposal.
    Furthermore, four of the 27 proven damage case disposal sites have 
been listed on the EPA's National Priorities List (NPL). The NPL is the 
list of national priority sites with known releases or threatened 
releases of hazardous substances, pollutants, or contaminants 
throughout the United States and its territories. The Hazard Ranking 
System (HRS), the scoring system EPA uses to assess the relative threat 
associated with a release from a site, is the primary method used to 
determine whether a site should be placed on the NPL.\120\ The HRS 
takes into account the three elements of environmental and human health 
risk: (1) Probability of release; (2) exposure; and (3) toxicity. EPA 
generally will list sites with scores of 28.5 or above. The HRS is a 
proven tool for evaluating and prioritizing the releases that may pose 
threats to human health and the environment throughout the nation.

[[Page 35173]]

Whereas each of those 4 NPL sites also contains waste other than CCRs, 
CCRs are one of the prevalent waste types in each case.\121\
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    \120\ U.S. EPA 2007. ``Introduction to the Hazard Ranking System 
(HRS).'' Accessed at: http://www.epa.gov/superfund/programs/npl_
hrs/hrsint.htm.
    \121\ For specifics, please see http://www.regulations.gov/
fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-
0796-0015.
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    In addition, the Kingston, Tennessee damage case (see the Appendix) 
helps to illustrate the additional threats to human health and the 
environment that can be caused by the failure of a CCR waste management 
unit. At TVA's Kingston facility, there were four failure conditions: 
The presence of an unusually weak fly ash (``Slimes'') foundation; the 
fill geometry and setbacks; increased loads due to higher fill; and 
hydraulically placed loose wet ash. If owners or operators do not 
maintain due diligence regarding the structural integrity of surface 
impoundments, significant damage to human health and the environment 
could be a likely outcome. In summary, while the preponderance of 
documented damage cases were the result of releases from unlined 
landfills and surface impoundments, EPA believes that the above data 
identify situations (e.g., adverse impacts on migratory birds) 
illustrative of potential problems occurring from the management of 
CCRs in any type of surface impoundment.
5. Action Taken by Other Governmental Agencies or Regulatory Programs 
Based on the Health or Environmental Hazard Posed by the Waste or Waste 
Constituent--Factor (x)
    As a result of the mismanagement of CCRs, EPA and states have taken 
steps to compel cleanup in several situations. Specifically, in 
addition to EPA placing sites on the NPL due to the disposal or 
indiscriminant placement of CCRs, at least 12 states have issued 
administrative orders for corrective actions at CCR disposal sites. 
Corrective action measures at these CCR management units vary depending 
on the site specific circumstances and include formal closure of the 
unit, capping, re-grading of ash and the installation of liners over 
the ash, ground water treatment, groundwater monitoring, and 
combinations of these measures.
6. Other Factors--Factor (xi)
    The damage cases and the risk assessment also found excess risks 
for human and ecological receptors that resulted from non-Appendix VIII 
(Part 261) constituents.\122\ While not currently identified under RCRA 
as hazardous or toxic constituents, several of these constituents have 
the same toxic endpoints as the Appendix VIII (Part 261) constituents 
found in CCRs, while nitrate is associated with pregnancy complications 
and methemoglobinemia (blue baby syndrome).\123\ Although these non-
Appendix VIII (Part 261) constituents do not provide an independent 
basis for listing CCRs, EPA finds their presence in the damage cases 
and risk assessment results to be relevant to the listing decision 
because of the potential to cause additive or synergistic effects to 
the Appendix VIII constituents. For instance, exposure to high levels 
of cobalt (cobalt has an HQ of 500 when rounded to 1 significant digit) 
can result in lung and heart effects, the same endpoints as exposure to 
high levels of antimony. Thus, these two constituents could act 
additively or synergistically on both the heart and lungs. The risk 
assessment showed 90th percentile cobalt drinking water ingestion to be 
500 times the reference dose. Thus, cobalt could exacerbate the heart 
and lung effects due to CCR antimony exposures.
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    \122\ Aluminum, boron, chloride, cobalt, copper, fluoride, iron, 
lithium, manganese, molybdenum, nitrate/nitrite, strontium, sulfate, 
vanadium, and zinc.
    \123\ ATSDR CSEM. Available at: http://www.atsdr.cdc.gov/csem/
nitrate/no3physiologic_effects.html.
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    Therefore, based on our examination of CCRs against the criteria 
for listing, a listing determination for CCRs destined for disposal can 
be based on such factors as (1) The continued evidence that CCRs in 
landfills and surface impoundments may not be properly managed--e.g., 
the lack of groundwater monitoring for many existing units; (2) the 
continued gaps in some state regulations; (3) the damage cases we have 
documented to date, including the damage done by the recent 
catastrophic release of CCRs from the impoundment failure in Kingston, 
Tennessee; and (4) the results of the risk assessment, which indicates 
high-end risks associated with disposal of CCRs in unlined and clay-
lined CCR landfills and surface impoundments far exceeding acceptable 
levels (e.g., exceeding a cancer risk threshold of 1 x 10-5) 
\124\ and the non-cancer risk threshold (HQ greater than 1).
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    \124\ This risk level is consistent with those discussed in 
EPA's hazardous waste listing determination policy (see the 
discussion in a proposed listing for wastes from the dye and pigment 
industries, December 22, 1994; 59 FR 66072).
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VI. Summary of the Co-Proposed Subtitle C Regulations

    Under the subtitle C alternative, EPA would list CCRs from electric 
utilities and independent power producers intended for disposal in 
landfills and surface impoundments as a special waste, which would make 
them subject to the existing subtitle C regulations at 40 CFR parts 260 
through 268, as well as the permitting requirements in 40 CFR part 270, 
and the state authorization process in 40 CFR parts 271-272.\125\ These 
regulations establish, among other things, location restrictions; 
standards for liners, leachate collection and removal systems, and 
groundwater monitoring for land disposal units; fugitive dust control; 
closure and post-closure care requirements; storage requirements; 
corrective action; financial assurance; waste characterization; and 
permitting requirements. These regulations also impose requirements on 
generators and transporters of CCRs destined for disposal, including 
manifesting (if the CCRs destined for disposal are sent off site). As 
discussed in detail in section IV. E of today's preamble, EPA is 
proposing to leave the Bevill determination in place for CCRs used 
beneficially. Thus, CCRs beneficially used would not be subject to 
regulation from the point of generation or from the point they are 
recovered from landfills or surface impoundments, to the point where 
they are used beneficially. In addition, when beneficially used (e.g., 
in wallboard and concrete), the CCRs become part of a new product; 
these products do not carry the special waste listing. When these 
products reach the end of their useful life and are to be disposed of, 
this represents a new point of generation. This new waste would be 
subject to RCRA subtitle C if the waste exhibits a characteristic of 
hazardous waste (i.e., ignitability, corrosivity, reactivity, or 
toxicity).
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    \125\ As discussed in section VI. D of the preamble, as part of 
the proposal to list CCRs as a special waste, as is done routinely 
with listed wastes, EPA is also proposing to subject CCRs that are 
disposed of to the notification requirements under CERCLA at 40 CFR 
part 302.
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    In the majority of cases, EPA is proposing that CCRs be subject to 
the existing subtitle C requirements without modification. Accordingly, 
for those regulatory requirements that we propose not to modify or for 
which EPA does not specifically solicit comment, EPA is not proposing 
to reopen any aspect of those requirements, and will not respond to any 
unsolicited comments submitted during this rulemaking. However, where 
EPA has determined that special

[[Page 35174]]

characteristics of these wastes warrant changes; e.g., where 
implementation of existing requirements would present practical 
difficulties, or where additional requirements are necessary due to the 
special characteristics of these wastes, EPA is proposing to revise the 
requirements to account for these considerations. For example, EPA is 
proposing tailored design criteria for new CCR disposal units, pursuant 
to its authority under section 3004(x) of RCRA.\126\ Similarly, under 
the authority of section 3004(x) of RCRA, EPA is proposing to modify 
the CCR landfill and surface impoundment liner and leak detection 
system requirements and the effective dates for the land disposal 
restrictions, and the surface impoundment retrofit requirements. EPA is 
also proposing to establish new land disposal prohibitions and 
treatment standards for both wastewater and non-wastewater CCRs. In 
addition, to address dam safety and stability issues, EPA is proposing 
design and inspection requirements for surface impoundments, similar to 
those of the Mine Safety and Health Administration (MSHA) design 
requirements for slurry impoundments at 30 CFR part 77.216 for surface 
impoundments. Further, EPA is proposing that all existing surface 
impoundments that have not closed in accordance with the rule's 
requirements by the effective date of this rule would be subject to all 
of the requirements of this rule, including the need to obtain a 
permit, irrespective of whether the unit continues to receive CCRs or 
the facility otherwise engages in the active management of those units.
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    \126\ Section 3004(x) of RCRA provides EPA the authority to 
modify certain statutory provision (i.e., 3004(c), (d), (e), (f), 
(g), (o), and (u) and 3005(j) taking into account the special 
characteristics of such wastes, the practical difficulties 
associated with implementation of such requirements, and site-
specific characteristics, including, but not limited to, climate, 
geology, hydrology, and soil chemistry at the site, so long as such 
modified requirements are protective of human health and the 
environment.
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    Finally, we would note that if the Agency concludes to reverse the 
Bevill determinations and list CCRs as a special waste, EPA would make 
in any final rule conforming changes to 40 CFR parts 260 through 268 
and 270 through 272 so that it is clear that these requirements apply 
to all facilities regulated under the authority of RCRA subtitle C that 
generate, transport, treat, store, or dispose of special wastes as well 
as to those facilities that generate, treat, store, or dispose of 
special wastes.
    The following paragraphs set out the details of this subtitle C 
proposal, with the modified or new requirement discussed in Section B. 
and the existing subtitle C requirements discussed in Section C.

A. Special Waste Listing

    Under this regulatory option, EPA is proposing to list CCRs 
generated by electric utilities and independent power producers 
destined for disposal as a special waste subject to the requirements of 
RCRA subtitle C by amending 40 CFR part 261 and to add Subpart F--
Special Wastes Subject to Subtitle C Regulations. The Agency believes 
this would be the appropriate manner for listing these wastes, and, as 
discussed in detail later in this section, the Agency believes that 
listing CCRs destined for disposal as a special waste, rather than a 
hazardous waste could, in large measure, address potential issues of 
stigma.

B. Proposed Special Requirements for CCRs

    The following paragraphs discuss the special requirements the 
Agency is proposing for CCRs. These requirements modify or are in 
addition to the general subtitle C requirements found at 40 CFR parts 
264-268 and 270-272.
1. Modification of Technical Standards Under 3004(x)
    Section 3004(x) of RCRA authorizes the Administrator to modify the 
statutory requirements of sections 3004(c), (d), (e), (f), (g), (o), 
(u), and 3005(j) of RCRA in the case of landfills or surface 
impoundments receiving Bevill wastes, including CCRs that EPA 
determines to regulate under subtitle C, to take into account the 
special characteristics of the wastes, the practical difficulties 
associated with implementation of such requirements, and site-specific 
characteristics, including, but not limited to the climate, geology, 
hydrology and soil chemistry at the site, so long as such modified 
requirements assure protection of human health and the environment. The 
Agency is proposing to modify, through its authority under RCRA 
3004(x), the CCR landfill and surface impoundment liner and leak 
detection system requirements, the effective dates for the land 
disposal restrictions, and the surface impoundment retrofit 
requirements.
i. Modification of CCR Landfills and Surface Impoundments From the 
Section 3004(o) Liner and Leak Detection Requirements
    The minimum technological requirements set out in RCRA Section 
3004(o)(1)(A)(i) requires that new hazardous waste landfills and 
surface impoundments, replacements of existing landfills and 
impoundments, and lateral expansions of existing landfills and 
impoundments,\127\ to install two or more liners and a leachate 
collection and removal system above (in the case of a landfill) and 
between such liners. Section 3004(o)(4)(A) also requires these units to 
install a leak detection system. Landfills and surface impoundments 
covered under the regulations at 40 CFR part 264 are required to have a 
double liner system, and a leachate collection and removal system that 
can also serve as a leak detection system as described in 40 CFR 
sections 264.221 and 264.301. Under section 3005 (j)(1) (and, as 
explained below, effectively under section 3005 (j)(11) as well), 
existing surface impoundments are required to meet all of these 
requirements as well.
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    \127\ Replacement unit means a landfill, surface impoundment, or 
waste pile unit (1) from which all or substantially all of the waste 
is removed, and (2) that is subsequently reused to treat, store, or 
dispose of such waste. ``Replacement unit'' does not apply to a unit 
from which waste is removed during closure, if the subsequent reuse 
solely involves the disposal of waste from that unit and other 
closing units or corrective action areas at the facility, in 
accordance with an approved closure plan or EPA or State approved 
corrective action. Lateral expansion means a horizontal expansion of 
the waste boundaries of an existing landfill or surface impoundment.
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    EPA is proposing to modify the double liner and leachate collection 
and removal system requirement by substituting a requirement to install 
a composite liner and leachate collection and removal system. As 
modeled in EPA's risk assessment, composite liners effectively reduce 
risks from all constituents to below the risk criteria for both 
landfills and surface impoundments. Therefore, the Agency believes a 
composite liner system would be adequately protective of human health 
and the environment and a double liner system would be unnecessarily 
burdensome. The modified standards specify a composite liner system 
that consists of two components: the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1x10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component. The leachate 
collection system must be designed and constructed to maintain less 
than a 30-cm depth of leachate over the liner.

[[Page 35175]]

    EPA has concluded that these liner and leachate collection 
requirements will be protective of human health and the environment 
from the release of contaminants to groundwater from CCRs in landfills 
and surface impoundments. Specifically, the risk assessment indicates 
that risks from disposal units with composite liners will be less than 
the 1 x 10-5 for carcinogens and less than an HQ of one for 
other hazardous constituents--levels that EPA has considered protective 
for the management of hazardous wastes. (The results of EPA's risk 
analyses are discussed in section II.B, and in the full risk assessment 
document, which is in the docket for today's proposed rulemaking.) 
Further support is provided by the damage cases, as none of the proven 
damage cases involved lined landfills or surface impoundments (with the 
possible exception of one unit, which in any case did not have a 
composite liner). In addition, the proposed modified requirements are 
the design standards for composite liners specified for municipal solid 
waste landfills at 40 CFR part 258; based on EPA's experience, such 
liner design would be expected to be effective in mitigating the risks 
of leaching to groundwater for a waste, such as CCRs. For example, CCRs 
do not contain volatile organics, such as ethylbenzene, which has 
recently been shown to be problematic for synthetic liners.
    Although EPA has not confirmed damage cases involving the failure 
of clay liners, it is not proposing to allow new disposal units to be 
built solely with clay liners. EPA's modeling in its risk assessment 
indicated that clay liners could be of concern; EPA also believes that 
composite liners reflect today's best practices for new units, and, as 
such, can therefore be feasibly implemented.\128\ Nevertheless, EPA 
solicits comments on whether clay liners should also be allowed under 
EPA's regulations. To assist EPA in its review, we request that 
commenters provide data on the hydraulic conductivity of clay liners 
associated with coal ash disposal units, and information on the 
protectiveness of clay liner designs based on site-specific analyses.
---------------------------------------------------------------------------

    \128\ EPA notes that the state of Maryland, in developing new 
standards for CCR disposal units under its subtitle D authorities, 
prescribes composite liners.
---------------------------------------------------------------------------

    Thus, we are proposing to amend the current requirements of 40 CFR 
264.220, and 264.300 to require that CCR surface impoundments and 
landfills install a composite liner and leachate collection and removal 
system. EPA would codify these requirements, as well as other special 
requirements for CCR wastes in a new subpart FF of 40 CFR part 264.
    EPA also notes that section 3004(o)(2) allows the Agency to approve 
alternate liner designs, based on site-specific demonstrations that the 
alternate design and operating practices, together with location 
characteristics, will prevent the migration of any hazardous 
constituents into ground or surface water at least as effectively as 
the double-liner system (42 U.S.C. 6924(o)(2)). EPA solicits comment on 
whether, in addition to the flexibility provided by section 3004(o)(2), 
EPA's regulations should also provide for alternative liner designs 
based on, for example, a specific performance standard, such as the 
subtitle D performance standard in 40 CFR 258.40(a)(1), or a site 
specific risk assessment, or a standard that the alternative liner, 
such as a clay liner, was at least as effective as the composite liner. 
Such an approach might be appropriate, for example, in situations where 
groundwater is particularly deep and/or infiltration rates are low, or 
where alternative liner systems provide an equivalent level of 
protection.
    Subtitle C of RCRA requires only new hazardous waste landfills (or 
new portions of existing landfills) to meet the minimum technology 
requirements for liners and leachate collection and removal systems. 
RCRA section 3004 (o)(1)(A). The statute thus does not require existing 
landfills that are brought into the subtitle C system because they are 
receiving newly listed hazardous wastes, or the new category of listed 
special wastes proposed in this notice, to be retrofitted with a new 
minimum-technology liner/leachate collection and removal system (or to 
close). They can continue to receive hazardous or special waste, and 
continue to operate as compliant hazardous or special waste landfills. 
Following from these provisions, EPA has not typically required 
existing landfills to be retrofitted to meet the new requirements. 
Congress specifically established this approach under subtitle C, and 
EPA sees no reason or special argument to adopt more stringent 
requirements for CCR landfills, particularly given the volume of the 
material and the disruption that would be involved with any other 
approach. However, under the proposal, existing units would have to 
meet the groundwater monitoring, corrective action, and other 
requirements of the subtitle C regulations to assure that any 
groundwater releases from the unit were identified and promptly 
remediated. This is consistent with the manner in which EPA has 
historically implemented the hazardous waste requirements. EPA believes 
that maintaining this approach in this context will be protective, in 
part, because, unless facilities ship all of their wastes off-site 
(which EPA believes is highly unlikely), they will need a permit for 
on-site management of CCRs, which will provide regulatory oversight 
that could, as necessary, address the risks from the existing 
(unpermitted) landfills.
    By contrast, Congress was significantly more concerned about the 
risks associated with unlined surface impoundments managing newly 
listed hazardous wastes (see 42 U.S.C. Section 6924, October 21, 1976). 
This is addressed in more detail in section (iv) below titled ``Wet-
Handling of CCRs, Closure, and Interim Status for Surface 
Impoundments.''
ii. Fugitive Dust Controls
    The proposed subtitle C approach would require that surface 
impoundments and landfills be managed in a manner that controls 
fugitive dust consistent with any applicable requirements developed 
under a State Implementation Plan (SIP) or issued by EPA under section 
110 of the Clean Air Act (CAA). Specifically, EPA is proposing to adopt 
as a standard the 35 [mu]g/m\3\ level established as the level of the 
24-hour NAAQS for fine particulate matter (PM-2.5). In addition, CCR 
facilities would be required to control fugitive dust by either 
covering or otherwise managing CCRs to control wind dispersal of dust, 
emplacement as wet conditioned CCRs to control wind dispersal, when 
stored in piles, or storage in tanks or buildings. For purposes of the 
proposal, wet conditioning means wetting CCRs with water to a moisture 
content that prevents wind dispersal, facilitates compaction, but does 
not result in free liquids. Trucks or other vehicles transporting CCRs 
are to be covered or otherwise managed to control wind dispersal of 
dust. EPA is proposing this requirement based on the results of a 
screening level analysis of the risks posed by fugitive dusts from CCR 
landfills, which showed that, without fugitive dust controls, levels at 
nearby locations could exceed the 35 [mu]g/m\3\ level established as 
the level of the 24-hour PM 2.5 NAAQS for fine particulate.
iii. Special Requirements for Stability of CCR Surface Impoundments
    To detect and prevent potential catastrophic releases, EPA is 
proposing requirements for periodic inspections of surface 
impoundments. The Agency

[[Page 35176]]

believes that such a requirement is critical to ensure that the owner 
and operator of the surface impoundment becomes aware of any problems 
that may arise with the structural stability of the unit before they 
occur and, thus, prevent the past types of catastrophic releases, such 
as at Martins Creek, Pennsylvania and TVA's Kingston, Tennessee 
facility. Therefore, EPA is proposing that inspections be conducted 
every seven days by a person qualified to recognize specific signs of 
structural instability and other hazardous conditions by visual 
observation and, if applicable, to monitor instrumentation. If a 
potentially hazardous condition develops, the owner or operator shall 
immediately take action to eliminate the potentially hazardous 
condition; notify the Regional Administrator or the authorized State 
Director; and notify and prepare to evacuate, if necessary, all 
personnel from the property which may be affected by the potentially 
hazardous condition(s). Additionally, the owner or operator must notify 
state and local emergency response personnel if conditions warrant so 
that people living in the area down gradient from the surface 
impoundment can be evacuated. Reports of inspections are to be 
maintained in the facility operating record.
    To address surface impoundment (or impoundment) integrity (dam 
safety), EPA considered two options. One option, which is the option 
proposed in this notice, is to establish standards under RCRA for CCR 
surface impoundments similar to those promulgated for coal slurry 
impoundments regulated by the Mine Safety and Health Administration 
(MSHA) at 30 CFR 77.216. Facilities relying on CCR impoundments would 
need to (1) submit to EPA or the authorized state plans for the design, 
construction, and maintenance of existing impoundments, (2) submit to 
EPA or the authorized state plans for closure, (3) conduct periodic 
inspections by trained personnel who are knowledgeable in impoundment 
design and safety, and (4) provide an annual certification by an 
independent registered professional engineer that all construction, 
operation, and maintenance of impoundments is in accordance with the 
approved plan. When problematic stability and safety issues are 
identified, owners and operators would be required to address these 
issues in a timely manner.
    In developing these proposed regulations for structural integrity 
of CCR impoundments, EPA sought advice from the federal agencies 
charged with managing the safety of dams in the United States. Many 
agencies in the federal government are charged with dam safety, 
including the U.S. Department of Agriculture (USDA), the Department of 
Defense (DOD), the Department of Energy (DOE), the Nuclear Regulatory 
Commission (NRC), the Department of Interior (DOI), and the Department 
of Labor (DOL), MSHA. EPA looked particularly to MSHA, whose charge and 
jurisdiction appeared to EPA to be the most similar to our task. MSHA's 
jurisdiction extends to all dams used as part of an active mining 
operation and their regulations cover ``water, sediment or slurry 
impoundments'' so they include dams for waste disposal, freshwater 
supply, water treatment, and sediment control. In fact, MSHA's current 
impoundment regulations were created as a result of the dam failure at 
Buffalo Creek, West Virginia on February 26, 1972. (This failure 
released 138 million gallons of stormwater run-off and fine coal 
refuse, and resulted in 125 persons being killed, another 1,000 were 
injured, over 500 homes were completely demolished, and nearly 1,000 
others were damaged.)
    MSHA has nearly 40 years of experience writing regulations and 
inspecting dams associated with coal mining, which is directly relevant 
to the issues presented by CCRs in this rule. In our review of the MSHA 
regulations, we found them to be comprehensive and directly applicable 
to the dams used in surface impoundments at coal-fired utilities to 
manage CCRs. We also believe that, based on the record compiled by MSHA 
for its rulemaking, and on MSHA's 40 years of experience implementing 
these regulations, these requirements will prevent the catastrophic 
release of CCRs from surface impoundments, as occurred at TVA's 
facility in Kingston, Tennessee, and will generally meet RCRA's mandate 
to ensure the protection of humans and the environment. Thus, we have 
modeled our proposal on the MSHA regulations in 30 CFR Part 77 and we 
have placed the text of the salient portions of the MSHA regulations in 
the docket for this rulemaking. The Agency requests comment on EPA's 
proposal to adopt the MSHA standards (with limited modifications to 
deal with issues specific to CCR impoundments) to address surface 
impoundment integrity under RCRA.
    MSHA's regulations cover impoundments which can present a hazard 
and which impound water, sediment or slurry to an elevation of more 
than five (5) feet and have a storage volume of 20 acre-feet or more 
and those that impound water, sediment, or slurry to an elevation of 20 
feet or more. EPA seeks comment on whether to cover all CCR 
impoundments for stability, regardless of height and storage volume, 
whether to use the cut-offs in the MSHA regulations, or whether other 
regulations, approaches, or size cut-offs should be used. If commenters 
believe that other regulations or size cut-offs should be adopted (and 
not the size-cut offs established in the MSHA regulations), we request 
that commenters provide the basis and technical support for their 
position.
    The second option that EPA considered, but is not being proposed 
today, is to establish impoundment integrity requirements under the 
Clean Water Act's NPDES permit system. Existing regulations at 40 CFR 
122.41(e) require that permittees properly operate and maintain all 
facilities of treatment and control used to achieve compliance with 
their permits. In addition, regulations at 40 CFR 122.44(k) allow the 
use of best management practices for the control and abatement of the 
discharge of toxic pollutants. Guidance could be developed to use best 
management practices to address impoundment construction, operation, 
and maintenance, consistent with the requirements of 40 CFR 122.41(e) 
and 122.44(k). Associated permit conditions could require that surface 
impoundments be designed and constructed in accordance with relevant 
state and federal regulations. The Agency requests comments regarding 
the alternate use of NPDES permits rather than the development of RCRA 
regulations to address dam safety and structural integrity.
iv. Wet-Handling of CCRs, Closure, and Interim Status for Surface 
Impoundments
    Where a nonhazardous waste surface impoundment is storing a waste 
that becomes newly subject to the RCRA hazardous waste requirements, 
RCRA subtitle C and the implementing regulations require these surface 
impoundments either to be closed or upgraded to meet the minimum 
technology requirements within four years. RCRA section 3005 (j)(6), is 
implemented by 40 CFR 268.14.\129\ In order to be eligible for this 
four year grace period, the impoundment must be in compliance with the 
applicable

[[Page 35177]]

groundwater monitoring provision under Part 40 CFR 265, Subpart F 
within 12 months of the promulgation of the new hazardous listing or 
characteristic.
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    \129\ 40 CFR 268.14 allows owners and operators of newly 
regulated surface impoundments to continue managing hazardous waste 
without complying with the minimum technology requirements for a 
period up to four years before upgrading or closing the unit.
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    RCRA section 3005 (j)(11) allows the placement of untreated 
hazardous waste (i.e. hazardous waste otherwise prohibited from land 
disposal which has not been treated to meet EPA-established treatment 
standards before land disposal) in surface impoundments under limited 
circumstances. Such hazardous wastes may be placed in impoundments for 
purposes of treatment provided the impoundments meet the minimum 
technology requirements and provided that any treatment residues which 
either do not meet the treatment standards or which remain classified 
as hazardous wastes are removed from the impoundment annually. See the 
implementing rules in 40 CFR section 268.4. EPA has interpreted this 
provision so as not to nullify the provisions of section 3005(j)(6), 
the upshot being that impoundments receiving newly identified or listed 
wastes would have four years to close or retrofit under all 
circumstances. See 56 FR 37194. If the surface impoundment continues to 
treat hazardous wastes after the four year period, it must then be in 
compliance with 40 CFR 268.4 (Treatment Surface Impoundment Exemption).
    Section 3005(j) of RCRA generally requires that existing surface 
impoundments cannot obtain interim status and continue to receive or 
store newly regulated hazardous waste for more than four years after 
the promulgation of the listing--unless the facility owner retrofits 
the unit by installing a liner that meets the requirements of section 
3004(o)(1)(A), or meets the conditions specified in section 3005(j)(2). 
Under section 3005(j)(2), a surface impoundment may obtain interim 
status and continue to receive or store hazardous waste after the four-
year deadline if (1) The unit has at least one liner, and there is no 
evidence it is leaking, (2) is located more than one-quarter mile from 
an underground source of drinking water; and (3) complies with the 
groundwater monitoring requirements applicable to permitted facilities. 
In this case, under section 3005(j)(9), the facility owner, at the 
closure of the unit, would have to remove or decontaminate all waste 
residues, all contaminated liner material, and contaminated soil to the 
extent practicable.
    As part of the requirement to assure that surface impoundments will 
be safely phased out, EPA also proposes to regulate surface 
impoundments that have not completed closure prior to the effective 
date of the rule. Under that scenario, these units would be subject to 
the interim status closure requirements of 40 CFR 265.111 and 
265.228(a)(2). For surface impoundments that have not met the interim 
status requirements by the effective date of the rule, they would be 
subject to the full RCRA subtitle C closure requirements (e.g., obtain 
a Part A permit and comply with the interim status regulations).
    EPA recognizes that for regulatory purposes, it has historically 
not required disposal units that cease receiving new listed or 
characteristic wastes before the effective date of RCRA subtitle C to 
comply with the requirements. However, EPA believes that a revised 
approach is necessary to protect human health and the environment, in 
this particular case, given the size of the CCR surface impoundments in 
question; the enormous volumes of CCRs they typically contain (which 
typically represent overwhelming mass of the material in place); the 
fact that the CCRs are typically destined for permanent entombment when 
the unit is eventually closed (typically with limited removal); the 
presence of very large hydraulic head leading to continued release--
even where the impoundment has been drained--that is, improperly closed 
CCR impoundments remain open to precipitation and infiltration; and the 
continuing threat to human health and the environment through 
catastrophic failure, if the impoundments are not properly closed.
    EPA's authority under subtitle C of RCRA extends to wastes that are 
treated, stored, or disposed of; the statutory definition of disposal 
has been broadly interpreted to include passive leaking. But 
historically, EPA has construed the definition of disposal for 
regulatory purposes to be narrower than the statutory definition of 
disposal. Although in some situations, post-placement management has 
been considered disposal, triggering RCRA subtitle C regulatory 
requirements e.g., multiple dredging of impoundments or management of 
leachate, EPA has generally interpreted the statute to require a permit 
only if a facility treats, stores, or disposes of the waste, after the 
effective date of its designation as a hazardous waste. See, e.g., 43 
FR 58984 (Dec. 18, 1978; 45 FR 33074 (May 1980).
    The consequence of this interpretation is that, for example, no 
permit would be required if, after the rule's effective date, a 
facility neither continued to accept the listed wastes for disposal, 
nor continued to ``manage the wastes'' in the existing unit. In other 
words, under this interpretation, facility owners could abandon the 
unit before the effective date of the rule without incurring any 
regulatory obligations under RCRA subtitle C (presuming no other 
regulated unit is present on-site).
    Given the particularly significant risk associated with CCR 
impoundments described above, as well as the fact that these risks are 
primarily driven by the existing disposal units, EPA believes a broader 
interpretation of disposal is appropriate in this case. This is 
reinforced by the fact that the continued release of constituents to 
surrounding soil and groundwater through the continued infiltration of 
precipitation through inappropriately closed CCR impoundments (or 
failure to remove the impoundment waters, which provides a hydraulic 
head) properly constitute regulatory disposal in this specific 
situation.
    As a practical matter, EPA believes that owners of facilities where 
CCRs are managed in existing surface impoundments being brought under 
RCRA subtitle C by today's proposal would choose not to, or would not 
be able to, comply with either of these alternatives (i.e., retrofit or 
clean closure), given the size of the units and the volume of CCRs 
involved. Therefore, EPA believes that the section 3005(j) 
requirements, for all practical purposes, will have the effect of 
requiring the closure of existing surface impoundments receiving CCRs 
within four years of the effective date of today's proposed rule 
(unless they already meet the liner requirements).\130\
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    \130\ The HSWA surface impoundment retrofit requirements, as 
they applied to impoundments in existence at the time RCRA was 
amended in 1984, went into effect in 1988. EPA is not aware of any 
facility owner/operator managing an existing surface impoundment at 
the time who chose to retrofit its impoundment, rather than to close 
it. EPA believes facilities managing surface impoundments today, 
will similarly choose to close the surface impoundment rather than 
retrofit.
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    Section 3004(x), however, gives EPA the authority to modify section 
3005(j) requirements, if the specific criteria listed in that section 
are met. In today's notice, EPA is proposing to modify the time 
required for retrofitting surface impoundments under section 3005(j), 
because of the special characteristics (i.e., extremely large volumes) 
of CCRs and the practical difficulties associated with requiring 
facilities to cease to store CCRs within four years of the effective 
date of today's rule.
    Therefore, EPA is proposing to modify the section 3005(j) 
requirements by extending the time limit for unit closure. The modified 
standard in today's proposal would require facilities operating surface 
impoundments that do not meet minimum technology

[[Page 35178]]

requirements and are receiving CCRs to stop receiving those CCRs no 
later than five years after the effective date of the final regulation 
and to close the unit within two years after that date. In other words, 
the time required for closure would be up to seven years rather than 
four years.
    EPA believes that the four-year deadline in RCRA section 3005(j) 
receiving CCRs will be extraordinarily difficult if not impossible for 
many facilities to meet, given the size of the units and limitations in 
available alternative subtitle C disposal capacity. Facility owners 
choosing to close surface impoundments may have to make significant 
engineering and process changes, e.g., to convert from wet- to dry-
handling of wastes, which cannot necessarily be accomplished within 
four years. For example, USWAG has raised concerns that there is 
limited manufacturing capacity for key conversion equipment, which 
could reasonably be expected to complicate the utilities' ability to 
collectively make the necessary engineering changes within a four-year 
timeframe. An additional consideration is that EPA expects that many 
facilities would need to obtain permits for new units or find 
alternative subtitle C capacity to receive the wastes diverted from 
surface impoundments. Also, facilities that use surface impoundments 
receiving CCRs to manage stormwater and nonhazardous wastewater will 
have to site and get permits for new stormwater management units before 
facility owners can cease utilizing existing units. The amount of time 
to achieve either of these alternatives relies, to some extent, on 
events beyond the facility's control; for example, the timeframes to 
obtain a permit for a new unit can vary substantially and, in large 
measure, are ultimately dictated by the permitting authority, rather 
than the applicant. This may be further complicated by the fact that 
location standards or on-site space limitations can restrict the 
opportunity for siting new units at the generating facility, requiring 
utilities to find off-site disposal facilities able to receive the 
special waste in the volumes in question.
    In the 1984 amendments, Congress only allowed surface impoundments 
four years to cease receiving hazardous waste (or comply with minimum 
technological design requirements, etc.). Given the enormously greater 
volume of waste involved with CCR surface impoundments and the process 
changes that the facilities will need to implement to convert to dry 
handling, EPA believes it not practicable to require surface 
impoundments to cease receiving CCR waste or comply with the minimum 
technological requirements four years and that additional time is 
appropriate. (As noted below, facilities in most states will have 
significantly more time for planning, because the rules will not become 
effective in states authorized for the RCRA program before those states 
have amended their requirements consistent with today's rule; the state 
regulatory process will likely take several years.) On the other hand, 
as the risks predicted in the risk assessment are extraordinarily high 
(up to 2 x 10-2), EPA believes that closure within the 
shortest practicable time is important.
    Any modifications of section 3005(j) must meet the section 3004(x) 
stricture that the modification must still ``assure protection of human 
health and the environment (42 U.S.C. 6924(x).'' EPA believes that 
allowing three additional years for closure, under today's proposal, 
would be protective because surface impoundments subject to the closure 
requirements would be required (during this interim period) to have 
groundwater monitoring systems sufficient to detect releases of 
hazardous constituents into the groundwater, and take corrective action 
where releases were detected above drinking water levels.\131\ 
Additionally, the median number of years until peak well water 
concentrations are reached for selenium and arsenic are estimated at 74 
and 78 years, respectively, for unlined surface impoundments and 90 and 
110 years, respectively, for clay-lined surface impoundments, reducing 
the likely risks posed over this five-year period.
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    \131\ The Agency is also modifying the requirement that surface 
impoundments be dredged annually, based on RCRA section 3004(x). 
This is discussed in detail in section v (Proposed Land Disposal 
Restrictions) below.
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    In addition, although not directly relevant to leaching from these 
surface impoundments, we would also note (as described previously in 
this section) that the facility would be required to have an 
independent registered professional engineer certify that design of the 
impoundment is in accordance with recognized and generally accepted 
good engineering practices (RAGAGEP) \132\ for the maximum volume of 
CCR slurry and wastewater that will be impounded therein, and that the 
design and management features ensure dam stability. Finally, the 
facilities will be required to conduct weekly inspections to ensure 
that any potentially hazardous condition or structural weakness will be 
quickly identified. Therefore, the additional timeframe that EPA is 
proposing to allow--needed to address practical realities--will 
``assure protection of human health and the environment. While 
groundwater monitoring, corrective action, and close oversight of these 
units is not, we believe, the most appropriate long-term solution, we 
do believe that these steps will protect public health and the 
environment in the short term while the permanent solutions are being 
implemented.
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    \132\ Recognized and generally accepted good engineering 
practices (RAGAGEPs) are engineering, operation, or maintenance 
activities based on established codes, standards, published 
technical reports or recommended practices (RP) or a similar 
document. RAGAGEPs detail generally approved ways to perform 
specific engineering, inspection or mechanical integrity activities. 
See http://www.osha.gov/OshDoc/Directive_pdf/CPL_03-00-010.pdf.
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    EPA recognizes that the costs of these requirements will be 
significant, especially for existing surface impoundments and similar 
units that handle wet CCRs. EPA also acknowledges that the date by 
which impoundments have to close is an important issue, affecting the 
costs of phase-out of wet handling and the ability of industry to 
comply. USWAG has argued strenuously against a closure requirement in 
the first place, and has asserted that, if such a requirement were 
imposed, industry would require ten years to comply.\133\
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    \133\ In developing cost estimates for closing its surface 
impoundments, TVA also assumed that the process would take place 
over ten years.
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    EPA is not persuaded by these comments. We appreciate the cost 
considerations but also believe it is important that these surface 
impoundments cease receiving wet-handled CCRs and proceed to closure as 
soon as practicable. The Agency believes that the time period proposed 
today is sufficient to provide industry the time necessary to convert 
from wet handling to dry handling of these wastes, close out existing 
units, and find or put in place new disposal capacity for these wastes. 
In addition, the Agency notes that TVA and other utilities have already 
decided, or are being required by states, to close existing 
impoundments, regardless of the requirements of today's proposed rule. 
As a result, EPA believes today's proposal would have less effect than 
industry commenters suggest because some facilities may be making these 
changes anyway and they reflect best management practices in today's 
environment. However, EPA solicits comments on whether seven years (5 
years to cease receiving waste and 2 years to close) from the effective 
date to implement these provisions is an achievable time for facilities 
to comply.

[[Page 35179]]

EPA is interested in comments on procedural, as well as technical, 
issues (e.g., time to allow permit modifications for new capacity or 
EPA or state approval of closure plans). As stated earlier, EPA does 
note that, in the 1984 amendments to RCRA, Congress required existing 
hazardous waste surface impoundments without liners to retrofit within 
four years if they are to continue operating. Congress also required 
impoundments which place hazardous wastes into impoundments to either 
treat the wastes first, or to use minimum technology impoundments, 
including a requirement to dredge the impoundment annually. See 
discussion of section 3005(j)(11) and implementing regulations above. 
As a practical matter, this meant that all but a very few surface 
impoundments ceased receiving hazardous wastes within this time period. 
Thus, a requirement that surface impoundments cease receiving liquid 
wastes in five years and close in seven years is consistent with 
Congressional direction on appropriate time periods to phase out the 
management of CCRs in surface impoundments. Further, as noted 
previously, these specific requirements will not go into effect in most 
cases until a state is authorized for this aspect of the RCRA program, 
which normally takes from two to five years after the regulations 
become federally effective (with some estimates as long as eight 
years), giving facilities substantial advance notice. (See discussion 
on when the rules become effective in section VII of this preamble.) 
For commenters who suggest a longer time period is needed, EPA solicits 
comment on how a longer time period would meet the section 3004(x) risk 
standard.
    Whatever time period EPA selects, the Agency solicits comment on 
whether it should include a provision that would allow the regulatory 
Agency to provide additional time on a case-by-case basis because of 
site-specific issues (e.g., particular technical difficulties or 
equipment availability outside the utility's control, as well as 
permitting delays). This provision might be modeled after the provision 
of 40 CFR 264.112 and 265.112 (Amendment of Plans), allowing facilities 
to delay closure of hazardous waste management units.
    Commenters have also stated that, while it may be appropriate to 
require closure of most existing impoundments, some may be clearly 
safe. For example, existing impoundments theoretically may already have 
a composite liner, and present minimal threat of release (e.g., because 
they are below grade or not far above grade). EPA solicits comment on 
whether a variance process would be appropriate allowing some 
impoundments or similar units that manage wet-handled CCRs to remain in 
operation because they present minimal risk to groundwater (e.g., 
because they have a composite liner) and minimal risk of a catastrophic 
release (e.g., as indicated by a low potential hazard rating under the 
Federal Guidelines for Dam Safety established by the Federal Emergency 
Management Agency). It should be noted that the statute already 
provides such a mechanism in section 3005 (j)(4) and (5) (based on 
making a so-called `no-migration' demonstration--evidently Congress' 
view of what level of control is considered protective for hazardous 
waste impoundments not utilizing minimum technology controls \134\) and 
commenters should address whether this existing case-by-case mechanism 
should be utilized here. In such cases, the wastes might also meet 
current LDR treatment standards.
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    \134\ See RCRA section 3004 (d), (e), (f), and (g) all of which 
define a land disposal unit as protective of human health and the 
environment if ``it has been demonstrated to a reasonable degree of 
certainty that there will be no migration of hazardous constituents 
from the disposal unit * * * for as long as the wastes remain 
hazardous''.
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v. Proposed Land Disposal Restrictions
    Through RCRA sections 3004 (d), (e), (f), and (g), Congress has 
prohibited the land disposal of hazardous waste unless the waste meets 
treatment standards established by EPA before the waste is disposed of, 
or is disposed of in units from which there will be no migration of 
hazardous constituents for as long as the waste remains hazardous. The 
treatment standards may be either a treatment level or a specified 
treatment method, and the treatment must substantially diminish the 
toxicity of the waste or substantially reduce the likelihood of 
migration of hazardous constituents from the waste so that short-term 
and long-term threats to human health and the environment are minimized 
(RCRA section 3004(m)). If the hazardous waste has been treated to the 
level or by a method specified in the regulations (or if the waste as 
generated meets the treatment standard), the waste is not subject to 
any land disposal prohibition and may be disposed of in a land disposal 
unit which meets the requirements of 40 CFR parts 264 or 265 (the 
exception being for surface impoundments discussed in the preceding 
subsection and further below). For hazardous wastes identified or 
listed under RCRA section 3001 after the date of the 1984 amendments to 
RCRA subtitle C (the situation here), EPA is required to determine 
whether the waste shall be prohibited from one or more methods of land 
disposal within six months after the date of such identification or 
listing, and if EPA determines that one or more methods are prohibited, 
the Agency is also required to specify treatment levels or methods of 
treatment for the waste (RCRA section 3004(g)(4)).
    In an effort to make treatment standards as uniform as possible, 
while adhering to the fundamental requirement that the standards must 
minimize threats to human health and the environment before hazardous 
wastes can be land disposed, EPA developed the Universal Treatment 
Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever 
technically and legally possible, the Agency adopts the same 
technology-based numerical limit for a hazardous constituent regardless 
of the type of hazardous waste in which the constituent is present. See 
63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS, 
in turn, reflect the performance of Best Demonstrated Available 
Technologies (BDAT) of the constituents in question. These treatment 
standards can be met by any type of treatment, other than impermissible 
dilution, and wastes can satisfy the treatment standards as generated 
(i.e., without being treated).
    As explained above, section 3004(x) of RCRA authorizes the EPA 
Administrator to modify the requirements of sections (d), (e), (f), and 
(g) of section 3004 for Bevill wastes, including CCRs that EPA 
determines to regulate as hazardous, to take into account the special 
characteristics of the wastes, the practical difficulties associated 
with implementation of the requirements, and site-specific 
characteristics, so long as such modified requirements assure 
protection of human health and the environment.
    In conjunction with a proposed listing, EPA is proposing to 
prohibit the land disposal of CCRs, unless they meet the applicable 
treatment standards. In addition, although CCRs could be disposed of 
without treatment in landfills and impoundments from which there will 
be no migration of hazardous constituents for as long as the waste 
remains hazardous, EPA doubts that such a unit exists, given the 
volumes of CCRs and their many (documented) release pathways discussed 
above. In any case, no-migration determinations are necessarily made on 
a case-by-case basis, and the burden is on petitioners to show that 
individual land disposal units satisfy the exacting standard. See 40 
CFR section 268.6.

[[Page 35180]]

2. Proposed Treatment Standards for Non-Wastewaters (Dry CCRs)
    For non-wastewaters (i.e., dry CCRs), EPA is proposing that CCRs be 
subject to the UTS. As EPA has found repeatedly, this standard reflects 
the performance of Best Demonstrated Available Technology and so 
satisfies the requirements of section 3004 (m) (see Hazardous Waste 
Treatment Council v. EPA, 886 F. 2d 355, 363 (D.C. Cir. 1989)), and 
also does not force treatment past the point at which threats to human 
health and the environment are minimized (see 55 FR 6640, 6641-42 (Feb. 
26, 1990)). These standards should be achievable by application of 
various available technologies, although data \135\ indicate that a 
great portion (if not virtually all) dry CCRs meet these standards as 
generated.
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    \135\ EPA's CCR constituent database which is available from the 
docket to this proposal.
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3. Proposed Treatment Standards for Wastewaters (Wet-Handled CCRs)

    EPA is also proposing standards for wastewater CCRs. As an initial 
matter, EPA is proposing to adopt a specific and different definition 
of wastewater for CCRs. Under the existing RCRA subtitle C rules, a 
wastewater is defined as one that contains less than 1% by weight total 
organic carbon (TOC) and less than 1% by weight total suspended solids 
(i.e., the current wastewater definition for purposes of LDRs; see 40 
CFR part 268.2 (f)). Functionally, the current definition of 
wastewaters would not include slurried fly ash or slurried FGD from wet 
air pollution control systems. EPA believes it important to distinguish 
between nonwastewaters which involve dry coal ash and surface 
impoundment systems which are commonly viewed as involving wastewaters. 
EPA, therefore, is proposing to create the distinction between 
wastewater and nonwastewater CCRs by classifying CCRs as wastewaters if 
the moisture content of the waste exceeds 50%. Thus, if CCRs contain 
more water than solids, the CCR would be classified as a wastewater, 
and would be subject to the LDR treatment standard for wastewaters. By 
proposing the criteria at 50% moisture, EPA believes new methods for 
pumping and disposal of high solids material without free liquids are 
still viable. EPA is proposing this definition to appropriately address 
risks associated with CCRs surface impoundments, which contain free 
liquids. However, the Agency requests comment on this alternative 
definition of wastewaters for purposes of determining which treatment 
standards the CCRs would be subject to.
    As part of the proposed treatment standard, EPA is proposing that 
these wastewaters undergo solids removal so that the wastewaters 
contain no greater than 100 mg/l total suspended solids (TSS) and meet 
the UTS for wastewaters. This proposed level is consistent with 
wastewater treatment requirements based on Best Practicable Control 
Technology Currently Available for the Electric Power Generating Point 
Source Category (40 CFR section 423.12).\136\ Solids separation is a 
base level water pollution control technology, which assures that the 
vast majority of coal ash and associated contaminants are removed and 
managed in landfills.
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    \136\ Although TSS is not a hazardous constituent, it is a 
reasonable surrogate of effective treatment performance here because 
TSS necessarily contain the metal hazardous constituents which are 
the object of treatment, and these metals will necessarily be 
removed as TSS are removed. See e.g.; National Lime Ass'n v. EPA, 
234 F. 3d 625, 639 (D.C. Cir. 2000) (even though particulate matter 
is not a hazardous air pollutant, it can be used as a permissible 
surrogate for treatment of hazardous air pollutant metals since 
those metals are removed by treatment as PM is removed).
---------------------------------------------------------------------------

    EPA is proposing that wastewaters meet the UTS for wastewaters at 
40 CFR section 268.48 as the treatment standard for the liquid 
fraction. (The CCR solids removed from the wastewater stream would be a 
non-wastewater and would be subject to the UTS for non-wastewaters.) 
EPA believes dry disposal of the CCR solids will protect human health 
and the environment. As previously discussed, this is borne out by the 
results of the Agency's risk assessment and damage case assessments, 
which show that wet disposal poses the greatest risks of contaminant 
releases.
    The Agency believes the proposed treatment methods will diminish 
the toxicity of the waste or substantially reduce the likelihood of 
migration of toxic constituents from the waste so that short-term and 
long-term threats to human health and the environment are minimized. If 
finalized, EPA will add new treatment method codes to the table of 
Technology Codes and Description of Technology-Based Standards at 40 
CFR 268.42. EPA seeks comments on the proposed treatment standards.
4. Effective Date of the LDR Prohibitions
    Land disposal prohibitions are to be effective immediately unless 
EPA finds that there is insufficient alternative protective treatment, 
recovery or disposal capacity for the wastes. RCRA section 3004(h)(2). 
National capacity variances can be for up to two years from the date of 
the prohibition. During the duration of a national capacity variance, 
the wastes do not require treatment in order to be land disposed. If 
they are disposed of in a landfill or surface impoundment, however, 
that unit must meet the minimum technology requirements of RCRA section 
3004(o). RCRA section 3004 (h) and 40 CFR section 268.5 (h).\137\
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    \137\ EPA is also authorized to grant up to a one-year 
extension, renewable for another year, of a prohibition effective 
date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants 
must demonstrate that adequate alternative treatment, recovery, or 
disposal capacity for the petitioners waste cannot reasonably be 
made available by the effective date due to circumstances beyond the 
applicant's control, and that the petitioner has entered into a 
binding contractual commitment to construct or otherwise provide 
such capacity. 40 CFR 268.5.
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    In this case, EPA is proposing that the prohibition and treatment 
standards for nonwastewaters take effect within 6 months from the date 
of promulgation of the listing of CCRs as a special waste. We are 
proposing 6 months to allow time for owners and operators to set up 
analytic capacity and record-keeping mechanisms for dry CCR wastes, as 
well as for federal and state agencies to assure that implementation 
mechanisms are in place. We are not allocating additional time for 
treatment because our expectation is that all or virtually all dry CCRs 
meet the proposed treatment standards as generated. However, EPA 
solicits comment on this issue. EPA also notes that the proposed LDR 
prohibition and treatment standards would not take effect until 
programs in authorized states are authorized and the state implementing 
rules take effect, so this proposal effectively is for the prohibition 
and treatment standard requirement to take effect 6 months following 
the conclusion of the authorization process and effective date of 
authorized state rules. This should be ample time to come into 
compliance.
    For wastewaters, however, under the authority of section 3004 (x), 
we are proposing that the prohibition and treatment standards take 
effect within five years of the prohibition. In practice, these 
requirements will have the effect of prohibiting disposal of wet-
handled CCRs in surface impoundments after that date. The proposed date 
for the wastewater treatment standards would thus be the same as the 
proposed date that impoundments would stop receiving CCRs, and is being 
proposed for many of the same reasons. Surface impoundments, of course, 
are the land disposal units in which wastewaters are managed, so the 
issues are necessarily connected. As discussed in section VI. B. above, 
the statute allows owners and operators up to four years to retrofit 
existing surface impoundments to meet

[[Page 35181]]

the minimum technology requirements (or to close such surface 
impoundments), and EPA has interpreted this provision as applying to 
treatment surface impoundments receiving hazardous wastes otherwise 
prohibited from land disposal. See RCRA sections 3005 (j)(6) and 3005 
(j)(11). As further explained above, EPA believes that an additional 
three years is needed for owners and operators to close surface 
impoundments--i.e. seven years in all--and is thus proposing a two year 
national capacity variance (as provided in RCRA section 3004(h)(2)) and 
a five year period for impoundment retrofitting yielding a seven year 
extension.
    The legal basis for the proposal is 3004 (x) (which specifically 
authorizes modification of the section 3005 (j) requirements). Section 
3005 (j) (11) allows untreated wastewaters to be managed in surface 
impoundments that do not meet the minimum technology requirements, but 
requires that residues in the impoundment be dredged at least annually 
for management elsewhere. Given the enormous volume of CCRs currently 
managed in surface impoundments, estimated at 29.4 million tons per 
year (within EPA's estimated range of 23.5 to 30.3 million tons for the 
total available U.S. hazardous waste disposal capacity), and the 
absence of alternative disposal capacity in the short-term, EPA 
believes annual dredging is impractical and would defeat the purpose of 
providing additional time to convert to the dry handling of CCRs. 
Moreover, in this short time, the utilities will be working to convert 
their processes to dry handling and it is not practicable or necessary 
to impose this additional requirement. Finally, as discussed 
previously, in the interim period before surface impoundments cease 
taking waste and are closed, numerous safeguards will be in place to 
protect public health and the environment, including ground water 
monitoring and the requirement to act on any releases quickly. Thus, 
while such measures are not a long-term solution, they will ``assure 
protection of human health and the environment'' in the short-term.
    As this discussion clarifies, the issue of a national capacity 
extension for CCR wastewaters is really an issue of how long it will 
take to convert to dry handling and to find management capacity for 
solids dredged from impoundments, i.e. issues arising under section 
3005 (j)(11) of the statute. EPA, therefore, believes it has the 
authority and that it is appropriate to use section 3004 (x) to extend 
the national capacity period in order to convert to dry handling.\138\
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    \138\ EPA notes in addition that it is authorized under section 
3004 (x) to modify the requirements of LDR prohibitions under 
section 3004 (g), and EPA views capacity variances related to such 
prohibitions as within the scope of that section 3004 (x) 
authorization.
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    EPA is further proposing that during the national capacity variance 
(the initial two years of the proposed two years plus five year 
extension of otherwise-applicable requirements), CCR wastewaters could 
continue to be managed in impoundments that do not meet the minimum 
technology requirements. The reasons are identical to those allowing 
such impoundments to receive CCRs for the remainder of the proposed 
extension period.
    EPA solicits comment on these proposals, including comment on 
whether further time extensions are actually needed in light of the 
already extended time which will be afforded by the state authorization 
process.

C. Applicability of Subtitle C Regulations

    The discussion in this section describes the existing technical 
standards required in 40 CFR parts 264/265/267. However, persons who 
generate and transport CCRs, under the subtitle C alternative, would 
also be subject to the generator (40 CFR part 262) and transporter (40 
CFR part 263) requirements. Although EPA presents this to provide the 
public with background information as noted previously, EPA is not 
proposing to modify these standards, nor to reopen the requirements.
    1. General Facility Requirements, including Location Restrictions. 
Under the existing regulations, all of the following requirements would 
apply: the general facility standards of 40 CFR parts 264/265/267 
(Subpart B), the preparedness and prevention standards of 40 CFR parts 
264/265/267 (Subpart C), the contingency plan and emergency procedures 
of 40 CFR parts 264/265/267 (Subpart D), and the manifest system, 
recordkeeping, and reporting requirements of 40 CFR parts 264/265/267 
(Subpart E). Consistent with section 264.18, the regulations would 
include location standards prohibiting the siting of new treatment, 
storage, or disposal units in a 100-year floodplain (unless the 
facility made a specific demonstration)\139\ and seismic impact areas 
would be prohibited.\140\
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    \139\ A 100-year flood means a flood that as a one-percent or 
greater chance of recurring in any given year or a flood of a 
magnitude equaled or exceeded once in 100 years on the average over 
a significantly long period.
    \140\ A seismic impact area means an area with a two percent or 
greater probability that the maximum horizontal acceleration in 
lithified earth material, expressed as a percentage of the earth's 
gravitational pull (g), will exceed 0.10 g in 50 years. Note that in 
the pre-1997 editions of the NEHRP (National Earthquake Hazards 
Reduction Program) provisions, seismic hazards around the nation 
were defined at a uniform 10 percent probability of exceedance in 50 
years. Since the 1997 NEHRP Provisions, however, the seismic design 
maps have been redefined such that for most regions of the nation, 
the maximum considered earthquake ground motion is defined with 
uniform probability of exceedance of 2 percent in 50 years. The 
change in the exceedance probability (from 10% to 2%) was responsive 
to comments that the use of 10 percent probability of exceedance in 
50 years is not sufficiently conservative in the central and eastern 
United States where earthquakes are expected to occur infrequently.
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    2. Ground water monitoring/corrective action for regulated units. 
The subtitle C alternative to today's proposed rule would require the 
current ground water monitoring and corrective action requirements of 
40 CFR parts 264/265 for regulated landfills and surface impoundments, 
without modification. Consistent with 40 CFR 265.90, existing CCR 
disposal units would be required to install groundwater monitoring 
systems within one year of the effective date of these regulations. The 
facility would operate under the self-implementing interim status 
requirements of 40 CFR part 265 until the regulatory authority imposed 
the specific requirements of 40 CFR part 264 through the RCRA 
permitting process. Generally, 40 CFR parts 264/265 require groundwater 
monitoring systems that consist of enough wells, installed at 
appropriate locations and depths, to yield ground water samples from 
the uppermost aquifer that represent the quality of background 
groundwater that has not been affected by leakage from the disposal 
unit. A detection monitoring program would be required to detect 
releases to groundwater of CCR constituents listed in the facility 
permit (these constituents, we believe, would be the metals typically 
identified as constituents of concern in CCRs). Monitoring frequency is 
determined by the EPA Regional Administrator or, more typically the 
authorized state, and required in the RCRA permit. If any of the 
constituents listed in the facility permit are detected at levels that 
constitute statistically significant evidence of contamination, the 
owner or operator must initiate a compliance monitoring program to 
determine whether the disposal units are in

[[Page 35182]]

compliance with the groundwater protection standards established by EPA 
or the state and specified in the permit. (See 40 CFR part 264, subpart 
F.)
    Under 40 CFR part 264, subpart F, if the results of the compliance 
monitoring program indicate exceedances of any of the constituent 
levels listed in the permit for the groundwater protection standard, 
the owner or operator would have to initiate corrective action to 
achieve compliance with the groundwater protection standards.
    3. Storage. EPA is not proposing to modify the existing 40 CFR 
parts 264/265/267 storage standards. These regulations establish design 
and operating requirements for containers, tanks, and buildings used to 
treat or store hazardous wastes. For containers, the regulations 
establish requirements for the storage of hazardous waste, including a 
requirement for secondary containment. However, if the wastes do not 
contain free liquids, they need not require a secondary containment 
system, provided the storage area is sloped or is otherwise designed 
and operated to drain and remove liquid resulting from precipitation or 
the containers are elevated or otherwise protected from contact with 
accumulated liquid.
    For new tanks, owners or operators must submit to EPA or the 
authorized states an assessment certified by an independent registered 
professional engineer that the foundation, structural support, seams, 
connections, and pressure controls (if applicable) are adequately 
designed and that the tank system has sufficient structural strength, 
compatibility with the waste(s) to be stored or treated, and corrosion 
protection to ensure that the tank will not collapse, rupture, or fail. 
Tank systems are required to have secondary containment under section 
264.193, unless they receive a specific variance; however, tanks that 
contain no free liquids and are in buildings with an impermeable floor 
do not require secondary containment. New tanks (that are required to 
have secondary containment) must have secondary containment when 
constructed; existing tanks (that are required to have secondary 
containment) must come into compliance within two years of the rule's 
effective date (or when the tank has reached fifteen years of age). 
Section 264.193 specifically describes the secondary containment 
required, and the variance process.
    Containment buildings must be completely enclosed with a floor, 
walls, and a roof to prevent exposure to the elements (e.g., 
precipitation, wind, run-on), and to assure containment of the managed 
wastes. Buildings must be designed so that they have sufficient 
structural strength to prevent collapse or other failure, and all 
surfaces to be in contact with hazardous wastes must be chemically 
compatible with those wastes.
    Recently, representatives of the utility industry have stated their 
view that CCRs cannot be practically or cost effectively managed under 
the existing 40 CFR parts 264/265/267 storage standards, and that these 
standards impose significant costs without meaningful benefits when 
applied specifically to CCRs.\141\ In particular, they cite the very 
large volume of wastes that must be handled on a daily basis, and the 
extensive storage and other infrastructure already in place that might 
have to be retrofitted if the existing 40 CFR parts 264/265/267 storage 
requirements applied. For example, they state that some CCRs are stored 
prior to disposal in silos which are not located within a building and 
may contain free liquids. As a result, under the subtitle C 
requirements, the owner or operator would be required to construct a 
building with an impermeable floor, or construct a secondary 
containment system around the silo (alternatively, they could go 
through a variance process with the regulatory Agency).
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    \141\ While the utility industry did not specifically mention 
the 40 CFR part 267 storage standards, we presume that they would 
make the same technical arguments with respect to those standards.
---------------------------------------------------------------------------

    EPA believes that the variance process allowing alternatives to 
secondary containment would address the concerns raised by industry. 
The Agency, however, recognizes that the variance process imposes time 
and resource burdens not only on industry, but on the regulatory 
agencies. EPA notes that, in the case of larger volume, higher toxicity 
mineral processing materials being reclaimed, the Agency developed 
special storage standards under RCRA subtitle C, and it solicits 
comments on whether those or similar-type standards would be 
appropriate for CCRs.\142\
---------------------------------------------------------------------------

    \142\ Land Disposal Restrictions Phase IV: Final Rule 
Promulgating Treatment Standards for Metal Wastes and Mineral 
Processing Wastes; Mineral Processing Secondary Materials and Bevill 
Exclusion Issues; Treatment Standards for Hazardous Soils, and 
Exclusion of Recycled Wood Preserving Wastewaters; Final Rule 
(http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm).
---------------------------------------------------------------------------

    Namely, in 40 CFR 261.4(a)(17), EPA required that tanks, 
containers, and buildings handling this material must be free standing 
and not a surface impoundment (as defined in the definitions section of 
this proposal) and be manufactured of a material suitable for storage 
of its contents. (While not specifically mentioned in this section, we 
would also consider a requirement that such materials meet appropriate 
specifications, such as those established either by the American 
Society of Testing Materials (ASTM), the American Petroleum Institute 
(API), or Underwriters Laboratories, Inc. (UL) standards.) Buildings 
must be man-made structures and have floors constructed from non-
earthen materials, have walls, and have a roof suitable for diverting 
rainwater away from the foundation. A building may also have doors or 
removable sections to enable trucks or machines access.
    EPA solicits comments on the practicality of the proposed subtitle 
C storage requirements for CCRs, the workability of the existing 
variance process, and the alternative requirements based, for example, 
on the mining and mineral processing wastes storage requirements. EPA 
has not developed cost estimates for managing CCRs in compliance with 
the 40 CFR parts 264/265/267 storage standards. EPA solicits specific 
comments on these potential costs.
    4. Closure and Post-Closure Care. Under the RCRA subtitle C 
alternative to this co-proposal, all of the requirements for closure 
and post-closure care of landfills and surface impoundments would apply 
to those landfills that continue to receive CCRs, or otherwise actively 
manage them, and to those surface impoundments that have not completed 
closure, when the requirements of a final rule become effective. The 40 
CFR parts 264/265 landfill and surface impoundment requirements 
establish cover requirements (e.g., the cover must have a permeability 
less than or equal to the permeability of any bottom liner system and 
must minimize the migration of liquids through the closed landfill). 
These requirements are generally applied through a closure-plan or 
permit approval process. Also, the regulations require 30 years of 
post-closure care, including maintenance of the cap and ground-water 
monitoring, unless an alternative post-closure period is established by 
EPA or the authorized state.
    5. Corrective action. EPA is also not proposing to modify the 
existing corrective action requirements, including the facility-wide 
corrective action requirements of RCRA under section 3004(u), section 
3008(h), and 40 CFR 264.101. Under these requirements, landfills that 
continue to receive CCRs or otherwise actively manage them, and surface 
impoundments that have not

[[Page 35183]]

completed closure on the date the final rule becomes effective, will be 
requires to characterize, and as necessary remediate, releases of CCRs 
or hazardous constituents. Section 3004(x) provides EPA the flexibility 
to modify corrective action requirements for facilities managing CCRs, 
including facility-wide corrective action (assuming EPA can reasonably 
determine that an alternative is protective of human health and the 
environment). The facility-wide corrective action requirement applies 
to all solid waste management units from which there have been releases 
of hazardous wastes or hazardous constituents; however, EPA does not 
see a compelling reason to change the corrective action requirements. 
Imposing corrective action requirements, including facility-wide 
corrective action, will assure that closed and inactive units at the 
facility are properly characterized and, if necessary, remediated, 
especially since many of these closed or inactive units are unlined. 
Nevertheless, EPA solicits comment on whether EPA should modify the 
corrective action requirements under section 3004(x) of RCRA. 
Commenters should specifically address the issue of how other 
alternatives could be protective without mandating corrective action as 
needed for all solid waste management units from which there have been 
releases of hazardous waste or hazardous constituents at the facility.
    6. Financial assurance. EPA is also not proposing to modify the 
existing financial assurance requirements at 40 CFR parts 264/265/267, 
subpart H. Financial assurance must be adequate to cover the estimated 
costs of closure and post-closure care (including facility-wide 
corrective action, as needed), and specific levels of financial 
assurance are required to cover liability for bodily injury and 
property damage to third parties caused by sudden accidental 
occurrences arising from operations of the facility. Allowable 
financial assurance mechanisms are trust funds, surety bonds, letters 
of credit, insurance policies, corporate guarantees, and demonstrations 
and documentation that owners or operators of the facility have 
sufficient assets to cover closure, post-closure care, and liability. 
The regulations also require financial assurance for corrective action 
under section 264.101.
    As we have estimated that 53 local governments own and operate 
coal-fired electric utilities, EPA seeks comment on whether a financial 
test similar to that in 40 CFR 258.74(f) in the Criteria for Municipal 
Solid Waste Landfills should be established for local governments that 
own and operate coal-fired power plants.
    7. Permitting requirements. Under the RCRA subtitle C alternative, 
facilities that manage CCRs (in this case, facilities with landfills 
and surface impoundments, and other possible management units used to 
store or dispose of CCRs, or generating facilities that store CCRs 
destined for off-site disposal) must obtain a permit from EPA or from 
the authorized state. The effect of EPA's proposed listing would extend 
these permitting requirements to those facilities managing special 
wastes regulated under subtitle C of RCRA. Parts 124, 267 and 270 
detail the specific procedures for the issuance and modification of 
permits, including public participation, and through the permit process 
regulatory agencies impose technical design and management standards of 
40 CFR parts 264/267. Facilities with landfills that are in existence 
on the effective date of the regulation (which in this case would 
generally be the effective date of the state regulations establishing 
the federal CCR requirements)--which receive CCRs or actively manage 
CCRs--are eligible for ``interim status'' under federal regulations, 
providing they comply with the requirements of 40 CFR section 270.70. 
By contrast, facilities with surface impoundments that have not 
completed closure as outlined in this proposal would be subject to the 
existing permitting requirements, irrespective of whether they continue 
to receive CCRs into the unit or to actively manage CCRs. While 
facilities are in interim status, they are subject to the largely self-
implementing requirements of 40 CFR part 265. As noted previously, in a 
final regulation, EPA would make conforming changes to these parts of 
the CFR to make it clear that the requirements apply to facilities that 
manage either hazardous wastes or special wastes regulated under 
subtitle C.
    8. EPA is Not Proposing to Apply the Subtitle C Requirements to 
CCRs from Certain On-Going State or Federally Required Cleanups. Under 
the subtitle C alternative, the Agency is proposing to allow state or 
federally-required cleanups commenced prior to the effective date of 
the final rule to be completed in accordance with the requirements 
determined to be appropriate for the specific cleanup. EPA's rationale 
for this decision is two-fold. First, for state or federally required 
cleanups that already commenced and are continuing, the state or 
federal government has entered into an administrative agreement with 
the facility owner or operator which specifies remedies, clean-up 
goals, and timelines that were determined to be protective of human 
health and the environment, based on the conditions at the site. The 
overseeing Agency will also be able to ensure that the cleanup waste, 
if sent off-site (which may sometimes be necessary) will go to 
appropriately designed and permitted facilities. Second, altering the 
requirements for cleanups currently underway would be disruptive and 
could cause significant delays in achieving clean-up goals. Once the 
rule becomes final, EPA or the state will be able to avail themselves 
of regulations under RCRA designed specifically for cleanup. However, 
the Agency takes comment on this proposed provision.

D. CERCLA Designation and Reportable Quantities

    Under current law and regulations, all hazardous wastes listed 
under RCRA and codified in 40 CFR 261.31 through 261.33, and special 
wastes under 261.50 if the proposed special waste listing is finalized, 
as well as any solid waste that is not excluded from regulation as a 
hazardous waste under 40 CFR 261.4(b) and that exhibits one or more of 
the characteristics of a RCRA hazardous waste (as defined in Sec. Sec.  
261.21 through 261.24), are hazardous substances under CERCLA, as 
amended (see CERCLA section 101(14)(C)). CERCLA hazardous substances 
are listed in Table 302.4 at 40 CFR 302.4 along with their reportable 
quantities (RQs). If a hazardous substance is released in an amount 
that equals or exceeds its RQ within a 24-hour period, the release must 
be reported immediately to the National Response Center (NRC) pursuant 
to CERCLA section 103.
    Thus, under this subtitle C alternative, and as EPA does with any 
other listed waste, the Agency is proposing to also list CCRs as a 
CERCLA hazardous substance in Table 302.4 of 40 CFR 302.4. The key 
constituents of concern in CCRs are already listed as hazardous 
substances under CERCLA (i.e., arsenic, cadmium, mercury, selenium), 
and therefore persons who spill or release CCRs already have reporting 
obligations, depending on the volume of the spill. Typically, under 
current CERCLA requirements, a person releasing CCRs, for example, 
would report depending on his estimate of the amount of arsenic or 
other constituents contained in the release.
    Typically, when EPA lists a new waste subject to RCRA subtitle C, 
the statutory one-pound RQ is applied to the waste. However, EPA is 
proposing two alternative methods to adjust the

[[Page 35184]]

one-pound statutory RQ. The first method, one traditionally utilized by 
the Agency, adjusts the RQ based on the lowest RQ of the most toxic 
substance present in the waste. The second method, as part of the 
Agency's effort to review and re-evaluate its methods for CERCLA 
designation and RQ adjustment, adjusts the one-pound statutory RQ based 
upon the Agency's characterization and physical properties of the 
complex mixtures which comprise the waste to be designated as S001. The 
Agency invites comment on both methods, and may, based upon these 
comments and further information, decide to go forward with either 
method or both methods.
1. Reporting Requirements
    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released in a 
quantity that is equal to or exceeds its RQ within a 24-hour period 
must immediately notify the NRC as soon as that person has knowledge of 
the release. The toll-free telephone number of the NRC is 1-800-424-
8802; in the Washington, DC, metropolitan area, the number is (202) 
267-2675. In addition to the reporting requirement under CERCLA, 
section 304 of the Emergency Planning and Community Right-to-Know Act 
(EPCRA) requires owners or operators of certain facilities to report 
releases of extremely hazardous substances and CERCLA hazardous 
substances to state and local authorities. The EPCRA section 304 
notification must be given immediately after the release of an RQ (or 
more) within a 24-hour period to the community emergency coordinator of 
the local emergency planning committee (LEPC) for any area likely to be 
affected by the release and to the state emergency response commission 
(SERC) of any state likely to be affected by the release.
    Under section 102(b) of CERCLA, all hazardous substances (as 
defined by CERCLA section 101(14)) have a statutory RQ of one pound, 
unless and until the RQ is adjusted by regulation. In this rule, EPA is 
proposing to list CCRs that are generated by electric utility and 
independent power producers that are intended for disposal (and not 
beneficially used), as special wastes subject to regulation under 
subtitle C of RCRA. In order to coordinate the RCRA and CERCLA 
rulemakings with respect to the new special waste listing, the Agency 
is also proposing adjustments to the one-pound statutory RQs for this 
special waste stream.
2. Basis for RQs and Adjustments
    EPA's methodology for adjusting the RQs of individual hazardous 
substances begins with an evaluation of the intrinsic physical, 
chemical, and toxicological properties of each hazardous substance. The 
intrinsic properties examined, called ``primary criteria,'' are aquatic 
toxicity, mammalian toxicity (oral, dermal, and inhalation), 
ignitability, reactivity, chronic toxicity, and potential 
carcinogenicity.
    Generally, for each intrinsic property, EPA ranks the hazardous 
substance on a five-tier scale, associating a specific range of values 
on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000 pounds. 
The data for each hazardous substance are evaluated using the various 
primary criteria; each hazardous substance may receive several 
tentative RQ values based on its particular intrinsic properties. The 
lowest of the tentative RQs becomes the ``primary criteria RQ'' for 
that substance.
    After the primary criteria RQ are assigned, the substances are 
further evaluated for their susceptibility to certain degradative 
processes, which are used as secondary adjustment criteria. These 
natural degradative processes are biodegradation, hydrolysis, and 
photolysis (BHP). If a hazardous substance, when released into the 
environment, degrades relatively rapidly to a less hazardous form by 
one or more of the BHP processes, its RQ (as determined by the primary 
RQ adjustment criteria) is generally raised by one level. Conversely, 
if a hazardous substance degrades to a more hazardous product after its 
release, the original substance is assigned an RQ equal to the RQ for 
the more hazardous substance, which may be one or more levels lower 
than the RQ for the original substance. Table 7 presents the RQ for 
each of the constituents of concern in CCRs taken from Table 302.4--
List of Hazardous Substances and Reportable Quantities at 40 CFR 302.4.

        Table 7--Reportable Quantities of Constituents of Concern
------------------------------------------------------------------------
      Hazardous waste No.       Constituent of concern   RQ Pounds (Kg)
------------------------------------------------------------------------
S001..........................  Antimony..............  5000 (2270)
                                Arsenic...............  1 (0.454)
                                Barium................  No RQ
                                Beryllium.............  10 (4.54)
                                Cadmium...............  10 (4.54)
                                Chromium..............  5000 (2270)
                                Lead..................  10 (4.54)
                                Mercury...............  1 (0.454)
                                Nickel................  100 (45.4)
                                Selenium..............  100 (45.4)
                                Silver................  1000 (454)
                                Thallium..............  1000 (454)
------------------------------------------------------------------------

    The standard methodology used to adjust the RQs for RCRA wastes is 
based on an analysis of the hazardous constituents of the waste 
streams. EPA determines an RQ for each hazardous constituent within the 
waste stream and establishes the lowest RQ value of these constituents 
as the adjusted RQ for the waste stream. EPA is proposing to use the 
same methodology to adjust RQs for listed special wastes. In this 
notice, EPA is proposing a one-pound RQ for listed CCRs based on the 
one pound RQs for arsenic and mercury (i.e., the two constituents 
within CCRs with the lowest RQ). In this same rule, however, EPA is 
also proposing that an alternative method for adjusting the RQ of the 
CCR wastes also can be used in lieu of the one pound RQ.
3. Application of the CERCLA Mixture Rule to Listed CCR
    Although EPA is proposing a one-pound RQ for CCRs listed as a 
special waste, we are also proposing to allow the owner or operator to 
use the

[[Page 35185]]

maximum observed concentrations of the constituents within the listed 
CCR wastes in determining when to report releases of the waste.
    For listed CCR wastes, where the actual concentrations of the 
hazardous constituents in the CCRs are not known and the waste meets 
the S001 listing description, EPA is proposing that persons managing 
CCR waste have the option of reporting on the basis of the maximum 
observed concentrations that have been identified by EPA (see Table 8 
below). Thus, although actual knowledge of constituent concentrations 
may not be known, assumptions can be made of the concentrations based 
on the EPA identified maximum concentrations. These assumptions are 
based on actual sampling data, specifically the maximum observed 
concentrations of hazardous constituents in CCRs.\143\ Table 7 
identifies the hazardous constituents for CCRs, their maximum observed 
concentrations in parts per million (ppm), the constituents' RQs, and 
the number of pounds of CCRs needed to contain an RQ of each 
constituent for the CCR to be reported.
---------------------------------------------------------------------------

    \143\ EPA's CCR constituent concentrations database is available 
in the docket to this notice.

  Table 8--Pounds Required To Contain RQ for Each Constituent of Listed
                                   CCR
------------------------------------------------------------------------
                                                                Pounds
     Waste stream constituent      Maximum ppm    RQ (lbs)   required to
                                                              contain RQ
------------------------------------------------------------------------
CCR..............................  ...........            1
Antimony.........................        3,100        5,000    1,612,903
Arsenic..........................          773            1        1,294
Barium...........................        7,230        No RQ        No RQ
Beryllium........................           31           10      322,581
Cadmium..........................          760           10       13,158
Chromium.........................        5,970        5,000      837,521
Lead.............................        1,453           10        6,883
Mercury..........................          384            1        2,604
Nickel...........................        6,301          100       15,871
Selenium.........................          673          100      148,588
Silver...........................          338        1,000    2,958,580
Thallium.........................          100        1,000   10,000,000
------------------------------------------------------------------------

    For example, if listed CCR wastes are released from a facility, and 
the actual concentrations of the waste's constituents are not known, it 
may be assumed that the concentrations will not exceed those listed 
above in Table 8. Thus, applying the mixture rule, the RQ threshold for 
arsenic in this waste is 1,294 pounds--that is, 1,294 pounds of listed 
CCR waste would need to be released to reach the RQ for arsenic. 
Reporting would be required only when an RQ or more of any hazardous 
constituent is released.
    Where the concentration levels of all hazardous constituents are 
known, the traditional mixture rule would apply. Under this scenario, 
if the actual concentration of arsenic is 100 ppm, 10,000 pounds of the 
listed CCR waste would need to be released to reach the RQ for arsenic. 
As applied to listed CCR waste, EPA's proposed approach reduces the 
burden of notification requirements for the regulated community and 
adequately protects human health and the environment.
    The modified interpretation of the mixture rule (40 CFR 302.6) as 
it applies to listed CCR wastes in this proposal is consistent with 
EPA's approach in a final rule listing four petroleum refining wastes 
(K169, K170, K171, and K172) as RCRA hazardous wastes and CERCLA 
hazardous substances (see 63 FR 42110, Aug. 6, 1998). In that rule, the 
Agency promulgated a change to the regulations and its interpretation 
of the mixture rule to allow facilities to consider the maximum 
observed concentrations for the constituents of the petroleum refining 
wastes in determining when to report releases of the four wastes. EPA 
codified this change to its mixture rule interpretation in 40 CFR 
302.6(b)(1) as a new subparagraph (iii). In another rule, EPA also 
followed this approach in the final rule listing two chlorinated 
aliphatic production wastes (K174 and K175) as RCRA hazardous wastes 
and CERCLA hazardous substances (see 65 FR 67068, Nov. 8, 2000). If the 
proposed subtitle C alternative becomes final, EPA may modify 40 CFR 
section 302.6(b)(1) to extend the modified interpretation of the 
mixture rule to include listed CCR wastes.
4. Correction of Table of Maximum Observed Constituent Concentrations 
Identified by EPA
    When the final rule that listed Chlorinated Aliphatics Production 
Wastes was published in the Code of Federal Regulations (CFR), the 
existing table that provided the maximum observed constituent 
concentrations for petroleum refining wastes (K169, K170, K171, and 
K172) was inadvertently replaced instead of amended to add the maximum 
observed constituent concentrations for the chlorinated aliphatic 
production wastes (K174 and K175). Therefore, the Agency is at this 
time proposing to correct that inadvertent removal of the petroleum 
refining wastes by publishing a complete table that includes, the 
petroleum refining wastes, the chlorinated aliphatic production wastes, 
and now the CCR wastes (e.g., K169, K170, K171, K172, K174, K175, and 
S001).

E. Listing of CCR as Special Wastes To Address Perceived Stigma Issue

    Commenters suggested that the listing of CCRs as a hazardous waste 
will impose a stigma on their beneficial use, and significantly curtail 
these uses. EPA questions this assertion, in fact, our experience 
suggests that the increased costs of disposal of CCRs as a result of 
regulation of CCRs under RCRA subtitle C would create a strong economic 
incentive for increased beneficial uses of CCRs. We also believe that 
the increased costs of disposal of CCRs, as a result of regulation of 
CCR disposal, but not beneficial uses, should achieve increased usage 
in non-regulated beneficial uses, simply as a result of the economics 
of supply and demand. The economic driver--availability of a low-cost, 
functionally equivalent or often

[[Page 35186]]

superior substitute for other raw materials--will continue to make CCRs 
an increasingly desirable product. Furthermore, it has been EPA's 
experience in developing and implementing RCRA regulation and elsewhere 
that material inevitably flows to less regulated applications.
    However, with that said, the electric utility industry, the states, 
and those companies that beneficially use CCRs have nevertheless 
commented that listing of CCRs as a RCRA subtitle C waste will impose a 
stigma on their beneficial use and significantly curtail these uses. In 
their view, even an action that regulates only CCRs destined for 
disposal as RCRA subtitle C waste, but retains the Bevill exemption for 
beneficial uses, would have this adverse effect. Finally, the states 
particularly have commented that, by operation of state law, the 
beneficial use of CCRs would be prohibited under many states' 
beneficial use programs, if EPA were to designate CCRs destined for 
disposal as a RCRA subtitle C waste. Unlike the incentive effect 
introduced by increased disposal costs in which firms rationally try to 
avoid higher costs or seek lower cost of raw materials, the idea that 
there will be a stigma effect rests on an assumption that stigma would 
alter consumer preferences thereby decreasing end-users' willingness to 
pay for products that include CCPs. This would have the practical 
effect of shifting the aggregate CCP demand curve downward.
    Some of the other comments that have been made include: (1) 
Beneficially used CCRs are the same material as that which would be 
considered hazardous; this asymmetry increases confusion and the 
probability of lawsuits, however, unwarranted, (2) while the supply of 
CCRs to be beneficially used may increase given the additional 
incentives to avoid disposal costs, the consumer demand may decrease as 
negative perceptions are not always based on reason, (3) any negative 
impact on beneficial use will require more reliance on virgin materials 
with higher GHG and environmental footprints, (4) state support may be 
weakened or eliminated, even in states that are friendly to beneficial 
use, (5) competitors who use virgin or other materials are taking 
advantage of the hazardous waste designation by using scare tactics and 
threats of litigation to get customers to stop using products 
containing CCRs, (6) customers are already raising questions about the 
safety of products that contain CCRs, and (7) uncertainty is already 
hurting business as customers are switching to products where there is 
less regulatory risk and potential for environmental liabilities. For 
example, one commenter stated that they have received requests to stop 
selling boiler slag for ice control due to potential liability.
    EPA is concerned about potential stigma and, as we have stated 
previously, we do not wish to discourage environmentally sound 
beneficial uses of CCRs. In looking to evaluate this issue, we believe 
it is first important to understand that the proposed rule (if the 
subtitle C alternative is finalized) would regulate CCRs under subtitle 
C of RCRA only if they are destined for disposal in landfills and 
surface impoundments, and would leave the Bevill determination in 
effect for the beneficial use of CCRs. That is, the legal status of 
CCRs that are beneficially used would remain entirely unchanged (i.e., 
they would not be regulated under subtitle C of RCRA as a hazardous 
waste, nor subject to any federal non-hazardous waste requirements). 
EPA is proposing to regulate the disposal of CCRs under subtitle C of 
RCRA because of the specific nature of disposal practices and the 
specific risks these practices involve--that is, the disposal of CCRs 
in (often unlined) landfills or surface impoundments, with millions of 
tons placed in a concentrated location. The beneficial uses that EPA 
identifies as excluded under the Bevill amendment, for the most part, 
present a significantly different picture, and a significantly 
different risk profile. As a result, EPA is explicitly not proposing to 
change their Bevill status (although we do take comment on whether 
``unconsolidated uses'' of CCRs need to be subject to federal 
regulation). (For further discussion of the beneficial use of CCRs, see 
section IV. D in this preamble.)
    Furthermore, in today's preamble, we make it clear that certain 
uses of CCRs--e.g., FGD gypsum in wallboard--do not involve ``waste'' 
management at all; rather, the material is a legitimate co-product 
that, under most configurations, has not been discarded in the first 
place and, therefore, would not be considered a ``solid waste'' under 
RCRA. Moreover, EPA's experience suggests that it is unlikely that a 
material that is not a waste in the first place would be stigmatized, 
particularly when used in a consolidated form and while continuing to 
meet long established product specifications.
    In fact, EPA's experience with past waste regulation, and with how 
hazardous waste and other hazardous materials subject to regulation 
under subtitle C are used and recycled, suggests that a hazardous waste 
``label'' does not impose a significant barrier to its beneficial use 
and that non-regulated uses will increase as the costs of disposal 
increase. There are a number of examples that illustrate these points, 
although admittedly many of these products are not used in residential 
settings:
     Electric arc furnace dust is a listed hazardous waste 
(K061), and yet it is a highly recycled material. Specifically, between 
2001 and 2007, approximately 42% to 51% of K061 was recycled (according 
to Biennial Reporting System (BRS) data). Both currently and 
historically, it has been used as an ingredient in fertilizer and in 
making steel, and in the production of zinc products, including 
pharmaceutical materials. Slag from the smelting of K061 is in high 
demand for use in road construction.\144\ In fact, there is little 
doubt that without its regulation as a hazardous waste, a significantly 
greater amount of electric arc further dust would be diverted from 
recycling to disposal in non-hazardous waste landfills.
---------------------------------------------------------------------------

    \144\ According to the most recently available data, in 2008 
Horsehead produced about 300,000 tons per year of an Iron-Rich 
Material (IRM) as a by-product of its dust recycling process, and in 
2009 Inmetco produced close to 20,000 tons per year. PADEP asserts 
that these plants cannot meet the demands for use of the slag by 
PennDOT.
---------------------------------------------------------------------------

     Electroplating wastewater sludge is a listed hazardous 
waste (F006) that is recycled for its copper, zinc, and nickel content 
for use in the commercial market. In 2007, approximately 35% of F006 
material was recycled (according to BRS data). These materials do not 
appear to be stigmatized in the marketplace.
     Chat, a Superfund mining cleanup waste with lead, cadmium 
and zinc contamination, is used in road construction in Oklahoma and 
the surrounding states.\145\ In this case, the very waste that has 
triggered an expensive Superfund cleanup is successfully offered in the 
marketplace as a raw material in road building. The alternative costs 
of disposal in this case are a significant driver in the beneficial use 
of this material, and the Superfund origin of the material has not 
served as a barrier to its use.
---------------------------------------------------------------------------

    \145\ 40 CFR part 260, 39331-39353.
---------------------------------------------------------------------------

     Used oil is regulated under RCRA subtitle C standards. 
While used oil that is recycled is subject to a separate set of 
standards under subtitle C (and is not identified as a hazardous 
waste), ``stigma'' does not prevent home do-it-yourselfers from 
collecting used oil, or automotive shops from accepting it and sending 
it on for recovery. Collected used oil may be re-refined, reused, or 
used as fuel in boilers, often at the site

[[Page 35187]]

where it is collected. Safety Kleen reported that in 2008, the company 
recycled 200 million gallons of used oil. (This example is almost 
directly analogous to the situation with respect to CCRs, although for 
CCRs, we are not proposing to subject them to any management standards 
when used or recycled, but, as in the case of used oil, this 
alternative would avoid labeling CCR's as ``hazardous waste,'' even 
while relying on subtitle C authority.)
     Spent etchants are directly used as ingredients in the 
production of a copper micronutrient for livestock; and
     Spent solvents that are generated from metals parts 
washing and are generally hazardous wastes before reclamation are 
directly used in the production of roofing shingles.
    Furthermore, common products and product ingredients routinely used 
at home (e.g., motor oil; gasoline; many common drain cleaners and 
household cleaners; and cathode ray tube monitors for TVs and 
computers) are hazardous wastes in other contexts. This includes 
fluorescent lamps (and CFLs) which are potentially hazardous because of 
mercury. Consumers are generally comfortable with these products, and 
their regulatory status does not discourage their use. Given this level 
of acceptance, EPA questions whether CCR-based materials that might be 
used in the home, like concrete or wallboard, would be likely to raise 
concerns where they are safely incorporated into a product.
    Certain commenters have also expressed the concern that standards-
setting organizations might prohibit the use of CCRs in specific 
products or materials in their voluntary standards. Recently, 
chairpersons of the American Standards and Testing Materials (ASTM) 
International Committee C09, and its subcommittee, C09.24, in a 
December 23, 2009 letter indicated that ASTM would remove fly ash from 
the project specifications in its concrete standard if EPA determined 
that CCRs were a hazardous waste when disposed. However, it remains 
unclear whether ASTM would ultimately adopt this position, in light of 
EPA's decision not to revise the regulatory status of CCRs destined for 
beneficial use. Further ASTM standards are developed through an open 
consensus process, and they currently apply to the use of numerous 
hazardous materials in construction and other activities. For example, 
ASTM provides specifications for the reuse of solvents and, thus, by 
implication, does not appear to take issue with the use of these 
recycled secondary materials, despite their classification as hazardous 
wastes.\146\
---------------------------------------------------------------------------

    \146\ See, for example, ASTM Volume 15.05, Engine Coolants, 
Halogenated Organic Solvents and Fire Extinguishing Agents; 
Industrial and Specialty Chemicals, at http://www.normas.com/ASTM/
BOS/volume1505.html. See also ASTM D5396--04 Standard Specification 
for Reclaimed Perchloroethylene, at http://www.astm.org/Standards/
D5396.htm.
---------------------------------------------------------------------------

    Others take a different view on how standard-setting organizations 
will react. Most notably, a U.S. Green Building Council representative 
was referenced in the New York Times as saying that LEED incentives for 
using fly ash in concrete would remain in place, even under an EPA 
hazardous waste determination.\147\ If the Green Building Council 
(along with EPA) continues to recognize fly ash as an environmentally 
beneficial substitute for Portland cement, the use of this material is 
unlikely to decrease solely because of ``stigma'' concerns. 
Additionally, we believe it is unlikely that ASTM will prohibit the use 
of fly ash in concrete under its standards solely because of a 
determination that fly ash is regulated under subtitle C of RCRA when 
it is discarded, especially given that this use of fly ash is widely 
accepted throughout the world as a practice that improves the 
performance of concrete, it is one of the most cost-effective near-term 
strategies to reduce GHG emissions, and there is no evidence of 
meaningful risk, nor any reason to think there might be, involved with 
its use in cement or concrete.
---------------------------------------------------------------------------

    \147\ See http://www.nytimes.com/gwire/2020/01/13/13greenwire-
recycling-questions-complicate-epa-coal-ash-de-90614.html.
---------------------------------------------------------------------------

    Finally, many states commented that their statutes or regulations 
prohibit the use of hazardous wastes in their state beneficial use 
programs and, therefore, that if EPA lists CCRs as hazardous wastes 
(even if only when intended for disposal), their use would be precluded 
in those states. EPA reviewed the regulations of ten states with the 
highest consumption of fly ash and concluded that, while these states 
do not generally allow the use of hazardous waste in their beneficial 
use programs, this general prohibition would not necessarily prohibit 
the beneficial use of CCRs under the proposal that EPA outlines in this 
rule. Beneficially used CCRs would remain Bevill-exempt solid wastes, 
or in some cases, would not be considered wastes at all and thus, the 
legal status of such CCRs may not be affected by EPA's proposed RCRA 
subtitle C rule. As an example, the use of slag derived from electric 
furnace dust (K061) is regulated under Pennsylvania's beneficial use 
program, despite the fact that it is derived from a listed hazardous 
waste. However, we are also aware that, in the case of Florida, its 
state definition of hazardous waste would likely prohibit the 
beneficial use of CCRs were the co-proposed RCRA subtitle C regulation 
finalized and were there no change to Florida's definition of hazardous 
waste.
    The primary concern raised by these commenters is the fact that 
CCRs would be labeled a ``hazardous waste'' (even if only when 
disposed) and will change the public perception of products made from 
CCRs. To address this concern, EPA is proposing, as one alternative, to 
codify the listing in a separate, unique section of the regulations. 
Currently, hazardous wastes are listed in 40 CFR 261, Subpart D, which 
identifies the currently regulated industrial wastes, and which is 
labeled, ``Lists of Hazardous Wastes.'' EPA would create a new Subpart 
F and label the section as ``List of Special Wastes Subject to Subtitle 
C,'' to distinguish it from the industrial hazardous wastes. The 
regulations would identify CCRs as a ``Special Waste'' rather than a K-
listed hazardous waste, so that CCRs would not automatically be 
identified with all other hazardous wastes. See sections V through VII 
for the full description of our regulatory proposal.
    EPA believes that this action could significantly reduce the 
likelihood that products made from or containing CCRs would 
automatically be perceived as universally ``hazardous.'' When taken in 
combination with (1) the fact that beneficially used CCRs will remain 
exempt and (2) EPA's continued promotion of the beneficial use of CCRs, 
we believe this will go a long way to address any stigmatic impact that 
might otherwise result from the regulation of CCRs under subtitle C of 
RCRA. We are seeking comment on other suggestions on how EPA might 
promote the beneficial use of CCRs, as well as suggestions that would 
reduce any perceived impacts resulting from ``stigma'' due to the 
identification of CCRs as ``special wastes regulated under subtitle C 
authority.''
    In summary, based on our experiences, we expect that it will be 
more likely that the increased costs of disposal of CCRs as a result of 
regulation of CCR disposal under subtitle C would increase their usage 
in non-regulated beneficial uses, simply as a result of the economics 
of supply and demand. The economic driver--availability of a low-cost, 
functionally equivalent or often superior substitute for other raw 
materials--would continue to make CCRs an increasingly desirable 
product.

[[Page 35188]]

VII. How would the proposed subtitle c requirements be implemented?

A. Effective Dates

    If EPA were to finalize the subtitle C regulatory alternative 
proposed today, the rule, as is the case with all RCRA subtitle C 
rules, would become effective six months after promulgation by the 
appropriate regulatory authority--that is, six months after 
promulgation of the federal rule in States and other jurisdictions 
where EPA implements the hazardous waste program (Iowa, Alaska, Indian 
Country, and the territories, except Guam) and in authorized States, 
six months after the State promulgates its regulations that EPA has 
approved via the authorization process (unless State laws specify an 
alternative time). This means that facilities managing CCRs must be in 
compliance with the provisions of these regulations on their effective 
date, unless the compliance date is extended. For this proposed 
regulatory alternative, the compliance dates for several of the 
proposed requirements for existing units are being extended due to the 
need for additional time for facilities to modify their existing units. 
The precise dates that facilities will need to be in compliance with 
the various requirements will depend on whether they are in a 
jurisdiction where EPA administers the RCRA subtitle C program or 
whether they are in a State authorized to administer the RCRA subtitle 
C program.
    To summarize, (1) In States and jurisdictions where EPA administers 
the RCRA program (Iowa, Alaska, the territories [except Guam], and 
Indian Country), most of the subtitle C requirements go into effect and 
are enforceable by EPA six months after promulgation of the final rule. 
This includes the generator requirements, transporter requirements, 
including the manifest requirements, permitting requirements for 
facilities managing CCRs, interim status standards, surface impoundment 
stability requirements, and the Land Disposal Restriction (LDR) 
treatment standards for non-wastewaters in 40 CFR part 268. However, we 
are proposing that existing CCR landfills and surface impoundments (as 
defined in this regulation) will be given additional time to comply 
with several of the proposed requirements as specified later in this 
section. Any new CCR landfills, including lateral expansions (as 
defined in the regulation), must be in compliance with all the 
requirements of any final regulation before CCRs can be placed in the 
unit.
    (2) In States that are authorized to administer the RCRA program, 
the requirements that are part of the RCRA base program (i.e., those 
promulgated under the authority of RCRA and not the HSWA amendments) 
will not be effective until the State develops and promulgates its 
regulations. Once those regulations are effective in the States, they 
are enforceable as a matter of State law and facilities must comply 
with those requirements under the schedule established by the State. 
These RCRA base requirements will become part of the RCRA authorized 
program and enforceable as a matter of federal law once the State 
submits and EPA approves a modification to the State's authorized 
program. (See the State Authorization section (section VIII) for a more 
detailed discussion.) The requirements that are more stringent or 
broader in scope than the existing regulations and are promulgated 
pursuant to HSWA authority will become effective and federally 
enforceable on the effective date of the approved state law designating 
CCRs as a special waste subject to subtitle C--that is, they are 
federally enforceable without waiting for authorization of the program 
revision applicable to the HSWA provisions. On the other hand, any 
requirements that are promulgated pursuant to HSWA authority, but are 
less stringent than the existing subtitle C requirements (e.g., 
modifications promulgated pursuant to Section 3004(x)) will become 
effective only when the State promulgates those regulations (and 
federally enforceable when the State program revision is authorized), 
as the State has the discretion to not adopt those less stringent 
requirements.

B. What are the requirements with which facilities must comply?

    It is EPA's intention that this proposed alternative, if finalized, 
will be implemented in the same manner as previous regulations under 
RCRA subtitle C have been. The following paragraphs describe generally 
how this proposal will be implemented. While this notice provides some 
details on specific requirements, it is EPA's intention that, unless 
otherwise noted, all current Subtitle C requirements become applicable 
to the facilities generating, transporting, or treating, storing or 
disposing of CCRs listed as special wastes. While in this notice EPA 
has described the major subtitle C requirements, EPA has not undertaken 
a comprehensive description of all of the subtitle C regulatory 
requirements which may be applicable; therefore, we encourage 
commenters to refer to the regulations at 40 CFR parts 260 to 268, 270 
to 279, and 124 for details.
1. Generators and Transporters
i. Requirements
    Under this proposed regulation, regulated CCRs destined for 
disposal become a newly listed special waste subject to the subtitle C 
requirements. Persons that generate this newly identified waste is 
required to notify EPA within 90 days after the wastes are identified 
or listed \148\ (by EPA or the state) and obtain an EPA identification 
number if they do not already have one in accordance with 40 CFR 
262.12. (If the person who generates regulated CCRs already has an EPA 
identification number, EPA is proposing not to require that they re-
notify EPA; however, EPA is seeking comment on this issue.) Moreover, 
on the effective date of this rule in the relevant state, generators of 
CCRs must be in compliance with the generator requirements set forth in 
40 CFR part 262. These requirements include standards for waste 
determination (40 CFR 262.11), compliance with the manifest (40 CFR 
262.20 to 262.23), pre-transport procedures (40 CFR 262.30 to 262.34), 
generator accumulation (40 CFR 262.34), record keeping and reporting 
(40 CFR 262.40 to 262.44), and the import/export procedures (40 CFR 
262.50 to 262.60). It should be noted that the current generator 
accumulation provisions of 40 CFR 262.34 allow generators to accumulate 
hazardous wastes without obtaining interim status or a permit only in 
units that are container accumulation units, tank systems or 
containment buildings; the regulations also place a limit on the 
maximum amount of time that wastes can be accumulated in these units. 
If these wastes are managed in landfills, surface impoundments or other 
units that are not tank systems, containers, or containment buildings, 
these units are subject to the permitting requirements of 40 CFR parts 
264, 265, and 267 and the generator is required to obtain interim 
status and seek a permit (or modify interim status or a permit, as 
appropriate). These requirements would be applied to special wastes as 
well. Permit requirements are described in Section VII.D below.
---------------------------------------------------------------------------

    \148\ See section 3010 of RCRA.
---------------------------------------------------------------------------

    Transporters of CCRs destined for disposal will be transporting a 
special waste subject to subtitle C on the effective date of this 
regulation. Persons who transport these newly identified wastes will be 
required to obtain an EPA identification number as described

[[Page 35189]]

above and must comply with the transporter requirements set forth in 40 
CFR part 263 on the effective date of the final rule. In addition, 
generators and transporters of CCRs destined for disposal should be 
aware that an EPA identified waste subject to the EPA waste manifest 
requirements under 40 CFR part 262 meets the definition for a hazardous 
material under the Department of Transportation's Hazardous Materials 
Regulations (HMR; 49 CFR parts 171-180) and must be offered and 
transported in accordance with all applicable HMR requirements, 
including materials classification, packaging, and hazard 
communication.\149\
---------------------------------------------------------------------------

    \149\ See the definition for ``hazardous waste'' in 49 CFR 
171.8.
---------------------------------------------------------------------------

ii. Effective Dates and Compliance Deadlines
    Generators must notify EPA within 90 days after the date that CCRs 
are identified or listed as special wastes (by EPA or the state). The 
other requirements for generators and transporters (in 40 CFR parts 262 
and 263) are effective and generators and transporters must be in 
compliance with these requirements on the effective date of the final 
rules. The effective date of these rules is six months after 
promulgation of the federal rule in non-authorized States and in 
authorized States generally six months after promulgation of the State 
regulations. (See previous section for a more detailed discussion of 
effective dates.)
2. Treatment, Storage, and Disposal Facilities (TSDs)
i. Requirements
    Facilities treating, storing, or disposing of the newly listed CCRs 
are subject to the RCRA 3010 notification requirements, the permit 
requirements in 40 CFR part 270, and regulations in 40 CFR part 264 or 
267 for permitted facilities or part 265 for interim status facilities, 
including the general facility requirements in subpart B, the 
preparedness and prevention requirements in subpart C, the contingency 
plan and emergency procedure requirement in subpart D, the manifest, 
recordkeeping and reporting requirements in subpart E, the closure and 
post-closure requirements in subpart G, the corrective action 
requirements, including facility-wide corrective action in subpart F, 
and the financial assurance requirements in subpart H.

C. RCRA Section 3010 Notification

    Pursuant to RCRA section 3010 and 40 CFR 270.1(b), facilities 
managing these special wastes subject to subtitle C must notify EPA of 
their waste management activities within 90 days after the wastes are 
identified or listed as a special waste. (As noted above, for 
facilities in States where EPA administers the program, this will be 90 
days from the date of promulgation of the final federal regulation; in 
authorized States, it will be 90 days from the date of promulgation of 
listing CCRs as a special waste by the state, unless the state provides 
an alternative timeframe.) This requirement may be applied even to 
those TSDs that have previously notified EPA with respect to the 
management of hazardous wastes. The Agency is proposing to waive this 
notification requirement for persons who handle CCRs and have already: 
(1) Notified EPA that they manage hazardous wastes, and (2) received an 
EPA identification number because requiring persons who have notified 
EPA and received an EPA identification number would be duplicative and 
unnecessary, although the Agency requests comment on whether it should 
require such persons to re-notify the Agency that they generate, 
transport, treat, store or dispose of CCRs. However, any person who 
treats, stores, or disposes of CCRs and has not previously received an 
EPA identification number for other waste must obtain an identification 
number pursuant to 40 CFR 262.12 to generate, transport, treat, store, 
or dispose of CCRs within 90 days after the wastes are identified or 
listed as special wastes subject to subtitle C, as described above.

D. Permit Requirements

    As specified in 40 CFR 270.1(b), six months after promulgation of a 
new regulation, the treatment, storage or disposal of hazardous waste 
or special waste subject to subtitle C by any person who has not 
applied for and received a RCRA permit is prohibited from managing such 
wastes. Existing facilities, however, may satisfy the permit 
requirement by submitting Part A of the permit application. Timely 
submission of Part A and the notification qualifies a facility for 
interim status under section 3005 of RCRA and facilities with interim 
status are treated as having been issued a permit until a final 
decision is made on a permit application.
    The following paragraphs provide addition details on how the 
permitting requirements would apply to various categories of 
facilities:
1. Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of regulated CCRs at the 
time the rule becomes effective would generally be eligible for interim 
status pursuant to section 3005 of RCRA. (See section 3005(e)(1)(A)(ii) 
of RCRA).\150\ EPA believes most, if not all utilities generating CCRs 
and most if not all off-site disposal sites will be in this situation. 
In order to obtain interim status based on treatment, storage, or 
disposal of such newly listed CCRs, eligible facilities are required to 
comply with 40 CFR 270.70(a) and 270.10(e) (or more likely with 
analogous state regulations) by providing notice under RCRA section 
3010 (if they do not have an EPA identification number) and submitting 
a Part A permit application no later than six months after date of 
publication of the regulations which first require them to comply with 
the standards. (In most cases, these would be the state regulations 
implementing the federal program; however, in those States and 
jurisdictions where EPA implements the program, the deadline will be 
six months after promulgation of the final federal rule.) Such 
facilities are subject to regulation under 40 CFR part 265 until EPA or 
the state issues a RCRA permit. In addition, under section 3005(e)(3) 
and 40 CFR 270.73(d), not later than 12 months after the effective date 
of the regulations that render the facility subject to the requirement 
to have a RCRA permit and which is granted interim status, land 
disposal facilities newly qualifying for interim status under section 
3005(e)(1)(A)(ii) also must submit a Part B permit application and 
certify that the facility is in compliance with all applicable ground 
water monitoring and financial responsibility requirements. If the 
facility fails to submit these certifications and the Part B permit 
application, interim status will terminate on that date.
---------------------------------------------------------------------------

    \150\ Section 3005(e) of RCRA states, in part, that ``Any person 
who * * * is in existence on the effective date of statutory or 
regulatory changes under this Act that render the facility subject 
to the requirement to have a permit under this section * * * shall 
be treated as having been issued such permit until such time as 
final administrative disposition of such application is made, unless 
the Administrator or other plaintiff proves that final 
administrative disposition of such application has not been made 
because of the failure of the applicant to furnish information 
reasonably required or requested in order to process the 
application.
---------------------------------------------------------------------------

2. Existing Interim Status Facilities
    EPA is not aware of any utilities or CCR treatment or disposal 
sites in RCRA interim status currently, and therefore

[[Page 35190]]

EPA does not believe the standard federal rules on changes in interim 
status will apply. However, in case such a situation exists, EPA 
describes below the relevant provisions. Again, EPA is describing the 
federal requirements, but because the proposed requirements that 
subject these facilities to permitting requirements are part of the 
RCRA base program, authorized state regulations will govern the 
process, and the date those regulations become effective in the 
relevant state will trigger the process.
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste 
management facilities (as defined in 40 CFR 270.2) that treat, store, 
or dispose of newly identified hazardous wastes and are currently 
operating pursuant to interim status under section 3005(e) of RCRA, 
must file an amended Part A permit application with EPA no later than 
the effective date of the final rule in the State where the facility is 
located. By doing this, the facility may continue managing the newly 
listed wastes. If the facility fails to file an amended Part A 
application by such date, the facility will not receive interim status 
for management of the newly listed wastes (in this case CCRs) and may 
not manage those wastes until the facility receives either a permit or 
a change in interim status allowing such activity (40 CFR 270.10(g)). 
This requirement, if applicable to any electric utilities, will be 
applied to those facilities managing CCRs destined for disposal since 
these facilities will now be managing CCRs subject to the subtitle C 
requirements.
3. Permitted Facilities
    EPA also believes that no electric utilities treating, storing, or 
disposing of CCRs currently has a RCRA permit for its CCR management 
unit(s), nor is EPA aware of any on-going disposal of CCRs at permitted 
hazardous waste TSDs, although the latter situation is a possibility. 
Federal procedures for how permitted hazardous waste facilities manage 
newly listed hazardous wastes are described below, but again in 
practice (with the exception of those jurisdictions in which EPA 
administers the hazardous waste program), the authorized state 
regulations will govern the process.
    Under 40 CFR 270.42(g), facilities that already have RCRA permits 
must request permit modifications if they want to continue managing the 
newly listed wastes (see 40 CFR 270.42(g) for details). This provision 
states that a permittee may continue managing the newly listed wastes 
by following certain requirements, including submitting a Class 1 
permit modification request on or before the date on which the waste or 
unit becomes subject to the new regulatory requirements (i.e., the 
effective date of the final federal rule in those jurisdictions where 
EPA administers the program or the effective date of the State rule in 
authorized States), complying with the applicable standards of 40 CFR 
parts 265 and 266 and submitting a Class 2 or 3 permit modification 
request within 180 days of the effective date of the final rule. Again, 
these requirements, if applicable to any electric utilities, will be 
applied to those facilities managing CCRs destined for disposal since 
they are now subject to the subtitle C requirements.

E. Requirements in 40 CFR Parts 264 and 265

    The requirements of 40 CFR part 264 and 267 for permitted 
facilities or part 265 for interim status facilities, including the 
general facility standards in subpart B, the preparedness and 
prevention requirements in subpart C, the contingency plan and 
emergency procedure requirements in subpart D, the manifest, 
recordkeeping and reporting requirements in subpart E, the corrective 
action requirements, including facility-wide corrective action in 
subpart F, and the financial assurance requirements in Subpart H, are 
applicable to TSDs and TSDs must be in compliance with those 
requirements on the effective date of the final (usually state) 
regulation, except as noted below. These requirements will apply to 
those facilities managing CCRs destined for disposal.
    Moreover, all units in which newly identified hazardous wastes are 
treated, stored, or disposed of after the effective date of the final 
(usually state) rule that are not excluded from the requirements of 40 
CFR parts 264, 265 and 267 will be subject to both the general closure 
and post-closure requirements of subpart G of 40 CFR parts 264 and 265 
and the unit-specific closure requirements set forth in the applicable 
unit technical standards in subparts 40 CFR parts 264 or 265 (e.g., 
subpart N for landfill units). In addition, EPA promulgated a final 
rule that allows, under limited circumstances, regulated landfills or 
surface impoundments, (or land treatment units which is not used for 
the management of CCR waste) to cease managing hazardous waste, but to 
delay subtitle C closure to allow the unit to continue to manage non-
hazardous waste for a period of time prior to closure of the unit (see 
54 FR 33376, August 14, 1989). Units for which closure is delayed 
continue to be subject to all applicable 40 CFR parts 264 and 265 
requirements. Dates and procedures for submittal of necessary 
demonstrations, permit applications, and revised applications are 
detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e). 
As stated earlier, these requirements will be applicable to those 
facilities managing CCRs destined for disposal, since they will be 
managing a newly listed waste subject to subtitle C requirements.
    Except as noted below, existing facilities are required to be in 
compliance with the surface impoundment stability requirements, the LDR 
treatment standards for non-wastewaters, and the fugitive dust controls 
on the effective date of the final rule.
    For certain of the other requirements, existing facilities will 
have:
    (a) 60 days from the effective date of the final rule to install a 
permanent identification marker on each surface impoundment as required 
by 40 CFR 264.1304(d) and 40 CFR 265.1304(d).
    (b) 1 year from the effective date of the final rule:
    To submit plans for each surface impoundments as required by 
264.1304(b) and 265.1304(b).
    To adopt and submit to the Regional Administrator a plan for 
carrying out the inspection requirements for each surface impoundment 
in 40 CFR 264.1305 and 40 CFR 265.1305.
    To comply with the groundwater monitoring requirements for each 
landfill and surface impoundment in 40 CFR 264, Subpart F and 265, 
Subpart F.
    (c) 2 years from the effective date of the final rule:
    To install, operate, and maintain run-on and run-off controls as 
required by 264.1304(g) and 265.1304(g) for surface impoundments and by 
264.1307(d) and 265.1307(d) for landfills.
    (d) 5 years from the effective date of the final rule:
    To comply with the LDR wastewater treatment standard.
    To stop receiving CCR waste in surface impoundments.
    (e) 7 years from the effective date of the final rule to close 
surface impoundments handling CCRs.
    Any new CCR landfills, including lateral expansions of existing 
landfills (as defined in the regulation), must be in compliance with 
all the requirements of the final regulation before CCRs can be placed 
in the unit.
    The table below (Table 9) provides a summary of the effective dates 
for the various requirements:

[[Page 35191]]



                     Table 9--CCR Rule Requirements
------------------------------------------------------------------------
                               Compliance date non     Compliance date
                                authorized state      authorized state
------------------------------------------------------------------------
Remove Bevill Exclusion.....  6 months after        6 months after State
                               promulgation of       adopts regulations
                               final rule.           (under State law);
                                                     federally
                                                     enforceable when
                                                     state program
                                                     revision is
                                                     authorized.
Listing CCRs as a Special     Same................  Same.
 Waste Subject to subtitle C.
Notification (generators and  90 days after rule    90 days after State
 TSDs).                        promulgation (that    rule promulgation
                               is, the date the      (that is, the date
                               CCRs are listed as    the CCRs are listed
                               a Special Waste       as a Special Waste
                               subject to subtitle   subject to subtitle
                               C.                    C.
Generator requirements (40    6 months after        On the effective
 CFR part 262).                promulgation.         date of the State
                                                     regulations.
Transporter Requirements (40  6 months after        On the effective
 CFR part 263).                promulgation.         date of State
                                                     regulations.
Permit Requirement/Interim    File Part A of the    File Part A of the
 Status.                       permit application    permit application
                               within six months     within six months
                               of effective date     of effective date
                               of final rule.        of State final
                                                     rule.
Facility Standards in Part    On effective date     On effective date of
 264/265.                      unless specifically   state regulation
                               noted.                unless specifically
                                                     noted.
Install a permanent           60 days from the      60 days from the
 identification marker on      effective date of     effective date of
 each surface impoundment as   the final rule.       the State
 required by 40 CFR                                  regulation.
 264.1304(d) and 40 CFR
 265.1304(d).
Submit plans required by      1 year from the       1 year from the
 264.1304(b) and 265.1304(b).  effective date of     effective date of
                               the final rule.       the State
                                                     regulation.
Adopt and submit to the       1 year from the       1 year from the
 Regional Administrator a      effective date of     effective date of
 plan for carrying out the     the final rule.       the State
 inspection requirements in                          regulation.
 40 CFR 264.1305 and 40 CFR
 265.1305.
Comply with ground water      1 year from the       1 year from the
 monitoring requirements in    effective date of     effective date of
 40 CFR 264 Subpart F and 40   the final rule.       the State
 CFR 265 Subpart F.                                  regulation.
Install, operate, and         2 years from the      2 years from the
 maintain run-on and run-off   effective date of     effective date of
 controls as required by       the final rule.       the State
 264.1304 (g) and 265.1304                           regulation.
 (g) for surface
 impoundments and by
 264.1307 (d) and 265.1307
 (d) for landfills.
Comply with the LDR           5 years from the      5 years from the
 wastewater treatment          effective date of     effective date of
 standard.                     the final rule.       the State
                                                     regulation.
Close surface impoundments    7 years from the      7 years from the
 receiving CCR waste.          effective date of     effective date of
                               the final rule.       the State
                                                     regulation.
------------------------------------------------------------------------

VIII. Impacts of a Subtitle C Rule on State Authorization

A. Applicability of the Rule in Authorized States

    Under section 3006 of RCRA, EPA authorizes qualified states to 
administer their own hazardous waste programs in lieu of the federal 
program within the state. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized states have primary enforcement responsibility. The 
standards and requirements for state authorization are found at 40 CFR 
part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a state with final RCRA authorization administered its 
subtitle C hazardous waste program in lieu of EPA administering the 
federal program in that state. The federal requirements no longer apply 
in the authorized state, and EPA could not issue permits for any 
facilities in that state, since only the state was authorized to issue 
RCRA permits. When new, more stringent federal requirements are 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames (one to two years). The new more stringent 
federal requirements did not take effect in the authorized state until 
the state adopted the federal requirements as state law, and the state 
requirements are not federally enforceable until EPA authorized the 
state program. This remains true for all of the requirements issued 
pursuant to statutory provisions that existed prior to HSWA.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized states, 
until the state is granted authorization to do so. While states must 
still adopt new more stringent HSWA related provisions as state law to 
retain final authorization, EPA implements the HSWA provisions in 
authorized states until the states do so.
    Authorized states are required to modify their programs only when 
EPA enacts federal requirements that are more stringent or broader in 
scope than the existing federal requirements. RCRA section 3009 allows 
the states to impose standards more stringent than those in the federal 
program (see also 40 CFR 271.1). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous federal regulations.
    This alternative of the co-proposal is considered more stringent 
and broader in scope than current federal regulations and therefore 
States would be required to adopt regulations and modify their programs 
if this alternative is finalized.

B. Effect on State Authorization

    If finalized, a subtitle C rule for CCRs would affect state 
authorization in the same manner as any new RCRA subtitle C 
requirement; i.e., (1) this alternative of the co-proposal would be 
considered broader in scope and more stringent than the current federal 
program, so authorized states must adopt regulations so that their 
program remains at least as stringent as the federal program; and (2) 
they must receive authorization from

[[Page 35192]]

EPA for these program modifications. The process and requirements for 
modification of state programs at 40 CFR 271, specifically 271.21, will 
be used.
    However, this process is made more complex due to the nature of 
this particular rulemaking and the fact that some of the provisions of 
this alternative, if finalized, would be finalized pursuant to the RCRA 
base program authority and some pursuant to HSWA authority. For RCRA 
base program or non-HSWA requirements, the general rule, as explained 
previously, is that the new requirements do not become enforceable as a 
matter of federal law in authorized states until states adopt the 
regulations, modify their programs, and receive authorization from EPA. 
For HSWA requirements, the general rule is that HSWA requirements are 
enforceable on the effective date of the final federal rule. If an 
authorized State has not promulgated regulations, modified their 
programs, and received authorization from EPA, then EPA implements the 
requirements until the State receives program authorization.
    In accord with 271.2(e)(2), authorized states must modify their 
programs by July 1 of each year to reflect changes to the federal 
program occurring during the ``12 months preceding the previous July 
1.'' Therefore, for example, if the federal rule is promulgated in 
December 2011, the states would have until July 1, 2013 to modify their 
programs. States may have an additional year to modify their programs 
if an amendment to a state statute is needed. See 40 CFR 
271.21(e)(2)(v).
    As noted above, this alternative to the co-proposal is proposed 
pursuant in part to HSWA authority and in part to non-HSWA or RCRA base 
program authority. The majority of this alternative is proposed 
pursuant to non-HSWA authority. This includes, for example, the listing 
of CCRs destined for disposal as a special waste subject to subtitle C 
and the impoundment stability requirements. These requirements will be 
applicable on the effective date of the final federal rule only in 
those states that do not have final authorization for the RCRA program. 
These requirements will be effective in authorized states once a state 
promulgates the regulations and they will become a part of the 
authorized RCRA program and thus federally enforceable, once the state 
has submitted a program modification and received authorization for 
this program modification.
    The prohibition on land disposal unless CCRs meet the treatment 
standards and modification of the treatment standards in 40 CFR part 
268 are proposed pursuant to HSWA authority and would normally be 
effective and federally enforceable in all States on the effective date 
of the final federal rule. However, because the land disposal 
restrictions apply to those CCRs that are regulated under subtitle C, 
until authorized states revise their programs and become authorized to 
regulate CCRs as a special waste subject to RCRA subtitle C, the land 
disposal restriction requirements would apply only in those States that 
currently do not exclude CCRs from subtitle C regulation (that is, CCRs 
are regulated under subtitle C if they exhibit one or more of the 
characteristics) and the CCRs in fact exhibit one or more of the RCRA 
subtitle C characteristics. However, once the state has the authority 
to regulate CCRs as a special waste, the LDR requirements become 
federally enforceable in all States.
    In addition, the tailored management standards promulgated pursuant 
to section 3004(x) of RCRA are also proposed pursuant to HSWA 
authority. However, as these tailored standards are less stringent than 
the existing RCRA subtitle C requirements, States would not be required 
to promulgate regulations for these less stringent standards--should a 
State decide not to promulgate such regulations, the facilities in that 
state would be required to comply with the full subtitle C standards. 
Therefore, the tailored management standards will be effective in 
authorized States only when States promulgate such regulations.
    Therefore, the Agency would add this rule to Table 1 in 40 CFR 
271.1(j), if this alternative to the co-proposal is finalized, which 
identifies the federal program requirements that are promulgated 
pursuant to HSWA and take effect in all states, regardless of their 
authorization status. Table 2 in 40 CFR 271.1(j) would be modified to 
indicate that these requirements are self-implementing. Until the 
states receive authorization for the more stringent HSWA provisions, 
EPA would implement them, as described above. In implementing the HSWA 
requirements, EPA will work closely with the states to avoid 
duplication of effort. Once authorized, states adopt an equivalent rule 
and receive authorization for such rule from EPA, the authorized state 
rule will apply in that state as the RCRA subtitle C requirement in 
lieu of the equivalent federal requirement.

IX. Summary of the Co-Proposal Regulating CCRs Under Subtitle D 
Regulations

A. Overview and General Issues

    EPA is co-proposing and is soliciting comment on an approach under 
which the May 2000 Regulatory Determination would remain in place, and 
EPA would issue regulations governing the disposal of CCRs under 
sections 1008(a), 2002, 4004 and 4005(a) of RCRA (i.e., ``Subtitle D'' 
of RCRA). Under this approach, the CCRs would remain classified as a 
non-hazardous RCRA solid waste, and EPA would develop national minimum 
criteria governing facilities for their disposal. EPA's co-proposed 
subtitle D minimum criteria are discussed below.
    Statutory standards for Subtitle D approach. Under RCRA 4005(a), 
upon promulgation of criteria under 1008(a)(3), any solid waste 
management practice or disposal of solid waste which constitutes the 
``open dumping'' of solid waste is prohibited. The criteria under RCRA 
1008(a)(3) are those that define the act of open dumping, and are 
prohibited under 4005(a), and the criteria under 4004(a) are those to 
be used by states in their planning processes to determine which 
facilities are ``open dumps'' and which are ``sanitary landfills.'' EPA 
has in practice defined the two sets of criteria identically. See, 
e.g., Criteria for Classification of Solid Waste Disposal Facilities 
and Practices, 44 FR 53438, 53438-39 (Sept. 13, 1979). EPA has designed 
today's co-proposed subtitle D criteria to integrate with the existing 
open dumping criteria in this respect, as reflected in the proposed 
changes to 257.1.
    Section 4004(a) of RCRA provides that EPA shall promulgate 
regulations containing criteria distinguishing which facilities are to 
be classified as sanitary landfills and which are open dumps. This 
section provides a standard that varies from that under RCRA subtitle 
C. Specifically, subtitle C provides that management standards for 
hazardous waste treatment, storage, and disposal facilities are those 
``necessary to protect human health or the environment.'' See, e.g., 
RCRA 3004(a). By contrast, Section 4004(a) provides that

    [a]t a minimum, the such criteria shall provide that a facility 
may be classified as a sanitary landfill and not an open dump only 
if there is no reasonable probability of adverse effects on health 
or the environment from disposal of solid waste at such facility. 
Such regulations may provide for the classification of the types of 
sanitary landfills.

    Thus, under the RCRA subtitle D regulatory standard in 4004, EPA is 
to

[[Page 35193]]

develop requirements based on the adverse effects on health or the 
environment from disposal of solid waste at a facility, and 
accordingly, EPA looked at such effects in developing today's co-
proposed Subtitle D rule.
    At the same time, EPA believes that the differing standards, in 
particular the reference to the criteria as those which are needed to 
assure that there is ``no reasonable probability'' of adverse effects, 
allows the Agency the ability to adopt standards different from those 
required under the subtitle C proposal where appropriate. EPA notes 
that the 4004(a) standard refers to the ``probability'' of adverse 
effect on health or the environment. In EPA's view, this provides it 
the discretion to establish requirements that are less certain to 
eliminate a risk to health or the environment than otherwise might be 
required under Subtitle C, and allows additional flexibility in how 
those criteria may be applied to facilities. At the same time, however, 
EPA notes that the requirements meeting the ``no reasonable 
probability'' standard are those ``at a minimum''--thus, EPA is not 
constrained to limit itself to that standard should it determine that 
additional protections are appropriate.
    Statements in the legislative history of 4004(a) are also 
consistent with EPA's interpretation of the statutory language. While 
it provides little in the way of guidance on the meaning of the 
``reasonable probability'' standard, the legislative history does 
indicate that Congress was aware of effects from solid waste disposal 
facilities that included surface runoff, leachate contamination of 
surface- and groundwaters, and also identified concerns over the 
location and operations of landfills. See H. Rep. 94-1491, at 37-8. In 
addition, the legislative history confirms that the standard in 4004(a) 
was intended to set a minimum for the criteria. See H. Rep. 94-1491, at 
40 (``This legislation requires that the Administrator define sanitary 
landfill as disposal site at which there is no reasonable chance of 
adverse effects on health and the environment from the disposal of 
discarded material at the site. This is a minimum requirement of this 
legislation and does not preclude additional requirements.'' Emphasis 
added.)
1. Regulatory Approach
    In developing the proposed RCRA subtitle D option for CCRs, EPA 
considered a number of existing requirements as relevant models for 
minimum national standards for the safe disposal of CCRs. The primary 
source was the existing requirements under 40 CFR part 258, applicable 
to municipal solid waste landfills, which provide a comprehensive 
framework for all aspects of disposal in land-based units, such as CCR 
landfills. Based on the Agency's substantial experience with these 
requirements, EPA believes that the part 258 criteria represent a 
reasonable balance between ensuring the protection of human health and 
the environment from the risks of these wastes and the practical 
realities of facilities' ability to implement the criteria. The 
engineered structures regulated under part 258 are very similar to 
those found at CCR disposal facilities, and the regulations applicable 
to such units would be expected to address the risks presented by the 
constituents in CCR wastes. Moreover, CCR wastes do not contain the 
constituents that are likely to require modification of the existing 
part 258 requirements, such as organics; for example, no adjustments 
would be needed to ensure that groundwater monitoring would be 
protective, as the CCR constituents are all readily distinguishable by 
standard analytical chemistry. As discussed throughout this preamble, 
each of the provisions adopted for today's subtitle D co-proposal 
relies, in large measure, on the record EPA developed to support the 40 
CFR part 258 municipal solid waste landfill criteria, along with the 
other record evidence specific to CCRs, discussed throughout the co-
proposed subtitle C alternative. EPA also relied on the Agency's Guide 
for Industrial Waste Management (EPA530-R-03-001, February 2003), to 
provide information on existing best management practices that 
facilities have likely adopted.
    The Guide was developed by EPA and state and tribal 
representatives, as well as a focus group of industry and public 
interest stakeholders chartered under the Federal Advisory Committee 
Act, and reflects a consensus view of best practices for industrial 
waste management. It also contains recommendations based on more recent 
scientific developments, and state-of-the art disposal practices for 
solid wastes.
    In addition, EPA considered that many of the technical requirements 
that EPA developed to specifically address the risks from the disposal 
of CCRs as part of the subtitle C alternative, would be equally 
justified under a RCRA subtitle D regime. Thus, for example, EPA is 
proposing the same MSHA-based standards for surface impoundments that 
are discussed as part of the subtitle C alternative. The factual 
record--i.e., the risk analysis and the damage cases--supporting such 
requirements is the same, irrespective of the statutory authority under 
which the Agency is operating. Although the statutory standards under 
subsections C and D differ, EPA has historically interpreted both 
statutory provisions to establish a comparable level of protection, 
corresponding to an acceptable risk level ranging between 1 x 10-4 to 1 
x 10-6. In addition, EPA does not interpret section 4004 to preclude 
the Agency from establishing more stringent requirements where EPA 
deems such more stringent requirements appropriate. Thus, several of 
the provisions EPA is proposing under RCRA subtitle D either correspond 
to the provisions EPA is proposing to establish for RCRA subtitle C, or 
are modeled after the existing subtitle C requirements. These 
provisions include the following regulatory provisions specific to CCRs 
that EPA is proposing to establish: Scope, and applicability (i.e., who 
will be subject to the rule criteria/requirements), the Design Criteria 
and Operating Criteria (including provisions for surface impoundment 
integrity), and several of the provisions specifying appropriate 
pollution control technologies. Additional support for EPA's decision 
to specify appropriate monitoring, corrective action, closure, and 
post-closure care requirements (since the specific requirements 
correlate closely with the existing 40 CFR 258 requirements) is found 
in the risk analysis and damage case information. Finally, many of the 
definitions are the same in each section.
    However, both the RCRA subtitle C proposals and the existing 40 CFR 
part 258 requirements were developed to be implemented in the context 
of a permitting program, where an overseeing authority evaluates the 
requirements, and can adjust them, as appropriate to account for site 
specific conditions. Because there is no corresponding guaranteed 
permit mechanism under the RCRA subtitle D regulations proposed today, 
EPA also considered the 40 CFR part 265 interim status requirements for 
hazardous waste facilities, which were designed to operate in the 
absence of a permit. The interim status requirements were particularly 
relevant in developing the proposed requirements for surface 
impoundments, since such units are not regulated under 40 CFR part 258. 
Beyond their self-implementing design, these requirements provided a 
useful model because, based on decades of experience in implementing 
these requirements, EPA has assurance that they provide national 
requirements that have proven to be protective for a variety of wastes, 
under a wide variety

[[Page 35194]]

of site conditions. Past experience also demonstrates that facilities 
can feasibly implement these requirements.
    Taking all of these considerations into account, EPA has generally 
designed the proposed RCRA subtitle D criteria to create self-
implementing requirements. These self-implementing requirements 
typically consist of a technical design standard (e.g., the composite 
liner requirement for new CCR landfills and surface impoundments). In 
addition, for many of these requirements, the Agency also has 
established performance criteria that the owner or operator can meet, 
in place of the technical design standard, which provides the facility 
with flexibility in complying with the minimum national criteria. EPA 
generally has chosen to propose an alternate performance standard for a 
number of reasons. In several cases, the alternative standard is 
intended to address the circumstances where the appropriate requirement 
is highly dependent on site-specific conditions (such as the spacing 
and location of ground-water wells); consequently, uniform, national 
standards that assure the requisite level of protection are extremely 
difficult to establish. EPA could establish a minimum national 
requirement, but to do so, EPA would need to establish the most 
restrictive criteria that would ensure protection of the most 
vulnerable site conditions. Because this would result in overregulation 
of less vulnerable sites, EPA questions whether such a restrictive 
approach would be consistent with the RCRA section 4004 standard of 
ensuring ``no reasonable probability of adverse effects.'' (emphasis 
added). The existing 40 CFR part 258 requirements provide the 
flexibility to address this issue by establishing alternate performance 
standards and relying on the oversight resulting from state permitting 
processes, and supported by EPA approval of state plans. Indeed, EPA 
made clear in the final MSWLF rule that this was the reason that 
several of the individual performance standards in the existing 40 CFR 
part 258 requirements are available only in states with EPA approved 
programs. See, e.g., 56 FR 51096 (authorizing alternative cover 
designs). However, EPA cannot rely on these oversight mechanisms to 
implement the RCRA 4004 subtitle D requirements. Under these provisions 
of RCRA, EPA lacks the authority to require state permits, approve 
state programs, and to enforce the criteria. Moreover as discussed in 
Section IV, the level of state oversight varies appreciably among 
states. Consequently, for these provisions EPA is also proposing to 
require the owner or operator of the facility to obtain certifications 
by independent registered professional engineers to provide 
verification that these provisions are properly applied. EPA has also 
proposed to require certifications by independent professional 
engineers more broadly as a mechanism to facilitate citizen oversight 
and enforcement. As discussed in greater detail below, EPA is proposing 
to require minimum qualifications for the professionals who are relied 
upon to make such certifications. In general, EPA expects that 
professionals in the field will have adequate incentive to provide an 
honest certification, given that the regulations require that the 
engineer not be an employee of the owner or operator, and that they 
operate under penalty of losing their license.
    EPA believes that these provisions allow facilities the flexibility 
to account for site conditions, by allowing them to deviate from the 
specific technical criteria, provided the alternative meets a specified 
performance standard, yet also provide some degree of third-party 
verification of facility practices. The availability of meaningful 
independent verification is critical to EPA's ability to conclude that 
these performance standards will meet the RCRA section 4004 
protectiveness standard. EPA recognizes that relying upon third party 
certifications is not the same as relying upon the state regulatory 
authority, and will likely not provide the same level of 
``independence.'' For example, although not an employee, the engineer 
will still have been hired by the utility. EPA therefore broadly 
solicits comment on whether this approach provides the right balance 
between establishing sufficient guarantee that the regulations will be 
protective, and offering facilities sufficient flexibility to be able 
to feasibly implement requirements that will be appropriate to the site 
conditions. In this regard, EPA would also be interested in receiving 
suggestions for other mechanisms to provide facility flexibility and/or 
verification.
    There is a broad range of the extent to which states already have 
some of these requirements in place under their current RCRA subtitle D 
waste management programs established under state law, as explained 
previously in this preamble. EPA and certain commenters, however, have 
identified significant gaps in state programs and current practices. 
For example, EPA does not believe that many, if any, states currently 
have provisions that would likely cause the closure of existing surface 
impoundments, such as the provisions in today's proposed rule that 
surface impoundments must either retrofit to meet all requirements, 
such as installing a composite liner, or stop receiving CCRs within a 
maximum of five years of the effective date of the regulation. The RCRA 
subtitle D proposal outlined here is intended to fill such gaps and 
ensure national minimum standards. EPA intends to provide a complete 
set of requirements, designed to ensure there will be no reasonable 
probability of adverse effects on health or the environment caused by 
CCR landfills or surface impoundments. EPA's co-proposed RCRA subtitle 
D minimum criteria are discussed below.
2. Notifications
    In response to EPA's lack of authority to require a state permit 
program or to oversee state programs, EPA has sought to enhance the 
protectiveness of the proposed RCRA subtitle D standards by providing 
for state and public notifications of the third party certifications, 
as well as other information that documents the decisions made or 
actions taken to comply with the performance criteria. As discussed in 
the section-by-section analysis below, documentation of how the various 
standards are met must be placed in the operating record and the state 
notified.
    The owner or operator must also maintain a web site available to 
the public that contains the documentation that the standard is met. 
EPA is proposing that owners and operators provide notification to the 
public by posting notices and relevant information on an internet site 
with a link clearly identified as being a link to notifications, 
reports, and demonstrations required under the regulations. EPA 
believes the internet is currently the most convenient and widely 
accessible means for gathering information and disseminating it to the 
public. However, the Agency solicits comments regarding the methods for 
providing notifications to the public and the states. EPA also solicits 
comments on whether there could be homeland security implications with 
the requirement to post information on an internet site and whether 
posting certain information on the internet may duplicate information 
that is already available to the public through the state.
    The co-proposed subtitle D regulation accordingly includes a number 
of public notice provisions. In particular, to ensure that persons 
residing near CCR surface impoundments are protected from potential 
catastrophic releases, we are proposing that when a potentially 
hazardous condition develops regarding

[[Page 35195]]

the integrity of a surface impoundment, that the owner or operator 
immediately notify potentially affected persons and the state. The 
Agency is also proposing to require that owners or operators notify the 
state, and place the report and other supporting materials in the 
operating record and on the company's internet site of various 
demonstrations, documentation, and certifications. Accordingly, notice 
must be provided: (1) Of demonstrations that CCR landfills or surface 
impoundments will not adversely affect human health or the environment; 
(2) of demonstrations of alternative fugitive dust control measures; 
(3) annually throughout the active life and post-closure care period 
that the landfill or surface impoundment is in compliance with the 
groundwater monitoring and corrective action provisions; (4) when 
documentation related to the design, installation, development, and 
decommission of any monitoring wells, piezometers and other 
measurement, sampling, and analytical devices has been placed in the 
operating record; (5) when certification of the groundwater monitoring 
system by an independent registered professional engineer or 
hydrologist has been placed in the operating record; (6) when 
groundwater monitoring sampling and analysis program documentation has 
been placed in the operating record; (7) when the use of an alternative 
statistical method is to be used in evaluating groundwater monitoring 
data and a justification for the alternative statistical method has 
been placed in the operating record; (8) when the owner or operator 
finds that there is a statistically significant increase over 
background for one or more of the constituents listed in Appendix III 
of the proposed rule, at any groundwater monitoring well; (9) when a 
notice of the results of assessment monitoring that may be required 
under the groundwater monitoring program is placed in the operating 
record; (10) when a notice is placed in the operating record that 
constituent levels that triggered assessment monitoring have returned 
to or below background levels; (11) when a notice of the intent to 
close the unit has been placed in the operating record; and (12) when a 
certification, signed by an independent registered professional 
engineer verifying that post-closure care has been completed in 
accordance with the post-closure plan, has been placed in the operating 
record. Please consult the proposed subtitle D regulation provided with 
this notice for all the proposed notification and documentation 
requirements.
    As explained earlier, the RCRA subtitle D approach relies on state 
and citizen enforcement. EPA believes that it cannot conclude that the 
RCRA subtitle D regulations will ensure there is no reasonable 
probability of adverse effects on health or the environment, unless 
there is a mechanism for states and citizens to monitor the situation, 
such as when groundwater monitoring shows exceedances, so that they can 
determine when intervention is appropriate. EPA also believes that 
notifications, such as those described above, will minimize the danger 
of owners or operators abusing the self-implementing system through 
increased transparency and by facilitating the citizen suit enforcement 
mechanism.
    EPA is proposing that owners and operators provide notification to 
the public by posting notices and relevant information on an internet 
site with a link clearly identified as being a link to notifications, 
reports, and demonstrations required under the regulations. EPA 
believes the internet is currently the most convenient and widely 
accessible means for gathering information. However, the Agency 
solicits comments regarding the methods for providing notifications to 
the public and the states.

B. Section-by-Section Discussion of RCRA Subtitle D Criteria

1. Proposed Modifications to Part 257, Subpart A
    EPA is proposing to modify the existing open dumping criteria found 
in 40 CFR 257.1, Scope and Purpose, to recognize the creation of a new 
subpart D, which consolidates all of the criteria adopted for 
determining which CCR Landfills and CCR Surface impoundments pose a 
reasonable probability of adverse effects on health or the environment 
under sections 1008(a)(3) and 4004(a) of the Act. Facilities and 
practices failing to satisfy these consolidated subpart D criteria 
violate RCRA's prohibition on open dumping. The proposed regulation 
also excludes CCR landfills and surface impoundments subject to 
proposed subpart D from subpart A, except as otherwise provided in 
subpart D.
    In general, these provisions are intended to integrate the new 
requirements with the existing open dumping criteria, and have only 
been modified to clarify that the proposed RCRA subtitle D regulations 
define which CCR landfills and surface impoundments violate the federal 
standards, and therefore may be enforced by citizen suit under RCRA 
4005(a) and 7002. EPA has also proposed language to make clear that 
those CCR landfills and surface impoundments that are subject to the 
new proposed Subpart D would not also be subject to Subpart A, with the 
exception of three of the existing Subpart A criteria (257.3-1, 
Floodplains, 257.3-2 Endangered Species, 257.3-3 Surface water) that 
would continue to apply to these facilities. The applicability of these 
three provisions to CCR disposal facilities is discussed later in this 
preamble.
    Finally, EPA also notes that its intent in excluding CCR landfills 
and surface impoundments from 40 CFR 257 Subpart A in this manner is to 
consolidate the requirements applicable to those particular facilities 
in one set of RCRA subtitle D regulations. EPA does not intend to 
modify the coverage of 40 CFR 257 subpart A as to other disposal 
facilities and practices for CCRs, such as beneficial uses of CCRs when 
they are applied to the land used for food-chain crops. It is EPA's 
intent that such activities would continue to be subject to the 
existing criteria under Subpart A.
2. General Provisions
    The proposed general provisions address the applicability of the 
new proposed RCRA Subpart D requirements, the continuing applicability 
of certain of the existing open dumping criteria, provide for an 
effective date of 180 days after promulgation, and define key terms for 
the proposed criteria.
    Applicability. The applicability provisions identify those solid 
waste disposal facilities subject to the new proposed RCRA Subpart D 
(i.e., CCR landfills and CCR surface impoundments as defined under 
proposed 257.40(b)). The applicability section also identifies three of 
the existing subpart A criteria that would continue to apply to these 
facilities: 257.3-1, Floodplains, 257.3-2 Endangered Species, 257.3-3 
Surface water. The applicability of these provisions to CCR disposal 
facilities is discussed later in this preamble.
    The applicability section also specifies an effective date of 180 
days after publication of the final rule. EPA believes that, with the 
specific exceptions discussed below, this time frame strikes a 
reasonable balance between the time that owners and operators of CCR 
units would need in order to come into compliance with the rule's 
requirements, and the need to implement the proposed requirements in a 
timeframe that will maximize protection of health and the environment. 
We note that 180 days is

[[Page 35196]]

the timeframe for persons to come into compliance with most of the 
requirements under RCRA subtitle C, and believe that if persons can 
meet the hazardous waste provisions within this time period under RCRA 
subtitle C, that it is reasonable to conclude that persons should be 
able to meet those same or similar requirements under RCRA subtitle D. 
EPA also notes that pending finalization of any regulations, facilities 
continue to be subject to the existing part 257 open dumping criteria 
as they may apply.
3. Definitions
    This section of the proposed regulation discusses the definitions 
of some of the key terms used in the proposed RCRA subtitle D rule that 
are necessary for the proper interpretation of the proposed criteria. 
Because EPA is creating a separate section of the regulations specific 
to CCR units, EPA is also consolidating the existing definitions in 
this section. However, by simply incorporating these unmodified 
definitions into this new section of the regulations, EPA is not 
proposing to reopen, or soliciting comments on these requirements. Nor, 
for definitions where the only modification relates to an adjustment 
specific to CCRs, is EPA proposing to revise or reopen the existing 
part 257 or part 258 definitions as they apply to other categories of 
disposal facilities, as those will remain unaltered. Accordingly, EPA 
will not respond to any comments on these definitions.
    Aquifer. EPA has defined aquifer for this proposal as a geologic 
formation, group of formations, or portion of a formation capable of 
yielding significant quantities of ground water to wells or springs. 
This is the same definition currently used in EPA's hazardous waste 
program and MSWLF criteria in 40 CFR 258.2 and differs from the 
original criteria definition (40 CFR 257.3-4(c)(1)) only in that it 
substitutes the term ``significant'' for ``usable.'' The Agency is 
proposing to adopt the modified definition to make the subtitle C and 
subtitle D alternatives consistent.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization wastes. CCRs are also known as coal 
combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes.
    CCR Landfill. The co-proposed criteria includes a definition of 
``CCR landfill'' to mean an area of land or an excavation, including a 
lateral expansion, in which CCRs are placed for permanent disposal, and 
that is not a land application unit, surface impoundment, or injection 
well. For purposes of this proposed rule, landfills also include piles, 
sand and gravel pits, quarries, and/or large scale fill operations. EPA 
modeled this definition after the definition of ``Municipal solid waste 
landfill (MSWLF) unit'' contained in the existing criteria for those 
facilities. Although this is somewhat different than the definition 
proposed under the subtitle C alternative (which is based on the 
existing part 260 definition), EPA intends for this proposed definition 
to capture those landfills and other large-scale disposal practices 
that are described in EPA's damage cases and risk assessments discussed 
in sections II, VI, and the RIA.
    CCR Surface Impoundment. EPA has proposed to define this term to 
mean a facility or part of a facility, including a lateral expansion, 
that is a natural topographic depression, human-made excavation, or 
diked area formed primarily of earthen materials (although it may be 
lined with human-made materials), that is designed to hold an 
accumulation of liquid CCR wastes or CCR wastes containing free liquids 
and that is not an injection well. EPA has included as examples of 
surface impoundments settling and aeration pits, ponds, and lagoons. 
This is the same definition that EPA is proposing as part of the 
subtitle C alternative, and is generally consistent with the definition 
of ``surface impoundment or impoundment'' contained in the existing 
257.2 criteria.
    EPA further proposes in the definition a description of likely 
conditions at a CCR surface impoundment, stating that CCR surface 
impoundments often receive CCRs that have been sluiced (flushed or 
mixed with water to facilitate movement), or wastes from wet air 
pollution control devices. EPA intends for this proposed definition to 
capture those surface impoundments that are described in EPA's damage 
cases and risk assessments described in sections II, VI, and the RIA.
    Existing CCR Landfill/Existing CCR Surface Impoundment. EPA has 
included a proposed definition of this term to mean a CCR landfill or 
surface impoundment, which was in operation on, or for which 
construction commenced prior to the effective date of the final rule. 
The proposed definition states that a CCR landfill or surface 
impoundment has commenced construction if: (1) The owner or operator 
has obtained the Federal, State and local approvals or permits 
necessary to begin physical construction; and (2) either (i) a 
continuous on-site, physical construction program has begun; or (ii) 
the owner or operator has entered into contractual obligations--which 
cannot be cancelled or modified without substantial loss--for physical 
construction of the CCR landfill or surface impoundment to be completed 
within a reasonable time. These definitions are identical to the co-
proposed subtitle C definitions, described in section VI. EPA sees no 
reason to establish separate definitions of these units for purposes of 
RCRA subtitle D since the question of whether these units are existing 
should not differ between whether they are regulated under RCRA 
subtitles C or D.
    Factor of Safety (Safety Factor). The proposed definition is the 
ratio of the forces tending to resist the failure of a structure to the 
forces tending to cause such failure as determined by accepted 
engineering practice. This definition is the same as the co-proposed 
subtitle C definitions, described in section VI. EPA sees no reason to 
establish a separate definition for this term for purposes of RCRA 
subtitle D since the question of ``Factor of safety'' should not differ 
between units that would be regulated under RCRA subtitles C or D.
    Hazard potential classification. This term is proposed to be 
defined as the possible adverse incremental consequences that result 
from the release of water or stored contents due to failure of a dam 
(or impoundment) or misoperation of the dam or appurtenances.
    The proposed definition further delineates the classification into 
four categories:

--High hazard potential surface impoundment which is a surface 
impoundment where failure or misoperation will probably cause loss of 
human life;
--Significant hazard potential surface impoundment which is a surface 
impoundment where failure or misoperation results in no probable loss 
of human life, but can cause economic loss, environmental damage, 
disruption of lifeline facilities, or impact other concerns; and
--Low hazard potential surface impoundment means a surface impoundment 
where failure or mis-operation results in no probable loss of human 
life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
--Less than low hazard potential surface impoundment means a surface 
impoundment not meeting the definitions for High, Significant, or Low 
Hazard Potential.

    This definition, just like the proposed RCRA subtitle C definition, 
follows the

[[Page 35197]]

Hazard Potential Classification System for Dams, developed by the U.S. 
Army Corps of Engineers for the National Inventory of Dams. This system 
is a widely-used definitional scheme for classifying the hazard 
potential posed by dams, and EPA expects that the regulated community's 
familiarity with these requirements will make their application to CCR 
surface impoundments relatively straightforward.
    Independent registered professional engineer or hydrologist. This 
term is defined as a scientist or engineer who is not an employee of 
the owner or operator of a CCR landfill or surface impoundment who has 
received a baccalaureate or post-graduate degree in the natural 
sciences or engineering and has sufficient training and experience in 
groundwater hydrology and related fields as may be demonstrated by 
state registration, professional certifications, or completion of 
accredited university programs that enable that individual to make 
sound professional judgments regarding groundwater monitoring, 
contaminant fate and transport, and corrective action.
    Because the proposed RCRA subtitle D requirements cannot presuppose 
the existence of a permit or state regulatory oversight, the criteria 
in today's proposed rule are self-implementing. However, as discussed 
earlier, to try to minimize the potential for overregulation, and to 
provide some degree of flexibility, EPA is proposing to allow 
facilities to deviate from the criteria upon a demonstration that the 
alternative meets a specified performance standard. But to provide for 
a minimum level of verification and to reduce the opportunity for 
abuse, the Agency believes it is imperative to have an independent 
party review, and certify the facility's demonstrations. The Agency 
also believes that those professionals certifying the requirements of 
today's proposed rule should meet certain minimum qualifications. The 
Agency is proposing to define a ``qualified ground-water scientist'' to 
be a scientist or engineer who has received a baccalaureate or post-
graduate degree in the natural sciences or engineering and has 
sufficient training and experience in ground-water hydrology and 
related fields as may be demonstrated by State registration, 
professional certification, or completion of accredited university 
programs that enable that individual to make sound professional 
judgments regarding ground-water monitoring, contaminant fate and 
transport, and corrective action. This requirement is the same as the 
current requirement at Sec.  258.50(f). The Agency believes that 
specialized coursework and training should include, at a minimum, 
physical geology, ground-water hydrology or hydrogeology, and 
environmental chemistry (e.g., soil chemistry or low temperature 
geochemistry). Some national organizations, such as the American 
Institute of Hydrology and the National Water Well Association, 
currently certify or register ground-water professionals. States may of 
course establish more stringent requirements for these professionals, 
including mandatory licensing or certification. As discussed above, EPA 
seeks comment on the proposed reliance on independent professionals in 
implementing the proposed flexibility of performance standards.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or existing CCR surface 
impoundment made after the effective date of the final rule. This 
definition is identical to the co-proposed subtitle C definition, 
described in section VI. EPA sees no reason to establish a separate 
definition of this term for purposes of RCRA subtitle D since whether a 
lateral expansion has occurred at a CCR landfill or surface impoundment 
should not differ between those units regulated under RCRA subtitles C 
or D.
    New CCR landfill means a CCR landfill from which there is placement 
of CCRs without the presence of free liquids, which began operation, or 
for which the construction commenced after the effective date of the 
rule. This definition is identical to the co-proposed subtitle C 
definition, described in section VI. EPA sees no reason to establish a 
separate definition for this term for purposes of RCRA subtitle D since 
whether a landfill is new should not differ between those landfills 
that are regulated under RCRA subtitles C or D.
    New CCR surface impoundment means a CCR surface impoundment into 
which CCRs with the presence of free liquids have been placed, which 
began operation, or for which the construction commenced after the 
effective date of the rule. EPA sees no reason to establish a separate 
definition for this term for purposes of RCRA subtitle D since whether 
a surface impoundment is new should not differ between those surface 
impoundments that are regulated under RCRA subtitles C or D.
    Recognized and generally accepted good engineering practices means 
engineering maintenance or operation activities based on established 
codes, standards, published technical reports, recommended practice, or 
similar document. Such practices detail generally approved ways to 
perform specific engineering, inspection, or mechanical integrity 
activities. In several provisions, EPA requires that the facility 
operate in accordance with ``recognized and generally accepted good 
engineering practices,'' or requires an independent engineer to certify 
that a design or operating parameter meets this standard. The 
definition references but does not attempt to codify any particular set 
of engineering practices, but to allow the professional engineer 
latitude to adopt improved practices that reflect the state-of-the art 
practices, as they develop over time. This definition is the same as 
the definition EPA is proposing under the subtitle C alternative.
4. Location Restrictions
    To provide for no reasonable probability of adverse effects on 
health or the environment from the disposal of CCRs at CCR landfills 
and surface impoundments, EPA believes that any RCRA subtitle D 
regulation would need to ensure that CCR disposal units were 
appropriately sited. The proposed location restrictions include 
requirements relating to placement of the CCRs above the water table, 
wetlands, fault areas, seismic impact zones, and unstable areas. In 
addition, as previously noted, the location standards in subpart A of 
40 CFR part 257 for floodplains, endangered species, and surface waters 
would also continue to apply. Finally, the proposed regulations also 
address the closure of existing CCR landfills and surface impoundments.
    The location standards in this proposal are primarily based on the 
location standards developed for municipal solid waste landfill units, 
and represent provisions to ensure that the structure of the disposal 
unit is not adversely impacted by conditions at the site, or that the 
location of a disposal unit at the site would not increase risks to 
human health or the environment. The criteria for municipal solid waste 
landfills provide restrictions on siting units in wetlands, fault 
areas, seismic impact zones, and unstable areas.\151\

[[Page 35198]]

Each of those factors is generally recognized as having the potential 
to impact the structure of a disposal unit negatively or increase the 
risks to human health and the environment. As discussed below in more 
detail, each of these provisions adopted for today's RCRA subtitle D 
co-proposal relies in large measure, on the record EPA developed to 
support the 40 CFR part 258 municipal solid waste landfill criteria. 
EPA's Guide for Industrial Waste Management (EPA530-R-03-001, February 
2003) also identifies these location restrictions as appropriate for 
industrial waste management. These proposed requirements are all 
discussed in turn below, after a general explanation of the Agency's 
proposed treatment of new CCR disposal units compared to existing CCR 
disposal units.
---------------------------------------------------------------------------

    \151\ The proposed definition of seismic impact zone was 
modified from the part 258 definition as explained in the 
``Discussion of Individual Location Requirements'' section below. 
The part 258 criteria also include location restrictions relating to 
airport safety and floodplains, in 258.10 and 258.11, respectively. 
EPA has not proposed an analogue to 258.10 because the hazard 
addressed by that criterion, bird strikes to aircraft, is 
inapplicable in the context of CCR disposal units, which do not tend 
to attract birds to them. As discussed in the main text, EPA is 
proposing to maintain the existing criterion in 257, subpart A for 
floodplains.
---------------------------------------------------------------------------

    a. Differences in Location Restrictions for Existing and New CCR 
Landfills and Surface Impoundments, and Lateral Expansions. EPA is 
proposing different sets of location restrictions under the Subtitle D 
approach, depending on whether a unit is a CCR landfill or surface 
impoundment, and whether it is an existing or new unit. Lateral 
expansions fall within the definitions of new units, and are treated 
accordingly.
    While new landfills would be required to comply with all of the 
location restrictions, EPA is proposing to subject existing landfills 
to only two of the location restrictions--floodplains, and unstable 
areas--in today's rule. Existing landfills are already subject to the 
floodplains location restriction because it is contained in the 
existing 40 CFR part 257, subpart A criteria, which have been in effect 
since 1979. Because owners and operators of existing landfills already 
should be in compliance with this criterion, applying this location 
restriction will have no impact to the existing disposal capacity, 
while continuing to provide protection of human health and the 
environment.
    The Agency decided to apply today's final unstable area location 
restriction to existing CCR landfills, because the Agency believes that 
the impacts to human health and the environment that would result from 
the rapid and catastrophic destruction of these units outweighs any 
disposal capacity concerns resulting from the closure of existing CCR 
disposal units.
    On the other hand EPA is not proposing to impose requirements on 
existing CCR landfills in wetlands, fault areas, or seismic impact 
areas. We base this decision on the possibility that a significant 
number of CCR landfills may be located in areas subject to this 
requirement. The Agency believes that such landfills pose less risks 
and are structurally less vulnerable than surface impoundments, and 
disposal capacity shortfalls, which could result if existing CCR 
landfills in these locations were required to close, raise greater 
environmental and public health concerns than the potential risks 
caused by existing units in these locations. For example, if existing 
CCR landfills located in wetlands were required to close, there would 
be a significant decrease in disposal capacity, particularly given the 
Agency's expectation that many existing surface impoundments will 
choose to close, in response to this proposed rule. In addition, 
wetlands are more prevalent in some parts of the country (e.g., Florida 
and Louisiana). In these States, the closure of all existing CCR 
landfills located in wetlands could potentially significantly disrupt 
statewide solid waste management. Therefore, the Agency believes that 
it may be impracticable to require the closure of existing CCR 
landfills located in wetlands. However, EPA seeks comment and 
additional information regarding the number of existing CCR landfills 
that are located in such areas.
    Concern about impacts on solid waste disposal capacity as well as 
the lower level of risks and the structural vulnerability of landfills, 
as compared to surface impoundments, were also the primary reasons the 
Agency is not proposing to subject existing CCR landfills to today's 
proposed fault area location restrictions. The closure of a significant 
number of existing CCR landfills located in fault areas could result in 
a serious reduction of CCR landfill capacity in certain regions of the 
U.S. where movement along Holocene faults is common, such as along the 
Gulf Coast and in much of California and the Pacific Northwest. The 
Agency, however, does not have specific data showing the number of 
units and the distance between these disposal units and the active 
faults, and therefore, is unable to precisely estimate the number of 
these existing CCR landfills that would not meet today's fault area 
restrictions. EPA therefore solicits comment and additional data and 
information regarding the extent to which existing CCR landfills are 
currently located in such locations. However, given the potential for 
impacts on solid waste capacity and the lower levels of risk associated 
with landfills compared to surface impoundments, EPA has concluded that 
it may not be appropriate to subject existing CCR landfills to the 
proposed fault area requirements.
    Similarly, the Agency is not proposing to impose the seismic impact 
zone restrictions on existing CCR landfills located in these areas. As 
with the other location restrictions, the Agency anticipates that a 
significant number of existing CCR disposal units are located in these 
areas. EPA is concerned that such facilities would be unable to meet 
the requirements, because retrofitting would be prohibitively expensive 
and technically very difficult in most cases, and would therefore be 
forced to close.
    EPA generally seeks comment and additional information regarding 
the extent to which CCR landfill capacity would be affected by applying 
these location restrictions to existing CCR landfills. Information on 
the prevalence of existing CCR landfills in such areas would be of 
particular interest to the Agency. EPA also notes that the proposed 
location requirements do not reflect a complete prohibition on siting 
facilities in such areas, but provide a performance standard that 
facilities must meet in order to site a unit in such a location. EPA 
therefore solicits comment on the extent to which facilities could 
comply with these performance standards, and the necessary costs that 
would be incurred to retrofit the unit to meet these standards.
    As discussed earlier in this preamble, this proposed approach is 
generally consistent with the proposed approach to existing landfills 
under subtitle C of RCRA, and with Congressional distinctions between 
the risks presented by landfills and surface impoundments. Existing 
landfills that are brought into the hazardous waste system because they 
are receiving newly listed hazardous wastes are not generally required 
to be retrofitted with a new minimum-technology liner/leachate 
collection and removal system (or to close), and they would not be 
subject to such requirements under today's proposal. EPA sees no reason 
or special argument to adopt more stringent requirements under the co-
proposed subtitle D criteria for CCR landfills, particularly given the 
volume of the material and the disruption that could be involved if 
these design requirements were applied to existing landfills.
    By contrast, and consistent with its approach to existing surface 
impoundments under subtitle C, the proposed regulations would apply all 
of the location restrictions to existing surface impoundments. This 
means that facilities would need to either

[[Page 35199]]

demonstrate that the surface impoundment meets the performance standard 
that serves as the alternative to the prohibition, retrofit the unit so 
that it can meet the performance standard, or close. EPA is making this 
distinction because, as discussed in sections IV-VI, the record 
indicates that the risks associated with CCR surface impoundments are 
substantially higher than the risks posed by CCR landfills. The impacts 
to human health and the environment that would result from the rapid 
and catastrophic destruction of these units could result in injuries to 
human health and the environment, that are far more significant, as 
illustrated by the impacts of the recent TVA spill in Tennessee. The 
risks to human health and the environment of such a catastrophic 
collapse far outweigh the costs of requiring surface impoundments to 
retrofit or close. Moreover, there are significant economic costs 
associated with the failure of a surface impoundment; as noted earlier, 
the direct cost to clean up the TVA spill is currently estimated to 
exceed one billion dollars. Surface impoundments also are more 
vulnerable to structural problems if located in unstable areas, fault 
areas and seismic impact areas. Finally, as already noted, the 
distinction EPA is making between existing landfills and existing 
surface impoundments is also consistent with Congressional direction; 
as discussed in section VI, Congress specifically required existing 
surface impoundments receiving hazardous wastes to retrofit to meet the 
new statutory requirements or to close, in direct contrast to their 
treatment of existing landfills.
    Although many surface impoundments may close as a result of these 
requirements, EPA believes that it is proposing to take a number of 
actions to alleviate concerns that this will present significant 
difficulties with regard to disposal capacity in the short-term: e.g., 
``grandfathering'' in existing CCR landfills, allowing CCR landfills to 
vertically expand without retrofitting, and delayed implementation 
dates. At the same time, as discussed in greater detail in section VI, 
with regard to the subtitle C co-proposal, EPA is soliciting comment on 
the appropriate amount of time necessary to meet these time frames as 
well as measures that could help to address the potential for 
inadequate disposal capacity. EPA notes, however, that unlike under the 
subtitle C co-proposal, EPA is not proposing to require facilities to 
cease wet handling. Thus EPA expects that both the impacts and the time 
frames needed for facilities to come into compliance would be lower.
    While the proposed requirements relating to the placement above the 
water table, wetlands, fault areas, and seismic impact zones would not 
apply to existing CCR disposal units, all of these restrictions apply 
to lateral expansions of existing CCR disposal units, as well as new 
CCR disposal units. Therefore, under the proposal, owners and operators 
of existing CCR landfills could vertically expand their existing 
facilities in these locations, but must comply with the provisions 
governing new units if they wish to laterally expand. EPA expects that 
allowing such vertical expansion will allow for increased capacity, 
which will be particularly important, if, as EPA expects, many surface 
impoundments would close, should this regulation be adopted. At the 
same time, EPA believes that the risks to human health or the 
environment will be mitigated because facilities will be required to 
otherwise comply with the more stringent environmental restrictions, 
such as the corrective action and closure provisions proposed below.
b. Discussion of Individual Location Requirements
    Placement above the water table. The co-proposed subtitle D 
regulations would prohibit new CCR landfills and all surface 
impoundments from being located within two feet of the upper limit of 
the natural water table. EPA is proposing to define the natural water 
table as the natural level at which water stands in a shallow well open 
along its length and penetrating the surficial deposits just deeply 
enough to encounter standing water at the bottom. This is the level of 
water that exists, when uninfluenced by groundwater pumping or other 
engineered activities.
    Floodplains. CCR landfills and surface impoundments are currently 
subject to the open dumping criteria contained in 40 CFR 257, Subpart 
A. These minimum criteria include restrictions on floodplain impacts 
under 257.3-1. As facilities should already be complying with this 
requirement, EPA is not proposing to modify it as part of today's rule. 
Accordingly, EPA is not reopening this requirement.
    Wetlands. The regulations require that the facility prepare and 
make available a written demonstration that such engineering measures 
have been incorporated into the unit's design to mitigate any potential 
adverse impact, and require certification by an independent registered 
professional engineer either that the new CCR disposal unit is not in a 
prohibited area, as defined by the regulation, or that the 
demonstration meets the regulatory standards.
    Today's proposed wetland provisions would apply only to new CCR 
landfills, including lateral expansions of existing CCR disposal units, 
and all surface impoundments. New CCR landfills, which include lateral 
expansions, as well as all surface impoundments, are barred from 
wetlands unless the owner or operator of the disposal unit can make the 
following demonstrations certified by an independent registered 
professional engineer or hydrologist. First, the owner or operator must 
rebut the presumption that a practicable alternative to the proposed 
CCR disposal unit or lateral expansion is available that does not 
involve wetlands. Second, the owner or operator must show that the 
construction or operation of the unit will not cause or contribute to 
violations of any applicable State water quality standard, violate any 
applicable toxic effluent standard or prohibition, jeopardize the 
continued existence of endangered or threatened species or critical 
habitats, or violate any requirement for the protection of a marine 
sanctuary. Third, the owner or operator must demonstrate that the CCR 
disposal unit or lateral expansion will not cause or contribute to 
significant degradation of wetlands. To this end, the owner or operator 
must ensure the integrity of the CCR disposal unit, and its ability to 
protect ecological resources by addressing: erosion, stability, and 
migration potential of native wetland soils, muds and deposits used to 
support the unit; erosion, stability, and migration potential of 
dredged and fill materials used to support the unit; the volume and 
chemical nature of the CCRs; impacts on fish, wildlife, and other 
aquatic resources and their habitat from release of CCRs; the potential 
effects of catastrophic release of CCRs to the wetland and the 
resulting impacts on the environment; and any additional factors, as 
necessary, to demonstrate that ecological resources in the wetland are 
sufficiently protected. Fourth, the owner or operator must demonstrate 
that steps have been taken to attempt to achieve no net loss of 
wetlands by first avoiding impacts to wetlands to the maximum extent 
practicable, then minimizing unavoidable impacts to the maximum extent 
practicable, and finally offsetting remaining unavoidable wetland 
impacts through all appropriate and practicable compensatory mitigation 
actions. The owner or operator must place the demonstrations in the 
operating record and the

[[Page 35200]]

company's Internet site, and notify the state that the demonstrations 
have been placed in the operating record.
    For facilities that cannot make such a demonstration, this proposed 
provision effectively bans the siting of new CCR landfills or surface 
impoundments in wetlands, and would require existing surface 
impoundments to close.
    EPA notes that this section of the proposal is consistent with 
regulatory provisions currently governing the CWA section 404 program, 
including the definition of wetlands contained in proposed 257.61. See 
40 CFR 232.2(r). EPA believes that wetlands are very important, fragile 
ecosystems that must be protected, and has identified wetlands 
protection as a top priority. Nevertheless, EPA has proposed to 
continue to allow existing CCR landfills to be sited in wetlands to 
minimize the disruption to existing CCR disposal facilities, as it is 
EPA's understanding that many existing CCR landfills are located near 
surface water bodies, in areas that also may qualify as wetlands under 
the proposed criteria. Likewise, EPA is concerned that an outright ban 
of new CCR landfills in wetlands would severely restrict the available 
sites or expansion possibilities, given that EPA is proposing to impose 
other conditions on surface impoundments that may cause many to 
ultimately close. As noted in section VI, concerns have been raised 
regarding the potential for disposal capacity shortfalls, which could 
lead to other health and environmental impacts, such as the 
transportation of large volumes of CCRs over long distances to other 
sites. Accordingly to provide additional flexibility in the proposed 
RCRA Subtitle D rules, and to address concerns regarding the potential 
for disposal capacity shortfalls, EPA is not proposing an outright ban 
on siting of existing CCR disposal units in wetlands.
    However, EPA continues to believe that siting new CCR disposal 
units in wetlands should only be done under very limited conditions. 
The Agency is therefore proposing a comprehensive set of demonstration 
requirements. In addition, the Agency believes that when such 
facilities are sited in a wetland, that the owner or operator should 
offset any impacts through appropriate and practicable compensatory 
mitigation actions (e.g., restoration of existing degraded wetlands or 
creation of man-made wetlands). This approach is consistent with the 
Agency's goal of achieving no overall net loss of the nation's 
remaining wetland base, as defined by acreage and function. 
Specifically, Sec.  257.61(a)(4) requires owners or operators of new 
CCR landfills and surface impoundments to demonstrate that steps have 
been taken to achieve no net loss of wetlands (as defined by acreage 
and function) by first avoiding impacts to wetlands and then minimizing 
such impacts to the maximum extent feasible, and finally, offsetting 
any remaining wetland impacts through all appropriate and feasible 
compensatory mitigation actions (e.g., restoration of existing degraded 
wetlands or creation of man-made wetlands).
    The Agency has also included other requirements to ensure that the 
demonstrations required under the proposed rule are comprehensive and 
ensure no reasonable probability of adverse effects to human health and 
the environment. First, EPA has included language in Sec.  257.61(a)(2) 
clarifying that the owner or operator must demonstrate that both the 
construction and operation of the unit will not result in violations of 
the standards specified in Sec.  257.61(a)(2)(i)-(iv). Second, in Sec.  
257.61(a)(3) EPA proposes to identify the factors the owner or operator 
must address in demonstrating that the unit will not cause or 
contribute to significant degradation of wetlands. These factors, which 
were partially derived from the section 404(b)(1) guidelines, address 
the integrity of the CCR unit and its ability to protect the ecological 
resources of the wetland. In addition, EPA is proposing requirements 
for third-party certification and state/public notice, to provide some 
verification of facility practices, and to generally assist citizens' 
ability to effectively intervene and enforce the requirements, as 
necessary.
    Fault Areas. The proposed rule would ban the location of new CCR 
landfills and any surface impoundment within 200 feet (60 meters) of 
faults that have experienced displacement during the Holocene Epoch. 
The Holocene is a unit of geologic time, extending from the end of the 
Pleistocene Epoch to the present and includes the past 11,000 years of 
the Earth's history. EPA is proposing to define a fault to include a 
zone or zones of rock fracturing in any geologic material along which 
there has been an observable amount of displacement of the sides 
relative to each other. Faulting does not always occur along a single 
plane of movement (a ``fault''), but rather along a zone of movement (a 
``fault zone''). Therefore, ``zone of fracturing,'' which means a fault 
zone in the context of the definition, is included as part of the 
definition of fault, and thus the 200-foot setback distance will apply 
to the outermost boundary of a fault or fault zone.
    The 200-foot setback was first adopted by EPA in the criteria for 
municipal solid waste landfills (MSWLFs), codified at 40 CFR part 258. 
In the course of that proceeding, EPA documented that seismologists 
generally believed that the structural integrity of MSWLFs could not be 
unconditionally guaranteed when they are built within 200-feet of a 
fault along which movement is highly likely to occur. Moreover, EPA 
relied on a study that showed that damage to engineered structures from 
earthquakes is most severe when the structures were located within 200-
feet of the fault along which displacement occurred. Because the 
engineered structures found at MSWLFs are similar to those found in CCR 
disposal units, EPA expects that the potential for damage to those 
structures would be similar in the event of an earthquake near a CCR 
landfill or surface impoundment. Therefore, EPA is proposing a similar 
setback requirement for new CCR landfills and all surface impoundments. 
In general, EPA believes that the 200-foot buffer zone is necessary to 
protect engineered structures from seismic damages. EPA also expects 
that the 200-foot buffer is appropriate for CCR surface impoundments, 
but seeks comment and data on whether the buffer zone should be greater 
for such units.
    However, the Agency is also concerned that the 200-foot setback may 
be overly protective in some geologic formations, but it is unable to 
provide a clear definition of these geologic formations. Therefore, the 
Agency is proposing to allow the opportunity for an owner or operator 
of a new CCR disposal unit to demonstrate that an alternative setback 
distance of less than 200 feet will prevent damage to the structural 
integrity of facility and will be protective of human health and the 
environment. The demonstration must be certified by an independent 
registered professional engineer and the owner or operator of the CCR 
disposal unit must notify the state that the demonstration has been 
placed in the operating record and on the company's internet site. This 
approach is consistent with other sections of today's RCRA subtitle D 
co-proposal for alternatives to the specified self-implementing 
requirement.
    Seismic Impact Zones. As noted, the proposed rule would also ban 
the location of new CCR landfills and any surface impoundments in 
seismic impact zones, unless owners or operators demonstrate that the 
unit is designed to resist the maximum horizontal acceleration in 
lithified earth material for the site. The design features

[[Page 35201]]

to be protected include all containment structures (i.e., liners, 
leachate collection systems, and surface water control systems). The 
demonstration must be certified by an independent registered 
professional engineer and the owner or operator must notify the state 
that the demonstration has been placed in the operating record and on 
the company's internet site. For purposes of this requirement, EPA is 
proposing to define seismic impact zones as areas having a 10 percent 
or greater probability that the maximum expected horizontal 
acceleration in hard rock, expressed as a percentage of the earth's 
gravitation pull (g), will exceed 0.10g in 250 years. This is based on 
the existing part 258.14 definition of seismic impact. The maps for the 
250-year intervals are readily available for all of the U.S. in the 
U.S. Geological Survey Open-File Report 82-1033, entitled 
``Probabilistic Estimates of Maximum Acceleration and Velocity in Rock 
in the Contiguous United States.''
    Another approach would be to adopt criteria of the National 
Earthquake Hazards Reduction Program (NEHRP) of the U.S. Geological 
Survey used to develop national seismic hazard maps. The NEHRP uses 
ground motion probabilities of 2, 5, and 10% in 50 years to provide a 
relative range of seismic hazard across the country. The larger 
probabilities indicate the level of ground motion likely to cause 
problems in the western U.S. The smaller probabilities show how 
unlikely damaging ground motions are in many places of the eastern U.S. 
The maps are available at http://earthquake.usgs.gov/hazards/products/. 
A 50 year time period is commonly used because it represents the 
typical lifespan of a building, and a 2% probability level is generally 
considered an acceptable hazard level for building codes. For areas 
along known active faults, deterministic and scenario ground motion 
maps could be used to describe the expected ground motions and effects 
of specific hypothetical large earthquakes (see http://
earthquake.usgs.gov/hazards/products/scenario/). The Agency solicits 
comments on the proposed definition and whether there are variants like 
those used to develop the national seismic hazard maps that could 
lessen the burden on the industry and the geographic areas covered by 
the proposed definition. For additional information on the National 
Seismic Hazard Mapping Project, see http://earthquake.usgs.gov/hazards/
about/.
    Unstable Areas. EPA is proposing to require owners or operators of 
all CCR landfills, surface impoundments and lateral expansions located 
in unstable areas to demonstrate that the integrity of the structural 
components of the unit will not be disrupted. EPA's damage cases have 
provided indirect evidence of the kind of environmental and human 
health risks that would be associated with failure of the structural 
components of the surface impoundment from subsidence or other 
instability of the earth at a CCR disposal unit. Accordingly, EPA 
believes that, to provide a reasonable probability of preventing 
releases and consequent damage to health and the environment from CCRs 
released from landfills or surface impoundments, limits on the siting 
of such disposal units is appropriate.
    The proposed Subtitle D rule provides that ``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 CCR 
disposal unit's structural components responsible for preventing 
releases from such units. Unstable areas are characterized by localized 
or regional ground subsidence, settling (either slowly, or very rapidly 
and catastrophically) of overburden, or by slope failure. The owner or 
operator must consider the following factors when determining whether 
an area is unstable: (1) On-site or local soil conditions that may 
result in significant differential settling; (2) on-site or local 
geologic or geomorphologic features; and (3) on-site or local human-
made features or events (on both the surface and subsurface). The 
structural components include liners, leachate collection systems, 
final cover systems, run-on and run-off control systems, and any other 
component used in the construction and operation of the CCR landfill, 
surface impoundment or lateral expansion that is necessary for 
protection of human health and the environment.
    Unstable areas generally include:
    (1) Poor foundation conditions--areas where features exist that may 
result in inadequate foundation support for the structural components 
of the CCR landfill, surface impoundment or lateral expansion (this 
includes weak and unstable soils);
    (2) Areas susceptible to mass movement--areas where the downslope 
movement of soil and rock (either alone or mixed with water) occurs 
under the influence of gravity; and
    (3) Karst terraces--areas that are underlain by soluble bedrock, 
generally limestone or dolomite, and may contain extensive subterranean 
drainage systems and relatively large subsurface voids whose presence 
can lead to the rapid development of sinkholes.
    Karst areas are characterized by the presence of certain 
physiographic features such as sinkholes, sinkhole plains, blind 
valleys, solution valleys, losing streams, caves, and big springs, 
although not all these features are always present. EPA's intent in 
this proposed requirement is to include as an unstable area only those 
karst terraces in which rapid subsidence and sinkhole development have 
been a common occurrence in recent geologic time. Many of the karst 
areas are shown on the U.S. Geological Survey's National Atlas map 
entitled ``Engineering Aspects of Karst,'' published in 1984.
    Specific examples of such natural or human-induced phenomena 
include: Debris flows resulting from heavy rainfall in a small 
watershed; the rapid formation of a sinkhole as a result of excessive 
local or regional ground-water withdrawal; rockfalls along a cliff face 
caused by vibrations set up by the detonation of explosives, sonic 
booms, or other mechanisms; or the sudden liquefaction of a soil with 
the attendant loss of shear strength following an extended period of 
constant wetting and drying. Various naturally-occurring conditions can 
make an area unstable and these can be very unpredictable and 
destructive, especially if amplified by human-induced changes to the 
environment. Such conditions can include the presence of weak soils, 
over steepened slopes, large subsurface voids, or simply the presence 
of large quantities of unconsolidated material near a watercourse.
    The Agency recognizes that rapid sinkhole formation that occurs in 
some karst terraces can pose a serious threat to human health and the 
environment by damaging the structural integrity of dams, liners, caps, 
run-on/run-off control systems, and other engineered structures. 
However, EPA is not proposing an outright ban of CCR landfills and 
surface impoundments in all karst terraces because of concerns 
regarding the impacts of such a ban in certain regions of the country. 
For example, several States (i.e., Kentucky, Tennessee) are comprised 
mostly of karst terraces and banning all CCR disposal facilities in 
karst terraces would cause severe statewide disruptions in capacity 
available for CCR disposal. Moreover, the Agency believes that some 
karst terraces may provide sufficient structural support for CCR 
disposal units and has accordingly tried to provide flexibility for 
siting in these areas. Therefore, EPA is proposing to allow the 
construction of new CCR units, and the continued operation of

[[Page 35202]]

existing CCR landfills and surface impoundments in karst terraces where 
the owner or operator can demonstrate that engineering measures have 
been incorporated into the landfill, surface impoundment, or lateral 
expansion design to ensure that the integrity of the structural 
components of the landfill or surface impoundment will not be 
disrupted. The demonstration must be certified by an independent 
registered professional engineer, and the owner or operator must notify 
the state that the demonstration has been placed in the operating 
record and on the company's internet site.
    Closure of Existing CCR Landfills and Surface Impoundments. The 
proposed rule would require owners and operators of existing CCR 
landfills and surface impoundments that cannot make the demonstrations 
required under Sec.  257.62(a) after the effective date of the rule, to 
close the landfill or surface impoundment within five years of the date 
of publication of the final rule. Closure and post-closure care must be 
done in accordance with Sec.  257.100 and Sec.  257.101. The proposed 
rule would also allow for a case-by-case extension for up to two more 
years if the facility can demonstrate that there is no alternative 
disposal capacity and there is no immediate threat to health or the 
environment. This demonstration must be certified by an independent 
registered professional engineer or hydrologist. The owner or operator 
must place the demonstration in the operating record and on the 
company's internet site and notify the state that this action was 
taken.
    Thus, the proposed rule allows a maximum of 7 years from the 
effective date of the final rule if this alternative is finally 
promulgated for existing CCR landfills to comply with the unstable area 
restrictions, and existing CCR surface impoundments to comply with the 
location restrictions or to close. As discussed under the subtitle C 
option, EPA believes that five years will, in most cases, be adequate 
time to complete proper and effective facility closure and to arrange 
for alternative waste management. However, there may be cases where 
alternative waste management capacity may not be readily available or 
where the siting and construction of a new facility may take longer 
than five years. EPA believes the two-year extension should provide 
sufficient time to address these potential problems. EPA continues to 
believe that impacts on human health and the environment need to be 
carefully considered, and therefore, today's proposed rule requires the 
owner or operator to demonstrate that there is no available alternative 
disposal capacity and there is no potential threat to human health and 
the environment before adopting the two-year extension. These time 
frames are consistent with those EPA is proposing under its subtitle C 
co-proposal for surface impoundments. EPA is aware of no reason that 
the time frames would need to differ under subtitle D, but solicits 
comment on this issue.
5. Design Requirements
    The CCR damage cases and EPA's quantitative groundwater risk 
assessment clearly show the need for effective liners--namely composite 
liners--to very significantly reduce the probability of adverse 
effects. The co-proposed subtitle D design standards would require that 
new landfills and all surface impoundments that have not completed 
closure prior to the effective date of the rule, can only continue to 
operate if composite liners and leachate collection and removal systems 
have been installed. Units must be retrofitted or closed within five 
years of the effective date of the final rule, which is the time frame 
EPA is proposing for surface impoundments to retrofit or close under 
the subtitle C alternative. EPA is proposing to require the same liner 
and leachate collection and removal systems as part of the subtitle D 
criteria that are being proposed under the RCRA subtitle C co-proposal. 
The technical justification for these requirements is equally 
applicable to the wastes and the units, irrespective of the statutory 
authority under which the requirement is proposed.
    EPA is also proposing to adopt the same approach to new and 
existing units under RCRA subtitle D that it is proposing under RCRA 
subtitle C. EPA would only require new landfills (or new portions of 
existing landfills) to meet these minimum technology requirements for 
liners and leachate collection and removal systems. Existing landfills 
that continue to receive CCRs after the effective date of the final 
rule, would not be required to be retrofitted with a new minimum-
technology liner/leachate collection and removal system (or to close). 
They can continue to receive CCRs, and continue to operate as compliant 
landfills, without violating the open dumping prohibition. However, 
existing landfills would have to meet groundwater monitoring, 
corrective action, and other requirements (except as noted) of the 
subtitle D criteria, to assure that any groundwater releases from the 
unit were identified and promptly remediated. EPA sees no reason or 
special argument to adopt any different approach under the co-proposed 
subtitle D regulations for CCR landfills, particularly given the volume 
of the material and the disruption that would be involved if these 
design requirements were applied to existing landfills.
    By contrast, existing surface impoundments that have not completed 
closure by the effective date of the final rule would be required to 
retrofit to install a liner. This is consistent with, but not identical 
to, the approach proposed under the RCRA subtitle C alternative. Under 
the subtitle C alternative, EPA is not proposing to require existing 
surface impoundments to install the proposed liner systems because the 
impoundments would only continue to operate for a limited period of 
time. EPA's proposed treatment standards--dewatering the wastes--will 
effectively phase out wet handling of CCRs. During this interim period 
(seven years as proposed), EPA believes that it would be infeasible to 
require surface impoundments to retrofit, and that compliance with the 
groundwater monitoring and other subtitle C requirements would be 
sufficiently protective. EPA lacks the authority under RCRA subtitle D 
to establish a comparable requirement; EPA only has the authority under 
RCRA section 4004 to establish standards relating to ``disposal,'' not 
treatment, of solid wastes. Although EPA expects that many surface 
impoundments will choose to close rather than install a liner, wet-
handling of CCRs can continue, even in existing units, and EPA's risk 
assessment confirms that the long-term operation of such units would 
not be protective without the installation of the composite liner and 
leachate collection system described below.
    The composite liner would consist of two components: An upper 
component consisting of a minimum 30-mil flexible membrane liner (FML), 
and a lower component consisting of at least a two-foot layer of 
compacted soil with a hydraulic conductivity of no more than 
1x10-7cm/sec. The FML component would be required to be 
installed in direct and uniform contact with the compacted soil 
component. (In other words, the new landfill or new surface impoundment 
would be required to have a liner and leachate collection and removal 
system meeting the same design standard now included in EPA's municipal 
solid waste landfill criteria.) EPA solicits comment, however, on 
whether any subtitle D option should allow facilities to use an 
alternative design for new disposal units, so long as the owner or 
operator of a unit could obtain certification from an independent

[[Page 35203]]

registered professional engineer or hydrologist that the alternative 
design would ensure that the appropriate concentration values for a set 
of constituents typical of CCRs will not be exceeded in the uppermost 
aquifer at the relevant point of compliance--i.e., 150 meters from the 
unit boundary down gradient from the unit, or the property boundary if 
the point of compliance (i.e., the monitoring well) is beyond the 
property boundary. Although the existing part 258 requirements allow 
for such a demonstration, EPA is not proposing such a requirement in 
today's rule. EPA's risk assessment shows that only a composite liner 
would ensure that disposal of CCR will meet the RCRA section 4004 
standard on a national level, even though site specific conditions 
could support the use of alternate liner designs in individual 
instances. In the absence of a strong state oversight mechanism, such 
as a permit, EPA is reluctant to allow facilities to modify this key 
protection. Nevertheless, EPA would be interested in receiving data and 
information that demonstrates whether under other site conditions, an 
alternative liner would be equally protective. In this regard, EPA 
would also be interested in information documenting the extent to which 
such conditions currently exist at CCR units. If EPA adopts such a 
performance standard, EPA anticipates adopting a requirement that is as 
consistent as possible with the existing part 258 requirements, and 
would require the same documentation and notification procedures as 
with the other self-implementing provisions in the co-proposed subtitle 
D option.
    --Stability requirements for surface impoundments. In our recent 
assessment of surface impoundments managing CCRs, EPA has identified 
deficiencies in units currently receiving wet-handled CCRs.\152\ The 
damage cases also demonstrate the need for requirements to address the 
stability of surface impoundments, to prevent the damages associated 
with a catastrophic failure, such as occurred at the TVA facility in 
2008. EPA is therefore proposing to adopt as part of the subtitle D 
operating criteria for surface impoundments, the same stability 
requirements that are proposed as part of the subtitle C alternative. 
As explained in that section, these are based on the long-standing MSHA 
requirements, with only minor modifications necessary to tailor the 
requirements to CCR unit conditions.
---------------------------------------------------------------------------

    \152\ For the findings of the assessment, see: http://
www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/
index.htm#surveyresults.
---------------------------------------------------------------------------

    For those surface impoundments which continue to operate, (i.e., 
both new and existing) the proposed regulation would require that an 
independent registered professional engineer certify that the design of 
the impoundment is in accordance with recognized and generally accepted 
good engineering practices for the maximum volume of CCR slurry and 
wastewater that will be impounded therein, and that together design and 
management features ensure dam stability. The proposed regulation also 
requires the facility to conduct weekly inspections to ensure that any 
potentially hazardous condition or structural weakness will be quickly 
identified. As with the co-proposed RCRA subtitle C option, the 
proposed RCRA subtitle D regulation also requires that existing and new 
CCR surface impoundments be inspected annually by an independent 
registered professional engineer to assure that the design, operation, 
and maintenance of the surface impoundment is in accordance with 
current, prudent engineering practices for the maximum volume of CCR 
slurry and CCR waste water which can be impounded. EPA has concluded, 
subject to consideration of public comment, that these requirements are 
necessary to ensure that major releases do not occur that would cause 
adverse effects on health or the environment.
6. Operating Requirements
    EPA is proposing to establish specific criteria to address the day-
to-day operations of the CCR landfill or surface impoundment. The 
criteria were developed to prevent the health and environmental impacts 
from CCR landfills and surface impoundments identified in EPA's 
quantitative risk groundwater risk assessment and the damage cases. 
Included among these criteria are controls relating to runon and runoff 
from the surface of the facilities, discharges to surface waters, and 
pollution caused by windblown dust from landfills, and recordkeeping.
    --Existing criteria for Endangered Species and Surface Water. CCR 
landfills and surface impoundments are currently subject to the open 
dumping criteria contained in 40 CFR 257, Subpart A. These minimum 
criteria include restrictions on impacts to endangered species under 
257.3-2, and impacts to surface water under 257.3-3. As facilities 
should already be complying with these requirements, EPA is not 
proposing to modify these existing requirements in today's co-proposal. 
EPA notes that the surface water criterion is not enforceable by RCRA 
citizen suit. The extent to which this criterion may be enforced is 
governed by the remedies available under the CWA, which is the source 
of the requirement, rather than RCRA. See, e.g., Arc Ecology v. U.S. 
Maritime Admin., No. 02:07-cv-2320 (E.D. Cal. Jan. 21, 2010); 
Guidelines for the Development and Implementation of State Solid Waste 
Management Plans and Criteria for Classification of Solid Waste 
Disposal Facilities and Practices, 46 Fed. Reg. 47048, 47050 (Sept. 23, 
1981).
    --Run-on and run-off controls. The purpose of the run-on standard 
is to minimize the amount of surface water entering the landfill and 
surface impoundment facility. Run-on controls prevent (1) Erosion, 
which may damage the physical structure of the landfill; (2) the 
surface discharge of wastes in solution or suspension; and (3) the 
downward percolation of run-on through wastes, creating leachate. The 
proposed regulation requires run-on control systems to prevent flow 
onto the active portion of the CCR landfill or surface impoundment 
during the peak discharge from a 24-hour, 25-year storm. This helps to 
ensure that run-off does not cause an overflow of the surface 
impoundment or scouring of material from a landfill or the materials 
used to build the surface impoundment.
    Run-off is one of the major sources of hazardous constituent 
releases from mismanaged waste disposal facilities, including CCR 
landfills and surface impoundments. Additionally, run-off control 
systems from the active portion of CCR disposal units are required to 
collect and control at least the water volume resulting from a 24-hour, 
25-year storm. This protects surface water that would otherwise flow 
untreated into a body of water. The facility is required to prepare a 
report, available to the public, documenting how relevant calculations 
were made, and how the control systems meet the standard. A registered 
professional engineer must certify that the design of the control 
systems meet the standard. Also, the owner or operator is required to 
prepare a report, certified by an independent registered professional 
engineer, and documenting how relevant calculations were made, and how 
the control systems meet the standard. The state must be notified that 
the report was placed in the operating record for the site, and the 
owner or operator must make it available to the public on the owner's 
or operator's internet site. Under the existing part 257 requirements, 
to which CCR units are currently subject, runoff must not cause

[[Page 35204]]

a discharge of pollutants into waters of the United States that is in 
violation of the National Pollutant Discharge Elimination System 
(NPDES) under section 402 of the Clean Water Act. (40 CFR 257.3-3). EPA 
is not proposing to revise the existing requirement, but is merely 
incorporating it here for ease of the regulated community.
    The Agency chose the 24-hour period because it is an average that 
includes storms of high intensity with short duration and storms of low 
intensity with long duration. EPA believes that this is a widely used 
standard, and is also the current standard used for hazardous waste 
landfills and municipal solid waste landfill units under 40 CFR Part 
258. EPA has no information that warrants a more restrictive standard 
for CCR landfills and surface impoundments than for MSWLFs and 
hazardous waste landfills.
    Fugitive dust requirements. EPA has included under the co-proposed 
RCRA subtitle D regulation requirements similar to those included under 
the Subtitle C co-proposal, based upon its risk assessment findings 
that fugitive dust control at 35 [micro]g/m3 or less is protective of 
human health or the environment. This is discussed in section VI above. 
Due to the lack of a permitting oversight mechanism under the RCRA 
Subtitle D alternative, and to facilitate citizen-suit enforcement of 
the criteria, EPA has provided for certification by an independent 
registered professional engineer, notification to the state that the 
documentation has been placed in the operating record, and provisions 
making available to the public on the owner's or operator's internet 
site documentation of the measures taken to comply with the fugitive 
dust requirements.
    Recordkeeping requirements. EPA believes that it is appropriate for 
interested states and citizens to be able to access all of the 
information required by the proposed rule in one place. Therefore, the 
co-proposed Subtitle D alternative requires the owner or operator of a 
CCR landfill or surface impoundment to record and retain near the 
facility in an operating record which contains all records, reports, 
studies or other documentation required to demonstrate compliance with 
Sec. Sec.  257.60 through 257.83 (relating to the location 
restrictions, design criteria, and operating criteria) and 257.90 
through 257.101 (relating to ground water monitoring and corrective 
action, and closure and post-closure care).
    The proposed rule would also require owners and operators of CCR 
surface impoundments that have not been closed in accordance with the 
closure criteria to place in the operating record a report containing 
several items of information. The reports would be required beginning 
every twelfth months after existing CCR surface impoundments would be 
required to comply with the design requirements in section 257.71 (that 
is, no later than seven years after the effective date of the final 
rule) and every twelfth month following the date of the initial plan 
for the design, construction, and maintenance of new surface 
impoundments and lateral expansions required under Sec.  257.72(b)) to 
address:
    (1) Changes in the geometry of the impounding structure for the 
reporting period;
    (2) Location and type of installed instruments and the maximum and 
minimum recorded readings of each instrument for the reporting period;
    (3) The minimum, maximum, and present depth and elevation of the 
impounded water, sediment, or slurry for the reporting period;
    (4) Storage capacity of the impounding structure;
    (5) The volume of the impounded water, sediment, or slurry at the 
end of the reporting period;
    (6) Any other change which may have affected the stability or 
operation of the impounding structure that has occurred during the 
reporting period; and
    (7) A certification by an independent registered professional 
engineer that all construction, operation, and maintenance were in 
accordance with the plan. The owner or operator would be required to 
notify the state that the report has been placed in the operating 
record and on the owner's or operator's internet site.
    These reporting requirements are similar to those required under 
MSHA regulations for coal slurry impoundments (30 CFR 77.216-4). As the 
Agency has stated previously, MSHA has nearly 40 years of experience 
writing regulations and inspecting dams associated with coal mining, 
which is directly relevant to the issues presented by CCRs in this 
proposal. In our review of the MSHA regulations, we found them to be 
comprehensive and directly applicable to and appropriate for the dams 
used in surface impoundments at coal-fired utilities to manage CCRs.
    The proposed rule would also allow the owner or operator to submit 
a certification by an independent registered professional engineer that 
there have been no changes to the information in items (1)-(6) above to 
the surface impoundment instead of a full report, although a full 
report would be required at least every 5 years.
7. Groundwater Monitoring/Corrective Action
    EPA's damage cases and risk assessments all indicate the potential 
for CCR landfills and surface impoundments to leach hazardous 
constituents into groundwater, impairing drinking water supplies and 
causing adverse impacts on human health and the environment. Indeed, 
groundwater contamination is one of the key environmental risks EPA has 
identified with CCR landfills and surface impoundments. Furthermore, as 
mentioned previously, the legislative history of RCRA section 4004 
specifically evidences concerns over groundwater contamination from 
open dumps. To this end, groundwater monitoring is a key mechanism for 
facilities to verify that the existing containment structures, such as 
liners and leachate collection and removal systems, are functioning as 
intended. Thus, EPA believes that, in order for a CCR landfill or 
surface impoundment to show no reasonable probability of adverse 
effects on health or the environment, a system of routine groundwater 
monitoring to detect any such contamination from a disposal unit, and 
corrective action requirements to address identified contamination, is 
necessary.
    Today's co-proposed subtitle D criteria require a system of 
monitoring wells be installed at new and existing CCR landfills and 
surface impoundments. The co-proposed criteria also provide procedures 
for sampling these wells and methods for statistical analysis of the 
analytical data derived from the well samples to detect the presence of 
hazardous constituents released from these facilities. The Agency is 
proposing a groundwater monitoring program consisting of detection 
monitoring, assessment monitoring, and a corrective action program. 
This phased approach to groundwater monitoring and corrective action 
programs provide for a graduated response over time to the problem of 
groundwater contamination as the evidence of such contamination 
increases. This allows for proper consideration of the transport 
characteristics of CCR constituents in ground water, while protecting 
human health and the environment, and minimizing unnecessary costs.
    In EPA's view, the objectives of a groundwater monitoring and 
corrective action regime and analytical techniques for evaluating the 
quality of groundwater are similar regardless of the particular wastes 
in a disposal unit, and regardless of whether the unit is a

[[Page 35205]]

landfill or surface impoundment. Therefore, EPA has largely modeled the 
proposed groundwater monitoring and corrective action requirements for 
CCR landfills and surface impoundments after those for MSWLFs in the 40 
CFR part 258 criteria, and for disposal units that may receive 
conditionally-exempt small quantity generator (CESQG) hazardous waste 
under 40 CFR part 257, subpart B. EPA believes that the underlying 
rationale for those requirements is generally applicable to groundwater 
monitoring and corrective action for CCR landfills and surface 
impoundments. Accordingly, EPA does not discuss these requirements at 
length in today's preamble. Rather, EPA refers the reader to the 
detailed discussions of these requirements in the preambles to the 
final and proposed rules for the MSWLF criteria for more 
information.\153\ See Solid Waste Disposal Facility Criteria, 56 Fed. 
Reg. 50978 (Oct. 9, 1991) (final rule); Solid Waste Disposal Facility 
Criteria, 53 Fed. Reg. 33314 (Aug. 30, 1988) (proposed rule).
---------------------------------------------------------------------------

    \153\ The preambles to the CESQG rules have more limited 
discussions of these requirements. See Criteria for Classification 
of Solid Waste Disposal Facilities and Practices; Identification and 
Listing of Hazardous Waste; Requirements for Authorization of State 
Hazardous Waste Programs, 61 FR 34252, 34259-61 (July 1, 1996) 
(final rule); Criteria for Classification of Solid Waste Disposal 
Facilities and Practices; Identification and Listing of Hazardous 
Waste; Requirements for Authorization of State Hazardous Waste 
Programs, 60 FR 30964, 30975-77 (June 12, 1995) (proposed rule).
---------------------------------------------------------------------------

    However, for a number of the requirements, EPA is proposing to 
modify or revise these requirements. Below, EPA discusses the 
particular areas where the Agency is proposing to make modifications, 
and solicits comment on those specific differences. EPA, more 
generally, solicits comment on whether relying on the existing 
groundwater monitoring and corrective action requirements for MSWLFs 
and CESQG facilities, as modified in today's proposal, are appropriate 
for CCR landfills and surface impoundments.
    Relying on the existing criteria in 40 CFR 258 and 257 Subpart B 
has several advantages. Specifically, like the co-proposed Subtitle D 
regulations for CCR disposal, these requirements are structured to be 
largely self-implementing. In addition, states and citizens should 
already be familiar with those processes, which have been in place 
since 1991, and EPA expects that this familiarity with the processes 
may facilitate the states' creation of regulatory programs for CCR 
disposal facilities under state law, to the extent they do not already 
exist, and thus providing oversight (which EPA believes is important in 
implementing these rules) that is already found through MSWLFs and 
CESQG landfill permitting programs. Furthermore, familiarity with the 
overall approach may facilitate the states' and citizens' oversight of 
CCR disposal activities through the citizen suit mechanism, which is 
available, regardless of whether a state has adopted a regulatory 
program under state law for CCR disposal facilities.
    At the same time, however, EPA is mindful of the differences in the 
statutory authorities for establishing criteria for CCR landfills and 
surface impoundments versus MSWLFs and CESQG facilities, and in 
particular, the possibility that a state may lack a permit program for 
CCR disposal units. Accordingly, EPA has sought to tailor these 
proposed requirements in the CCR disposal context, in particular by 
including in several of the proposed requirements a certification by an 
independent registered professional engineer or, in some cases, 
hydrologist, in lieu of the state approval mechanisms that are used in 
the 40 CFR part 258/257, Subpart B criteria. Such certifications are 
found in proposed Sec. Sec.  257.95(h) (establishment of an alternative 
groundwater protection standard for constituents for which MCLs have 
not been established); and 257.97(e) (determination that remediation of 
a release of an Appendix IV constituent from a CCR landfill or surface 
impoundment is not necessary). As discussed earlier in this preamble, 
EPA believes that this provides an important independent validation of 
the particular route chosen. EPA solicits comment in particular on the 
appropriateness of relying on such a mechanism under the proposed 
groundwater monitoring and corrective action criteria.
    In other instances, however, EPA has decided not to propose to 
allow facilities to operate under an alternative standard, such as the 
existing provisions under 257.21(g) and 258.50(h) (establishing 
alternative schedules for groundwater monitoring and corrective 
action); and 258.54(a)(1) and (2), and 257.24(a)(1) and (2), which 
allow the Director of an approved State to delete monitoring 
parameters, and establish an alternative list of indicator parameters, 
under specified circumstances. EPA is proposing not to adopt these 
alternatives for CCR disposal facilities because groundwater monitoring 
is the single most critical set of protective measures on which EPA is 
relying to protect human health and the environment. EPA is not 
proposing to require existing landfills to retrofit to install a 
composite liner. Since these units will continue to operate in the 
absence of a composite liner, groundwater monitoring is the primary 
means to prevent groundwater contamination. Although EPA is proposing 
to require existing surface impoundments to retrofit with composite 
liners, these units are more susceptible to leaking, and thus the need 
for a rigorous groundwater monitoring program is correspondingly high. 
Moreover, EPA is concerned that provisions allowing such modification 
of these requirements are particularly susceptible to abuse, since such 
provisions would allow substantial cost avoidance. Therefore, in the 
absence of a state oversight mechanism in place to ensure such 
modifications are technically appropriate, such a provision may operate 
at the expense of protectiveness. In addition, given the extremely 
technical nature of these requirements, EPA is concerned that such 
provisions would render the requirements appreciably more difficult for 
citizens to effectively enforce. In some instances, including these 
alternative standards would not be workable. For example, establishing 
alternative schedules under the groundwater monitoring and corrective 
action provisions (as currently provided under 257.21(g) and 258.50(h)) 
the Agency believes would not be workable in the context of a self-
implementing rule, because there is no regulatory entity to judge the 
reasonableness of the desired alternatives. The Agency thus solicits 
comments on these omissions from today's proposed rule, and also on 
whether a more prescriptive approach could or should be developed under 
subtitle D of RCRA. EPA also solicits comment on whether the 
requirement for certification by an independent professional engineer 
would be effective or appropriate in such a case.
    Applicability. The co-proposed subtitle D criteria require 
facilities to install a groundwater monitoring system at existing 
landfills and surface impoundments within one year of the effective 
date of the regulation so that any releases from these units will be 
detected, thus providing an opportunity to detect and, if necessary, 
take corrective action to address any releases from the facilities. The 
proposed rule also provides that new CCR landfills and surface 
impoundments comply with the groundwater monitoring requirements in the 
rule before CCRs can be placed in the units. EPA expects that the one-
year timeframe for existing units is a reasonable time for facilities 
to install the necessary systems. This is the same time frame provided 
to

[[Page 35206]]

facilities under the existing part 265 interim status regulations, and 
past experience demonstrates this implementation schedule would 
generally be feasible. Although one year for the installation of 
groundwater monitoring is a shorter time frame than EPA provided to 
facilities as part of the original part 258 or part 257 subpart A 
requirements, there are good reasons to establish a shorter time frame 
here. As discussed in section IV, many of the existing units into which 
much of the CCR is currently disposed are unlined, and they are aging. 
Under these circumstances, EPA believes that installation of 
groundwater monitoring is critical to ensure that releases from these 
units are detected and addressed appropriately. Moreover, EPA offered a 
longer implementation period in 1991 based on a factual finding that a 
shortage of drilling contractors existed; in the 1995 rule establishing 
groundwater monitoring requirements for CESQG facilities, EPA 
determined that this shortage had ended. EPA is aware of no information 
to suggest that a similar shortage exists today, but specifically 
solicits comment on this issue.
    EPA has not included provisions for suspension of ground water 
monitoring that is currently allowed under 257.21(b) and 258.50(b). 
This is one of those provisions discussed above, that EPA believes are 
potentially, particularly susceptible to abuse, and EPA is reluctant to 
adopt a comparable provision in the absence of an approved state permit 
program. In addition, since these proposed criteria are designed to be 
applied even in the absence of state action, EPA has not included 
provisions for state establishment of a compliance schedule under 
257.21(d) and 258.50(d). EPA solicits comment on whether these types of 
provisions are appropriate for CCR landfills and surface impoundments.
    Section 257.90 also requires that the owner or operator of the CCR 
landfill or surface impoundment must notify the state once each year 
throughout the active life and post-closure care period that such 
landfill or surface impoundment is in compliance with the groundwater 
monitoring and corrective action provisions of this subpart. This 
notification must also be placed on the owner or operator's internet 
site. EPA believes that annual notification will facilitate state 
oversight of the groundwater monitoring and corrective action 
provisions.
    Groundwater monitoring systems. The co-proposed subtitle D criteria 
require facilities to install, at a minimum, one up gradient and three 
down gradient wells at all CCR units. EPA is proposing this requirement 
based on the subtitle C interim status self-implementing requirements.
    The design of an appropriate groundwater monitoring system is 
particularly dependent on site conditions relating to groundwater flow, 
and the development of a system must have a sufficient number of wells, 
installed at appropriate locations and depths, to yield groundwater 
samples from the uppermost aquifer that represents the quality of 
background groundwater that has not been affected by contaminants from 
CCR landfills or surface impoundments. EPA's existing requirements 
under parts 257, Subpart B, 258, and 264 all recognize this, and 
because they operate in a permitting context, these requirements do not 
generally establish inflexible minimum requirements. Because the same 
guarantee of permit oversight is not available under the criteria 
developed for this proposal, EPA believes that establishing a minimum 
requirement is necessary. Past experience demonstrates that these 
monitoring requirements will be protective of a wide variety of 
conditions and wastes, and that facilities can feasibly implement these 
requirements. Moreover, in many instances a more detailed groundwater 
monitoring system may need to be in place, and EPA is therefore 
requiring a certification by the independent registered professional 
engineer or hydrologist that the groundwater monitoring system is 
designed to detect all significant groundwater contamination.
    Groundwater sampling and analysis requirements. Owners and 
operators need to ensure that consistent sampling and analysis 
procedures are in place to determine whether a statistically 
significant increase in the level of a hazardous constituent has 
occurred, indicating the possibility of groundwater contamination. The 
co-proposed subtitle D criteria would require the same provisions 
addressing groundwater sampling and analysis procedures with those 
already in use for CESQG and MSWLF facilities, since generally the same 
constituents and analysis procedures would be appropriate in both 
instances. However, EPA is requesting comment on one issue in 
particular. In the final MSWLF criteria, EPA noted that in order to 
ensure protection of human health and the environment at MSWLFs, it was 
important to make sure that the right test methodology from among those 
listed in this section was selected for the conditions present at a 
particular MSWLF. At the time, EPA indicated its expectation that as 
states gained program approval, they would take on the responsibility 
of approving alternate statistical tests proposed by the facilities. 
See 56 Fed. Reg. 51071. Because states may choose not to create a 
regulatory oversight mechanism under the co-proposed subtitle D rule 
for CCR landfills and surface impoundments, however, EPA is requesting 
comment on whether the lack of such an oversight mechanism will impair 
selection of appropriate test methodologies, and whether EPA should 
instead adopt a different approach to ensure the protection of human 
health and the environment at CCR disposal facilities. For example, one 
approach might be for EPA to tailor a list of methodologies to 
particular site conditions. EPA would welcome suggestions from 
commenters on alternative approaches to this issue.
    Detection monitoring program. The parameters to be used as 
indicators of groundwater contamination are the following: boron, 
chloride, conductivity, fluoride, pH, sulphate, sulfide, and total 
dissolved solids (TDS). In selecting the parameters for detection 
monitoring, EPA selected constituents that are present in CCRs, and 
would rapidly move through the subsurface and thus provide an early 
detection as to whether contaminants were migrating from the disposal 
unit. EPA specifically solicits comment on the appropriateness of this 
list of parameters.
    In this provision of the proposed RCRA subtitle D co-proposed rule, 
EPA has decided not to include provisions parallel to 258.54(a)(1) and 
(2), and 257.24(a)(1) and (2) which allow the Director of an approved 
State to delete monitoring parameters, and establish an alternative 
list of indicator parameters, under specified circumstances. EPA is not 
including these provisions because it believes that a set of specified 
parameters are necessary to ensure adequate protectiveness, since EPA's 
information on CCRs indicates that their composition would not be 
expected to vary such that the parameters are inappropriate. Under the 
proposed rule, monitoring would be required no less frequently than 
semi-annually. EPA has again decided not to include a provision that 
would allow an alternative sampling frequency, because of the lack of 
guaranteed state oversight and potential for this provision to diminish 
protection of human health and the environment, as mentioned in the 
introductory discussions above. EPA solicits comments on whether it 
should allow deletion of monitoring parameters and alternative sampling 
frequencies, based on compliance with a performance standard that has 
been

[[Page 35207]]

documented by an independent registered professional engineer or 
hydrologist. Commenters interested in supporting such an option are 
encouraged to provide data to demonstrate the conditions under which 
such alternatives would be protective, as well as information to 
indicate the prevalence of such conditions at CCR facilities.
    Assessment monitoring program. When a statistically significant 
increase over background levels is detected for any of the monitored 
constituents, the rule would require the facility to begin an 
assessment monitoring program to detect releases of CCR constituents of 
concern including aluminum, antimony, arsenic, barium, beryllium, 
boron, cadmium, chloride, chromium, copper, fluoride, iron, lead, 
manganese, mercury, molybdenum, pH, selenium, sulphate, sulfide, 
thallium, and total dissolved solids.
    EPA specifically solicits comment on the appropriateness of this 
list of parameters. For the same reasons as discussed under the 
proposed requirements for detection monitoring, EPA has chosen not to 
include in the proposed requirements for assessment monitoring 
provisions for allowing a subset of wells to be sampled, the deletion 
of assessment monitoring parameters, or alternative sampling 
frequencies. EPA again solicits comment on whether these options are 
appropriate for CCR landfills and surface impoundments.
    Assessment of corrective measures. The proposed rule also requires 
that whenever monitoring results indicate a statistically significant 
level of any appendix IV constituent exceeding the groundwater 
protection standard, the owner or operator must initiate an assessment 
of corrective action remedies. Unlike for the MSWLF and CESQG criteria, 
the proposed rule provides a discrete time frame for completion of the 
assessment, at 90 days, while the earlier criteria provided for its 
completion within a ``reasonable period of time.'' EPA believes that 
without a state oversight mechanism, a finite time frame is 
appropriate. EPA selected 90 days as the period over which the 
assessment must be completed because it expects that this will be a 
sufficient length of time to complete the required activities. EPA 
solicits comment on the appropriateness of the 90-day timeframe.
    Selection of Remedy. The proposed rule establishes a framework for 
remedy selection based upon the existing requirements for MSWLFs and 
CESQG facilities. These provisions have been modified to eliminate 
consideration of ``practicable capabilities'' where such considerations 
have been included in the MSWLF and CESQG criteria. EPA believes that 
it does not have the discretion to include this consideration under the 
RCRA subtitle D co-proposal, because this consideration is explicitly 
required under the terms of RCRA section 4010. That section by its 
terms applies to facilities that may receive household hazardous wastes 
and CESQG wastes, and so is inapplicable to today's co-proposed 
standards for CCR landfills and surface impoundments. See 42 U.S.C. 
6949a(c)(1). EPA solicits comment on these modifications, specifically, 
on how this modification may affect the ability of the regulated 
community to comply with the proposed criteria, and on how this 
modification may affect the protectiveness of the proposed standards 
for human health and the environment.
    In the provisions discussing factors to be considered in 
determining whether interim measures are necessary, EPA has modified 
proposed 257.98(a)(3)(vi), to eliminate consideration of risks of fire 
or explosion, since EPA does not expect that these risks would be 
relevant to the disposal of CCRs in CCR landfills and surface 
impoundments.
    Implementation of the corrective action remedy. The co-proposed 
subtitle D criteria require that the owner or operator comply with 
several requirements to implement the corrective action program, again 
modeled after the existing requirements for MSWLFs and CESQG 
facilities. Similar to proposed section 257.97, these provisions have 
been made consistent with the underlying statutory authorities for this 
proposed rule. See discussions above.
    In these provisions, EPA has decided not to include a provision 
that is included in the MSWLF criteria in 258.58(e)(2) and 
257.28(e)(2), allowing an alternative length of time during which the 
owner or operator must demonstrate that concentrations of constituents 
have not exceeded the ground water protection standards, in support of 
a determination that the remedy is complete. See proposed 257.98(e)(2). 
Instead, the proposed rule would require a set period of three 
consecutive years. EPA solicits comment on whether to allow for a 
different period of time. EPA is particularly concerned with whether 
such a provision would provide protection to human health or the 
environment because of the lack of a guaranteed state oversight 
mechanism.
8. Closure and Post-Closure Care
    Effective closure and post-closure care requirements, such as 
requirements to drain the surface impoundment, are essential to 
ensuring the long-term safety of disposal units. Closure requirements, 
such as placing the cover system on the disposal unit, ensure that 
rainfall is diverted from the landfill or surface impoundment, 
minimizing any leaching that might occur based on the hydraulic head 
placed on the material in the unit. EPA's Guide for Industrial Waste 
Management, prepared in consultation with industry experts, a Tribal 
representative, state officials, and environmental groups, documents 
the general consensus on the need for effective closure and post-
closure requirements.\154\ Post-closure care requirements are also 
particularly important for CCR units because the time to peak 
concentrations for selenium and arsenic, two of the more problematic 
constituents contained in CCR wastes, is particularly long, and 
therefore the peak concentrations in groundwater may not occur during 
the active life of the unit. Continued groundwater monitoring is 
therefore necessary during the post-closure care period to ensure the 
continued integrity of the unit and the safety of human health and the 
receiving environment. For these provisions, then, EPA has again 
modeled its proposed requirements for CCR landfills on those already in 
place for MSWLFs with modifications to reflect the lack of a mandatory 
permitting mechanism, and other changes that it believes are 
appropriate to ensure that there is no reasonable probability of 
adverse effects from the wastes that remain after a unit has closed. 
For surface impoundments, EPA has modeled its proposed requirements on 
the part 265 interim status closure requirements for surface 
impoundments, as well as the MSHA requirements. EPA solicits comment on 
whether these proposed requirements are appropriate for CCR landfills 
and surface impoundments.
---------------------------------------------------------------------------

    \154\ Guide for Industrial Waste Management, available at http:/
/www.epa.gov/epawaste/nonhaz/industrial/guide/index.htm.
---------------------------------------------------------------------------

    Requirements specific to closure of CCR landfills and surface 
impoundments include proposed 257.100(a)-(c). These provisions provide 
that prior to closure of any CCR unit, the owner or operator must 
develop a plan describing the closure of the unit, and a schedule for 
implementation. The plan must describe the steps necessary to close the 
CCR landfill or surface impoundment at any point during the active life 
in

[[Page 35208]]

accordance with the requirements in paragraphs (c) and (d) or (e) of 
this section, as applicable, and based on recognized and generally 
accepted good engineering practices. EPA is proposing to define 
recognized and generally accepted good engineering practices in the 
same manner as it is proposing under the subtitle C alternative. The 
definition references but does not attempt to codify any particular set 
of engineering practices, but to allow the professional engineer 
latitude in adopting improved practices that reflect the state-of-the 
art practices, as they develop over time. The plan must be certified by 
an independent registered professional engineer. In addition, the owner 
or operator must notify the state that a plan has been placed in the 
operating record and on the owner's or operator's publically accessible 
Internet site.
    These provisions are modeled after the closure plan requirements in 
258.60(c). Of note here is that, while EPA rejected a certification 
requirement for MSWLF closure plans, EPA is proposing to require one 
here to increase the ability of citizens to effectively enforce the 
rules. In the MSWLF rule, EPA rejected a certification requirement 
because ``it will be relatively easy to verify that the plan meets the 
requirements,'' due to the specific design criteria specified in the 
rule. However, this was in the context of a state program, where EPA 
could assure that states would play an active role in overseeing and 
enforcing the facility's implementation of the requirements.
    EPA is also proposing that the closure plan provide, at a minimum, 
the information necessary to allow citizens and states to determine 
whether the facility's closure plan is reasonable. This includes an 
estimate of the largest area of the CCR unit ever requiring a final 
cover during the active life of the unit, and an estimate of the 
maximum inventory of CCRs ever on-site during the active life of the 
unit.
    Proposed 257.100(b) of the rule allows closure of a CCR landfill or 
surface impoundment with CCRs in place or through CCR removal and 
decontamination of all areas affected by releases from the landfill or 
surface impoundment. Proposed paragraph (c) provides that CCR removal 
and decontamination are complete when constituent concentrations 
throughout the CCR landfill or surface impoundment and any areas 
affected by releases from the CCR landfill or surface impoundment do 
not exceed the numeric cleanup levels for those CCR constituents, to 
the extent that the state has established such clean up levels in which 
the CCR landfill or surface impoundment is located. These ``clean-
closure'' provisions are modeled after EPA's ``Guide for Industrial 
Waste Management,'' found at http://www.epa.gov/epawaste/nonhaz/
industrial/guide/chap11s.htm. As previously noted, the Guide represents 
a consensus view of best practices for industrial waste management, 
based on involvement from EPA, and state and tribal representatives, as 
well as a focus group of industry and public interest stakeholders 
chartered under the Federal Advisory Committee Act. EPA has included 
this provision to allow some flexibility in the self-implementing 
scheme for facilities in their closure options, while providing 
protection for health and the environment under either option. Although 
EPA anticipates that facilities will mostly likely not clean close 
their units, given the expense and difficulty of such an operation, EPA 
believes that they are generally preferable from the standpoint of land 
re-use and redevelopment, and so wishes explicitly to allow for such 
action in the proposed subtitle D rule. EPA is also considering whether 
to adopt a further incentive for clean closure, under which the owner 
or operator of the CCR landfill or surface impoundment could remove the 
deed notation required under proposed 257.100(m), if all CCRs are 
removed from the facility, and notification is provided to the state. 
In the absence of state cleanup levels, metals should be removed to 
either statistically equivalent background levels, or to maximum 
contaminant levels (MCLs), or health-based numbers. One tool that can 
be used to help evaluate whether waste removal is appropriate at the 
site is the risk-based corrective action process (RBCA) using 
recognized and generally accepted good engineering practices such as 
the ASTM Ec0-RBCA process. EPA solicits comment on the appropriateness 
of this provision under a RCRA subtitle D rule, and information on the 
number of facilities that may take advantage of a clean-closure option.
    For closure of surface impoundments with CCRs in place, EPA has 
developed substantive requirements modeled on a combination of the 
existing 40 CFR part 265 interim status requirements for surface 
impoundments, and the long-standing MSHA standards. At closure, the 
owner or operator of a surface impoundment would be required to either 
drain the unit, or solidify the remaining wastes. EPA is also proposing 
to require that the wastes be stabilized to a bearing capacity 
sufficient to support the final cover. The proposed criteria further 
require that, in addition to the technical cover design requirements 
applicable to landfills, any final cover on a surface impoundment would 
have to meet requirements designed to address the nature of the large 
volumes of remaining wastes. Specifically, EPA is proposing that the 
cover be designed to minimize, over the long-term, the migration of 
liquids through the closed impoundment; promote drainage; and 
accommodate settling and subsidence so that the cover's integrity is 
maintained. Finally, closure of the unit is also subject to the general 
performance standard that the probability of future impoundment of 
water, sediment, or slurry is precluded. This general performance 
standard is based on the MSHA regulations, and is designed to ensure 
the long-term safety of the surface impoundment.
    The proposed RCRA subtitle D regulation requires that CCR landfills 
and surface impoundments have a final cover system designed and 
constructed to have a permeability less than or equal to the 
permeability of any bottom liner system or natural subsoils present, or 
a permeability no greater than 1 x 10-5 cm/sec, whichever is 
less; it also requires an infiltration layer that contains a minimum of 
18 inches of earthen material. The regulation also requires an erosion 
layer that contains a minimum of 6 inches of earthen material that is 
capable of sustaining native plant growth as a way to minimize erosion 
of the final cover. These requirements are generally modeled after the 
performance standard and technical requirements contained in the 
existing RCRA subtitle D rules for MSWLFs, in 258.60. EPA is also 
proposing, however a fourth requirement not found in those criteria 
modeled after the interim status closure requirements of 
265.228(a)(iii)(D) that accounts for the conditions found in surface 
impoundments. Specifically, EPA is proposing that the final cover be 
designed to minimize the disruption of the final cover through a design 
that accommodates settling and subsidence. EPA believes that these 
requirements strike a reasonable balance between the costs of a 
protective final cover, and avoiding risks to health and the 
environment from the remaining wastes at the CCR landfill or surface 
impoundment. The regulation requires certification by an independent 
registered professional engineer that these standards were met. The 
design of the final cover system, including the certification, must be 
placed in the operating record and on the owner's or

[[Page 35209]]

operator's Internet site. Based on the MSHA standards, EPA is also 
proposing that unit closure must provide for major slope stability to 
prevent the sloughing of the landfill over the long term.
    Alternatively, the rule allows the owner or operator of the CCR 
landfill or surface impoundment to select an alternative final cover 
design, provided the alternative cover design is certified by an 
independent registered professional engineer and notification is 
provided to the state that the alternative cover design has been placed 
in the operating record and on the owner's or operator's Internet site. 
The alternative final cover design must include a infiltration layer 
that achieves an equivalent reduction in infiltration, and an erosion 
layer that provides equivalent protection from wind and water erosion, 
as the infiltration and erosion layers specified in the technical 
standards in paragraph (d). Under this alternative, EPA expects that 
evapo-transpiration covers may be an effective alternative, which are 
not appropriately evaluated based on permeability alone. For example, 
an independent registered professional engineer might certify an 
alternative cover design that prevents the same level of infiltration 
as the system described above (i.e., no greater than 1 x 
10-5 cm/sec, etc), based on: (1) hydrologic modeling and 
lysimetry or instrumentation using a field scale test section, or (2) 
Hydrologic modeling and comparison of the soil and climatic conditions 
at the site with the soil and climatic conditions at an analogous site 
with substantially similar cover design. In this case, the owner or 
operator of the disposal unit must obtain certification from an 
independent registered professional engineer that the alternative cover 
would minimize infiltration at least as effectively as the ``design'' 
cover described above. As with the other final covers, the design of 
the evapo-transpiration cover must be placed on the owner's or 
operator's Internet site.
    EPA has included this alternative cover requirement to increase the 
flexibility for the facility to account for site-specific conditions. 
However, EPA is specifically soliciting comment on whether this degree 
of flexibility is appropriate, given the lack of guaranteed state 
oversight. In the final MSWLF rule, EPA adopted a comparable provision, 
but concluded that this alternative would not be available in States 
without approved programs. See, 56 FR 51096. Given that EPA can neither 
approve state programs, nor rely on the existence of a state permit 
process, EPA questions whether this kind of requirement is appropriate. 
Commenters who believe this requirement would be appropriate are 
encouraged to include examples documenting the need for flexibility in 
developing cover requirements, as well as data and information to 
demonstrate that alternative cover designs would be protective. EPA 
would also welcome suggestions for other methods to allow owners and 
operators of CCR landfills and surface impoundment facilities to 
account for site-specific conditions that provide a lower degree of 
individual facility discretion, such as a list of approved cover 
designs.
    The proposed rule includes the same 30- and 180-day deadlines for 
beginning and completing closure, respectively, that are contained in 
existing section 258.60(f) and (g) for MSWLFs. However, EPA has decided 
not to propose to include a provision under which the owner and 
operator could extend those deadlines under the MSWLF criteria. EPA 
believes that extending the closure deadlines in this context is 
inappropriate because, in the absence of an approved State program, the 
owner or operator could unilaterally decide to extend the time for 
closure of the unit, without any basis, or oversight by a regulatory 
authority.
    The proposed closure requirements also include a provision 
addressing required deed notations. In this regard, EPA is considering 
whether to include a provision for removing the deed notation once all 
CCRs are removed from the facility, and notification is provided to the 
state of this action. In the MSWLF rule, we adopted such a provision, 
but determined that state oversight of such a provision was essential, 
given the potential for abuse. As we noted in the final MSWLF rule, 
``EPA strongly believes that a decision to remove the deed notation 
must be considered carefully and that in practice very few owners or 
operators will be able to take advantage of the provision.'' EPA 
solicits comment on the propriety of such a provision, and encourages 
commenters who are interested in supporting such an option, to suggest 
alternatives to state oversight to provide for facility accountability.
    Following closure of the CCR management unit, the co-proposed 
subtitle D approach requires post-closure care modeled after the 
requirements in 258.60. The owner or operator of the disposal unit must 
conduct post-closure care for 30 years. EPA is proposing to allow 
facilities to conduct post-closure care for a decreased length of time 
if the owner or operator demonstrates that (1) the reduced period is 
sufficient to protect human health and the environment, as certified by 
an independent registered professional engineer; (2) notice is provided 
to the state that the demonstration has been placed in the operating 
record and on the owner's or operator's Internet site; and (3) the 
owner or operator notifies the state of the company's findings. The 
proposed rule also allows an increase in this period, again, with 
notification to the state, if the owner or operator of the CCR landfill 
or surface impoundment determines that it is necessary to protect human 
health and the environment. The 30-year period is consistent with the 
period required under the criteria for MSWLFs, as well as under the 
subtitle C interim status requirements. EPA has no information to 
indicate that a different period would be appropriate for post-closure 
care for CCR disposal units. EPA recognizes that state oversight can be 
critical to ensure that post-closure care is conducted for the length 
of time necessary to protect human health and the environment; however, 
EPA also recognizes that there is no set length of time for post-
closure care that will be appropriate for all possible sites, and all 
possible conditions. EPA therefore solicits comment on alternative 
methods to account for different conditions, yet still provide methods 
of oversight to assure facility accountability.
    During post-closure care, the owner or operator of the disposal 
unit is required to maintain the integrity and effectiveness of any 
final cover, maintain and operate the leachate collection and removal 
system in accordance with the leachate collection and removal system 
requirements described above, maintain the groundwater monitoring 
system and monitor the groundwater in accordance with the groundwater 
monitoring requirements described above, and place the maintenance plan 
in the operating record and on the company's Internet site.
    EPA is also considering whether to adopt a number of provisions to 
increase the flexibility available under these requirements. For 
example, EPA is considering a self-certified stoppage of leachate 
management, such as provided for in 258.61(a)(2), and is soliciting 
public comment on the need for such a provision, as well as its 
propriety, in light of the absence of guaranteed state oversight. EPA 
is also considering whether to adopt a provision to allow any other 
disturbance, provided that the owner or operator of the CCR landfill or 
surface impoundment demonstrates that disturbance of the final cover, 
liner or other component of the containment system, including any 
removal of CCRs,

[[Page 35210]]

will not increase the potential threat to human health or the 
environment. The demonstration would need to be certified by an 
independent registered professional engineer, and notification provided 
to the state that the demonstration had been placed in the operating 
record and on the owner's or operator's Internet site. In the MSWLF 
rule, EPA limited this option to approved states, on the ground that, 
``under very limited circumstances it may be possible or desirable to 
allow certain post-closure uses of land, including some recreational 
uses, without posing a significant threat to human health and the 
environment, but such situations are likely to be very limited and need 
to be considered very carefully.'' Commenters interested in supporting 
such an option should address why such a provision would nevertheless 
be appropriate in this context. In this regard, EPA would also be 
interested in suggestions for other mechanisms providing facility 
flexibility and/or oversight.
9. Financial Assurance
    EPA currently requires showings of financial assurance under 
multiple programs, including for RCRA subtitle C hazardous waste 
treatment, storage and disposal facilities; the RCRA subtitle I 
underground storage tank program; and under other statutory 
authorities. Financial assurance requirements generally help ensure 
that owners and operators adequately plan for future costs, and help 
ensure that adequate funds will be available when needed to cover these 
costs if the owner or operator is unable or unwilling to do so; 
otherwise, additional governmental expenditures may otherwise be 
necessary to ensure continued protection of human health and the 
environment. Financial assurance requirements also encourage the 
development and implementation of sound waste management practices both 
during and at the end of active facility operations, since the 
associated costs of any financial assurance mechanism should be less 
when activities occur in an environmentally protective manner.
    Today's proposed RCRA subtitle D alternative does not include 
proposed financial responsibility requirements. Any such requirements 
would be proposed separately. Specifically, on January 6, 2010, EPA 
issued an advance notice of proposed rulemaking (``ANPRM''), 
identifying classes of facilities within the Electric Power Generation, 
Transmission, and Distribution industry, among others, as those for 
which it plans to develop, as necessary, financial responsibility 
requirements under CERCLA Sec.  108(b). See Identification of 
Additional Classes of Facilities for Development of Financial 
Responsibility Requirements under CERCLA Section 108(b), 75 FR 816 
(January 6, 2010). EPA solicits comments on whether financial 
responsibility requirements under CERCLA Sec.  108(b) should be a key 
Agency focus should it regulate CCR disposal under a RCRA subtitle D 
approach. (By today's proposed rule, EPA is not reopening the comment 
period on the January 2010 ANPRM, which closed on April 6, 2010. See 
Identification of Additional Classes of Facilities for Development of 
Financial Responsibility Requirements under CERCLA Section 108(b), 75 
FR 5715 (Feb. 4, 2010) (extending comment period to April 6, 2010).) 
However, EPA also solicits comment on existing state waste programs for 
financial assurance for CCR disposal facilities, and whether and how 
the co-proposed RCRA subtitle D regulatory approach might integrate 
with those programs.
10. Off-Site Disposal
    Under a subtitle D regulation, regulated CCR wastes shipped off-
site for disposal would have to be sent to facilities that meet the 
standards above.
11. Alternative RCRA Subtitle D Approaches
    A potential modification to the subtitle D option that was 
evaluated in our Regulatory Impact Analysis (RIA) is what we have 
termed a subtitle ``D prime'' option. Under this modification, the 
regulations would not require the closure or installation of composite 
liners in existing surface impoundments; rather, these surface 
impoundments could continue to operate for the remainder of their 
useful life. New surface impoundments would be required to have 
composite liners. The other co-proposed subtitle D requirements would 
remain the same. This modification results in substantially lower 
costs, but also lower benefits as described in section XII, which 
presents costs and benefits of the RCRA subtitle C, D, and D prime 
options. EPA solicits comments on this approach.
    Finally, another approach that has been suggested to EPA is a 
subtitle D regulation with the same requirements as spelled out in the 
co-proposal, for example, composite liners for new landfills and 
surface impoundments, groundwater monitoring, corrective action, 
closure, and post-closure care requirements as co-proposed in this 
notice; however, in lieu of the phase-out of surface impoundments, EPA 
would establish and fund a program for conducting annual (or other 
frequency) structural stability (assessments) of impoundments having a 
``High'' or ``Significant'' hazard potential rating as defined by 
criteria developed by the U.S. Army Corps of Engineers for the National 
Inventory of Dams. EPA would conduct these assessments and, using 
appropriate enforcement authorities already available under RCRA, 
CERCLA, and/or the Clean Water Act, would require facilities to respond 
to issues identified with their surface impoundments. The theory behind 
this suggested approach is that annual inspections would be far more 
cost effective than the phase-out of surface impoundments--
approximately $3.4 million annually for assessments versus $876 million 
annually for phase-out. EPA also solicits comments on this approach and 
its effectiveness in ensuring the structural integrity of CCR surface 
impoundments.

X. How would the proposed subtitle D regulations be implemented?

A. Effective Dates

    The effective date of the proposed RCRA subtitle D alternative, if 
this alternative is ultimately promulgated, would be 180 days after 
promulgation of a final rule. Thus, except as noted below, owners and 
operators of CCR landfills and surface impoundments would need to meet 
the proposed minimum federal criteria 180 days after promulgation of 
the final rule. As noted elsewhere in today's preamble (see Section 
XI.), facilities would need to comply with the RCRA subtitle D 
criteria, irrespective of whether or not the states have adopted the 
standards. For the remaining requirements, the compliance dates would 
be as follows:
     For new CCR landfills and surface impoundments that are 
placed into service after the effective date of the final rule, the 
location restrictions and design criteria would apply the date that 
such CCR landfills and surface impoundments are placed into service.
     For existing CCR surface impoundments, the compliance date 
for the liner requirement is five years after the effective date of the 
final rule.
     For existing CCR landfills and surface impoundments, the 
compliance date for the groundwater monitoring requirements is one year 
after the effective date of the final rule.
     For new CCR landfills and surface impoundments, and 
lateral expansions of existing CCR landfills and surface impoundments, 
the groundwater monitoring requirement must be in place and in 
compliance with the

[[Page 35211]]

groundwater monitoring requirements before CCRs can be placed in the 
unit.

    Note:  As discussed in Section IX, if EPA determines that 
financial assurance requirements would be implemented pursuant to 
CERCLA 108(b) authority, the compliance date for this provision 
would be the date specified in those regulations.

B. Implementation and Enforcement of Subtitle D Requirements

    As stated previously, EPA has no authority to implement and enforce 
the co-proposed RCRA subtitle D regulation. Therefore, the proposed 
RCRA subtitle D standards have been drafted so that they can be self 
implementing--that is, the facilities can comply without interaction 
with a regulatory agency. EPA can however take action under section 
7003 of RCRA to abate conditions that ``may present an imminent and 
substantial endangerment to health or the environment.'' EPA could also 
use the imminent and substantial endangerment authorities under CERCLA, 
or under other federal authorities, such as the Clean Water Act, to 
address those circumstances where a unit may pose a threat.
    In addition, the federal RCRA subtitle D requirements would be 
enforceable by states and by citizens using the citizen suit provisions 
of RCRA 7002. Under this section, any person may commence a civil 
action on his own behalf against any person, who (1) is alleged to be 
in violation of any permit, standard, regulation * * * which has become 
effective pursuant to this chapter'' Because a RCRA subtitle D proposal 
relies heavily on citizen enforcement, our proposal requires facilities 
to make any significant information related to their compliance with 
the proposed requirements publicly available.

XI. Impact of a Subtitle D Regulation on State Programs

    Under today's co-proposal, EPA is proposing to establish minimum 
nationwide criteria under RCRA subtitle D as one alternative. If the 
Agency were to choose to promulgate such nationwide criteria, EPA would 
encourage the states to adopt such criteria; however, the Agency has no 
authority to require states to adopt such criteria, or to implement the 
criteria upon their finalization. Nor does EPA have authority in this 
instance to require federal approval procedures for state adoption of 
the minimum nationwide criteria. States would be free to develop their 
own regulations and/or permitting programs using their solid waste laws 
or other state authorities. While states are not required to adopt such 
minimum nationwide criteria, some states (about 25) incorporate federal 
regulations by reference or have specific state statutory requirements 
that their state program can be no more stringent than the federal 
regulations (about 12, with varying degrees of exceptions). In those 
cases, EPA would expect that if the minimum nationwide criteria were 
promulgated, these states would adopt them, consistent with their state 
laws and administrative procedures.
    If the states do not adopt or adopt different standards for the 
management of CCRs, facilities would still have to comply with the co-
proposed subtitle D criteria, if finalized, independently of those 
state regulations. Thus, even in the absence of a state program, CCR 
landfills and CCR surface impoundments would be required to meet the 
proposed federal minimum criteria as set out in 40 CFR part 257, 
subpart D. As a result and to make compliance with the requirements as 
straightforward as possible, we have drafted the proposed criteria so 
that facilities are able to implement the standards without interaction 
with regulatory officials--that is, the requirements are self-
implementing. Also, even in the absence of a state regulatory program 
for CCRs, these federal minimum criteria are enforceable by citizens 
and by states using the citizen suit provision of RCRA (Section 7002). 
EPA is also able to take action under RCRA Section 7003 to abate 
conditions that may pose an imminent and substantial endangerment to 
human health or the environment or and can rely on other federal 
authorities. See the previous section for a full discussion of this 
issue.

XII. Impacts of the Proposed Regulatory Alternatives

A. What are the economic impacts of the proposed regulatory 
alternatives?

    EPA prepared an analysis of the potential costs and benefits 
associated with this action contained in the ``Regulatory Impact 
Analysis'' (RIA). A copy of the RIA is available in the docket for this 
action and the analysis is briefly summarized here. For purposes of 
evaluating the potential economic impacts of the proposed rule, the RIA 
evaluated baseline (i.e., current) management of CCRs consisting of two 
baseline components: (1) The average annual cost of baseline CCR 
disposal practices by the electric utility industry, and (2) the 
monetized value of existing CCR beneficial uses in industrial 
applications. Incremental to this baseline, the RIA estimated (1) 
future industry compliance costs for CCR disposal associated with the 
regulatory options described in today's action, and (2) although not 
completely quantified or monetized, three categories of potential 
future benefits from RCRA regulation of CCR disposal consisting of (a) 
Groundwater protection benefits at CCR disposal sites, (b) CCR 
impoundment structural failure prevention benefits, and (c) induced 
future annual increases in CCR beneficial use. The findings from each 
of these main sections of the RIA are summarized below. These 
quantified benefit results are based on EPA's initial analyses using 
existing information and analytical techniques.
1. Characterization of Baseline Affected Entities and CCR Management 
Practices
    Today's action will potentially affect CCRs generated by coal-fired 
electric utility plants in the NAICS industry code 221112 (i.e., the 
``Fossil Fuel Electric Power Generation'' industry within the NAICS 22 
``Utilities'' sector code). Based on 2007 electricity generation data 
published by the Energy Information Administration (EIA), the RIA 
estimated a total of 495 operational coal-fired electric utility plants 
in this NAICS code could be affected by today's action. These plants 
are owned by 200 entities consisting of 121 companies, 18 cooperative 
organizations, 60 state or local governments, and one Federal Agency. A 
sub-total of 51 of the 200 owner entities (i.e., 26%) may be classified 
as small businesses, small organizations, or small governments.
    Based on the most recent (2005) EIA data on annual CCR tonnages 
generated and managed by electric utility plants greater than 100 
megawatts nameplate capacity in size, supplemented with additional 
estimates made in the RIA for smaller sized electric utility plants 
between 1 and 100 megawatts capacity, these 495 plants generate about 
140 million tons of CCRs annually, of which 311 plants dispose 57 
million tons in company-owned landfills, 158 plants dispose 22 million 
tons in company-owned surface impoundments, and an estimated 149 plants 
may send upwards of 15 million tons of CCRs to offsite disposal units 
owned by other companies (e.g., NAICS 562 commercial waste management 
service companies). Based on lack of data on the type of offsite CCR 
disposal units, and the fact that it costs much more to transport wet 
CCRs than dry CCRs (i.e., CCRs which have been de-watered), the RIA 
assumes all offsite CCR disposal units are landfills. Because some 
plants use more than one CCR management method, these management plant 
counts exceed 495 total plants. Based on the estimates

[[Page 35212]]

developed for the RIA, total CCR disposal is about 94 million tons 
annually which is two-thirds of annual CCR generation. (EPA notes that 
the alternative, lower CCR generation and disposal estimates of 131 
million tons and 75 million tons cited elsewhere in today's notice were 
derived from different and less comprehensive ACAA and EIA survey data 
sources, respectively, that do not include tonnage estimates for plants 
between 1 and 100 megawatt capacity.) In addition, 272 of the 495 
plants supply CCRs which are not disposed for beneficial uses in at 
least 14 industries, of which 28 of the 272 plants solely supply CCRs 
for beneficial uses. As of 2005, CCR beneficial uses (i.e., industrial 
applications) involved about 47 million tons annually representing one-
third of annual CCR generation, which the RIA estimates may grow to an 
annual quantity of 62 million tons by 2009. For 2008, the American Coal 
Ash Association estimates CCR beneficial use has grown to 60.6 million 
tons.\155\
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    \155\ Note that ACAA's definition of beneficial use does not 
align with that used by EPA in this rulemaking. For example, ACAA 
includes minefilling as a beneficial use, where EPA classifies it as 
a separate category of use.
---------------------------------------------------------------------------

2. Baseline CCR Disposal
    For each of the 467 operating electric utility plants which dispose 
CCRs onsite or offsite (28 of the 495 total plants solely send their 
CCRs for beneficial use and not disposal), the RIA estimated baseline 
engineering controls at CCR disposal units and associated baseline 
disposal costs for two types of CCR disposal units: landfills and 
surface impoundments. Impoundments are sometimes named by electricity 
plant personnel as basins, berms, canals, cells, dams, embankments, 
lagoons, pits, ponds, reservoirs, or sumps. The baseline is defined as 
existing (current) conditions with respect to the presence or absence 
of 10 types of environmental engineering controls and eight ancillary 
regulatory elements, plus projection of future baseline conditions of 
CCR disposal units without regulation over the 50-year future period-
of-analysis--2012 to 2061--applied in the RIA. A 50-year future period 
was applied in the RIA to account for impacts of the proposed 
regulatory options which are specific only to future new disposal units 
given average lifespans of over 40-years. Existing conditions were 
determined based on review of a sample of current state government 
regulations of CCR disposal in 34 states, as well as limited survey 
information on CCR disposal units from studies published in 1995, 1996, 
and 2006 about voluntary engineering controls installed for CCR 
disposal units at some electric utility plants. The 10 baseline 
engineering controls evaluated in the RIA are (1) Groundwater 
monitoring, (2) bottom liners, (3) leachate collection and removal 
systems, (4) dust controls, (5) rainwater run-on and run-off controls, 
(6) financial assurance for corrective action, disposal unit closure, 
and post-closure care, (7) disposal unit location restrictions, (8) 
closure capping of disposal units, (9) post-closure groundwater 
monitoring, and (10) CCR storage design and operating standards prior 
to disposal (Note: Although listed here, this 10th element was not 
estimated in the RIA because of EPA's lack of information on baseline 
CCR storage practices). This specific set of engineering controls 
represents the elements of the RCRA 3004(x) custom-tailored technical 
standards proposed in today's notice for the RCRA subtitle C option. 
The eight ancillary elements evaluated in the RIA are (11) offsite 
transport and disposal, (12) disposal unit structural integrity 
inspections, (13) electricity plant facility-wide environmental 
investigations, (14) facility-wide corrective action requirements, (15) 
waste disposal permits, (16) state government regulatory enforcement 
inspections, (17) environmental release remediation requirements, and 
(18) recordkeeping and reporting to regulatory agencies. Some states 
require many of these technical standards for future newly-constructed 
CCR disposal units, some states require them for existing units, and 
some states have few or no regulatory requirements specific to CCR 
disposal and thus were not estimated in the baseline cost. Furthermore, 
some of the ancillary elements are only relevant to the regulatory 
options based on subtitle C as co-proposed in today's notice. The 
percentage of CCR landfills with baseline controls ranged from 61% to 
81%, and the percentage of CCR surface impoundments with baseline 
controls ranged from 20% to 49%, depending upon the type of control. 
Based on this estimation methodology, the RIA estimates the electric 
utility industry spends an average of $5.6 billion per year for meeting 
state-required and company voluntary environmental standards for CCR 
disposal. Depending upon state location for any given electricity plant 
(which determines baseline regulatory requirements), and whether any 
given plant disposes CCRs onsite or offsite, this baseline cost is 
equivalent to an average cost range of $2 to $80 per ton of CCRs 
disposed of.
3. Baseline CCR Beneficial Use
    In addition to evaluating baseline CCR disposal practices, the RIA 
also estimated the baseline net benefits associated with the 47 million 
tons per year (2005) of industrial beneficial uses of CCRs. CCRs are 
beneficially used nationwide as material ingredients in at least 14 
industrial applications according to the American Coal Ash Association: 
(1) Concrete, (2) cement, (3) flowable fill, (4) structural fill, (5) 
road base, (6) soil modification, (7) mineral filler in asphalt, (8) 
snow/ice control, (9) blasting grit, (10) roofing granules, (11) 
placement in mine filling operations,\156\ (12) wallboard, (13) waste 
solidification, and (14) agriculture. The baseline annual sales 
revenues (as of 2005) received by the electric utility industry for 
sale of CCRs used in these industrial applications are estimated at 
$177 million per year. In comparison, substitute industrial ingredient 
materials (e.g., portland cement, quarried stone aggregate, limestone, 
gypsum) would cost industries $2,477 million per year. Thus, the 
beneficial use of CCRs provides $2,300 million in annual cost savings 
to these industrial applications, labeled economic benefits in the RIA. 
Based on the lifecycle materials and energy flow economic framework 
presented in the RIA, although only based on limited data representing 
47% of annual CCR beneficial use tonnage involving only three of the 14 
industrial applications (i.e., concrete, cement and wallboard), 
baseline lifecycle benefits of beneficially using CCRs compared to 
substitute industrial materials are (a) $4,888 million per year in 
energy savings, (b) $81 million per year in water consumption savings, 
(c) $365 million per year in greenhouse gas (i.e., carbon dioxide and 
methane) emissions reductions, and (d) $17,772 million per year in 
other air pollution reductions. Altogether, industrial beneficial uses 
of CCRs provide over $23 billion in annual environmental benefits as of 
2005. In addition, baseline CCR beneficial use provides $1,830 million 
per year in industrial raw materials costs savings to beneficial users, 
and $2,927 million per year in avoided CCR disposal cost to the 
electric utility industry as of 2005. The sum of environmental 
benefits,

[[Page 35213]]

industrial raw materials costs savings, and CCR disposal cost savings, 
$27.9 billion per year, gives the baseline level of what the RIA has 
labeled social benefits from the beneficial use of CCRs.
---------------------------------------------------------------------------

    \156\ While today's proposed rule does not deal directly with 
the mine filling of CCRs, the RIA includes it as a baseline 
beneficial use because the RIA uses the categories identified by the 
American Coal Ash Association (http://acaa.affiniscape.com/
displaycommon.cfm?an=1&subarticlenbr=3). However, as noted 
previously in today's notice, the Agency is working with OSM of the 
Department of Interior on the placement of CCRs in mine fill 
operations.
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4. Estimated Costs for RCRA Regulation of CCR Disposal
    The RIA includes estimates of the costs associated with the options 
described in today's notice are summarized here: (1) RCRA subtitle C 
regulation of CCRs as a ``special waste''; (2) RCRA subtitle D 
regulation as ``non-hazardous waste''; and (3) the subtitle ``D prime'' 
options. Full descriptions of each option are presented in a prior 
section of today's notice. The RIA assumes that the engineering 
controls that would be established under the RCRA subtitle C option 
would be tailored on the basis of RCRA section 3004(x). The controls 
for the RCRA subtitle D option are identical to the subtitle C option. 
The controls under the subtitle ``D prime'' option would be identical 
as well, except that existing surface impoundments would not have to 
close or be dredged and have composite liners installed within five 
years of the effective date of the regulation. The RIA also assumes all 
three options retain the existing Bevill exemption for CCR beneficial 
uses.
    The estimated costs for each option are incremental to the 
baseline, and are estimated in the RIA using both an average annualized 
and a present value equivalent basis over a 50-year period-of-analysis 
(2012 to 2061) using both a 7% and an alternative 3% discount rate. 
These two alternative discount rates are required by the Office of 
Management and Budget's September 2003 ``Regulatory Analysis'' Circular 
A-4. For the purpose of summary here, only the 7% discount rate results 
are presented for each option because the 7% rate represents the ``base 
case'' in the RIA for the reason that most of the regulatory compliance 
costs will be incurred by industry (i.e., private capital). On an 
average annualized basis, the estimated regulatory compliance costs for 
the three options are $1,474 million (subtitle C special waste), $587 
million (subtitle D), and $236 million (subtitle ``D prime'') per year. 
On a present value basis discounted at 7% over the 50-year future 
period-of-analysis applied in the RIA, estimated future regulatory 
compliance costs for the three options total $20,349 million, $8,095 
million, and $3,259 million present value, respectively. EPA requests 
public comment on all data sources and analytical approaches.
5. Benefits for RCRA Regulation of CCR Disposal
    The potential environmental and public health benefits of CCR 
regulation estimated and monetized in the RIA include three categories:
    1. Groundwater protection benefits consisting of (a) human cancer 
prevention benefits and (b) avoided groundwater remediation costs at 
CCR disposal sites;
    2. CCR impoundment structural failure prevention benefits (i.e., 
cleanup costs avoided); and
    3. Induced future increase in industrial beneficial uses of CCRs.
    As was done with the cost estimates described above, the RIA 
estimated benefits both at the 7% and 3% discount rates using the same 
50-year period-of-analysis. However, only the benefit estimates based 
on the 7% rate are summarized here. While the RIA focused on monetizing 
these three impact categories, there are also human non-cancer 
prevention benefits, ecological protection benefits, surface water 
protection benefits, and ambient air pollution prevention benefits, 
which are not monetized in the RIA, but qualitatively described below.
i. Groundwater Protection Benefits
    The RIA estimated the benefits of reduced human cancer risks and 
avoided groundwater remediation costs associated with controlling 
arsenic leaching from CCR landfills and surface impoundments. These 
estimates are based on EPA's risk assessment (described elsewhere in 
today's notice), which predicts arsenic leaching rates using SPLP and 
TCLP data. Furthermore, recent research and damage cases indicate that 
these leaching tests under-predict risks from dry disposal.\157\ 
Therefore, the groundwater protection benefits may be underestimated in 
the RIA. The RIA based estimation of future human cancer cases avoided 
on the individual ``excess'' lifetime cancer probabilities reported in 
the EPA risk assessment, although the RIA also used more recent (2001) 
science published by the National Research Council on arsenic 
carcinogenicity.
---------------------------------------------------------------------------

    \157\ Recent EPA research demonstrates that CCRs can leach 
significantly more aggressively under different pH conditions 
potentially present in disposal units. In the EPA Office of Research 
& Development report ``Characterization of Coal Combustion Residues 
from Electric Utilities--Leaching and Characterization Data,'' EPA-
600/R-09/151, Research Triangle Park, NC, December 2009, CCRs from 
19 of the 34 facilities evaluated in the study exceeded at least one 
of the Toxicity Characteristic regulatory values for at least one 
type of CCR (e.g., fly ash or FGD residue) at the self-generated pH 
of the material. This behavior likely explains the rapid migration 
of constituents from disposal sites like Chesapeake, VA and 
Gambrills, MD. See also the EPA Office of Research & Development 
reports (a) ``Characterization of Mercury-Enriched Coal Combustion 
Residues from Electric Utilities Using Enhanced Sorbents for Mercury 
Control,'' EPA 600/R-06/008, January 2006; and (b) Characterization 
of Coal Combustion Residues from Electric Utilities Using Wet 
Scrubbers for Multi-Pollutant Control, EPA/600/R-08/077, July 2008.
---------------------------------------------------------------------------

    The RIA estimated groundwater protection benefits by categorizing 
electric utility plants according to their individual types of CCR 
disposal units (i.e., landfill or impoundment) and presence/types of 
liners in those units. For each category, GIS data were used to 
determine the potentially affected populations of groundwater drinkers 
residing within 1-mile of the disposal units. Results from the risk 
assessment were applied to these populations by using a linear 
extrapolation, starting from a risk of zero to the peak future risk as 
demonstrated by the risk assessment. The count of people who might 
potentially get cancer was then adjusted upward to account for the more 
recent and more widely accepted arsenic carcinogenicity research by the 
National Research Council.\158\ The RIA then segregated the future 
cancer counts into lung cancers and bladder cancers, as well as into 
those that were predicted to result in death versus those that were 
not. The RIA monetized each of these cancer sub-categories using EPA-
published economic values for statistical life and cost of illness.
---------------------------------------------------------------------------

    \158\ EPA's current Integrated Risk Information System (IRIS) 
has a cancer slope factor for arsenic developed in 1995. This slope 
factor is based on skin cancer incidence and was used in the 2010 
EPA risk assessment. Skin cancer is a health endpoint associated 
with lower fatality risk than lung and bladder cancers induced by 
arsenic. Since the IRIS slope factors were developed, quantitative 
data on lung and bladder cancers have become available, and the skin 
cancer based slope factors no longer represent the current state of 
the science for health risk assessment for arsenic. The National 
Research Council (NRC) published the report, ``Arsenic in Drinking 
Water: 2001 Update'' (2001) which reviewed the available 
toxicological, epidemiological, and risk assessment literature on 
the health effects of inorganic arsenic, building upon the NRC's 
prior report, ``Arsenic in Drinking Water'' (NRC 1999). The 2001 
report, developed by an eminent committee of scientists with 
expertise in arsenic toxicology and risk assessment provides a 
scientifically sound and transparent assessment of risks of bladder 
and lung cancers from inorganic arsenic. EPA's Science Advisory 
Board is currently reviewing EPA's new proposed IRIS cancer slope 
factors based on bladder and lung cancer. Because the more recent 
NRC scientific information is available, the RIA (2010) uses the NRC 
arsenic cancer data for the estimate of benefits associated with 
cancers avoided by the proposed regulation of CCR.
---------------------------------------------------------------------------

    The RIA further adjusted these monetized future cancer counts, to 
take into account existing state requirements for groundwater 
monitoring at CCR disposal units, such that fewer cancer

[[Page 35214]]

cases than initially projected would ultimately occur from early 
detection of groundwater contamination in those states. Therefore, a 
baseline was established for the operation of state regulatory and 
remedial programs which led to a reduction in expected cancer cases in 
states with existing groundwater protection requirements. However, once 
groundwater contamination was found in those states, remediation costs 
would be incurred. Thus, the RIA also accounted for these costs under 
each of the regulatory options as well, thus avoiding possible double-
counting of cancer cases and remediation costs. On an average 
annualized basis, the human cancer prevention component of the 
groundwater protection benefit category for the three options are $37 
million (RCRA subtitle C special waste), $15 million (RCRA subtitle D), 
and $8 million (subtitle ``D prime'') per year. On a present value 
basis, the human cancer prevention benefit totals $504 million, $207 
million, and $104 million present value, respectively. On an average 
annualized basis, the estimated avoided groundwater remediation cost 
benefit component of the groundwater protection benefit category for 
the three options are $34 million (RCRA subtitle C special waste), $12 
million (RCRA subtitle D), and $6 million (subtitle ``D prime'') per 
year. On a present value basis, the avoided remediation cost benefit 
totals to $466 million, $168 million, and $84 million present value, 
respectively. Added together on an average annualized basis, these two 
groundwater protection benefit components total to $71 million (RCRA 
subtitle C special waste), $27 million (RCRA subtitle D), and $14 
million (subtitle ``D prime'') per year. On a present value basis, the 
groundwater protection benefit category totals to $970 million, $375 
million, and $188 million present value, respectively.
ii. Impoundment Structural Failure Prevention Benefits
    The December 2008 CCR surface impoundment collapse at the Tennessee 
Valley Authority's Kingston, Tennessee coal-fired electricity plant 
illustrated that structural failures of large CCR impoundments can lead 
to catastrophic environmental releases and large cleanup costs. The RIA 
estimated the benefit of avoiding future cleanup costs for impoundment 
failures, which the structural integrity inspection requirement of all 
regulatory options, and the future conversion or retrofitting of 
existing or new impoundments (under the subtitle C, subtitle D, and 
subtitle ``D prime'' options) would be expected to prevent.
    The RIA based the estimate of future cleanup costs avoided on 
information contained in EPA's 2009 mail survey \159\ of 584 CCR 
impoundments operated by the electric utility industry. In response to 
the survey request for information on known spills or non-permitted 
releases from CCR impoundments within the last 10 years, revealed 42 
CCR impoundment releases spanning 1995 to 2009. Particularly, there 
were five significant releases between 4,950 cubic yards and 5.4 
million cubic yards of CCRs, and one catastrophic release of 5.4 
million cubic yards of CCRs during this time period at coal fired power 
plants. Given these historic releases, the RIA projected the 
probability of future impoundment releases using a Poisson 
distribution. In addition to this approach, the RIA formulated two 
alternative failure scenarios based on 96 high-risk CCR impoundments 
identified as at least 40 feet tall and at least 25 years old. The two 
alternative failure scenarios assumed impoundment failure rates 
involving these 96 impoundments of 10% and 20%, respectively. On an 
average annualized basis ranging across these three alternative failure 
probability estimation methods (scenarios), the avoided cleanup cost 
benefit category for the three options is estimated at $128 million to 
$1,212 million (subtitle C special waste), $58 million to $550 million 
(subtitle D), and $29 million to $275 million (subtitle ``D prime'') 
per year. On a present value basis, the avoided cleanup cost benefit 
category totals $1,762 million to $16,732 million (RCRA subtitle C 
special waste), $793 million to $7,590 million (RCRA subtitle D), and 
$405 million to $3,795 million present value (RCRA subtitle ``D 
prime''), respectively.
---------------------------------------------------------------------------

    \159\ Descriptive information and electric utility industry 
responses to EPA's 2009 mail survey is available at the survey 
webpage http://www.epa.gov/waste/nonhaz/industrial/special/fossil/
surveys/.
---------------------------------------------------------------------------

iii. Benefit of Induced Future Increase in Industrial Beneficial Uses 
of CCRs
    The third and final potential benefit category evaluated in the RIA 
includes the potential effects of RCRA regulation of CCR disposal on 
future annual tonnages of CCR beneficial use. As its base case, the RIA 
estimates an expected future increase in beneficial use induced by the 
increased costs of disposing CCR in RCRA-regulated disposal units. The 
RIA also evaluates the potential magnitude of a future decrease in 
beneficial use as a result of a potential ``stigma'' effect under the 
subtitle C option. Both scenarios are based on a baseline consisting of 
(a) projecting the future annual tonnage of CCR generation by the 
electric utility industry in relation to the Energy Information 
Administration's (EIA) future annual projection of coal consumption by 
the electric utility industry, and (b) projecting the future baseline 
growth in CCR beneficial use relative to the historical growth 
trendline (i.e., absent today's proposed regulation).
    For the induced increase ``base case'' scenario, the compliance 
costs for each regulatory option represent an ``avoided cost 
incentive'' to the electric utility industry to shift additional CCRs 
from disposal to beneficial use. Proportional to the estimated cost for 
each option, the RIA applied a beneficial use market elasticity factor 
to the projected baseline future growth in beneficial use to simulate 
the induced increase. On an average annualized basis, the monetized 
value--based on the same unitized (i.e., per-ton) monetized social 
values assigned to the lifecycle benefits of baseline CCR beneficial 
uses--of the estimated potential induced increases in future annual CCR 
beneficial use tonnage for the three options are $6,122 million (RCRA 
subtitle C special waste), $2,450 million (RCRA subtitle D), and $980 
million (subtitle ``D prime'') per year. On a present value basis, the 
potential induced increases in beneficial use totals to $84,489 million 
(RCRA subtitle C special waste), $33,796 million (RCRA subtitle D), and 
$13,518 million (subtitle ``D prime'') present value, respectively.
    The RIA also monetized the alternative ``stigma'' scenario of 
future reduction in beneficial use induced by the RCRA subtitle C 
option. The RIA formulated assumptions about the percentage future 
annual tonnage reductions which might result to some of the 14 
beneficial use markets. For example, federally purchased concrete was 
assumed to stay at baseline levels because of the positive influence of 
comprehensive procurement guidelines that are already in place to 
encourage such types of beneficial uses. Conversely, the levels of non-
federally purchased concrete were assumed to decrease relative to the 
baseline. On an average annualized basis, the monetized value--based on 
the same unitized (i.e., per-ton) monetized social values assigned to 
the lifecycle benefits of baseline CCR beneficial uses--of the 
potential ``stigma'' reduction in future annual CCR beneficial use for 
the RCRA subtitle C option is $16,923 million per year cost. On a 
present value basis, the potential ``stigma'' reduction in beneficial 
use totals to $233,549 million

[[Page 35215]]

present value cost. The RIA did not estimate a potential ``stigma'' 
reduction effect on the RCRA subtitle D or subtitle ``D prime'' 
regulatory options.

B. Benefits Not Quantified in the RIA

1. Non-Quantified Plant and Wildlife Protection Benefits
    EPA's risk assessment estimated significant risks of adverse 
effects to plants and wildlife, which are confirmed by the existing CCR 
damage cases and field studies published in peer-reviewed scientific 
literature. Such reported adverse effects include: (a) Elevated 
selenium levels in migratory birds, (b) wetland vegetative damage, (c) 
fish kills, (d) amphibian deformities, (e) snake metabolic effects, (f) 
plant toxicity, (g) elevated contaminant levels in mammals as a result 
of environmental uptake, (h) fish deformities, and (i) inhibited fish 
reproductive capacity. Requirements in the proposed rule should prevent 
or reduce these impacts in the future by limiting the extent of 
environmental contamination and thereby reducing the levels directly 
available.
2. Non-Quantified Surface Water Protection Benefits
    In EPA's risk assessment, recreational fishers could be exposed to 
chemical constituents in CCR via the groundwater-to-surface water 
exposure pathway. Furthermore, State Pollutant Discharge Elimination 
System (SPDES) and National Pollutant Discharge Elimination System 
(NPDES) discharges from CCR wet disposal (i.e., impoundments) likely 
exceed the discharges from groundwater to surface water. Thus, exposure 
to arsenic via fish consumption could be significant. However, EPA 
expects that most electric utility plants will eventually switch to dry 
CCR disposal (or to beneficial use), a trend which is discussed in the 
RIA. Such future switchover will reduce potential future exposures to 
these constituents from affected fish.
3. Non-Quantified Ambient Air Protection Benefits
    Another impact on public health not discussed in the RIA is the 
potential reduction of excess cancer cases associated with hexavalent 
chromium inhaled from the air. As estimated in the RIA, over six 
million people live within the Census population data ``zip code 
tabulation areas'' for the 495 electric utility plant locations. Thus, 
the potential population health benefits of RCRA regulation may be 
quite large. Inhalation of hexavalent chromium has been shown to cause 
lung cancer.\160\ By requiring fugitive dust controls, the proposed 
rule would reduce inhalation exposure to hexavalent chromium near CCR 
disposal units that are not currently required to control fugitive 
dust.
---------------------------------------------------------------------------

    \160\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/
toxfaq.html.
---------------------------------------------------------------------------

    Furthermore, several non-cancer health effects associated with CCRs 
are a result of particulate matter inhalation due to dry CCR disposal. 
Human health effects for which EPA is evaluating causality due to 
particulate matter exposure include (a) Cardiovascular morbidity, (b) 
respiratory morbidity, (c) mortality, (d) reproductive effects, (e) 
developmental effects, and (f) cancer.\161\ The potential for and 
extent of adverse health effects due to fugitive dusts from dry CCR 
disposal was demonstrated in the 2009 EPA report ``Inhalation of 
Fugitive Dust: A Screening Assessment of the Risks Posed by Coal 
Combustion Waste Landfills--DRAFT,'' which is available in the docket 
for today's co-proposed rules. The co-proposed rules' fugitive dust 
controls would serve to manage such potential risks by bringing them to 
acceptable levels.
---------------------------------------------------------------------------

    \161\ Source: EPA Office of Research & Development report 
``Integrated Science Assessment for Particulate Matter: First 
External Review Draft,'' EPA/600/R-08/139, 2008.
---------------------------------------------------------------------------

    CCR dust (and other types of particulate matter) can also be 
carried over long distances by wind and then settle on ground or water. 
The effects of this settling could include: (a) Changing the pH of 
lakes and streams; (b) changing the nutrient balance in coastal waters 
and large river basins; (c) depleting nutrients in soil; (d) damaging 
sensitive forests and farm crops; and (e) affecting the diversity of 
ecosystems.\162\ Additionally, fine particulates are known to 
contribute to haze.\163\ Thus, the fugitive dust controls contained in 
the proposed rule would improve visibility, and reduce the 
environmental impacts discussed above.
---------------------------------------------------------------------------

    \162\ Source: U.S. EPA Office of Air & Radiation, Particulate 
Matter ``Health and Environment'' Web site at http://www.epa.gov/
particles/health.html.
    \163\ Ibid; and also see http://www.intheairwebreathe.com/html/
photo_gallery.html.
---------------------------------------------------------------------------

C. Comparison of Costs to Benefits for the Regulatory Alternatives

    For purposes of comparing the estimated regulatory compliance costs 
to the monetized benefits for each regulatory option, the RIA computed 
two comparison indicators: Net benefits (i.e., benefits minus costs), 
and benefit/cost ratio (i.e., benefits divided by costs). The results 
of each indicator are displayed in the following tables (Table 10, 
Table 11 and Table 12) for three regulatory options, based on the 7% 
discount rate and the 50-year period-of-analysis applied in the RIA. 
There are three tables because three different scenarios were analyzed 
concerning potential impacts on beneficial use of CCRs impact under the 
regulatory options.
    The three tables below represent three possible outcomes regarding 
impacts of the rule upon the beneficial use of CCR. In the first table, 
EPA presents the potential impact scenario that we view to be most 
likely. This first scenario assumes that the increased cost of disposal 
from regulation under subtitle C will encourage industry to seek out 
additional markets and greatly increase their beneficial use of CCRs. 
In the second table, EPA presents a negative effect on beneficial use, 
based on stigma, and the possibility of triggering use restrictions 
under state regulation and private sector standards due to subtitle C 
regulation. In the final table, EPA presents a scenario where 
beneficial use continues on its current path, without any changes as a 
result of the rule. On the basis of past experience, EPA believes that 
it is likely that recycling rates will increase as presented in the 
first scenario. Comments are requested on the impact of stigma on the 
beneficial use of CCRs.

                              Table 10--Comparison of Regulatory Benefits to Costs
      [$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                                               Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.

[[Page 35216]]


        1B. Ancillary Regulatory      $1,480..................  $5.....................  $5.
         Requirements.
        1C. Conversion to Dry CCR     $12,089.................  $4,836.................  $0.
         Disposal.
    2. Regulatory Benefits            $87,221 to $102,191.....  $34,964 to $41,761.....  $14,111 to $17,501.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Cases Avoided.
        2B.Groundwater Remediation    $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
        2D. Included Future Increase  $84,489.................  $33,796................  $13,518.
         in CCR Beneficial Use.
    3. Net Benefits (2-1)...........  $66,872 to $81,842......  $26,869 to $33,666.....  $10,852 to $14,242.
    4. Benefit/Cost Ratio ( 2/1 )...  4.286 to 5.022..........  4.319 to 5.159.........  4.330 to 5.370.
B. Average Annualized Equivalent
 Values:*.
    1. Regulatory Costs (1A+1B+1C)..  $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Regulatory      $107....................  <$1....................  <$1.
         Requirements.
        1C. Conversion to Dry CCR     $876....................  $350...................  $0.
         Disposal.
    2. Regulatory Benefits            $6,320 to $7,405........  $2,533 to $3,026.......  $1,023 to $1,268.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Cases Avoided.
        2B. Groundwater Remediation   $34.....................  $12....................  $6.
         Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $58 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Included Future Increase  $6,122..................  $2,450.................  $980.
         in CCR Beneficial Use.
    3. Net Benefits (2-1)...........  $4,845 to $5,930........  $1,947 to $2,439.......  $786 to $1,032.
    4. Benefit/Cost Ratio (2/1).....  4.286 to 5.022..........  4.319 to 5.159.........  4.330 to 5.370.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying the 50-year present values by a 50-year
  7% discount rate ``capital recovery factor'' of 0.07246.


 Table 11--Comparison of Regulatory Benefits to Costs Under Scenario 2--Induced Beneficial Use Decrease
        [$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                                               Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.
        1B. Ancillary Costs.........  $1,480..................  $5.....................  $5.
        1C. Conversion to Dry CCR     $12,089.................  4,836..................  $0.
         Disposal.
    2. Regulatory Benefits            ($230,817) to ($215,847)  $1,168 to $7,965.......  $593 to $3,983.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     ($233,549)..............  N/A....................  N/A.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($251,166) to ($236,196)  ($6,927) to ($130).....  ($2,666) to $724.
    4. Benefit/Cost Ratio (2/1).....  (11.343) to (10.607)....  0.144 to 0.984.........  0.182 to 1.222.
B. Average Annualized Equivalent
 Values*.
    1. Regulatory Costs (1A+1B+1C):   $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Costs.........  $107....................  $0.36..................  $0.36.

[[Page 35217]]


        1C. Conversion to Dry CCR     $876....................  $350...................  $0.
         Disposal.
    2. Regulatory Benefits            ($16,725) to ($15,640)..  $85 to $577............  $43 to $289.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Risks Avoided.
    2B. Groundwater Remediation       $34.....................  $12....................  $6.
     Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $57 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     ($16,923)...............  NA.....................  NA.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($18,199) to ($17,115)..  ($502) to ($9).........  ($193) to $52.
    4. Benefit/Cost Ratio (2/1).....  (11.347) to (10.610)....  0.145 to 0.983.........  0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.


   Table 12--Comparison of Regulatory Benefits to Costs Under Scenario 3--No Change to Beneficial Use
        [$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061]
----------------------------------------------------------------------------------------------------------------
                                        Subtitle C ``Special
                Costs                          Waste''                 Subtitle D          Subtitle ``D prime''
----------------------------------------------------------------------------------------------------------------
A. Present Values:
    1. Regulatory Costs (1A+1B+1C):   $20,349.................  $8,095.................  $3,259.
        1A. Engineering Controls....  $6,780..................  $3,254.................  $3,254.
        1B. Ancillary Costs.........  $1,480..................  $5.....................  $5.
        1C. Dry Conversion..........  $12,089.................  4,836..................  $0.
    2. Regulatory Benefits            $2,732 to $17,702.......  $1,168 to $7,965.......  $593 to $3,983.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $504....................  $207...................  $104.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $466....................  $168...................  $84.
         Costs Avoided.
        2C. CCR Impoundment Failure   $1,762 to $16,732.......  $793 to $7,590.........  $405 to $3,795.
         Cleanup Costs Avoided.
    2D. Induced Impact on CCR         $0......................  $0.....................  $0.
     Beneficial Use.
    3. Net Benefits (2-1)...........  ($17,617) to ($2,647)...  ($6,927) to ($130).....  ($2,666) to $724.
    4. Benefit/Cost Ratio (2/1).....  0.134 to 0.870..........  0.144 to 0.984.........  0.182 to 1.222.
B. Average Annualized Equivalent
 Values.
    1. Regulatory Costs (1A+1B+1C):   $1,474..................  $587...................  $236.
        1A. Engineering Controls....  $491....................  $236...................  $236.
        1B. Ancillary Costs.........  $107....................  $0.36..................  $0.36.
        1C. Dry Conversion..........  $876....................  $350...................  $0.
    2. Regulatory Benefits            $198 to $1,283..........  $85 to $577............  $43 to $289.
     (2A+2B+2C+2D):
        2A. Monetized Value of Human  $37.....................  $15....................  $8.
         Cancer Risks Avoided.
        2B. Groundwater Remediation   $34.....................  $12....................  $6.
         Costs Avoided.
        2C. CCR Impoundment Failure   $128 to $1,212..........  $57 to $550............  $29 to $275.
         Cleanup Costs Avoided.
        2D. Induced Impact on CCR     $0......................  $0.....................  $0.
         Beneficial Use.
    3. Net Benefits (2-1)...........  ($1,277) to ($192)......  ($502) to ($9).........  ($193) to $52.
    4. Benefit/Cost Ratio (2/1).....  0.134 to 0.870..........  0.145 to 0.983.........  0.182 to 1.225.
----------------------------------------------------------------------------------------------------------------
* Note: Average annualized equivalent values calculated by multiplying 50-year present values by a 50-year 7%
  discount rate ``capital recovery factor'' of 0.07246.


[[Page 35218]]

    EPA seeks comment on data and findings presented in the RIA, as 
well as on the cost and benefit estimation uncertainty factors 
identified in the RIA.

D. What are the potential environmental and public health impacts of 
the proposed regulatory alternatives?

    The potential environmental and public health impacts of CCR 
regulation assessed within the RIA include the following three 
categories:
     Groundwater Benefits (human health benefits and cleanup 
costs avoided)
     Catastrophic Failure Benefits (catastrophic and 
significant releases avoided)
     Beneficial Use Benefits
    The analyses of the groundwater impacts for the RIA were derived 
based on results from the risk assessment that was conducted for coal 
combustion residue landfills and surface impoundments. The second 
category of catastrophic impacts in the RIA was assessed, primarily 
based upon data on releases, as reported in EPA's 2009 Information 
Collection Request. And finally, the RIA assessment of beneficial use 
impacts was conducted using life-cycle analyses of current types and 
quantities of CCR beneficial use in the U.S. While the RIA focuses on 
monetizing these three impact categories, EPA notes that there are also 
likely noncancer health impacts, ecological impacts, other surface 
water impacts, and impacts on the ambient air, which are not monetized 
in this RIA.
1. Environmental and Public Health Impacts Estimated in the RIA
Groundwater Impacts
    In the RIA, EPA estimated the benefits of reduced cancer risks and 
avoided groundwater remediation costs associated with controlling 
arsenic from landfills and surface impoundments that manage coal 
combustion residuals (CCRs). These estimates are based on EPA's risk 
assessment, which predicts leaching behavior using SPLP and TCLP data. 
Furthermore, recent research and damage cases indicate that these 
leaching tests may under-predict risks from dry disposal.\164\ 
Therefore, the benefits estimated in this section are likely to 
underestimate the actual benefits provided by the proposed rule. EPA 
bases the cancer cases avoided on the individual ``excess'' lifetime 
cancer probabilities reported in the risk assessment, although for the 
present analysis, EPA uses more recent science on arsenic 
carcinogenicity, reflected in more recent NRC research.
---------------------------------------------------------------------------

    \164\ Recent EPA research demonstrates that CCRs can leach 
significantly more aggressively under different pH conditions 
potentially present in disposal units. In U.S. EPA (2009c), a recent 
ORD study of 34 facilities, CCRs from 19 facilities exceeded at 
least one of the Toxicity Characteristic regulatory values for at 
least one type of CCR (e.g., fly ash or FGD residue) at the self-
generated pH of the material. This behavior likely explains the 
rapid migration of constituents from disposal sites like Chesapeake, 
VA and Gambrills, MD. See also U.S. EPA (2006, 2008b).
---------------------------------------------------------------------------

    The RIA began its groundwater impacts assessment by first 
segregating facilities by their individual type of liner and their 
respective Waste Management Unit (WMU) designations. For each class of 
facility, GIS data were used to determine the potentially affected 
populations of groundwater drinkers within 1-mile of the WMU. Results 
from the risk assessment were applied to these populations by using a 
linear extrapolation, starting from a risk of zero--to the peak future 
risk as demonstrated by the risk assessment. The number of people who 
might potentially get cancer was then adjusted to account for more 
recent research by the NRC.
    Given the number of total potential cancers, EPA was able to use 
the same NRC data to split these cancers into lung cancers and bladder 
cancers, as well as into those that resulted in death versus those that 
did not. Once this subdivision was complete, EPA was then able to 
monetize these cancers using accepted economic values for a statistical 
life and cost of illness. In doing so, EPA was able to take account of 
both the potential lag in cancer cessation and the increase in value of 
a statistical life due to increases in income.
    EPA also recognized that due to the relevant pre-existing state 
regulations in this area, fewer cancers than the number projected would 
ultimately occur. Therefore, a baseline was established for the 
operation of state regulatory and remedial programs. This led to the 
exclusion of some cancers where states would likely fill the gap in the 
absence of any EPA regulations. However, once contamination was found 
by states, cleanup costs would be incurred. Thus, EPA accounted for 
these costs under each of the regulatory options as well.
    Once groundwater remediation costs and cancer costs under the 
baseline and each regulatory option were estimated, the aggregate 
benefits from each regulatory option were calculated (in comparison to 
the baseline). Net present value estimates were generated both at the 
3% and 7% discount rate, as discussed in further detail within the RIA. 
To summarize, at a discount rate of 7%, the net present value of the 
groundwater benefits (including both the avoided cleanup costs and the 
value of cancer cases avoided) from the proposed rule totaled $970 
million under the subtitle C option, and $375 million under the 
subtitle D option.
Catastrophic Failure Impacts
    The 2008 surface impoundment failure at the TVA's Kingston, TN 
power plant illustrated that the improper handling of CCRs can lead to 
catastrophic releases. EPA's co-proposal for the management of CCRs 
includes requirements that would lead to all plants with surface 
impoundments converting to dry handling in landfills within 5-years of 
rule implementation. In the RIA, EPA estimated the avoided catastrophic 
failures and associated cleanup cost savings resulting from this 
provision of the rule.
    First, EPA began by characterizing the releases reported in its 
2009 Information Collection Request. In this data set, 42 releases were 
reported for the years 1995 through 2009. Particularly, there were 5 
significant releases of between 1 million and 1 billion gallons, and 
one catastrophic release of over 1 billion gallons during this time 
period at coal fired power plants. Given these historic releases, EPA 
projected the occurrence of future releases using a Poisson 
distribution. EPA then estimated future avoided cleanup costs under the 
two proposed rules, and determined net present values of these benefits 
using both a 3% and 7% discount rate across the average and upper 
percentiles of risk demonstrated by the results of the Poisson 
distribution. The full details of these analyses are reported in the 
RIA. To summarize the results here at the 7% discount rate, the 
estimated net present value of avoided releases under the subtitle C 
requirements total $1,762 million on average (with the upper-bound 
estimates reaching from $3,140 to $4,177 million for the 90th and 99th 
percentiles). And under the subtitle D requirements and discount rate 
of 7%, the estimated net present value of avoided releases total $793 
million on average (with the upper-bound estimates reaching from $1,413 
to $1,880 million for the 90th and 99th percentiles).
    In addition, a second Poisson distribution was developed as a 
sensitivity analysis, using an alternative historical rate of 
occurrence. This was done to see to what extent an increased release 
rate would pose in terms of greater risks. Given the age of many CCR 
surface impoundments, an increase in the release rate might be 
expected. The cleanup costs avoided under the two co-proposed rules 
were again calculated as described above and included in the

[[Page 35219]]

RIA, given this alternative higher occurrence rate. To summarize the 
results of this sensitivity analysis, at a 7% discount rate the 
estimated net present value of avoided releases under the subtitle C 
requirements total $5,154 million on average (with the upper-bound 
estimates reaching from $7,356 to $9,423 million for the 90th and 99th 
percentiles). And under the subtitle D requirements and same discount 
rate of 7%, the estimated net present value of avoided releases total 
$2,319 million on average (with the upper-bound estimates reaching from 
$3,310 to $4,240 million for the 90th and 99th percentiles).
    Finally, a further sensitivity analysis was also performed to 
determine the extent to which these benefits would change if the 
catastrophic failures occurred sooner than projected by the Poisson 
distribution. Here, 96 impoundments were identified that were at least 
40 feet tall and at least 25 years old. For the purposes of the 
assessment, benefit estimates were calculated based on assumed 
impoundment failure rates of both 10% and 20%. The RIA includes net 
present value estimates of the avoided cleanup costs under the two co-
proposed rules for these two assumed failure rates, which are 
calculated using both 3% and 7% discount rates. Given the potential 
earlier releases, the analyses in the RIA find that at a 7% discount 
rate and a 10% failure rate, the net present value of avoided 
catastrophic failure costs is $8,366 under subtitle C, versus $3,795 
million under subtitle D. Furthermore, when assuming a failure rate of 
20% rather than 10%, the estimated net present value of avoided 
catastrophic failure costs increases to $16,732 million under Subtitle 
C, versus $7,590 million under subtitle D.
Beneficial Use Impacts
    The last category of such impacts assessed within the RIA includes 
the potential effects that the different regulatory options for 
disposal of coal combustion residuals (CCRs) may have upon the 
quantities of CCRs that are being beneficially used. In the RIA, EPA 
estimates the expected increase in beneficial use associated with the 
increased costs of disposing CCRs, and also evaluates potential future 
changes in the beneficial uses of CCRs as a result of a potential 
``stigma'' effect.
    To begin, EPA projected the quantity of CCRs that will be produced 
in the future, based upon Energy Information Administration's (EIA) 
estimates of future coal supply and demand. At the same time, EPA also 
projected the growth in the percent of beneficial use that would take 
place absent any EPA rule. Combining these, EPA was able to project the 
total quantities of beneficially used CCRs under the baseline of no 
federal rule.
    However, it is anticipated that the increased CCR disposal costs 
associated with a federal RCRA subtitle C rule, and the continued 
application of the Bevill exclusion to CCRs that are beneficially used, 
would provide significant incentive to electric utilities avoid higher 
disposal costs by increasing the quantity of CCRs going to beneficial 
use. Using the cost projections from the RIA for CCR disposal, EPA 
assumed that there would initially be unit elasticity with respect to 
cost, but that the elasticity would decrease with increasing market 
saturation. Based upon these assumptions, EPA projected the increased 
growth in beneficial use under a subtitle C rule. EPA then took the 
monetized benefits of current beneficial use, and applied them to our 
projected increases in beneficial use under the rule.
    When monetized, the values of these increases are extremely large, 
summing to a net present value of $5,560 million in economic benefits 
at a 7% discount rate. Furthermore, when considering total social 
benefits (e.g., decreased GHG emissions) the numbers are even greater, 
resulting in $84,489 million at a 7% discount rate. (Please note that 
because the total social benefits overlap with the economic benefits, 
these numbers should not be added together.) This number represents 
EPA's lower-bound estimate of the potential increase that it 
anticipates will occur.
    On the basis of past experience, EPA believes it is realistic to 
expect that there is a possibility that recycling rates will increase 
under a subtitle C rule, increasing the beneficial use of CCRs. 
However, stakeholders have raised the potential issue of ``stigma.'' 
Thus, the RIA also assesses this potential stigma effect and develops 
estimates of its potential impacts. Here, assumptions were made about 
what losses or reductions might result among the various sectors 
involved in the beneficial use of CCRs. For example, federally 
purchased concrete was assumed to stay at baseline levels because of 
the positive influence of comprehensive procurement guidelines that are 
already in place to encourage such types of beneficial uses. 
Conversely, for the purposes of assessing potential stigma effects, the 
levels of non-federally purchased concrete were assumed to decrease 
relative to the baseline.
    When monetized, the values of these decreases are also large, 
summing to a net present value of $18,744 million in economic costs at 
a 7% discount rate. Furthermore, when considering total social benefits 
(e.g., GHG emissions) the numbers are even greater, resulting in 
$233,549 million in economic costs at a 7% discount rate. This number 
represents EPA's estimate of the potential worst-case decrease that 
could occur in the event of potential stigma effect.
    Since the potential increases in beneficial use as discussed above 
are driven largely by increases in disposal costs under the subtitle C 
option, EPA further estimated the effects that would result under a 
subtitle D rule by applying a ratio of the rule's respective costs 
under both the C and D options. Using the ratio of the subtitle D costs 
to the subtitle C costs (a ratio of 0.40:1); the net present value of 
social benefits associated with increased beneficial use under subtitle 
D would be approximately $33,796 million (at an assumed discount rate 
of 7%). It is important to note further that under the subtitle D 
option for the proposed rule, no such stigma effect would exist and is, 
therefore, not accounted for in our analyses. However, to the extent 
that a stigma effect is real, it could just as easily decrease 
beneficial use under a subtitle D option.
2. Environmental and Public Health Impacts Not Estimated in the RIA
Impacts on Plants and Wildlife
    The risk assessment estimated significant risk of adverse effects 
to plants and wildlife, which is confirmed by the many impacts seen in 
the existing damage cases and field studies published in the peer-
reviewed scientific literature. These include: elevated selenium levels 
in migratory birds, wetland vegetative damage, fish kills, amphibian 
deformities, snake metabolic effects, plant toxicity, elevated 
contaminant levels in mammals as a result of environmental uptake, fish 
deformities, and inhibited fish reproductive capacity. Requirements in 
the proposed rule should prevent or reduce these impacts in the future 
by limiting the extent of environmental contamination and thereby 
reducing the levels directly available.
Impacts on Surface Water Not Captured in the RIA
    In EPA's risk assessment, recreational fishers could be exposed to 
constituents via the groundwater to surface water pathway. Furthermore, 
State Pollutant Discharge Elimination System (SPDES) and National 
Pollutant Discharge

[[Page 35220]]

Elimination System (NPDES) discharges from wet handling likely exceed 
the discharges from groundwater to surface water. Thus, exposure to 
arsenic via fish consumption could be significant. However, EPA expects 
that most facilities will eventually switch to dry handling of CCRs, a 
trend which is discussed in the RIA. This will reduce potential 
exposures to these constituents from affected fish.
Impacts on Ambient Air
    Another impact on public health not discussed in the RIA is the 
potential reduction of excess cancer cases associated with hexavalent 
chromium inhaled from the air. Since over six million individuals are 
estimated to live within the Census population data ``zip code 
tabulation areas'' for the plant location zip codes of coal-fired power 
plants affected by this proposed rule,\165\ the potential population 
health effects may be quite large. Inhalation of hexavalent chromium 
has been shown to cause lung cancer.\166\ By requiring fugitive dust 
controls, the proposed rule would reduce inhalation exposure to 
hexavalent chromium near waste management units that are not currently 
required to control fugitive dust.
---------------------------------------------------------------------------

    \165\ U.S. EPA. Regulatory Impact Analysis for EPA's Proposed 
Regulation of Coal Combustion Wastes Generated by the Electric 
Utility Industry, 2009. Office of Resource Conservation and 
Recovery.
    \166\ ATSDR Texas. Available at: http://www.atsdr.cdc.gov/
toxfaq.html.
---------------------------------------------------------------------------

Non-Cancer Health Effects Associated With CCR Particulate Matter
    There are several non-cancer health effects associated with CCRs 
are a result of particulate matter inhalation due to dry handling. 
Human health effects for which EPA is evaluating causality due to 
particulate matter exposure include cardiovascular morbidity, 
respiratory morbidity, and mortality, reproductive and developmental 
effects, and cancer.\167\ The potential for and extent of adverse 
health effects due to fugitive dusts from dry handling of CCRs was 
demonstrated in U.S. EPA 2010b, ``Inhalation of Fugitive Dust: A 
Screening Assessment of the Risks Posed by Coal Combustion Waste 
Landfills--DRAFT.'' The proposed rule's fugitive dust controls would 
serve to manage such potential risks by bringing them to acceptable 
levels.
---------------------------------------------------------------------------

    \167\ Integrated Science Assessment for Particulate Matter: 
First External Review Draft. EPA/600/R-08/139. Research Triangle 
Park, NC: U.S. Environmental Protection Agency, Office of Research 
and Development. 2008.
---------------------------------------------------------------------------

    Particles can also be carried over long distances by wind and then 
settle on ground or water. The effects of this settling include: 
changing the pH of lakes and streams; changing the nutrient balance in 
coastal waters and large river basins; depleting nutrients in soil; 
damaging sensitive forests and farm crops; and affecting the diversity 
of ecosystems.\168\ Additionally, fine particulates are known to 
contribute to haze.\169\ Thus, the fugitive dust controls contained in 
the proposed rule would improve visibility, and reduce the 
environmental impacts discussed above.
---------------------------------------------------------------------------

    \168\ http://www.epa.gov/particles/health.html.
    \169\ Ibid.
---------------------------------------------------------------------------

XIII. Other Alternatives EPA Considered

    In determining the level of regulation appropriate for the 
management of CCRs, taking into account both the need for regulations 
to protect human health and the environment and the practical 
difficulties associated with implementation of such regulations, the 
Agency considered a number of approaches in addition to regulating CCRs 
under subtitle C or subtitle D of RCRA. Specifically, the Agency also 
considered several combination approaches, such as regulating surface 
impoundments under subtitle C of RCRA, while regulating landfills under 
subtitle D of RCRA.
    Under all of the approaches EPA considered, CCRs that were 
beneficially used would retain the Bevill exemption. In addition, under 
all the approaches, requirements for liners and ground water monitoring 
would be established, as well as annual inspections of all CCR surface 
impoundments by an independent registered professional engineer to 
ensure that the design, operation, and maintenance of surface 
impoundments are in accordance with recognized and generally accepted 
good engineering standards. However, the degree and extent of EPA's 
authority to promulgate certain requirements, such as permitting, 
financial assurance, facility-wide corrective action, varies under RCRA 
subtitle C versus subtitle D. In addition, the degree and extent of 
federal oversight, including enforcement, varies based on whether a 
regulation is promulgated under RCRA subtitle C or subtitle D 
authority. (See Section IV. for a more detailed discussion on the 
differences in EPA's authorities under RCRA subtitle C and subtitle D.)
    Under one such approach, wet-handled CCRs--that is, those CCRs 
managed in surface impoundments or similar management units--would be 
regulated as a hazardous or special waste under RCRA subtitle C, while 
dry handled CCRs--that is, those CCRs managed in landfills--would be 
regulated under RCRA subtitle D. Wet-handled CCR wastes would be 
regulated under the co-proposed subtitle C alternative described 
earlier in the preamble (see section VI), while dry-handled CCRs would 
be regulated under the co-proposed RCRA subtitle D alternative 
described earlier in the preamble (see section IX). In addition, EPA 
would retain the existing Bevill exemption for CCRs that are 
beneficially used. Under this approach, EPA would establish modified 
requirements for wet-handled CCRs, pursuant to RCRA 3004(x), as laid 
out in the co-proposed subtitle C alternative.
    This approach would have many of the benefits of both of today's 
co-proposed regulations. For example, this approach provides a high 
degree of federal oversight, including permit requirements and 
federally enforceable requirements, for surface impoundments and 
similar units that manage wet CCRs. Based on the results of our ground 
water risk assessment, it would also provide a higher level of 
protection for those wastes whose method of management presents the 
greatest risks (i.e., surface impoundments). On the other hand, dry 
CCRs managed in landfills, while still presenting a risk if the CCRs 
are not properly managed, clearly present a lower risk, according to 
the risk assessment and, therefore, a subtitle D approach might be more 
appropriate. Also, landfills that manage CCRs are unlikely to present a 
risk of catastrophic failure, such as that posed by surface 
impoundments that contain large volumes of wet-handled CCRs. EPA also 
believes this approach could address the concerns of many commenters 
who expressed their views that subtitle C regulations would overwhelm 
off-site disposal capacity and would place a stigma on beneficial uses 
of CCRs.
    Of course, this approach also shares the disadvantages of the 
subtitle C approach, as it applies to surface impoundments, and of the 
subtitle D approach, as it applies to landfills. For example, portions 
of the rules applicable to surface impoundments would not become 
enforceable until authorized states adopt the subtitle C regulations 
and become authorized; and rules applicable to landfills would not be 
directly federally enforceable. For a full discussion of the advantages 
and disadvantages of the subtitle C and subtitle D options see sections 
VI and IX.
    Under another approach considered by EPA, the Agency would issue 
the proposed subtitle C regulations, but they would not go into effect 
for some time

[[Page 35221]]

period, such as three years, as an example, after promulgation. The 
rule would include a condition that would exclude CCRs from regulation 
under subtitle C of RCRA in states that: (l) Had developed final 
enforceable subtitle D regulations that are protective of human health 
and the environment,\170\ (2) had submitted those regulations to EPA 
for review within two years after the promulgation date of EPA's 
subtitle C rule, and (3) EPA had approved within one year, through a 
process allowing for notice and comment, possibly comparable to the 
current MSW subtitle D approval process. If a state failed to develop 
such a program within the two year timeframe for state adoption of the 
regulations or if EPA did not approve a state program within the one-
year timeframe for state approval, the hazardous waste or special waste 
listing would become effective. Under this alternative, each state 
would be evaluated individually, which could lead to a situation where 
CCRs were managed as hazardous or special wastes in certain states, 
while in other states, they would be managed as non-hazardous wastes. 
Such an approach could present some implementation issues, particularly 
if CCRs were transported across state lines. In addition, EPA has 
serious questions as to whether RCRA, as currently drafted, would allow 
EPA to promulgate such a regulation. However, EPA solicits comments on 
this option, both generally and with respect to the specific time 
frames.
---------------------------------------------------------------------------

    \170\ Under this approach, EPA also would establish minimum 
national standards that ensure that CCRs that are managed under the 
``D'' regulations would be protective of human health and the 
environment.
---------------------------------------------------------------------------

    Commenters also have suggested an approach similar to that proposed 
for cement kiln dust (CKD) in an August 20, 1999 proposed rule (see 64 
FR 45632 available at http://www.epa.gov/fedrgstr/EPA-WASTE/1999/
August/Day-20/f20546.htm). Under the CKD approach, the Agency would 
establish detailed management standards under subtitle D of RCRA. CCRs 
managed in accordance with the standards would not be a hazardous or 
special waste. However, CCRs that were in egregious violation of these 
requirements, such as disposal in land-based disposal units that were 
not monitored for groundwater releases or in new units built without 
liners, would be considered listed hazardous or special waste and 
subject to the tailored subtitle C requirements. (EPA is soliciting 
comment on this approach because commenters have suggested it; 
interested commenters may wish to consult the CKD proposal for more 
detail on how it would work. See 64 FR 45632 available at http://
www.epa.gov/epawaste/nonhaz/industrial/special/ckd/ckd/ckd-fr.pdf). 
Like the previous approach, EPA is evaluating (and in fact is re-
evaluating) this approach, and whether RCRA provides EPA the authority 
to promulgate such a rule.
    Other commenters suggested yet another approach whereby EPA would 
regulate CCRs going for disposal under RCRA subtitle C, but they assert 
that EPA would not have to specifically list CCR as a hazardous waste 
using the criteria established in 40 CFR 261.11. These commenters 
believe that RCRA Sec.  3001(b)(3)(A) (the so-called Bevill Amendment) 
authorizes the Agency to regulate CCRs under subtitle C as long as the 
Agency determines that subtitle C regulation is warranted based on the 
consideration of the eight factors identified in RCRA Sec.  8002(n). 
The commenters analysis of their approach is set forth in a memorandum 
submitted to the Agency and is in the docket for today's notice. EPA 
has not adopted the commenters suggested reading of the statute, but 
solicits comments on it. (See ``EPA Has Clear Authority to Regulate CCW 
under RCRA's Subtitle C without Making a Formal Listing 
Determination,'' White Paper from Eric Schaeffer, Environmental 
Integrity Project which is available in the docket for this proposal.)
    Finally, some commenters have suggested that EPA not promulgate any 
standards, whether it be RCRA subtitle C or D, but continue to rely on 
the states to regulate CCRs under their existing or new state 
authority, and that EPA could rely on RCRA section 7003 (imminent and 
substantial endangerment) authority, to the extent the Agency had 
information that a problem existed that it needed to address. The 
Agency does not believe that such an approach is at all acceptable, and 
that national regulations whether it be under RCRA subtitle C or D 
needs to be promulgated. First, RCRA was designed as a preventative 
statute and not one where EPA would get involved only after a problem 
has been discovered. Thus, such an approach would not be consistent 
with the purpose and objectives of RCRA. In addition, this approach 
would basically implement the status quo--that is, the control of CCRs 
over the last decade, which the Agency believes has not shown to be at 
all acceptable. Furthermore, imminent and substantial endangerment 
authority is facility-specific and resource intensive. That is, such 
authority can only be used when EPA has sufficient information to 
determine that disposal of CCRs are contributing to an imminent and 
substantial endangerment. Thus, relying on this authority, without 
national regulations, is poorly suited to address the many problems 
that have occurred, and are likely to occur in the future. 
Nevertheless, the Agency solicits comment on such an approach.
    EPA solicits comments on all of the approaches discussed above. The 
Agency is still considering all of these approaches, as well as our 
legal authorities to promulgate them, and will continue to do so as we 
move toward finalizing the regulations applicable to the disposal of 
CCRs.

XIV. Is the EPA soliciting comments on specific issues?

    Throughout today's preamble, the Agency has identified many issues 
for which it is soliciting comment along with supporting information 
and data. In order to assist readers in providing EPA comments and 
supporting information, in this section EPA is identifying many of the 
major issues on which comments with supporting information and data are 
requested.

Management of CCRs

     Whether regulatory approaches should be established 
individually for the four Bevill CCR wastes (fly ash, bottom ash, 
boiler slag, and FGD sludges) when destined for disposal.
     The extent to which the information currently available to 
EPA reflects current industry practices at both older and new units.
     The regulatory approaches proposed in the notice and the 
alternative approaches EPA is considering as discussed in Section XIII 
of the preamble.
     The Agency has documented, through proven damage cases and 
risk analyses, that the wet handling of CCRs in surface impoundments 
poses higher risks to human health and the environment than the dry 
handling of CCRs in landfills. EPA seeks comments on the standards 
proposed in this notice to protect human health and the environment 
from the wet handling of CCRs. For example, in light of the TVA 
Kingston, Tennessee, and the Martins Creek, Pennsylvania CCR 
impoundment failures, should the Agency require that owners or 
operators of existing and new CCR surface impoundments submit emergency 
response plans to the regulatory authority if wet handling of CCRs is 
practiced?
     The degree to which coal refuse management practices have 
changed and the impacts of those changes or, for

[[Page 35222]]

example, groundwater monitoring and the use of liners.
     Information and data on CCRs that are generated by non-
utility industries, such as volumes generated, characteristics of the 
CCRs, and whether they are co-managed with other wastes generated by 
the non-utility industry.

Risk Assessment

     Are there any additional data that are representative of 
CCR constituents in surface impoundment or landfill leachate (from 
literature, state files, industry or other sources) that EPA has not 
identified and should be used in evaluating the risks presented by the 
land disposal of CCRs?
     The screening analysis conducted to estimate risks from 
fugitive CCR dust; data from any ambient air monitoring for particulate 
matter that has been conducted; where air monitoring stations are 
located near CCR landfills or surface impoundments; and information on 
any techniques, such as wetting, compaction, or daily cover that are or 
can be employed to reduce such exposures.
     Whether site-averaged porewater data used in model runs in 
EPA's risk analyses are representative of leachate from surface 
impoundments.
     Information and data regarding the existence of drinking 
water wells that are down-gradient of CCR disposal units, any 
monitoring data that exists on those monitoring wells and the potential 
of these wells to be intercepted by surface water bodies.

Liners

     Whether, in addition to the flexibility provided by 
section 3004(o)(2), regulations should also provide for alternative 
liner designs based on, for example, a specific performance standard, 
such as the performance standard in 40 CFR 258.40(a)(1), or a site 
specific risk assessment, or a standard that the alternative liner, 
such as a clay liner, was at least as effective as the composite liner.
     Whether clay liners designed to meet a 1 x 10-7 
cm/sec hydraulic conductivity might perform differently in practice 
than modeled in the risk assessment, including specific data on the 
hydraulic conductivity of clay liners associated with CCR disposal 
units.
     The effectiveness of such additives as organosilanes, 
including any analyses that would reflect long-term performance of the 
additives, as well as the appropriateness of a performance standard 
that would allow the use of these additives in lieu of composite 
liners.

Beneficial Use

     The growth and maturation of state beneficial use programs 
and the growing recognition that the beneficial use of CCRs is a 
critical component in strategies to reduce GHG emissions taking into 
account the potentially changing composition of CCRs as a result of 
improved air pollution controls and the new science on metals leaching.
     Information and data on the extent to which states request 
and evaluate CCR characterization data prior to the beneficial use of 
unencapsulated CCRs.
     The appropriate means of characterizing beneficial uses 
that are both protective of human health and the environment and 
provide benefits. EPA is also requesting information and data 
demonstrating where the federal and state programs could improve on 
being environmentally protective and, where states have, or are 
developing, increasingly effective beneficial use programs.
     Whether certain uses of CCRs (e.g., uses involving 
unencapsulated uses of CCRs) warrant tighter control and why such 
tighter control is necessary.
     If EPA determines that regulations are needed for the 
beneficial use of CCRs, should EPA consider removing the Bevill 
exemption for such uses and regulate these uses under RCRA subtitle C, 
develop regulations under RCRA subtitle D or some other statutory 
authority, such as under the Toxic Substances Control Act?
     Whether it is necessary to define beneficial use better or 
develop detailed guidance on the beneficial use of CCRs to ensure 
protection of human health and the environment, including whether 
certain unencapsulated beneficial uses should be prohibited.
     Whether the Agency should promulgate standards allowing 
uses on the land, on a site-specific basis, based on site specific risk 
assessments, taking into consideration the composition of CCRs, their 
leaching potential under the range of conditions under which the CCRs 
would be managed, and the context in which CCRs would be applied, such 
as location, volume, rate of application, and proximity to water.
     If materials characterization is required, what type of 
characterization is most appropriate? If the CCRs exceed the toxicity 
characteristic at pH levels different from the TCLP, should they be 
excluded from beneficial use? When are totals levels relevant?
     Whether EPA should fully develop a leaching assessment 
tool in combination with the Draft SW-846 leaching test methods 
described in Section I. F. 2 and other tools (e.g., USEPA's Industrial 
Waste Management Evaluation Model (IWEM)) to aid prospective beneficial 
users in calculating potential release rates over a specified period of 
time for a range of management scenarios.
     Information and data relating to the agricultural use of 
FGD gypsum, including the submission of historical data, taking into 
account the impact of pH on leaching potential of metals, the variable 
and changing nature of CCRs, and variable site conditions.
     Historically, EPA has proposed or imposed conditions on 
other types of hazardous wastes used in a manner constituting disposal 
(e.g., maximum application rates and risk-based concentration limits 
for cement kiln dust used as a liming agent in agricultural 
applications (see 64 FR 45639; August 20, 1999); maximum allowable 
total concentrations for non-nutritive and toxic metals in zinc 
fertilizers produced from recycled hazardous secondary materials (see 
67 FR 48393; July 24, 2002). Should EPA establish standards, such as 
maximum/minimum thresholds, or rely on implementing states to impose 
CCR site-specific limits based on front-end characterization that 
ensures individual beneficial uses remain protective?
     Whether additional beneficial uses of CCRs have been 
established, since the May 2000 Regulatory Determination, that have not 
been discussed elsewhere in today's preamble. The Agency solicits 
comment on any new uses of CCR, as well as the information and data 
which support that CCRs are beneficially used in an environmentally 
sound manner.
     Whether there are incentives that could be provided that 
would increase the amount of CCRs that are beneficially used and 
comment on specific incentives that EPA could adopt that would further 
encourage the beneficial use of CCRs.
     Information and data on the best means for estimating 
current and future quantities and changes in the beneficial use of 
CCRs, as well as on the price elasticity of CCR applications in the 
beneficial use market.

Stigma

     If EPA were to regulate CCRs as a ``special waste'' under 
subtitle C of RCRA, and stigma turns out to be an issue, suggestions on 
methods by which the Agency could reduce any stigmatic impact that 
might indirectly arise. We are seeking information on actual instances 
where ``stigma'' has adversely affected the beneficial use of CCRs and 
the causes of these adverse effects.
     The issue of ``stigma'' and its impact on beneficial uses 
of CCRs, including

[[Page 35223]]

more specifics on the potential for procedural difficulties for state 
programs, and measures that EPA might adopt to try to mitigate these 
effects.
     For those commenters who argue that regulating CCRs under 
subtitle C of RCRA would raise liability issues, EPA requests that 
commenters describe the types of liability and the basis/data/
information on which these claims are based.
     EPA furthermore welcomes ideas on how to best estimate 
these effects for purposes of conducting regulatory impact analysis, 
and requests any data or methods that would assist in this effort.

Today's Co-Proposed Regulations

General
     Some commenters have suggested that EPA not promulgate any 
standards, whether they be RCRA subtitle C or D, but continue to rely 
on the states to regulate CCRs under their existing or new state 
authorities. The Agency solicits comment on such an approach, including 
how such an approach would be protective of human health and the 
environment.
RCRA Subtitle C Regulations
     Whether EPA should modify the corrective action 
requirements for facility-wide corrective action under the subtitle C 
co-proposal under the authority of section 3004(x) of RCRA. If so, how 
such modification would be protective of human health and the 
environment.
     Pursuant to RCRA section 3010 and 40 CFR 270.1(b), 
facilities managing these special wastes subject to RCRA subtitle C 
must notify EPA of their waste management activities within 90 days 
after the wastes are identified or listed as a special waste. The 
Agency is proposing to waive this notification requirement for persons 
who handle CCRs and have already: (1) notified EPA that they manage 
hazardous wastes, and (2) received an EPA identification number. Should 
such persons be required to re-notify the Agency that they generate, 
transport, treat, store or dispose of CCRs?
     Representatives of the utility industry have stated their 
view that CCRs cannot be practically or cost effectively managed under 
the existing RCRA subtitle C storage standards, and that these 
standards impose significant costs without meaningful benefits when 
applied specifically to CCRs. Comments are solicited on the 
practicality of the proposed subtitle C storage requirements for CCRs, 
the workability of the existing variance process allowing alternatives 
to secondary containment, and the alternative requirements based, for 
example, on the mining and mineral processing waste storage 
requirements.
RCRA Subtitle D Regulations
     EPA broadly solicits comment on the approach of relying on 
certifications by independent registered professional hydrologists or 
engineers of the adequacy of actions taken at coal-fired utilities to 
design and operate safe waste management systems.
     The Agency does not have specific data showing the number 
of CCR landfills located in fault areas where movement along Holocene 
faults is common, and the distance between these units and the active 
faults and, thus, is unable to precisely estimate the number of these 
existing CCR landfills that would not meet today's proposed fault area 
restrictions. Additional information regarding the extent to which 
existing landfills are currently located in such locations is 
solicited.
     In general, EPA believes that a 200-foot buffer zone is 
necessary to protect engineered structures from seismic damages and 
also expects that the 200-foot buffer is appropriate for CCR surface 
impoundments. The Agency seeks comment and data on whether the buffer 
zone should be greater for surface impoundments.
     Additional information regarding the extent to which 
landfill capacity would be affected by applying the proposed subtitle D 
location restrictions to existing CCR landfills.
     The proposed location requirements do not reflect a 
complete prohibition on siting facilities in areas of concern, but 
provide a performance standard that facilities must meet in order to 
site a unit in such a location. Information on the extent to which 
facilities could comply with the proposed performance standards, and 
the necessary costs that would be incurred to retrofit CCR disposal 
units to meet these standards is solicited.
     The proposed definition of seismic impact zones and 
whether there are variants that could lessen the burden on the industry 
and the geographic areas covered by the proposed definition.
     Whether the subtitle D option, if promulgated, should 
allow facilities to use alternative designs for new disposal units, so 
long as the owner or operator of a unit could obtain certification from 
an independent registered professional engineer or hydrologist that the 
alternative design would ensure that the appropriate concentration 
values for a set of constituents typical of CCRs will not be exceeded 
in the uppermost aquifer at the relevant point of compliance (i.e., 150 
meters from the unit boundary down gradient from the unit, or the 
property boundary if the point of compliance is beyond the property 
boundary).
     Whether there could be homeland security implications with 
the requirement to post information on an internet site and whether 
posting certain information on the internet may duplicate information 
that is already available to the public through the State.
     Whether the subtitle ``D prime'' option is protective of 
human health and the environment.
     EPA is proposing that existing CCR landfills and surface 
impoundments that cannot make a showing that a CCR landfill or surface 
impoundment can be operated safely in a floodplain or unstable area 
must close within five years after the effective date of the rule. EPA 
solicits comment on the appropriate amount of time necessary to meet 
this requirement, as well as measures that could help to address the 
potential for inadequate disposal capacity.
     The effectiveness of annual surface impoundment 
assessments in ensuring the structural integrity of CCR surface 
impoundments over the long term.

Surface Impoundment Closeout

     Whether the Agency should provide for a variance process 
allowing some surface impoundments that manage wet-handled CCRs to 
remain in operation because they present minimal risk to groundwater 
(e.g., because they have a composite liner) and minimal risk of a 
catastrophic release (e.g., as indicated by a low or less than low 
potential hazard rating under the Federal Guidelines for Dam Safety 
established by the Federal Emergency Management Agency).

Surface Impoundment Stability

     The adequacy of EPA's proposals to address surface 
impoundment integrity under RCRA.
     Whether to address all CCR impoundments for stability, 
regardless of height and storage volume; whether to use the cut-offs in 
the MSHA regulations; or whether other regulations, approaches, or size 
cut-offs should be used. If commenters believe that other regulations 
or different size cut-offs should be adopted, we request that 
commenters provide the basis and technical support for their position.
     Whether surface impoundment integrity should be addressed 
under EPA's NPDES permit program, rather than the development of 
regulations under RCRA, whether it be RCRA subtitles C or D.

[[Page 35224]]

Financial Assurance

     EPA broadly solicits comments on whether financial 
assurance should be a key program element under a subtitle D approach, 
if the decision is made to promulgate regulations under RCRA subtitle 
D.
     Whether financial responsibility requirements under CERCLA 
Sec.  108(b) should be a key Agency focus for ensuring that funds are 
available for addressing the mismanagement of CCRs.
     How the financial assurance requirements might apply to 
surface impoundments that cease receiving CCRs before the effective 
date of the rule.
     Whether a financial test similar to that in 40 CFR 
258.74(f) in the Criteria for Municipal Solid Waste Landfills should be 
established for local governments that own and operate coal-fired power 
plants.

State Programs

     Detailed information on current and past individual state 
regulatory and non-regulatory approaches taken to ensure the safe 
management of CCRs, not only under State waste authorities, but under 
other authorities as well, including the implementation of those 
approaches.
     The potential of federal regulations to cause disruption 
to States' implementation of CCR regulatory programs under their own 
authorities, including more specifics on the potential for procedural 
difficulties for State programs, and measures that EPA might adopt to 
try to mitigate these effects.

Damage Cases

     EPRI's report and additional data regarding the proven 
damage cases identified by EPA, especially the degree to which there 
was off-site contamination.
     The report of additional damage cases submitted to EPA on 
February 24, 2010 by the Environmental Integrity Project and 
EarthJustice.

Regulatory Impact Analysis

     Data and findings presented in the RIA, as well as on the 
cost and benefit estimation uncertainty factors identified in the RIA.
     Data on the costs of converting coal fired power plants 
from wet handling to dry handling with respect to the various air 
pollution controls, transportation systems, disposal units, and other 
heterogeneous factors.
     Relevant RCRA corrective actions and related costs that 
would be useful in characterizing the potential costs for future 
actions.
     Information on other significant and catastrophic surface 
impoundment releases of CCRs or other similar materials and cleanup 
costs associated with these releases?
     Data on the costs of storage of CCRs in tanks or tank 
systems, on pads, or in buildings.
     EPA has also quantified and monetized the benefits of this 
rule to the extent possible based on available data and modeling tools, 
but welcomes additional data that may be available that would assist 
the Agency in expanding and refining our existing benefit estimates.

XV. Executive Orders and Laws Addressed in This Action

A. Executive Order 12866: Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, 
October 4, 1993), this action is an ``economically significant 
regulatory action'' because it is likely to have an annual effect on 
the economy of $100 million or more (section 3(f)(1)). This 
determination is based on the regulatory cost estimates provided in 
EPA's ``Regulatory Impact Analysis'' (RIA) which is available in the 
docket for this proposal. The RIA estimated regulatory implementation 
and compliance costs, benefits and net benefits for a number of 
regulatory options, including a subtitle C ``special waste'' option, a 
subtitle D option and, a subtitle ``D prime'' option. The subtitle D 
prime option was briefly described in the Preamble and is more fully 
discussed in the RIA to the co-proposal. On an average annualized 
basis, the estimated regulatory compliance costs for the three options 
in today's proposed action are $1,474 million (subtitle C special 
waste), $587 million (subtitle D), and $236 million (subtitle ``D 
prime'') per year. On an average annualized basis, the estimated 
regulatory benefits for the three options in today's proposed action 
are $6,320 to $7,405 million (subtitle C special waste), $2,533 to 
$3,026 million (subtitle D), and $1,023 to $1,268 million (subtitle ``D 
prime'') per year. On an average annualized basis, the estimated 
regulatory net benefits for the three options in today's proposed 
action are $4,845 to $5,930 million (subtitle C special waste), $1,947 
to $2,439 million (subtitle D), and $786 to $1,032 million (subtitle 
``D prime'') per year. All options exceed $100 million in expected 
future annual effect. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866, and 
changes made in response to OMB recommendations are documented in the 
docket for this proposal.

B. Paperwork Reduction Act

    The information collection requirements contained in this proposed 
rule has been submitted for approval to the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
The Information Collection Request (ICR) document prepared by EPA has 
been assigned EPA ICR number 1189.22.
    Today's action co-proposes two regulatory alternatives that would 
regulate the disposal of CCRs under RCRA. The regulatory options 
described in today's notice contain mandatory information collection 
requirements. One of the regulatory options (subtitle C special waste 
option) would also trigger mandatory emergency notification 
requirements for releases of hazardous substances to the environment 
under CERCLA and EPCRA. The labor hour burden and associated cost for 
these requirements are estimated in the ICR ``Supporting Statement'' 
for today's proposed action. The Supporting Statement identifies and 
estimates the burden for the following nine categories of information 
collection: (the proposed options also contain other regulatory 
requirements not listed here because they do not involve information 
collection).

1. Groundwater monitoring
2. Post-closure groundwater monitoring
3. RCRA manifest cost (for subtitle C only)
4. Added cost of RCRA subtitle C permits for all offsite CCR landfills
5. Structural integrity inspections
6. RCRA facility-wide investigation (for subtitle C only)
7. RCRA TSDF hazardous waste disposal permit (for subtitle C only)
8. RCRA enforcement inspection (for subtitle C only)
9. Recordkeeping requirements

    Based on the same data and cost calculations applied in the 
``Regulatory Impact Analysis'' (RIA) for today's action, but using the 
burden estimation methods for ICRs, the ICR ``Supporting Statement'' 
estimates an average annual labor hour burden of 2.88 million hours for 
the subtitle C ``special waste'' option and 1.38 million hours for both 
the subtitle D and ``D prime'' options at an average annual cost of 
$192.93 million for the subtitle C ``special waste'' option and $92.6 
million for both the subtitle D options. One-time capital and hourly 
costs are included in these estimates based on a three-year 
annualization period. The estimated number of likely respondents (under 
the options) ranges

[[Page 35225]]

from 90 to 495, depending on the information category enumerated above. 
Burden is defined at 5 CFR 1320.3(b). 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 EPA's regulations in 40 CFR are listed in 
40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2009-0640. Submit any comments related to the ICR to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after June 21, 2010, a comment to OMB is best assured of having its 
full effect if OMB receives it by July 21, 2010. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the Agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities in the electric utility industry, small entity is defined as: 
(1) A small fossil fuel electric utility plant as defined by NAICS code 
221112 with a threshold of less than four million megawatt-hours of 
electricity output generated per year (based on Small Business 
Administration size standards); (2) a small governmental jurisdiction 
that is a government based on municipalities with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    EPA certifies that this action will not have a significant economic 
impact on a substantial number of small entities (i.e., no SISNOSE). 
EPA nonetheless continues to be interested in the potential impacts of 
the proposed rule on small entities and welcomes comments on issues 
related to such impacts, including our estimated count of small 
entities that own the 495 electric utility plants covered by this rule. 
This certification is based on the small business analysis contained in 
the RIA for today's proposal, which contains the following findings and 
estimates.
     The RIA identifies 495 electric utility plants likely 
affected by the proposed rule, based on 2007 data. The RIA estimates 
these 495 plants are owned by 200 entities consisting of 121 companies, 
18 cooperative organizations, 60 state or local governmental 
jurisdictions, and one Federal government Agency. The RIA estimates 
that 51 of these 200 owner entities (i.e., 26%) may be classified as 
small entities, consisting of 33 small municipal governments, 11 small 
companies, 6 small cooperatives, plus 1 small county government.
     The RIA includes a set of higher cost estimates for the 
regulatory options and the RFA evaluation is based on these estimates 
and therefore overestimates potential impacts of our proposed 
regulations. The RIA estimated that (a) None of the 51 small entities 
may experience average annualized regulatory compliance costs of 
greater than three percent of annual revenues, (b) one to five of the 
51 small entities (i.e., 2% to 10%) may experience regulatory costs 
greater than one percent of annual revenues, and (c) 46 to 50 of the 
small entities (i.e., 90% to 98%) may experience regulatory costs less 
than one percent of annual revenues. These percentages constitute the 
basis for today's no-SISNOSE certification.
    As analyzed in the RIA, there are two electricity market factors 
which may be expected to reduce or eliminate these potential revenue 
impacts on small entities, as well as for the other owner entities for 
the 495 plants:
     Electric utility plants have a mechanism to cover 
operating cost increases via rate hike petitions to public utility 
commissions in states which regulate public utilities, and via market 
price increases in the 18 states (as of 2008) which have de-regulated 
electric utilities, and
     The residential, commercial, industrial, and 
transportation sector economic demand for (i.e., consumption of) 
electricity is relatively price inelastic, which suggests that electric 
utility plants may succeed in passing through most or all regulatory 
costs to their electricity customers.
    However, because the Agency is sensitive to any potential impacts 
its regulations may have on small entities, the Agency requests comment 
on its analysis, and its finding that this action is not expected to 
have a significant economic impact on a substantial number of small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies, unless otherwise 
prohibited by law, to assess the effects of their regulatory actions on 
State, local, and tribal governments and the private sector. This co-
proposal contains a Federal mandate that may result in expenditures of 
$100 million or more for State, local, and tribal governments, in the 
aggregate, or for the private sector, in any one year.
    The RIA includes a set of higher cost estimates for the regulatory 
options and the UMRA evaluation is based on these estimates and 
therefore overestimates the potential impacts of this co-proposal. 
Accordingly, EPA has prepared under section 202 of the UMRA a ``Written 
Statement'' (an appendix to the RIA) which is summarized below. Today's 
co-proposal will likely affect 495 electric utility plants owned by an 
estimated 200 entities, of which 139 private sector electric utility 
companies and cooperatives may incur between $415 million to $1,999 
million in future annual direct costs across the high-end options in 
the RIA, which exceed the $100 million UMRA direct cost threshold under 
each of the regulatory options. In addition, 60 entities are state or 
local governments which may incur between $56 million to $97 million in 
future annual direct costs across the regulatory options, the upper-end 
of which is slightly under the $100 million UMRA direct cost threshold. 
The remainder single entity is a Federal government Agency (i.e., 
Tennessee Valley Authority).
    Although the estimated annual direct cost on state or local 
governments is less than the $100 million UMRA threshold, (a) because 
the highest-cost regulatory option is only 3% less than the $100 
million annual direct cost threshold, and (b) because there are a 
number of uncertainty factors (as identified in the RIA) which could 
result in regulatory costs being lower or higher than estimated, EPA 
consulted with small governments according to EPA's UMRA interim small 
government consultation

[[Page 35226]]

plan developed pursuant to section 203 of the UMRA. EPA's interim plan 
provides for two types of possible small government input: technical 
input and administrative input. According to this plan, and consistent 
with section 204 of the UMRA, early in the process for developing 
today's co-proposal, the Agency implemented a small government 
consultation process consisting of two consultation components.
     A series of meetings in calendar year 2009 were held with 
the purpose of acquiring small government technical input, including: 
(1) A February 27 meeting with ASTSWMO's Coal Ash Workgroup 
(Washington, DC); (2) a March 22-24 meeting with ECOS at their Spring 
Meeting (Alexandria VA); (3) a April 15-16 meeting with ASTSWMO at 
their Mid-Year Meeting (Columbus OH), (4) a May 12-13 meeting at the 
EPA Region IV State Directors Meeting (Atlanta, GA), (5) a June 17-18 
meeting at the ASTSWMO Solid Waste Managers Conference (New Orleans, 
LA), (6) a July 21-23 meeting at ASTSWMO's Board of Directors Meeting 
(Seattle, WA), and (7) an August 12 meeting at ASTSWMO's Hazardous 
Waste Subcommittee Meeting (Washington, DC). ASTSWMO is an organization 
with a mission to work closely with EPA to ensure that its state 
government members are aware of the most current developments related 
to their state waste management programs. ECOS is a national non-
profit, non-partisan association of state and territorial environmental 
Agency leaders. As a result of these meetings, EPA received letters in 
mid-2009 from 22 state governments, as well as a letter from ASTSWMO 
expressing their stance on CCR disposal regulatory options.
    Letters were mailed on August 24, 2009 to the following 10 
organizations representing state and local elected officials, to inform 
them and seek their input for today's proposed rulemaking, as well as 
to invite them to a meeting held on September 16, 2009 in Washington, 
DC: (1) National Governors Association; (2) National Conference of 
State Legislatures, (3) Council of State Governments, (4) National 
League of Cities, (5) U.S. Conference of Mayors, (6) County Executives 
of America, (7) National Association of Counties, (8) International 
City/County Management Association, (9) National Association of Towns 
and Townships, and (10) ECOS. These 10 organizations of elected state 
and local officials are identified in EPA's November 2008 Federalism 
guidance as the ``Big 10'' organizations appropriate to contact for 
purpose of consultation with elected officials. EPA has received 
written comments from a number of these organizations and a copy of 
their comments has been placed in the docket for this rulemaking. The 
commenters express significant concerns with classifying CCRs as a 
hazardous waste. Their major concerns are that federal regulation could 
undercut or be duplicative of State regulations; that any federal 
regulation will have a great impact on already limited State resources; 
and that such a rule would have a negative effect on beneficial use. A 
number of commenters also raise the issue of the cost to their 
facilities of a subtitle C rule, particularly increased disposal costs 
and the potential shortage of hazardous waste disposal capacity.
    Consistent with section 205 of UMRA, EPA identified and considered 
a reasonable number of regulatory alternatives. Today's proposed rule 
identifies a number of regulatory options, and EPA's RIA estimates that 
the average annual direct cost to industry across the three originally 
considered options (e.g. as reflected in the RIA in Exhibit 7L) may 
range between $415 million to $1,999 million. Section 205 of the UMRA 
requires Federal agencies to select the least costly or most cost-
effective regulatory alternative unless the Agency publishes with the 
final rule an explanation of why such alternative was not adopted. We 
are co-proposing two regulatory options in today's notice involving 
RCRA subtitle C ``special waste'' and subtitle D. The justification for 
co-proposing the higher-cost options is that this provides for greater 
benefits and protection of public health and the environment by phasing 
out surface impoundments, compared to the lower cost subtitle D prime 
option.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that 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.''
    Under Executive Order 13132, EPA may not issue a regulation that 
has federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation.
    EPA has concluded that this proposed rule may have federalism 
implications, because it may impose substantial direct compliance costs 
on State or local governments, and the Federal government may not 
provide the funds necessary to pay those costs. Accordingly, EPA 
provides the following federalism summary impact statement as required 
by section 6(b) of Executive Order 13132.
    The RIA includes a set of higher cost estimates for the regulatory 
options and the Federalism evaluation is based on these estimates and, 
therefore, overestimates the potential impacts of our proposal.
    Based on the estimates in EPA's RIA for today's action, the 
proposed regulatory options, if promulgated, may have federalism 
implications because the options may impose between $56 million to $97 
million in annual direct compliance costs on 60 state or local 
governments. These 60 state and local governments consist of 33 small 
municipal government jurisdictions, 19 non-small municipal government 
jurisdictions, 7 state government jurisdictions, and one county 
government jurisdiction. In addition, the 48 state governments with 
RCRA-authorized programs for the proposed regulatory options may incur 
between $0.05 million to over $5.4 million in added annual 
administrative costs involving the 495 electric utility plants for 
reviewing and enforcing the various requirements. Based on these 
estimates, the expected annual cost to state and local governments for 
at least one of the regulatory options described in today's notice 
exceeds the $25 million per year ``substantial compliance cost'' 
threshold defined in section 1.2(A)(1) of EPA's November 2008 
``Guidance on Executive Order 13132: Federalism.'' In developing the 
regulatory options described in today's notice, EPA consulted with 10 
national organizations representing state and local elected officials 
to ensure meaningful and timely input by state/local governments, 
consisting of two consultation components, which is described under the 
UMRA Executive Order discussion.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this co-

[[Page 35227]]

proposal from elected State and local government officials.

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

    Executive Order 13175 (65 FR 67249-67252, November 9, 2000) 
requires Federal agencies to provide funds to tribes, consult with 
tribes, and to conduct a tribal summary impact statement, for 
regulations and other actions which are expected to impose substantial 
direct compliance costs on one or more Indian tribal governments. 
Today's co-proposal, whether under subtitle C or subtitle D authority, 
is likely to impose direct compliance costs on an estimated 495 coal-
fired electric utility plants. This estimated plant count is based on 
operating plants according to the most recent (2007) data available as 
of mid-2009 from the DOE's Energy Information Administration ``Existing 
Generating Units in the United States by State, Company and Plant 
2007.'' Based on information published by the Center for Media and 
Democracy,\171\ three of the 495 plants are located on tribal lands, 
but are not owned by tribal governments: (1) Navajo Generating Station 
in Coconino County, Arizona owned by the 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. According to this same information source, there 
is one additional coal-fired electric utility plant planned for 
construction on Navajo Nation tribal land near Farmington, New Mexico, 
but to be owned by a non-tribal entity (the Desert Rock Energy Facility 
to be owned by the Desert Rock Energy Company, a Sithe Global Power 
subsidiary). Because none of the 495 plants are owned by tribal 
governments, this action does not have tribal implications as specified 
in Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action. EPA solicits comment on the accuracy of the information 
used for this determination. EPA met with a Tribal President, whose 
Tribe owns a cement plant, and who was concerned about the adverse 
impact of designating coal combustion residuals as a hazardous waste 
and the effect that a hazardous waste designation would have on the 
plant's business. We assured the Tribal President that we are aware of 
the ``stigma'' concerns related to a hazardous waste listing and will 
be analyzing that issue throughout the rulemaking process.
---------------------------------------------------------------------------

    \171\ The Center for Media and Democracy (CMD) was founded in 
1993 as an independent, non-profit, non-partisan, public interest 
organization. Information about electric utility plants located on 
tribal lands is from CMD's SourceWatch Encyclopedia at: http://
www.sourcewatch.org/index.php?title=Coal_and_Native_American_
tribal_lands.
---------------------------------------------------------------------------

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order (EO) 13045 (62 FR 19885, April 23, 1997) 
establishes federal executive policy on children's health and safety 
risks. Its main provision directs federal agencies, to the greatest 
extent practicable and permitted by law, to make it a high priority to 
identify and assess environmental health risks and safety risks that 
may disproportionately affect children in the United States. EPA has 
conducted a risk assessment which includes evaluation of child exposure 
scenarios, as well as has evaluated Census child population data 
surrounding the 495 plants affected by today's co-proposal, because 
today's action meets both of the two criteria for ``covered regulatory 
actions'' defined by Section 2-202 of EO 13045: (a) today's co-proposal 
is expected to be an ``economically significant'' regulatory action as 
defined by EO 12866, and (b) based on the risk analysis discussed 
elsewhere in today's notice, the environmental and safety hazards 
addressed by this action may have a disproportionate effect on 
children.
    For each covered regulatory action, such as today's action, Section 
5 of EO 13045 requires federal agencies (a) to evaluate the 
environmental health or safety effects of the planned regulation on 
children, and (b) to explain why the planned regulation is preferable 
to other potentially effective and reasonably feasible alternatives 
considered by the Agency. The remainder of this section below addresses 
both of these requirements, as well as presents a summary of the human 
health risk assessment findings with respect to child exposure 
scenarios, and the results of the child demographic data evaluation.
G1. Evaluation of Environmental Health and Safety Effects on Children
    EPA conducted a risk evaluation consisting of two steps, focusing 
on environmental and health effects to adults and to children that may 
occur due to groundwater contamination. The first step, conducted in 
2002, was a screening effort targeting selected hazardous chemical 
constituents that appeared to be the most likely to pose risks. The 
second step, conducted between 2003 and 2009, consisted of more 
detailed ``probabilistic'' modeling for those constituents identified 
in the screening as needing further evaluation. Constituents that may 
cause either cancer or non-cancer effects in humans (i.e., both adults 
and children) were evaluated under modeling scenarios where they 
migrate from a CCR landfill or surface impoundment toward a drinking 
water well or nearby surface water body, and where humans ingest the 
constituents either by drinking the contaminated groundwater or by 
eating fish caught in surface water bodies affected by the contaminated 
groundwater.
    As described elsewhere in today's notice, EPA found that for the 
non-cancer health effects in the groundwater-to-drinking-water pathway 
and in the fish consumption pathways evaluated in the probabilistic 
modeling, children rather than adults had the higher exposures. This 
result stems from the fact that while at a given exposure point (e.g., 
a drinking water well located a certain distance and direction down-
gradient from the landfill or surface impoundment), the modeled 
groundwater concentration is the same regardless of whether the 
receptor is an adult or a child. Thus the other variables in the 
exposure equations (that relate drinking water intakes or fish 
consumption rates and body weight to a daily ``dose'' of the 
constituent) mean that, on a per-kilogram-body-weight basis, children 
are exposed to higher levels of constituents than adults.
G2. Evaluation of Children's Population Census Data Surrounding 
Affected Electric Utility Plants
    The RIA for today's co-proposal contains an evaluation of whether 
children may disproportionately live near the 495 electric utility 
plants potentially affected by this rulemaking. This demographic data 
analysis is supplemental to and separate from the risk assessment 
summarized above. To make this determination, the RIA compares Census 
demographic data on child populations residing near each of the 495 
affected plants, to statewide children population data. The results of 
that evaluation are summarized here.
     Of the 495 electric utility plants, 383 of the plants 
(77%) operate CCR disposal units on-site (i.e., onsite landfills or 
onsite surface

[[Page 35228]]

impoundments), 84 electric utility plants solely transport CCRs to 
offsite disposal units operated by other companies (e.g., commercial 
waste management companies), and 28 other electric utility plants 
generate CCRs that are solely beneficially used rather than disposed. 
Child demographic data is evaluated in the RIA for all 495 plants 
because some regulatory options could affect the future CCR management 
method (i.e., disposal versus beneficial use) for some plants.
     The RIA provides three complementary approaches to 
comparison of child populations surrounding the 495 plants to statewide 
child population data: (a) Plant-by-plant comparison basis, (b) state-
by-state aggregation comparison basis, and (c) nationwide total 
comparison basis. There are year 2000 Census data for 464 (94%) of the 
495 electric utility plants which the RIA used for these comparisons 
and extrapolated to all 495 plants. Statewide children population 
benchmark percentages range from 21.5% (Maine) to 30.9% (Utah), with a 
nationwide average of 24.7%.
     For purpose of determining the relative degree by which 
children may exceed these statewide percentages, the percentages are 
not only compared in absolute terms, but also compared as a numerical 
ratio whereby a ratio of 1.00 indicates that the child population 
percentage living near an electric utility plant is equal to the 
statewide average, a ratio greater than 1.00 indicates the child 
population percentage near the electric utility plant is higher than 
the statewide population, and a ratio less than 1.00 indicates the 
child population is less than the respective statewide average.
     Using the plant-by-plant basis, 310 electric utility 
plants (63%) have surrounding child populations which exceed their 
statewide children benchmark percentages, whereas 185 of the electric 
utility plants (37%) have children populations below their statewide 
benchmarks, which represents a ratio of 1.68 (i.e., 310/185). Since 
this ratio is much greater than 1.00, this finding indicates that a 
disproportionate number of electric utility plants have surrounding 
child population percentages which exceed their statewide benchmark. 
Using the state-by-state aggregation basis, 27 of the 47 states (57%) 
where the 495 electric utility plants are located have disproportionate 
percentages of children residing near the plants compared to the 
statewide averages, which also indicates a disproportionate surrounding 
child population. Using the nationwide aggregation basis across all 495 
electric utility plants in all 47 states where the plants are located, 
6.08 million people reside near these electric utility plants, 
including 1.54 million children (25.4%). Comparison of this percentage 
to the national aggregate benchmark across all states of 24.7% children 
yields a ratio of 1.03 (i.e., 25.4%/24.7%). This ratio indicates a 
slightly higher disproportionate child population surrounding the 495 
electric utility plants.
    These three alternative comparisons indicate that the current 
(baseline) environmental and human health hazards and risks from 
electric utility CCR disposal units, and the expected future benefits 
of the regulatory options being considered in today's co-proposal may 
have a disproportionately higher effect on child populations.
    The public is invited to submit comments or identify peer-reviewed 
studies and data that assess effects of early life exposure to CCRs 
managed in landfills and surface impoundments.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This co-proposal, if either of the options being considered is 
promulgated, is not expected to be a ``significant energy action'' as 
defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because 
the regulatory options described in today's co-proposal are not 
expected to have a significant adverse effect on the supply, 
distribution, or use of energy. This determination is based on the 
energy price analysis presented in EPA's Regulatory Impact Analysis 
(RIA) for this proposed rule. The following is the basis for this 
conclusion.
    The Office of Management and Budget's (OMB) July 13, 2001 
Memorandum M-01-27 guidance for implementing this Executive Order 
identifies nine numerical indicators (thresholds) of potential adverse 
energy effects, three of which are relevant for evaluating potential 
energy effects of this proposed rule: (a) Increases in the cost of 
energy production in excess of 1%; (b) increases in the cost of energy 
distribution in excess of 1%; or (c) other similarly adverse outcomes.
    Because EPA does not have data on energy production costs or energy 
distribution costs for the 495 electric utility plants likely affected 
by this rulemaking, EPA in its RIA for today's action evaluated the 
potential impact on electricity prices (for the regulatory options) as 
measured relative to the 1% numerical threshold of these two Executive 
Order indicators to represent an ``other similarly adverse outcome.''
    The RIA calculated the potential increase in electricity prices of 
affected plants that the industry might induce under each regulatory 
option. Because the price analysis in the RIA is based only on the 495 
coal-fired electric utility plants that would likely be affected by the 
co-proposal (with 333,500 megawatts nameplate capacity), rather than on 
all electric utility and independent electricity producer plants in 
each state using other fuels, such as natural gas, nuclear, 
hydroelectric, etc. (with 678,200 megawatts nameplate capacity), the 
price effects estimated in the RIA are higher than would be if the 
regulatory costs were averaged over the entire electric utility and 
independent electricity producer supply (totaling 1,011,700 megawatts, 
not counting an additional 76,100 megawatts of combined heat and 
electricity producers).
    The price effect calculation in the RIA involved estimating plant-
by-plant annual revenues, plant-by-plant average annualized regulatory 
compliance costs for each regulatory option, and comparison with 
statewide average electricity prices for the 495 electric utility 
plants. In its analysis, the Agency used the May 2009 statewide average 
retail prices for electricity published by DOE's, Energy Information 
Administration; these costs ranged from $0.0620 (Idaho & Wyoming) to 
$0.1892 (Hawaii) per kilowatt-hour, and the nationwide average for the 
495 plants was $0.0884. Based on a 100% regulatory cost pass-thru 
scenario representing an upper-bound potential electricity price 
increase for each plant, the RIA estimated the potential target 
electricity sales revenue needed to cover these costs for each plant. 
The RIA then compared the higher target revenue to recent annual 
revenue estimates per plant, to calculate the potential price effect of 
this cost pass-thru scenario on electricity prices for each of the 495 
electric utility plants, as well as on a state-by-state sub-total basis 
and on a nationwide basis across all 495 electric utility plants.
    The RIA includes a set of higher cost estimates for the regulatory 
options and this Executive Order 13211 evaluation is based on the 
higher estimates and, therefore, overestimates the potential impacts of 
our proposal.
    The RIA indicates that on a nationwide basis for all 495 electric 
utility plants, compared to the estimated average electricity price of 
$0.0884 per kilowatt-hour, the 100% regulatory cost pass-thru scenario 
may increase prices for the 495 electric utility plants by 0.172% to 
0.795% across the original regulatory options; the high-end is the

[[Page 35229]]

estimate associated with a regulatory cost pass-thru scenario increase 
for the 495 electric utility plants for the subtitle C ``special 
waste'' option. Based on this analysis, the Agency does not expect that 
either of the options being co-proposed today would have a significant 
adverse effect on the supply, distribution, or use of energy. However, 
the Agency solicits comments on our analysis and findings.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

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

    Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income (i.e., below poverty line) populations in 
the United States.
    Furthermore, Section 3-302(b) of EO 12898 states that Federal 
agencies, whenever practicable and appropriate, shall collect, maintain 
and analyze information on minority and low-income populations for 
areas surrounding facilities or sites expected to have substantial 
environmental, human health, or economic effects on the surrounding 
populations, when such facilities or sites become the subject of a 
substantial Federal environmental administrative or judicial action. 
While EO 12898 does not establish quantitative thresholds for this 
``substantial effect'' criterion, EPA has collected and analyzed 
population data for today's co-proposal because of the substantial 
hazards and adverse risks to the environment and human health described 
elsewhere in today's notice.
    The RIA for today's action presents comparisons of minority and 
low-income population Census data for each of the 495 electric utility 
plant locations, to respective statewide population data, in order to 
identify whether these two demographic groups may disproportionately 
reside near electric utility plants. The result of these comparisons 
indicate (a) whether existing hazards associated with CCR disposal at 
electric utility plants to community safety, human health, and the 
environment may disproportionately affect minority and low-income 
populations surrounding the plants, and (b) whether the expected 
effects (i.e., benefits and costs) of the regulatory action described 
in today's co-proposal rule may disproportionately affect minority and 
low-income populations.
    Of the 495 electric utility plants, 383 of the plants (77%) operate 
CCR disposal units onsite (i.e., onsite landfills or onsite surface 
impoundments), 84 electric utility plants solely transport CCRs to 
offsite disposal units operated by other companies (e.g., commercial 
waste management companies), and 28 of the electric utility plants 
generate CCRs that are solely beneficially used rather than disposed. 
The minority and low-income Census data evaluation is conducted for all 
495 plants because some regulatory options could affect the future CCR 
management method (i.e., disposal versus beneficial use) for some 
plants.
    In addition to this Census data evaluation, the RIA identifies 
three other possible affects of the co-proposal on (a) populations 
surrounding offsite CCR landfills, (b) populations surrounding the 
potential siting of new CCR landfills and (c) populations within the 
customer service areas of the 495 electric utility plants who may incur 
electricity price increases resulting from regulatory cost pass-thru. 
These three Census data evaluations are also summarized below.
J.1. Findings of Environmental Justice Analysis for Electric Utility 
Plants
    For the first comparison, the RIA provides three complementary 
approaches to evaluating the Census data on minority and low-income 
populations: (a) Itemized plant-by-plant comparisons to statewide 
percentages, (b) state-by-state aggregation comparisons, and (c) 
nationwide aggregate comparisons. There are year 2000 Census data for 
464 (94%) of the 495 electric utility plants which the RIA used for 
these comparisons and extrapolated to all 495 plants. Statewide 
minority population benchmark percentages range from 3.1% (Maine) to 
75.7% (Hawaii), with a nationwide average of 24.9%, and statewide low-
income population percentages range from 7.3% (Maryland) to 19.3% (New 
Mexico), with a nationwide average of 11.9%.
    For purpose of determining the relative degree by which either 
group may exceed these statewide percentages, in addition to a 
comparison of absolute percentages, the percentages are compared as a 
numerical ratio whereby a ratio of 1.00 indicates that the group 
population percentage living near an electric utility plant is equal to 
the statewide average, a ratio greater than 1.00 indicates the group 
population percentage near the electric utility plant is higher than 
the statewide population, and a ratio less than 1.00 indicates the 
group population is less than the respective statewide average.
    Using the plant-by-plant comparison, 138 electric utility plants 
(28%) have surrounding minority populations which exceed their 
statewide minority benchmark percentages, whereas 357 of the electric 
utility plants (72%) have minority populations below their statewide 
benchmarks, which represents a ratio of 0.39 (i.e., 138/357). Because 
this ratio is less than 1.00, this finding indicates a relatively small 
number of the electric utility plants have surrounding minority 
population percentages which disproportionately exceed their statewide 
benchmarks. On a plant zip code tabulation area basis, 256 electric 
utility plants (52%) have surrounding low-income populations which 
exceed their respective statewide benchmarks, whereas 239 plants (48%) 
have surrounding low-income populations below their statewide 
benchmarks, which represents a ratio of 1.07 (i.e., 256/239). Because 
this ratio is above 1.00, it indicates that a slightly disproportionate 
higher number of electric utility plants have surrounding low-income 
population percentages which exceed their statewide benchmarks.
    Using the state-by-state aggregation comparison, the percentages of 
minority and low-income populations surrounding the plants were 
compared to their respective statewide population benchmarks. From this 
analysis, state ratios revealed that 24 of the 47 states

[[Page 35230]]

(51%) have higher minority percentages, and 29 of the 47 states (62%) 
have higher low-income percentages surrounding the 495 electric utility 
plants, suggesting a slightly disproportionate higher minority 
surrounding population and a higher disproportionate, higher low-income 
surrounding population. However, in comparison to the other two 
numerical comparisons--the plant-by-plant basis and the nationwide 
aggregation basis, this approach does not include numerically weighting 
of state plant counts or state surrounding populations, which explains 
why this comparison method yields a different numerical result.
    Using the nationwide aggregation comparison across all 495 electric 
utility plants in all 47 states where the plants are located, 6.08 
million people reside near these plants, including 1.32 million (21.7%) 
minority and 0.8 million (12.9%) low-income persons. A comparison of 
these percentages to the national benchmark of 24.9% minority and 11.9% 
low-income, represents a minority ratio of 0.87 (i.e., 21.7%/24.9%) and 
a low-income ratio of 1.08 (i.e., 12.9%/11.9%). These nationwide 
aggregate ratios indicate a disproportionately lower minority 
population surrounding the 495 electric utility plants, and a 
disproportionately higher low-income population surrounding these 
plants.
    These demographic data comparisons indicate that the current 
(baseline) environmental and human health hazards and risks from 
electric utility CCR disposal units, and the expected future effects 
(i.e., benefits and costs) of the regulatory options described in 
today's co-proposal may have a disproportionately lower effect on 
minority populations and may have a disproportionately higher effect on 
low-income populations.
J.2. Environmental Justice Analysis for Offsite Landfills, Siting of 
New Landfills, and Electricity Service Area Customers
    There are three other potential differential effects of the 
regulatory options on three other population groups: (a) Populations 
surrounding offsite landfills, (b) populations surrounding the 
potential siting of new landfills and (c) populations within the 
customer service areas of the 495 electric utility plants. The RIA for 
today's notice does not quantify these potential effects so only a 
qualitative discussion appears below.
    The potential effect on offsite landfills as evaluated in the RIA 
only involves the RCRA subtitle C ``special waste'' based regulatory 
option described in today's co-proposal, whereby electric utility 
plants may switch the management of CCRs, in whole or in part, from 
current onsite disposal to offsite commercial RCRA-permitted landfills. 
In addition, some or all of the CCRs which are currently disposed in 
offsite landfills that do not have RCRA operating permits may also 
switch to RCRA-permitted commercial landfills. Another fraction of 
annual CCR generation which could also switch to offsite commercial 
RCRA-permitted landfills are CCRs which are currently supplied for 
industrial beneficial use applications if such use is curtailed.
    The future addition of any or all of these three fractions of CCR 
generation to offsite commercial hazardous waste landfills could exceed 
their capacity considering that a much smaller quantity of about 2 
million tons per year of existing RCRA-regulated hazardous waste is 
currently disposed of in RCRA subtitle C permitted landfills in the 
U.S. As of 2009, there are 19 commercial landfills with RCRA hazardous 
waste permits to receive and dispose of RCRA-regulated hazardous wastes 
located in 15 states (AL, CA, CO, ID, IL, IN, LA, MI, NV, NY, OH, OK, 
OR, TX, UT). This potential shift could have a disproportionate effect 
on populations surrounding these locations, and in particular, minority 
and low-income populations surrounding commercial hazardous waste 
facilities, for the reason that a recent (2007) study determined that 
minority and low-income populations disproportionately live near 
commercial hazardous waste facilities. However, the study included 
other types of commercial hazardous waste treatment and disposal 
facilities in addition to commercial hazardous waste landfills.
    The siting of new landfills is another potential effect due to 
possible changes in the management of CCRs, especially if the switch to 
offsite commercial hazardous waste landfills causes a capacity shortage 
(as described above) under subtitle C option. However, since it is 
unknown where these new landfills might possibly be sited, two 
possibilities were examined: (a) An expansion of existing commercial 
subtitle C landfills offsite from electric utility plants, and (b) an 
expansion of existing electric utility plant onsite landfills. If an 
expansion of existing commercial subtitle C landfills were to occur, 
this potential shift could have a disproportionate effect on 
populations surrounding these locations, as described previously.
    The other possibility is the expansion of electric utility plant 
onsite landfills. That is, these landfills become permitted under RCRA 
subtitle C and expand existing onsite landfills or build new ones 
onsite. If this were to occur, the environmental justice impacts could 
be similar to the demographic comparison findings previously discussed, 
which indicates that the current environmental and human health hazards 
and risks from electric utility CCR disposal units, and the expected 
future effects (i.e., benefits and costs) of the regulatory options, 
may have a disproportionately lower effect on minority populations, but 
may have a disproportionately higher effect on low-income populations.
    A third potential effect of the regulatory options described in 
today's notice is the increase in price of electricity supplied by some 
or all of the affected 495 electric utility plants to cover the cost of 
regulatory compliance (as evaluated in a previous section of today's 
notice). Thus, customers in electric utility service areas could 
experience price increases, as described above in the Federalism sub-
section of today's notice. The RIA for today's action did not evaluate 
the demographics of the customer service area populations for the 495 
electric utility plants.

Appendix to the Preamble: Documented Damages From CCR Management 
Practices

    EPA has gathered or received through comments on the 1999 Report to 
Congress and the May 2000 Regulatory Determination, and through 
allegations, 135 possible damage cases. Six cases involved minefills 
and, therefore, are outside the scope of today's proposed rule. Sixty-
two cases have not been further assessed because there was little or no 
supporting information to assess the allegations.
    Of the remaining 67 cases, EPA determined that 24 were proven 
damage cases. Sixteen were determined to be proven damage cases to 
ground water and eight were determined to be proven damages cases to 
surface water, as a result of elevated levels of contaminants from 
CCRs.\172\ Four of the proven ground water damage cases were from 
unlined landfills, five were from unlined surface impoundments, one

[[Page 35231]]

involved a surface impoundment for which it is not clear whether the 
unit was lined, and the remaining six were from unlined sand and gravel 
pits. Another 43 alleged cases were determined to be potential damage 
cases to ground water or surface water. However, four of these 
potential damage cases were attributable to oil combustion wastes, 
which are outside the scope of this notice. Therefore, we have 
determined that there were a total of 40 potential damage cases 
attributable to CCRs. (The concern with wastes from the combustion of 
oil involved unlined surface impoundments. Prior to the May 2000 
Regulatory Determination, the unlined oil ash impoundments were closed, 
and thus EPA decided regulatory action to address oil ash was 
unnecessary.) These cases are discussed in more detail in the document 
``Coal Combustion Wastes Damage Case Assessments'' available in the 
docket to the 2007 NODA at http://www.regulations.gov/fdmspublic/
component/main?main=DocumentDetail&d=EPA-HQ-RCRA-2006-0796-0015. Three 
proven damage cases are sites that have been listed on EPA's National 
Priorities List (NPL). The sites, and links to additional information 
are: (1) Chisman Creek, Virginia (http://www.epa.gov/reg3hwmd/npl/
VAD980712913.htm), (2) Salem Acres, Massachusetts (http://
yosemite.epa.gov/r1/npl_pad.nsf/f52fa5c31fa8f5c885256adc0050b631/
C8A4A5BEC0121F048525691F0063F6F3?OpenDocument), and (3) U.S. Department 
of Energy Oak Ridge Reservation, Tennessee (http://www.epa.gov/region4/
waste/npl/npltn/oakridtn.htm). One potential damage case has also been 
listed on the NPL: Lemberger Landfill, Wisconsin (http://www.epa.gov/
region5/superfund/npl/wisconsin/WID980901243.htm). Another site has 
undergone remediation under EPA enforcement action: Town of Pines 
(http://cfpub.epa.gov/supercpad/cursites/cactinfo.cfm?id=0508071).
---------------------------------------------------------------------------

    \172\ Of the 16 proven cases of damages to ground water, the 
Agency has been able to confirm that corrective action has been 
completed in seven cases and are ongoing in the remaining nine 
cases. Corrective action measures at these CCR management units vary 
depending on site specific circumstances and include formal closure 
of the unit, capping, re-grading of ash and the installation of 
liners over the ash, ground water treatment, groundwater monitoring, 
and combinations of these measures.
---------------------------------------------------------------------------

    In response to the 2007 NODA (see section II. A.), EPA received 
information on 21 alleged damage cases. Of these, 18 pertain to alleged 
violations of state solid waste permits, and 3 to alleged violations of 
NPDES permits. Upon review of this information, we conclude that 13 of 
the alleged RCRA violations are new, and one of the alleged NPDES 
violations is new; the other damage cases have previously been 
submitted to EPA and evaluated. In addition, five new alleged damage 
cases have been brought to EPA's attention since February 2005 (the 
closure date of damage cases assessed by the NODA's companion 
documents). For the most part, these cases involve activities that are 
different from the prior damage cases and the focus of the regulatory 
determination on groundwater contamination from landfills and surface 
impoundments. Specifically:
    [cir] Two of the new alleged cases involve the structural failure 
of surface impoundments; i.e., dam safety and structural integrity 
issues, which were not a consideration at the time of the May 2000 
Regulatory Determination. In both cases, there were Clean Water Act 
violations.
    [cir] One other alleged case involves the failure of an old 
discharge pipe, and is clearly a regulated NPDES permit issue.
    [cir] Two other alleged cases involve the use of coal ash in large 
scale structural fill operations, one of which involves an unlined sand 
and gravel pit. The Agency is considering whether to regulate this 
method of disposal as a landfill or whether to address the issue 
separately as part of its rulemaking to address minefilling. EPA is 
soliciting comments on those alternatives.
    The Agency has classified three of the five new cases as proven 
damage cases (BBBS Sand and Gravel Quarries, Martins Creek Power Plant, 
TVA Kingston Power Plant), one as a potential damage case (Battlefield 
Golf Course), and the other as not being a damage case under RCRA (TVA 
Widows Creek). Several of the recently submitted damage cases are 
discussed briefly below. The following descriptions further illustrate 
that there are additional risk concerns (dam safety, and fill 
operations) which EPA did not evaluate when it completed its the May 
2000 Regulatory Determination, in which EPA primarily was concerned 
with groundwater contamination associated with landfills and surface 
impoundments and the beneficial use of CCRs. Additional information on 
these damage cases is included in the docket.

Recent Cases

BBBS Sand and Gravel Quarries--Gambrills, Maryland
    On October 1, 2007, the Maryland Department of the Environment 
(MDE) filed a consent order in Anne Arundel County, Maryland Circuit 
Court to settle an environmental enforcement action that was taken 
against the owner of a sand and gravel quarry and the owner of coal 
fired power plants (defendants) for contamination of public drinking 
water wells in the vicinity of the sand and gravel quarry.
    Specifically, beginning in 1995, the defendants used fly ash and 
bottom ash from two Maryland power plants to fill excavated portions of 
two sand and gravel quarries. Ground water samples collected in 2006 
and 2007 from residential drinking water wells near the site indicated 
that, in certain locations, contaminants, including heavy metals and 
sulfates were present at or above ground water quality standards. The 
Anne Arundel County, Maryland Department of Health tested private wells 
in 83 homes and businesses in areas around the disposal site. MCLs were 
exceeded in 34 wells [arsenic (1), beryllium (1), cadmium (6), lead 
(20),\173\ and thallium (6)]. The actual number of wells affected by 
fly ash and bottom ash is undetermined since some of the sample results 
may reflect natural minerals in the area. SMCLs were exceeded in 63 
wells [aluminum (44), manganese (14), and sulfate (5)]. MDE concluded 
that leachate from the placement of CCRs at the site resulted in the 
discharge of pollutants to waters of the state. Based on these 
findings, as well as an MDE consent order, EPA has concluded that the 
Gambrills site is a proven case of damage to ground water resulting 
from the placement of CCRs in unlined sand and gravel quarries.
---------------------------------------------------------------------------

    \173\ It is uncertain whether lead exceedances were due to CCRs 
or lead in plumbing and water holding tanks.
---------------------------------------------------------------------------

    Under the terms of the consent order, the defendants are required 
to pay a fine, remediate the ground water in the area and provide 
replacement water supplies for 40 properties. A retail development is 
now planned for the site with a cap over the fill designed to reduce 
infiltration and subsequent leaching from the site. An MDE fact sheet 
on this site is available at http://www.mde.state.md.us/assets/
document/AA_Fly_Ash_QA.pdf.
Battlefield Golf Course--Chesapeake, Virginia
    On July 16, 2008, the City of Chesapeake, Virginia sent a letter to 
the EPA Region III Regional Administrator requesting assistance to 
perform an assessment of the Battlefield Golf Course. The 216 acre site 
was contoured with 1.5 million cubic yards of fly ash, amended with 
1.7% to 2.3% cement kiln dust to develop the golf course. Virginia's 
Administrative Code allowed the use of fly ash as fill material 
(considered a beneficial use under Virginia's Administrative Code) 
without a liner as long as the fly ash was placed at least two feet 
above groundwater and covered by an 18-inch soil cap.
    Because of ground water contamination discovered at another site 
where fly ash was used, the City of

[[Page 35232]]

Chesapeake initiated a drinking water well sampling assessment at 
residences surrounding the golf course. Additionally, 13 monitoring 
points were installed around the site. No monitoring points were 
installed through the fly ash area to avoid creating an additional path 
of contaminant migration. EPA conducted a site investigation by 
reviewing analytical data from fly ash, soil, surface water, sediment, 
and groundwater sampling events completed in 2001, 2008 and 2009. The 
sampling results of the City of Chesapeake ground water and surface 
water sampling \174\ indicated that the highest detections of metals 
occurred in monitoring wells located on the golf course property. The 
concentrations of arsenic, boron, chromium, copper, lead and vanadium 
detected in groundwater collected from on-site monitoring wells were 
considered to be significantly above background concentrations. Of 
these compounds, only boron has been detected in approximately 25 
drinking water wells.
---------------------------------------------------------------------------

    \174\ Available at http://cityofchesapeake.net/services/
citizen_info/battlefieldgolfclub/index.shtml.
---------------------------------------------------------------------------

    Although not a primary contaminant of concern, boron is suspected 
to be the leading indicator of fly ash migration. The highest level of 
boron reported in a residential well was 596 [mu]g/L which was 
significantly below the health-based regional screening level for boron 
in tap water of 7,300 [mu]g/L. Additionally, the secondary drinking 
water standard for manganese (0.05 mg/L) was exceeded in nine 
residential wells; however, the natural levels of both manganese and 
iron in the area's shallow aquifer are very high and, thus, it could 
not be ruled out that the elevated levels of manganese and iron are a 
result of the natural background levels of these two contaminants.
    Metal contaminants were below MCLs and Safe Drinking Water Act 
(SDWA) action levels in all residential wells that EPA tested, except 
for lead. Lead has been detected during EPA sampling events above the 
action level of 15 [mu]g/L in six residential wells. The lead in these 
wells, however, does not appear to come from the fly ash. Lead 
concentrations are lower in groundwater collected from monitoring wells 
on the golf course (1.1 to 1.6 [mu]g/L) than in these residential 
wells; and lead concentrations in the fly ash are not higher than 
background concentrations of lead in soil.
    The recently issued EPA Final Site Inspection Report \175\ 
concluded that (i) Metal contaminants were below MCLs and Safe Drinking 
Water Act (SDWA) action levels in all residential wells that EPA 
tested; (2) the residential well data indicate that metals are not 
migrating from the fly ash to residential wells; and (iii) there are no 
adverse health effects expected from human exposure to surface water or 
sediments on the Battlefield Golf Course site as the metal 
concentrations were below the ATSDR standards for drinking water and 
soil. Additionally, the sediment samples in the ponds were below EPA 
Biological Technical Assistance Group screening levels and are not 
expected to pose a threat to ecological receptors. Based on these 
findings, EPA has categorized the Battlefield Golf Club site as a 
potential damage case, as there is a possibility that leaching could 
cause levels of toxic constituents to increase over time and that 
groundwater could become contaminated at off-site locations if due 
diligence is not practiced.
---------------------------------------------------------------------------

    \175\ http://www.epa.gov/reg3hwmd/CurrentIssues/finalr-
battlefield_golf_club_site/redacted_DTN_0978_Final_
Battlefield_SI_Report.pdf.
---------------------------------------------------------------------------

Martins Creek Power Plant--Martins Creek, Pennsylvania
    In August 2005, a dam confining a 40 acre CCR surface impoundment 
in eastern Pennsylvania failed. The dam failure, a violation of the 
State's solid waste disposal permit, resulted in the discharge of 0.5 
million cubic yards of coal-ash and contaminated water into the 
Oughoughton Creek and the Delaware River.
    Ground-water monitoring results from approximately 20 on-site 
monitoring wells found selenium concentrations exceeding Pennsylvania's 
Statewide Health Standards and Federal primary drinking water 
standards. There was also one exceedance of the primary MCL for 
chromium and two exceedances of the secondary MCL for iron.
    Surface water samples were also taken from a number of locations 
along the Delaware River upstream and downstream of the spill. Sampling 
began soon after the spill in August 2005 and continued through 
November 2005. Several samples exceeded the Federal Water Quality 
Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see 
http://www.epa.gov/waterscience/criteria/wqctable/index.html). Four 
samples also exceeded the WQC for arsenic--three of which were taken 
near the outfall to the river. Lead, nickel and zinc were also detected 
above the WQC in samples taken near the outfall to the river. Sampling 
results are available from the Pennsylvania Department of Environmental 
Protection (PADEP) at http://www.depweb.state.pa.us/northeastro/cwp/
view.asp?a=1226&q=478264&northeastroNav=[verbarlm].
    As a result of the exceedances of primary and secondary MCLs in on-
site ground water, and exceedances of federal water quality criteria in 
off-site surface water, in addition to a PADEP consent order for clean 
up, the Agency considers this site to be a proven damage case.
TVA Kingston--Harriman, Tennessee
    On December 22, 2008, a failure of the northeastern dike used to 
contain fly ash occurred at the dewatering area of the Tennessee Valley 
Authority's (TVA's) Kingston Fossil Plant in Harriman, Tennessee. 
Subsequently, approximately 5.4 million cubic yards of fly ash sludge 
was released over an approximately 300 acre area and into a branch of 
the Emory River. The ash slide disrupted power, ruptured a gas line, 
knocked one home off its foundation and damaged others. The state-
issued NPDES permit requires that TVA properly operate and maintain all 
facilities and systems for collection and treatment, and expressly 
prohibits overflows of wastes to land or water from any portion of the 
collection, transmission, or treatment system other than through 
permitted outfalls. Therefore, the release was a violation of the NPDES 
permit. A root-cause analysis report developed for TVA, accessible at 
http://www.tva.gov/kingston/rca/index.htm, established that the dike 
failed because it was expanded by successive vertical additions, to a 
point where a thin, weak layer of fly ash (`slime') on which it had 
been founded, failed by sliding. Additional information on the TVA 
Kingston incident is available at http://www.epa.gov/region4/kingston/
index.html and http://www.tva.gov/kingston/.
    EPA joined TVA, the Tennessee Department of Environment and 
Conservation (TDEC), and other state and local agencies in a 
coordinated response. EPA provided oversight and technical advice to 
TVA, and conducted independent water sampling and air monitoring to 
evaluate public health and environmental threats.
    Following the incident, EPA sampled the coal ash and residential 
soil to determine if the release posed an immediate threat to human 
health. Sampling results for the contaminated residential soil showed 
arsenic, cobalt, iron, and thallium levels above the residential 
Superfund soil screening levels.\176\ Sampling results also showed

[[Page 35233]]

average arsenic levels above the EPA Region 4 Residential Removal 
Action Level (RAL) \177\ of 39 mg/L, but below EPA Region 4's 
Industrial RAL of 177 mg/L. All residential soil results were below the 
Residential RAL.
---------------------------------------------------------------------------

    \176\ Soil screening levels (SSLs) for contaminants in soil are 
used to identify sites needing further investigation. SSLs alone do 
not trigger the need for a response action or define 
``unacceptable'' levels of contaminants in soil. Generally, at sites 
where contaminant concentrations fall below the SSLs, no further 
action or study is warranted under CERCLA. However, where 
contaminant concentrations equal or exceed the SSLs, further study 
or investigation, but not necessarily cleanup, is warranted.
    \177\ RALs are used to trigger time-critical removal actions.
---------------------------------------------------------------------------

    Shortly after the release, samples were also collected of untreated 
river water, which showed elevated levels of suspended ash and heavy 
metals known to be associated with coal ash. Nearly 800 surface water 
samples were taken by TVA and TDEC, ranging from two miles upstream of 
the release on the Emory River to approximately eight miles downstream 
on the Clinch River. Sampling results of untreated river water showed 
elevated levels of arsenic, cadmium, chromium, and lead just after the 
incident. This was also observed again after a heavy rainfall. In early 
January 2009, the Tennessee Wildlife Resources Agency (TWRA) issued a 
fish advisory stating that until further notice, fishing should be 
avoided in the lower section of the Emory River. TWRA plans to resample 
fish tissue on a semiannual basis and expects that the assessment of 
the impact of this release on wildlife resources and habitat will 
require repeated sampling and evaluation over the next three to five 
years.
    Constituent concentrations measured in drinking water on December 
23, 2008, near the intake of the Kingston Water Treatment Plant, 
located downstream of the release, were below federal MCLs for drinking 
water, with the exception of elevated thallium levels. Subsequent EPA 
testing on December 30, 2008, of samples at the same intake found that 
concentration levels for thallium had fallen below the MCL. Subsequent 
testing of treated drinking water from the Kingston Water Treatment 
Plant showed that the drinking water from the treatment plant met all 
federal drinking water standards.
    Additionally, EPA and TDEC identified and sampled potentially 
impacted private wells that are used as a source for drinking water. 
More than 100 wells have been tested to date and all have met drinking 
water standards.
    To address potential risks from windblown ash, TVA, under EPA 
oversight, began air monitoring for coarse and fine particles. EPA also 
conducted independent monitoring to validate TVA's findings. To date, 
all of the more than 25,000 air samples from this area have measured 
levels below the NAAQS for particulates.
    On January 12, 2009, TDEC issued an order to TVA to, among other 
things, continue to implement measures to prevent the movement of 
contaminated materials into waters of the state and, where feasible, 
minimize further down-stream migration of contaminated sediments.
    Than on May 11, 2009, TVA agreed to clean up more than 5 million 
tons of coal ash spilled from its Kingston Fossil Fuel Plant under an 
administrative order and agreement on consent. TVA and EPA entered into 
the agreement under CERCLA. The order requires TVA to perform a 
thorough cleanup of coal ash from the Emory River and surrounding areas 
and EPA will oversee the removal. Based on the consent order, EPA has 
identified this site as a proven damage case.
TVA Widows Creek--Stevenson, Alabama
    On Friday, January 9, 2009, a cap in an unused discharge pipe 
became dislodged, resulting in a discharge from an FGD pond at a 
Tennessee Valley Authority (TVA) coal-burning power plant in Stevenson, 
Alabama. FGD is a residual of a process that reduces sulfur dioxide 
emissions from coal-fired boilers Some 5,000 cubic yards of FGD 
material containing water and a mixture of predominantly gypsum and 
some fly ash, was released from the pond into Widows Creek which flows 
into the Tennessee River.\178\ Information on the TVA Widows Creek 
incident is available at http://www.epa.gov/region4/stevenson/
index.html.
---------------------------------------------------------------------------

    \178\ http://www.tva.gov/emergency/wc_1-29-09.htm.
---------------------------------------------------------------------------

    EPA joined TVA and the Alabama Department of Environmental 
Management (ADEM) in a coordinated response. EPA is supporting the 
response by coordinating environmental sampling and monitoring response 
operations by TVA. EPA has also collected surface water samples from 
both Widows Creek and the Tennessee River to determine if there have 
been any environmental impacts. Samples have also been taken from the 
FGD pond to characterize the material that was released into the creek 
fully. The drinking water intake for Scottsboro, Alabama, about 20 
miles downstream, has also been sampled.
    EPA Region 4 has received final results of its independent 
environmental sampling activities for the TVA Widows Creek Fossil Plant 
FGD pond release. Specifically, the concentrations of metals, solids 
and nutrients detected in samples drawn from the drinking water intake 
for Scottsboro, Alabama, along with samples collected from two 
locations in Widows Creek and three other locations in the Tennessee 
River, are all below national primary drinking water standards and/or 
other health-based levels. The pH of all these samples also fell within 
the standard range and no oil or grease was detected in any of the 
samples.
    Four waste samples and one water sample collected from the bank 
along the ditch connecting TVA's permitted discharge outfall and the 
Tennessee River, and from TVA's permitted discharge outfall showed 
elevated pH and elevated concentrations of metals, nutrients, and 
suspended and dissolved solids. However, because samples drawn 
downstream at the drinking water intake and from locations where 
individuals would likely come into contact with the water were below 
the primary drinking water standards, EPA does not expect the release 
to pose a threat to the public. On July 7, 2009, TVA issued a finding 
of no significant impact and final environmental assessment for the 
Gypsum Removal Project from Widows Creek.\179\ Therefore, EPA has not 
classified the TVA Widows Creek fly ash release as a damage case.
---------------------------------------------------------------------------

    \179\ http://www.tva.gov/environment/reports/widows_creek/wcf_
gypsum_removal_fonsi.pdf.
---------------------------------------------------------------------------

Summary

    In summary, as discussed above, the Agency has documented evidence 
of proven damages to ground water or surface water in 27 cases \180\--
17 cases of damage to ground water, and ten cases of damage to surface 
water, including ecological damages in seven of the ten. Sixteen of the 
17 proven damages to ground water involved disposal in unlined units 
(for the remaining unit, it is unclear whether a liner was present). We 
have also identified 40 cases of potential damage to ground water or 
surface water.\181\ Another two cases were determined to be potential 
ecological damage cases. Finally, the more recently documented damage 
cases also provide evidence that current management practices can pose 
additional risks that EPA had not

[[Page 35234]]

previously studied--that is, from catastrophic releases due to the 
structural failure of CCR surface impoundments.
---------------------------------------------------------------------------

    \180\ The 24 cases identified in the Damage Cases Assessment 
report, plus Martin Creek, PA; Gambrills, MD; and Kingston/TVA, TN.
    \181\ The 39 cases of potential damages from CCR identified in 
the Damage Cases Assessment report (excludes the 4 damage cases from 
oil combustion wastes), plus the Battlefield Golf Course, 
Chesapeake, Virginia.

                                                           Table of EPA's Proven Damage Cases
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Constituents of                                    Basis for consideration as a proven
         Damage case, State              Affected media              concern               Brief description                    damage case
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alliant Nelson Dewey Ash Landfill,   Groundwater...........  Arsenic, Selenium,       The LF \182\ was originally  Scientific--Although the boron
 WI.                                                          Sulfate, Boron,          constructed in the early     standard was not health-based at the
                                                              Flourine.                1960's as a series of        time of the exceedances, the boron
                                                                                       settling basins for          levels reported for the facility
                                                                                       sluiced ash and permitted    would have exceeded the State's
                                                                                       by the State in 1979.        recently promulgated health-based ES
                                                                                                                    for boron, and
                                                                                                                   Administrative--The State required a
                                                                                                                    groundwater investigation, and the
                                                                                                                    facility took action to remediate
                                                                                                                    groundwater contamination and
                                                                                                                    prevent further contamination.
Dairyland Power E.J. Stoneman, WI..  Groundwater...........  Cadmium, Chromium,       Unlined SI \183\, on         Scientific--Cadmium and chromium
                                                              Sulfate, Manganese,      permeable substrate, that    exceeded (health-based) primary
                                                              Iron, Zinc.              managed ash, demineralizer   MCLs, and contamination migrated to
                                                                                       regenerant, and sand         nearby, private drinking water
                                                                                       filter backwash between      wells, and
                                                                                       the 1950'and 1987.          Administrative--The State required
                                                                                                                    closure of the facility.
WEPCO Cedar Sauk Ash Landfill/       Groundwater...........  Selenium, Boron,         An abandoned sand and        Scientific--Selenium in groundwater
 WEPCO, WI.                                                   Sulfate.                 gravel pit that received     exceeded the (health-based) primary
                                                                                       CCW from the WEPCO Port      MCL, and there was clear evidence of
                                                                                       Washington Power Plant       vegetative damage, and
                                                                                       from 1969 to 1979.          Administrative--The State required
                                                                                                                    remedial action.
WEPCO Highway 59 Landfill/We         Groundwater...........  Arsenic, Boron,          Located in an old sand and   Scientific--Although the boron
 Energies 59, WI.                                             Chlorides, Iron,         gravel pit that received     standard was not health-based at the
                                                              Manganese, Sulfate.      fly ash and bottom ash       time of the exceedances, the boron
                                                                                       between 1969 and 1978.       levels reported for the facility
                                                                                                                    would have exceeded the State's
                                                                                                                    recently promulgated health-based ES
                                                                                                                    for boron; and contamination from
                                                                                                                    the facility appears to have
                                                                                                                    migrated to off-site private wells,
                                                                                                                    and
                                                                                                                   Administrative--As a result of the
                                                                                                                    various PAL \184\ and ES \185\
                                                                                                                    exceedances, the State required a
                                                                                                                    groundwater investigation.
WEPCO Port Washington Facility/      Groundwater...........  Boron, Selenium........  The power company placed 40- Scientific--The off-site exceedance
 Druecker Quarry Fly Ash Site, WI.                                                     60 feet deep column of fly   of a health-based standard for
                                                                                       ash in a sand & gravel pit   selenium.
                                                                                       from 1948-1971. A well
                                                                                       located ~ 250' south of
                                                                                       the old quarry was
                                                                                       impacted.
SC Electric & Gas Canadys Plant, SC  Groundwater...........  Arsenic, Nickel........  Ash from the Canadys power   Scientific--There are exceedances of
                                                                                       plant was mixed with water   the health-based standard for
                                                                                       and managed in a SI. The     arsenic at this site. While there
                                                                                       facility operated an         are no known human exposure points
                                                                                       unlined, 80-acre SI from     nearby, some recent exceedances have
                                                                                       1974 to 1989.                been detected outside an established
                                                                                                                    regulatory boundary.
PEPCO Morgantown Generating Station  Groundwater...........  Iron, pH...............  LFs at this shallow          Scientific--Ground water
 Faulkner Off-site Disposal                                                            groundwater site manage      contamination migrated off-site, and
 Facility, MD.                                                                         fly ash, bottom ash, and    Administrative--The State required
                                                                                       pyrites from the             remedial action.
                                                                                       Morgantown Generating
                                                                                       Station starting in 1970.
                                                                                       Unlined settling ponds
                                                                                       also are used at the site
                                                                                       to manage stormwater
                                                                                       runoff and leachate from
                                                                                       the ash disposal area.

[[Page 35235]]


Don Frame Trucking, Inc., Fly Ash    Groundwater...........  Lead, Manganese........  This LF has been used for    Scientific--The lead levels found in
 Landfill, NY.                                                                         disposal of fly ash,         down-gradient wells exceed the
                                                                                       bottom ash, and other        primary MCL Action Level.
                                                                                       material including yard     Administrative--The State has
                                                                                       sweepings generated by the   required remedial action as a result
                                                                                       Niagara Mohawk Power         of the contamination, and the owner
                                                                                       Corporation's Dunkirk        was directed, by the Supreme Court
                                                                                       Steam Station. The age of    of the State of New York County of
                                                                                       the facility is unknown.     Chautauqua (July 22, 1988), to cease
                                                                                                                    receiving the aforementioned wastes
                                                                                                                    at the facility no later than
                                                                                                                    October 15, 1988.
Salem Acres, MA....................  Groundwater...........  Antimony, Arsenic,       Fly ash disposal occurred    Scientific--Arsenic and chromium
                                                              Manganese.               at this site--a LF and SI,   exceeded (health-based) primary
                                                                                       from at least 1952 to 1969.  MCLs, and
                                                                                                                   Administrative--The site was placed
                                                                                                                    on the NPL list, and EPA signed a
                                                                                                                    Consent Order with the owner to
                                                                                                                    clean up the lagoons.
Vitale Fly Ash Pit, MA.............  Groundwater...........  Aluminum, Arsenic,       An abandoned gravel and      This case was not counted as a proven
                                                              Iron, Manganese,         sand pit that was used as    damage case in the 1999 RTC \186\
                                                              Selenium.                an unpermitted LF between    because it was a case of illegal
                                                                                       the 1950s and the mid-       disposal not representative of
                                                                                       1970s. The Vitale            historical or current disposal
                                                                                       Brothers, the site owners    practices. However, it otherwise
                                                                                       until 1980, accepted and     meets the criteria for a proven
                                                                                       disposed saltwater-          damage case for the following
                                                                                       quenched fly ash from New    reasons:
                                                                                       England Power Company       Scientific--(i) Selenium and arsenic
                                                                                       along with other wastes.     exceeded (health-based) primary
                                                                                                                    MCLs, and (ii) there is evidence of
                                                                                                                    contamination of nearby wetlands and
                                                                                                                    surface waters, and
                                                                                                                   Administrative--the facility was the
                                                                                                                    subject of several citations and the
                                                                                                                    State has enforced remedial actions.
Town of Pines, IN..................  Groundwater...........  Boron, Molybdenum......  NIPSCO's Bailly and          Scientific--Evidence for boron,
                                                                                       Michigan City power plants   molybdenum, arsenic and lead
                                                                                       have deposited ~ 1 million   exceeding health-based standards in
                                                                                       tons of fly ash in the       water wells away from the Pines Yard
                                                                                       Town of Pines since 1983.    520 Landfill site, and
                                                                                       Fly ash was buried in the   Administrative--Orders of consent
                                                                                       LF and used as               signed between the EPA and IDEM with
                                                                                       construction fill in the     responsible parties for continued
                                                                                       town. The ash is pervasive   work at the site.
                                                                                       on site, visible in roads
                                                                                       and driveways.
North Lansing Landfill, MI.........  Groundwater...........  Lithium, Selenium......  The North Lansing Landfill   Scientific--Observation of off-site
                                                                                       (NLL), an unlined, former    exceedances of the State's health-
                                                                                       gravel quarry pit with an    based standard for lithium.
                                                                                       elevated groundwater
                                                                                       table, was licensed in
                                                                                       1974 for disposal of inert
                                                                                       fill materials including
                                                                                       soil, concrete, and brick.
                                                                                       From 1980 to 1997, the NLL
                                                                                       was used for disposal of
                                                                                       coal ash from the Lansing
                                                                                       Board of Water and Light
                                                                                       electric and steam
                                                                                       generating plants.
Basin Electric, W.J. Neal Plant, ND  Groundwater...........  Aluminum, Arsenic,       An unlined, 44-acre SI that  Scientific--Several constituents have
                                                              Barium, Copper,          received fly ash and         exceeded their (health-based)
                                                              Manganese, Zinc.         scrubber sludge from a       primary MCLs in down-gradient
                                                                                       coal-fired power plant,      groundwater, and the site inspection
                                                                                       along with other wastes      found documentation of releases to
                                                                                       (including ash from the      ground water and surface water from
                                                                                       combustion of sunflower      the site, and
                                                                                       seed hulls), between the    Administrative--The State required
                                                                                       1950s and the late 1980s.    closure of the facility.

[[Page 35236]]


Great River Energy (GRE)--(formerly  Groundwater...........  Arsenic, Selenium......  This site includes a number  Scientific--Arsenic and selenium
 Cooperative Power Association/                                                        of evaporation ponds and     exceeded (health-based) primary
 United Power) Coal Creek Station,                                                     SIs that were constructed    MCLs, and
 ND.                                                                                   in 1978 and 1979. Both the  Administrative--The State required
                                                                                       SIs and the evaporation      remedial action.
                                                                                       ponds leaked significantly
                                                                                       upon plant start-up. A ND
                                                                                       DOH regulator was
                                                                                       uncertain as to whether a
                                                                                       liner was initially
                                                                                       installed, although the
                                                                                       plant may have thought
                                                                                       they were placing some
                                                                                       sort of liner. The
                                                                                       surficial soils were
                                                                                       mostly sandy materials
                                                                                       with a high water table.
VEPCO Chisman Creek, VA............  Groundwater...........  Selenium, Sulfate,       Between 1957 and 1974,       Designated as a proven damage case in
                                                              Vanadium.                abandoned sand and gravel    the 1999 RTC.
                                                                                       pits at the site received   Scientific--(i) Drinking water wells
                                                                                       fly ash from the             contained selenium above the (health-
                                                                                       combustion of coal and       based) primary MCL and (ii) There is
                                                                                       petroleum coke at the        evidence of surface water and
                                                                                       Yorktown Power Station.      sediment contamination, and
                                                                                       Disposal at the site ended  Administrative--The site was
                                                                                       in 1974 when Virginia        remediated under CERCLA.
                                                                                       Power began burning oil at
                                                                                       the Yorktown plant. In
                                                                                       1980, nearby shallow
                                                                                       residential wells became
                                                                                       contaminated with vanadium
                                                                                       and selenium.
VEPCO Possum Point, VA.............  Groundwater...........  Cadmium, Nickel........  At this site, oil ash,       Damage case described in the 1999
                                                                                       pyrites, boiler chemical     RTC.
                                                                                       cleaning wastes, coal fly   Administrative--Action pursued by the
                                                                                       ash, and coal bottom ash     State based on evidence on
                                                                                       were co-managed in an        exceedances of cadmium and nickel,
                                                                                       unlined SI, with solids      by requiring the removal of the
                                                                                       dredged to a second pond.    waste.
BBBS Sand and Gravel Quarries,       Groundwater...........  Aluminum, Arsenic,       As of 1995, the defendants   Scientific--Documented exceedances of
 Gambrills, MD.                                               Beryllium, Cadmium,      used fly ash and bottom      MCLs in numerous off-site drinking
                                                              Lead, Manganese,         ash from two Maryland        water wells.
                                                              Sulfate, Thallium.       power plants to fill        Administrative--On October 1, 2007,
                                                                                       excavated portions of two    the Maryland Department of the
                                                                                       unlined sand and gravel      Environment (MDE) filed a consent
                                                                                       quarries. GW samples         order in Anne Arundel County,
                                                                                       collected in 2006/07 from    Maryland Circuit Court to settle an
                                                                                       residential drinking water   environmental enforcement action
                                                                                       wells near the site          against the owner of a sand and
                                                                                       indicated contaminants at    gravel quarry and the owner of coal
                                                                                       or above GW quality          fired power plants for contamination
                                                                                       standards. Testing of        of public drinking water wells in
                                                                                       private wells in 83 homes    the vicinity of the sand and gravel
                                                                                       and businesses in areas      quarry.
                                                                                       around the disposal site
                                                                                       revealed MCL exceedances
                                                                                       in 34 wells, and SMCLs
                                                                                       exceedances in 63 wells.

[[Page 35237]]


Hyco Lake, Roxboro, NC.............  Surface Water.........  Selenium...............  Hyco Lake was constructed    Scientific--Declines in fish
                                                                                       in 1964 as a cooling water   populations were observed (1970s &
                                                                                       source for the Electric      1980s).
                                                                                       Plant. The lake received    Administrative--The State concluded
                                                                                       discharges from the          that the impacts were attributable
                                                                                       plant's ash-settling ponds   to the ash ponds, and issued a fish
                                                                                       containing high levels of    consumption advisory as a result of
                                                                                       selenium. The selenium       the contamination.
                                                                                       accumulated in the fish in
                                                                                       the lake, affecting
                                                                                       reproduction and causing
                                                                                       declines in fish
                                                                                       populations in the late
                                                                                       1970s and 1980s.
Georgia Power Company, Plant Bowen,  Surface Water.........  Ash Slurry.............  This unlined SI was put in   Scientific--Unpermitted discharge of
 Cartersville, GA.                                                                     service in 1968. On July     water containing ash slurry into the
                                                                                       28, 2002, a sinkhole         Euharlee Creek resulting in a
                                                                                       developed in the SI that     temporary degradation of public
                                                                                       ultimately reached four      waters.
                                                                                       acres in area. An           Administrative--Georgia Department of
                                                                                       estimated 2.25 million       Natural Resources issued a consent
                                                                                       gallons of ash/water         order requiring, among others, a
                                                                                       mixture was released to a    fine and corrective action.
                                                                                       tributary of the Euharlee
                                                                                       Creek, containing 281 tons
                                                                                       of ash.
Department of Energy--Oak Ridge Y-   Surface Water.........  Aluminum, Arsenic,       The Filled Coal Ash Pond     Scientific--Exceedances of primary
 12 Plant Chestnut Ridge Operable                             Iron, Manganese.         (FCAP) is an ash retention   and secondary MCLs were detected in
 Unit 2, DOE Oak Ridge Reservation,                                                    SI used to dispose of coal   on-site monitoring locations.
 Oak Ridge, TN.                                                                        ash slurry from the Y-12    Administrative--Federal RCRA and the
                                                                                       steam plant. It was          Tennessee Department of
                                                                                       constructed in 1955 by       Environmental Conservation (TDEC)
                                                                                       building an earthen dam      requirements, including placement of
                                                                                       across a northern            the entire Oak Ridge Reservation on
                                                                                       tributary of Upper McCoy     the NPL.
                                                                                       Branch. After the SI was
                                                                                       filled to capacity, the
                                                                                       slurry was released
                                                                                       directly into Upper McCoy
                                                                                       Branch. Erosion of both
                                                                                       the spillway and the ash
                                                                                       itself resulted in
                                                                                       releases of ash into Upper
                                                                                       McCoy Branch.
Belews Lake, NC....................  Surface Water.........  Selenium...............  This Lake was impounded in   Scientific--Evidence of extensive
                                                                                       the early 1970s to serve     impacts on fish populations due to
                                                                                       as a cooling reservoir for   direct discharge to a surface water
                                                                                       a large coal-fired power     body.
                                                                                       plant. Fly ash was          Administrative--The State required
                                                                                       disposed in a settling       changes in operating practices to
                                                                                       basin, which released        mitigate the contamination.
                                                                                       selenium-laden effluent in
                                                                                       return flows to the Lake.
                                                                                       Sixteen of the 20 fish
                                                                                       species originally present
                                                                                       in the reservoir were
                                                                                       entirely eliminated.

[[Page 35238]]


U.S. Department of Energy Savannah   Surface Water.........  Not cited..............  A coal-fired power plant     Scientific--Evidence of impacts on
 River Project, SC.                                                                    sluices fly ash to a         several species in a nearby wetland
                                                                                       series of open settling      caused by releases from the ash
                                                                                       basins. A continuous flow    settling ponds.
                                                                                       of sluice water exits the
                                                                                       basins, overflows, and
                                                                                       enters a swamp that in
                                                                                       turn discharges to Beaver
                                                                                       Dam Creek. Bullfrog
                                                                                       tadpoles inhabiting the
                                                                                       site have oral deformities
                                                                                       and impaired swimming and
                                                                                       predator avoidance
                                                                                       abilities, and there also
                                                                                       is evidence of metabolic
                                                                                       impacts on water snakes
                                                                                       inhabiting the site.
Brandy Branch Reservoir, TX........  Surface Water.........  Selenium...............  A power plant cooling        Scientific--Observations of impacts
                                                                                       reservoir built in 1983      on fish populations were confirmed
                                                                                       for Southwestern Electric    by scientific study, based on which
                                                                                       Power Company's Pirkey       the State concluded that the impacts
                                                                                       Power Plant. The cooling     were attributable to the ash ponds.
                                                                                       reservoir received          Administrative--The State issued a
                                                                                       discharges from SIs          fish consumption advisory as a
                                                                                       containing elevated levels   result of the contamination.
                                                                                       of selenium.
Southwestern Electric Power Company  Surface Water.........  Selenium...............  This Lake was constructed    Scientific--Selenium accumulation in
 Welsh Reservoir, TX.                                                                  in 1976 to serve as a        fish may be attributable to the ash
                                                                                       cooling reservoir for a      settling ponds.
                                                                                       power plant and receives    Administrative--The State has issued
                                                                                       discharges from an open      a fish consumption advisory as a
                                                                                       SI. The Texas Parks and      result of the contamination.
                                                                                       Wildlife Department's
                                                                                       monitoring documents
                                                                                       elevated levels of
                                                                                       selenium and other metals
                                                                                       in fish.
Texas Utilities Electric Martin      Surface Water.........  Selenium...............  This Lake was constructed    Scientific--Evidence of adverse
 Lake Reservoir, TX.                                                                   in 1974 to serve as a        effects on wildlife--impacts on fish
                                                                                       cooling reservoir for a      populations were observed, and the
                                                                                       power plant and was the      State concluded that the impacts
                                                                                       site of a series of major    were attributable to the ash setting
                                                                                       fish kills in 1978 and       ponds.
                                                                                       1979. Investigations        Administrative--The State has issued
                                                                                       determined that              a fish consumption advisory as a
                                                                                       unpermitted discharges       result of the contamination.
                                                                                       from ash settling ponds
                                                                                       resulted in elevated
                                                                                       levels of selenium in the
                                                                                       water and fish.
Martins Creek Power Plant, Martins   Groundwater and         Aluminum, Arsenic,       In August 2005, a dam        Scientific--Exceedances of primary
 Creek, PA.                           Surface Water.          Chromium, Copper,        confining a 40 acre CCR SI   and secondary MCLs in on-site ground
                                                              Iron, Lead, Manganese,   failed. The dam failure, a   water, and exceedances of federal
                                                              Nickel, Selenium,        violation of the State's     water quality criteria in off-site
                                                              Silver, Zinc.            solid waste disposal         surface water, and
                                                                                       permit, resulted in the     Administrative--PA DEP issued a
                                                                                       discharge of 100 million     consent order for cleanup.
                                                                                       gallons of coal-ash and
                                                                                       contaminated water into
                                                                                       the Oughoughton Creek and
                                                                                       the Delaware River.
                                                                                      Ground-water monitoring
                                                                                       found Se and Cr
                                                                                       concentrations exceeding
                                                                                       Pennsylvania's Statewide
                                                                                       Health Standards and
                                                                                       Federal primary drinking
                                                                                       water standards, and there
                                                                                       were also exceedances of
                                                                                       the secondary MCL for iron.

[[Page 35239]]


TVA Kingston, Harriman, TN.........  Surface Water.........  Arsenic, Cobalt, Iron,   On December 22, 2008, the    Administrative--On May 11, 2009, TVA
                                                              Thallium.                northeastern dike of a SI    agreed to clean up more than 5
                                                                                       failed. About 5.4 million    million tons of spilled coal ash
                                                                                       cubic yards of fly ash       under an administrative order and
                                                                                       sludge was released over     agreement on consent under CERCLA
                                                                                       about a 300 acre area and    issued by the USEPA, and In early
                                                                                       into a branch of the Emory   January 2009, the Tennessee Wildlife
                                                                                       River, disrupting power,     Resources Agency (TWRA) issued a
                                                                                       rupturing a gas line, and    fish advisory stating that until
                                                                                       destroying or damaging       further notice, fishing should be
                                                                                       scores of homes.             avoided in the lower section of the
                                                                                                                    Emory River.
                                                                                      Sampling results for the
                                                                                       contaminated residential
                                                                                       soil showed arsenic,
                                                                                       cobalt, iron, and thallium
                                                                                       levels above the
                                                                                       residential Superfund soil
                                                                                       screening levels.
--------------------------------------------------------------------------------------------------------------------------------------------------------


Abbreviations key:
1 LF--Landfill
2 SI--Surface Impoundment
3 PAL--Prevention Action Level
4 ES--Enforcement Standard
5 RTC--Report to Congress

List of Subjects

40 CFR Part 257

    Environmental Protection, coal combustion products, coal combustion 
residuals, coal combustion waste, beneficial use, disposal, hazardous 
waste, landfill, surface impoundment.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Part 264

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds.

40 CFR Part 268

    Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Indians-lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 302

    Air pollution control, Chemicals, Hazardous substances, Hazardous 
waste, Intergovernmental relations, Natural resources, Reporting and 
recordkeeping requirements, Superfund, Water pollution control, Water 
supply.

    Dated: May 4, 2010.
Lisa P. Jackson,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

Alternative 1: Co-Proposal Under Authority of Subtitle D

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

    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), and 
6949a(c); 33 U.S.C. 1345(d) and (e).

    2. Section 257.1 is amended by revising the last sentence of 
paragraph (a) introductory text, revising paragraphs (a)(1) and (a)(2), 
and adding new paragraph (c)(12) to read as follows:


Sec.  257.1  Scope and purpose.

    (a) * * * Unless otherwise provided, the criteria Sec. Sec.  257.51 
through 257.101 are adopted for determining which CCR Landfills and CCR 
Surface impoundments pose a reasonable probability of adverse effects 
on health or the environment under sections 1008(a)(3) and 4004(a) of 
the Act.
    (1) Facilities failing to satisfy either the criteria in Sec. Sec.  
257.1 through 257.4 or Sec. Sec.  257.5 through 257.30 or Sec. Sec.  
257.51 through 257.101 are considered open dumps, which are prohibited 
under section 4005 of the Act.
    (2) Practices failing to satisfy either the criteria in Sec. Sec.  
257.1 through 257.4 or Sec. Sec.  257.5 through 257.30 or Sec. Sec.  
257.51 through 257.101 constitute open dumping, which is prohibited 
under section 4005 of the Act.
* * * * *
    (c) * * *
    (12) Except as otherwise provided in subpart C, the criteria in 
subpart A of this part do not apply to CCR landfills and CCR surface 
impoundments subject to subpart C of this part.
    3. Section 257.2 is amended by adding definitions of ``CCR landfill 
'' and ``CCR surface impoundment or impoundment'' to read as follows:


Sec.  257.2  Definitions.

* * * * *
    CCR landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this part, landfills 
also include piles, sand and gravel pits, quarries, and/or large scale 
fill operations. Sites that are excavated so that more coal ash can be 
used as fill are also considered CCR landfills.
    CCR surface impoundment or impoundment means a facility or part of 
a facility which is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials), which is designed 
to hold an accumulation of CCRs containing free liquids, and which is 
not

[[Page 35240]]

an injection well. Examples of CCR surface impoundments are holding, 
storage, settling, and aeration pits, ponds, and lagoons. CCR surface 
impoundments are used to receive CCRs that have been sluiced (flushed 
or mixed with water to facilitate movement), or wastes from wet air 
pollution control devices, often in addition to other solid wastes.
* * * * *

Subpart C--[Added and Reserved]

    4. Part 257 is amended by adding and reserving Subpart C.
    5. Part 257 is amended by adding Subpart D to part 257 to read as 
follows:

Subpart D--Standards for the Receipt of Coal Combustion Residuals 
in Landfills and Surface Impoundments

General Provisions

Sec.
257.40 Disposal standards for owners/operators of CCR landfills and 
CCR surface impoundments.
257.42-257.49 [Reserved]

General Requirements

257.50 Applicability of other regulations.
257.51-257.59 [Reserved]

Location Restrictions

257.60 Placement above the natural water table.
257.61 Wetlands.
257.62 Fault areas.
257.63 Seismic impact zones.
257.64 Unstable areas.
257.65 Closure of existing CCR landfills and surface impoundments.
257.66-257.69 [Reserved]

Design Criteria

257.70 Design criteria for new CCR landfills and lateral expansions.
257.71 Design criteria for existing CCR surface impoundments.
257.72 Design criteria for new CCR surface impoundments and lateral 
expansions.
257.73-257.79 [Reserved]

Operating Criteria

257.80 Air criteria.
257.81 Run-on and run-off controls.
257.82 Surface water requirements.
257.83 Surface impoundment inspection requirements.
257.84 Recordkeeping requirements.
257.85-257.89 [Reserved]

Groundwater Monitoring and Corrective Action

257.90 Applicability.
257.91 Groundwater monitoring systems.
257.92 [Reserved]
257.93 Groundwater sampling and analysis requirements.
257.94 Detection monitoring program.
257.95 Assessment monitoring program.
257.96 Assessment of corrective measures.
257.97 Selection of remedy.
257.98 Implementation of the corrective action program.
257.99 [Reserved]

Closure and Post-Closure Care

257.100 Closure criteria.
257.101 Post-closure care requirements.
257.102-257.109 [Reserved]

Subpart D--Standards for the Receipt of Coal Combustion Residuals 
in Landfills and Surface Impoundments

General Provisions


Sec.  257.40  Disposal standards for owners/operators of CCR landfills 
and CCR surface impoundments.

    (a) Applicability. (1) The requirements of this subpart apply to 
owners or operators of CCR landfills and CCR surface impoundments. Any 
CCR landfill and surface impoundment continues to be subject to the 
requirements in Sec. Sec.  257.3-1, 257.3-2, and 257.3-3.
    (2) Except as otherwise specified in this Subpart, all of the 
requirements in this Subpart are applicable [date 180 days after the 
effective date of the final rule].
    (b) Definitions. As used in this subpart:
    Acre-foot means the volume of one acre of surface area to a depth 
of one foot.
    Active life means the period of operation beginning with the 
initial placement of CCRs in the landfill or surface impoundment and 
ending at completion of closure activities in accordance with Sec.  
257.110.
    Aquifer means a geological formation, group of formations, or 
portion of a formation capable of yielding significant quantities of 
groundwater to wells.
    Area-capacity curves means graphic curves which readily show the 
reservoir water surface area, in acres, at different elevations from 
the bottom of the reservoir to the maximum water surface, and the 
capacity or volume, in acre-feet, of the water contained in the 
reservoir at various elevations.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization materials. CCRs are also known as 
coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes.
    CCR landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this subpart, 
landfills also include piles, sand and gravel pits, quarries, and/or 
large scale fill operations. Sites that are excavated so that more coal 
ash can be used as fill are also considered CCR landfills.
    CCR surface impoundment or impoundment means a facility or part of 
a facility which is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials), which is designed 
to hold an accumulation of CCRs containing free liquids, and which is 
not an injection well. Examples of CCR surface impoundments are 
holding, storage, settling, and aeration pits, ponds, and lagoons. CCR 
surface impoundments are used to receive CCRs that have been sluiced 
(flushed or mixed with water to facilitate movement), or wastes from 
wet air pollution control devices, often in addition to other solid 
wastes.
    Existing CCR landfill means a CCR landfill which was in operation 
on, or for which construction commenced prior to [the effective date of 
the final rule]. A CCR landfill has commenced construction if the owner 
or operator has obtained the Federal, State and local approvals or 
permits necessary to begin physical construction; and either:
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction of the CCR landfill to be completed 
within a reasonable time.
    Existing CCR surface impoundment means a surface impoundment which 
was in operation on, or for which construction commenced prior to [the 
effective date of the final rule]. A CCR surface impoundment has 
commenced construction if the owner or operator has obtained the 
Federal, State and local approvals or permits necessary to begin 
physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which can not be cancelled or modified without substantial 
loss--for physical construction of the CCR surface impoundment to be 
completed within a reasonable time.
    Facility means all contiguous land and structures, other 
appurtenances, and improvements on the land used for the disposal of 
CCRs.
    Factor of safety (Safety factor) means the ratio of the forces 
tending to resist the failure of a structure to the forces tending to 
cause such failure as determined by accepted engineering practice.

[[Page 35241]]

    Freeboard means the vertical distance between the slurry or liquid 
elevation in an impoundment and the lowest point on the crest of the 
impoundment embankment.
    Groundwater means water below the land surface in a zone of 
saturation.
    Hazard potential classification means the possible adverse 
incremental consequences that result from the release of water or 
stored contents due to failure of a dam (or impoundment) or mis-
operation of the dam or appurtenances. (Note: The Hazard Potential 
Classification System for Dams was developed by the U.S. Army Corps of 
Engineers for the National Inventory of Dams.)
    (1) High hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation will probably cause loss of 
human life.
    (2) Significant hazard potential surface impoundment means a 
surface impoundment where failure or mis-operation results in no 
probable loss of human life, but can cause economic loss, environmental 
damage, disruption of lifeline facilities, or impact other concerns.
    (3) Low hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
    Independent registered professional engineer or hydrologist means a 
scientist or engineer who is not an employee of the owner or operator 
of a CCR landfill or surface impoundment who has received a 
baccalaureate or post-graduate degree in the natural sciences or 
engineering and has sufficient training and experience in groundwater 
hydrology and related fields as may be demonstrated by state 
registration, professional certifications, or completion of accredited 
university programs that enable that individual to make sound 
professional judgments regarding the technical information for which a 
certification under this subpart is necessary.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or existing CCR surface 
impoundment made after [the effective date of the final rule].
    New CCR landfill means a CCR landfill in which there is placement 
of CCRs without the presence of free liquids, which began operation, or 
for which the construction commenced after [the effective date of the 
final rule].
    New CCR surface impoundment means a CCR surface impoundment from 
which there is placement of CCRs with the presence of free liquids, 
which began operation, or for which the construction commenced after 
[the effective date of the final rule].
    Operator means the person(s) responsible for the overall operation 
of a facility.
    Owner means the person(s) who owns a facility or part of a 
facility.
    Probable maximum precipitation means the value for a particular 
area which represents an envelopment of depth-duration-area rainfall 
relations for all storm types affecting that area adjusted 
meteorologically to maximum conditions.
    Recognized and generally accepted good engineering practices means 
engineering maintenance or operation activities based on established 
codes, standards, published technical reports, recommended practice, or 
similar document. Such practices detail generally approved ways to 
perform specific engineering, inspection, or mechanical integrity 
activities.
    Representative sample means a sample of a universe or whole (e.g., 
waste pile, lagoon, groundwater) which can be expected to exhibit the 
average properties of the universe or whole.
    Run-off means any rainwater, leachate, or other liquid that drains 
over land from any part of a CCR landfill or surface impoundment.
    Run-on means any rainwater, leachate, or other liquid that drains 
over land onto any part of a CCR landfill or surface impoundment.
    Sand and gravel pit or quarry means an excavation for the 
commercial extraction of aggregate for use in construction projects.
    State means any of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
Samoa, and the Commonwealth of the Northern Mariana Islands.
    Surface water means all water naturally open to the atmosphere 
(rivers, lakes, reservoirs, ponds, streams, impoundments, seas, 
estuaries, etc.).
    Uppermost aquifer means the geologic formation nearest the natural 
ground surface that is an aquifer, as well as lower aquifers that are 
hydraulically interconnected with this aquifer within the facility's 
property boundary.
    Waste boundary means a vertical surface located at the 
hydraulically downgradient limit of the CCR landfill or CCR surface 
impoundment, or lateral expansion. The vertical surface extends down 
into the uppermost aquifer.


Sec. Sec.  257.42-257.49  [Reserved]

General Requirements


Sec.  257.50  Applicability of other regulations.

    (a) The owner or operator of a CCR landfill or CCR surface 
impoundment must comply with any other applicable federal, state, 
tribal, or local laws or other requirements.


Sec. Sec.  257.51-257.59  [Reserved]

Location Restrictions


Sec.  257.60  Placement above the natural water table.

    (a) New CCR landfills and new CCR surface impoundments and lateral 
expansions must be constructed with a base that is located a minimum of 
two feet above the upper limit of the natural water table.
    (b) For purposes of this section, natural water table means the 
natural level at which water stands in a shallow well open along its 
length and penetrating the surficial deposits just deeply enough to 
encounter standing water at the bottom. This level is uninfluenced by 
groundwater pumping or other engineered activities.


Sec.  257.61  Wetlands.

    (a) New CCR landfills, new CCR surface impoundments, and lateral 
expansions shall not be located in wetlands, unless the owner or 
operator can make the following demonstrations, certified by an 
independent registered professional engineer or hydrologist. The owner 
or operator must place the demonstrations in the operating record and 
the owner's or operator's publicly accessible internet site, and notify 
the state of this action.
    (1) Where applicable under section 404 of the Clean Water Act or 
applicable state wetlands laws, the presumption that a practicable 
alternative to the proposed landfill, surface impoundment, or lateral 
expansion is available which does not involve wetlands is clearly 
rebutted; and
    (2) The construction and operation of the new CCR landfill, new CCR 
surface impoundment, or lateral expansion will not:
    (i) Cause or contribute to violations of any applicable state water 
quality standard,
    (ii) Violate any applicable toxic effluent standard or prohibition 
under Section 307 of the Clean Water Act;
    (iii) Jeopardize the continued existence of endangered or 
threatened species or result in the destruction or adverse modification 
of a critical habitat, protected under the Endangered Species Act of 
1973; and

[[Page 35242]]

    (iv) Violate any requirement under the Marine Protection, Research, 
and Sanctuaries Act of 1972 for the protection of a marine sanctuary; 
and
    (3) The new CCR landfill, new CCR surface impoundment, or lateral 
expansion will not cause or contribute to significant degradation of 
wetlands. The owner or operator must demonstrate the integrity of the 
new CCR landfill, new CCR surface impoundment, or lateral expansion and 
its ability to protect ecological resources by addressing the following 
factors:
    (i) Erosion, stability, and migration potential of native wetland 
soils, muds and deposits used to support the new CCR landfill, new CCR 
surface impoundment, or lateral expansion;
    (ii) Erosion, stability, and migration potential of dredged and 
fill materials used to support the landfill or surface impoundment.
    (iii) The volume and chemical nature of the CCRs.
    (iv) Impacts on fish, wildlife, and other aquatic resources and 
their habitat from release of CCRs.
    (v) The potential effects of catastrophic release of CCRs to the 
wetland and the resulting impacts on the environment; and
    (vi) Any additional factors, as necessary, to demonstrate that 
ecological resources in the wetland are sufficiently protected; and
    (4) To the extent required under section 404 of the Clean Water Act 
or applicable state wetlands laws, steps have been taken to attempt to 
achieve no net loss of wetlands (as defined by acreage and function) by 
first avoiding impacts to wetlands to the maximum extent practicable as 
required by paragraph (a)(1) of this section, then minimizing 
unavoidable impacts to the maximum extent practicable, and finally 
offsetting remaining unavoidable wetland impacts through all 
appropriate and practicable compensatory mitigation actions (e.g., 
restoration of existing degraded wetlands or creation of man-made 
wetlands); and
    (5) Sufficient information is available to make a reasonable 
determination with respect to these demonstrations.
    (b) For purposes of this section, wetlands means those areas 
defined in 40 CFR 232.2.


Sec.  257.62  Fault areas.

    (a) New CCR landfills, new CCR surface impoundments and lateral 
expansions shall not be located within 200 feet (60 meters) of a fault 
that has had displacement in Holocene time unless the owner or operator 
demonstrates that an alternative setback distance of less than 200 feet 
(60 meters) will prevent damage to the structural integrity of the new 
CCR landfill, new CCR surface impoundment and lateral expansion and 
will be protective of human health and the environment. The 
demonstration must be certified by an independent registered 
professional engineer and the owner or operator must notify the state 
that the demonstration has been placed in the operating record and on 
the owner's or operator's publicly accessible Internet site.
    (b) For the purposes of this section:
    (1) Fault means a fracture or a zone of fractures in any material 
along which strata on one side have been displaced with respect to that 
on the other side.
    (2) Displacement means the relative movement of any two sides of a 
fault measured in any direction.
    (3) Holocene means the most recent epoch of the Quaternary period, 
extending from the end of the Pleistocene Epoch to the present.


Sec.  257.63  Seismic impact zones.

    (a) New CCR landfills, new CCR surface impoundments and lateral 
expansions shall not be located in seismic impact zones, unless the 
owner or operator demonstrates that all containment structures, 
including liners, leachate collection systems, and surface water 
control systems, are designed to resist the maximum horizontal 
acceleration in lithified earth material for the site. The 
demonstration must be certified by an independent registered 
professional engineer and the owner or operator must notify the state 
that the demonstration has been placed in the operating record and on 
the owner's or operator' publicly accessible internet site.
    (b) For the purposes of this section:
    (1) Seismic impact zone means an area with a ten percent or greater 
probability that the maximum horizontal acceleration in lithified earth 
material, expressed as a percentage of the earth's gravitational pull 
(g), will exceed 0.10g in 250 years.
    (2) Maximum horizontal acceleration in lithified earth material 
means the maximum expected horizontal acceleration depicted on a 
seismic hazard map, with a 98 percent or greater probability that the 
acceleration will not be exceeded in 50 years, or the maximum expected 
horizontal acceleration based on a site-specific seismic risk 
assessment.
    (3) Lithified earth material means all rock, including all 
naturally occurring and naturally formed aggregates or masses of 
minerals or small particles of older rock that formed by 
crystallization of magma or by induration of loose sediments. This term 
does not include man-made materials, such as fill, concrete, and 
asphalt, or unconsolidated earth materials, soil, or regolith lying at 
or near the earth surface.


Sec.  257.64  Unstable areas.

    (a) Owners or operators of new or existing CCR landfills, new or 
existing CCR surface impoundments and lateral expansions located in an 
unstable area must demonstrate that engineering measures have been 
incorporated into the landfill, surface impoundment, or lateral 
expansion design to ensure that the integrity of the structural 
components of the landfill or surface impoundment will not be 
disrupted. The demonstration must be certified by an independent 
registered professional engineer. The owner or operator must notify the 
state that the demonstration has been placed in the operating record 
and on the owner's or operator's publicly accessible internet site. The 
owner or operator must consider the following factors, at a minimum, 
when determining whether an area is unstable:
    (1) On-site or local soil conditions that may result in significant 
differential settling;
    (2) On-site or local geologic or geomorphologic features; and
    (3) On-site or local human-made features or events (both surface 
and subsurface).
    (b) For purposes of this section:
    (1) Unstable area means a location that is susceptible to natural 
or human-induced events or forces capable of impairing the integrity of 
some or all of the CCR landfill or CCR surface impoundment or lateral 
expansion structural components responsible for preventing releases 
from a landfill or surface impoundment. Unstable areas can include poor 
foundation conditions, areas susceptible to mass movements, and Karst 
terrains.
    (2) Structural components means liners, leachate collection 
systems, final covers, run-on/run-off systems, and any other component 
used in the construction and operation of the CCR landfill or CCR 
surface impoundment or lateral expansion that is necessary for 
protection of human health and the environment.
    (3) Poor foundation conditions means those areas where features 
exist which indicate that a natural or man-induced event may result in 
inadequate foundation support for the structural components of a CCR 
landfill, CCR surface impoundment, or lateral expansion.
    (4) Areas susceptible to mass movement means those areas of

[[Page 35243]]

influence (i.e., areas characterized as having an active or substantial 
possibility of mass movement) where the movement of earth material at, 
beneath, or adjacent to the CCR landfill, CCR surface impoundment, or 
lateral expansion, because of natural or man-induced events, results in 
the downslope transport of soil and rock material by means of 
gravitational influence. Areas of mass movement include, but are not 
limited to, landslides, avalanches, debris slides and flows, soil 
fluction, block sliding, and rock fall.
    (5) Karst terranes means areas where karst topography, with its 
characteristic surface and subterranean features, has developed as a 
result of dissolution of limestone, dolomite, or other soluble rock. 
Characteristic physiographic features present in karst terranes 
include, but are not limited to, sinkholes, sinking streams, caves, 
large springs, and blind valleys.


Sec.  257.65  Closure of existing CCR landfills and surface 
impoundments.

    (a) Existing CCR landfills and surface impoundments that cannot 
make the demonstration specified in Sec.  257.64 (a) pertaining to 
unstable areas, must close by [date five years after the effective date 
of the final rule], in accordance with Sec.  257.100 and conduct post-
closure activities in accordance with Sec.  257.101.
    (b) The deadline for closure required by paragraph (a) of this 
section may be extended up to two years if the owner or operator can 
demonstrate that:
    (1) There is no available alternative disposal capacity;
    (2) There is no immediate threat to human health and the 
environment.
    (c) The demonstration in paragraph (b) of this section must be 
certified by an independent registered professional engineer or 
hydrologist.
    (d) The owner or operator must place the demonstration in paragraph 
(b) of this section in the operating record and on the owner's or 
operator's publicly accessible internet site and notify the state that 
this action was taken.


Sec. Sec.  257.66-257.69  [Reserved]

Design Criteria


Sec.  257.70  Design criteria for new CCR landfills and lateral 
expansions.

    (a) New CCR landfills and lateral expansions of CCR landfills shall 
be constructed:
    (1) With a composite liner, as defined in paragraph (a)(2) of this 
section and a leachate collection system that is designed and 
constructed to maintain less than a 30-cm depth of leachate over the 
liner. The design of the composite liner and leachate collection system 
must be prepared by, or under the direction of, and certified by an 
independent registered, professional engineer.
    (2) For purposes of this section, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1x10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component.
    (3) For purpose of this section, hydraulic conductivity means the 
rate at which water can move through a permeable medium. (i.e., the 
coefficient of permeability).
    (b) [Reserved]


Sec.  257.71  Design criteria for existing CCR surface impoundments.

    (a) No later than [five years after effective date of final rule] 
existing CCR surface impoundments shall be constructed:
    (1) With a composite liner, as defined in paragraph (a)(2) of this 
section and a leachate collection system between the upper and lower 
components of the composite liner. The design shall be in accordance 
with a design prepared by, or under the direction of, and certified by 
an independent registered professional engineer.
    (2) For purposes of this section, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane line (FML), and the lower component 
must consist of at least two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1x10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component.
    (3) For purposes of this section, hydraulic conductivity means the 
rate at which water can move through a permeable medium (i.e., the 
coefficient of permeability).
    (b) The owner or operator of an existing CCR surface impoundment 
shall place in the operating record and on the owner's or operator's 
publicly accessible internet site, and provide to the state a history 
of construction, and any record or knowledge of structural instability 
if the existing surface impoundment can:
    (1) Impound CCRs to an elevation of five feet or more above the 
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
    (2) Impound CCRs to an elevation of 20 feet or more above the 
upstream toe of the structure.
    (c) For purposes of this subpart, upstream toe means, for an 
embankment dam, the junction of the upstream slope of the dam with the 
ground surface. (Federal Guidelines for Dam Safety, Glossary of Terms, 
Federal Emergency Management Agency, April 2004.)
    (d) The history of construction specified in paragraph (b) of this 
section shall contain, at a minimum, the following information as may 
be available:
    (1) The name and address of the persons owning or operating the CCR 
surface impoundment; the name associated with the CCR surface 
impoundment; and the identification number of the CCR surface 
impoundment if one has been assigned by the state.
    (2) The location of the CCR surface impoundment indicated on the 
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map, 
or a topographic map of equivalent scale if a USGS map is not 
available.
    (3) A statement of the purpose for which the CCR surface 
impoundment is being used.
    (4) The name and size in acres of the watershed affecting the CCR 
surface impoundment.
    (5) A description of the physical and engineering properties of the 
foundation materials on which the CCR surface impoundment is 
constructed.
    (6) A statement of the type, size, range, and physical and 
engineering properties of the materials used in constructing each zone 
or stage of the CCR surface impoundment; the method of site preparation 
and construction of each zone of the CCR surface impoundment; and the 
approximate dates of construction, and each successive stage of 
construction of the CCR surface impoundment.
    (7) At a scale not to exceed 1 inch = 100 feet, detailed 
dimensional drawings of the CCR surface impoundment, including a plan 
view and cross sections of the length and width of the CCR surface 
impoundment, showing all zones, foundation improvements, drainage 
provisions, spillways, diversion ditches, outlets, instrument 
locations, and slope protection, in addition to the measurement of the 
minimum vertical distance between the crest of the CCR surface 
impoundment

[[Page 35244]]

and the reservoir surface at present and under design storm conditions, 
CCR slurry level and CCR waste water level, and any identifiable 
natural or manmade features which could affect operation of the CCR 
surface impoundment.
    (8) A description of the type and purpose of existing or proposed 
instrumentation.
    (9) Graphs showing area-capacity curves.
    (10) The hazard potential classification for which the facility is 
designed and a detailed explanation of the basis for this 
classification.
    (11) A description of the spillway and diversion design features 
and capacities and calculations used in their determination.
    (12) The computed minimum factor of safety for slope stability of 
the CCR retaining structure(s) and the analyses used in their 
determinations.
    (13) A certification by an independent registered professional 
engineer that the design of the CCR surface impoundment is in 
accordance with current, prudent engineering practices for the maximum 
volume of CCR slurry and CCR waste water which can be impounded therein 
and for the passage of runoff from the design storm which exceeds the 
capacity of the CCR surface impoundment; or, in lieu of the 
certification, a report indicating what additional investigations, 
analyses, or improvement work are necessary before such a certification 
can be made by an independent registered professional engineer, 
including what provisions have been made to carry out such work in 
addition to a schedule for completion of such work. Upon completion of 
such work, the owner or operator shall place the certification in the 
operating record and on the owner's or operator's publicly accessible 
internet site and provide to the state notice of such certification.
    (14) The construction specifications and provisions for 
surveillance, maintenance, and repair of the CCR surface impoundment.
    (15) General provisions for closure.
    (e) A permanent identification marker, at least six feet high and 
showing the identification number of the existing CCR surface 
impoundment, if one has been assigned by the state, the name associated 
with the CCR surface impoundment and the name of the person owning or 
operating the structure, shall be located on or immediately adjacent to 
each existing CCR surface impoundment. This requirement becomes 
effective [date 60 days after the effective date of the final rule].
    (f) For existing CCR surface impoundments classified as having a 
high or significant hazard potential, as certified by an independent 
registered professional engineer, the owner or operator shall develop 
and maintain in the operating record, and on the owner's or operator' 
publicly accessible internet site, an Emergency Action Plan which: 
defines responsible persons and the actions to be taken in the event of 
a dam-safety emergency; provides contact information for emergency 
responders; includes a map which delineates the downstream area which 
would be affected in the event of a dam failure; and includes 
provisions for an annual face-to-face meeting or exercise between 
representatives of the facility owner and the local emergency 
responders.
    (g) CCR surface impoundments shall be dredged of CCRs and lined 
with a composite liner system, as defined in paragraph (d)(2) of this 
section, by [date five years after the effective date of the final 
rule] or closed in accordance with Sec.  257.100.


Sec.  257.72  Design criteria for new CCR surface impoundments and 
lateral expansions.

    (a) New CCR surface impoundments and lateral expansions of CCR 
landfills or surface impoundments shall be constructed:
    (1) With a composite liner, as defined in paragraph (a)(2) of this 
section and a leachate collection system between the upper and lower 
components of the composite liner. The design of the composite liner 
and leachate collection system must be prepared by, or under the 
direction of, and certified by an independent registered, professional 
engineer.
    (2) For purposes of this section, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1x10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component.
    (3) For purpose of this section, hydraulic conductivity means the 
rate at which water can move through a permeable medium (i.e., the 
coefficient of permeability).
    (b) Plans for the design, construction, and maintenance of new CCR 
surface impoundments and lateral expansions shall be placed in the 
operating record and be submitted to the state upon certification by an 
independent registered professional engineer, and a notice shall be 
placed on the owner's or operator's publicly accessible internet site 
that such plans have been placed in the operating record and submitted 
to the state, if such proposed surface impoundment or lateral expansion 
can:
    (1) Impound CCRs to an elevation of five feet or more above the 
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
    (2) Impound CCRs to an elevation of 20 feet or more above the 
upstream toe of the structure.
    (c) A permanent identification marker, at least six feet high and 
showing the identification number of the CCR surface impoundment, if 
one has been assigned by the state, the name associated with the CCR 
surface impoundment and the name of the person owning or operating the 
structure, shall be located on or immediately adjacent to each CCR 
surface impoundment. This requirement becomes effective [date 60 days 
after the effective date of the final rule].
    (d) The plan specified in paragraph (b) of this section, shall 
contain at a minimum the following information:
    (1) The name and address of the persons owning or operating the CCR 
surface impoundment; the name associated with the CCR surface 
impoundment; and the identification number of the CCR surface 
impoundment if one has been assigned by the state.
    (2) The location of the CCR surface impoundment indicated on the 
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map, 
or a topographic map of equivalent scale if a USGS map is not 
available.
    (3) A statement of the purpose for which the CCR surface 
impoundment is being used.
    (4) The name and size in acres of the watershed affecting the CCR 
surface impoundment.
    (5) A description of the physical and engineering properties of the 
foundation materials on which the CCR surface impoundment is 
constructed.
    (6) A statement of the type, size, range, and physical and 
engineering properties of the materials used in constructing each zone 
or stage of the CCR surface impoundment; the method of site preparation 
and construction of each zone of the CCR surface impoundment; and the 
approximate dates of construction, and each successive stage of 
construction of the CCR surface impoundment.
    (7) At a scale not to exceed 1 inch = 100 feet, detailed 
dimensional drawings

[[Page 35245]]

of the CCR surface impoundment, including a plan view and cross 
sections of the length and width of the CCR surface impoundment, 
showing all zones, foundation improvements, drainage provisions, 
spillways, diversion ditches, outlets, instrument locations, and slope 
protection, in addition to the measurement of the minimum vertical 
distance between the crest of the CCR surface impoundment and the 
reservoir surface at present and under design storm conditions, CCR 
slurry level and CCR waste water level, and any identifiable natural or 
manmade features which could affect operation of the CCR surface 
impoundment.
    (8) A description of the type and purpose of existing or proposed 
instrumentation.
    (9) Graphs showing area-capacity curves.
    (10) The hazard potential classification for which the facility is 
designed and a detailed explanation of the basis for this 
classification.
    (11) A description of the spillway and diversion design features 
and capacities and calculations used in their determination.
    (12) The computed minimum factor of safety for slope stability of 
the CCR retaining structure(s) and the analyses used in their 
determinations.
    (13) The construction specifications and provisions for 
surveillance, maintenance, and repair of the CCR surface impoundment.
    (14) General provisions for closure.
    (15) A certification by an independent registered professional 
engineer that the design of the CCR surface impoundment is in 
accordance with generally accepted engineering standards for the 
maximum volume of CCR slurry and CCR waste water which can be impounded 
therein and for the passage of runoff from the design storm which 
exceeds the capacity of the CCR surface impoundment. The owner or 
operator shall place the certification in the operating record and on 
the owner's or operator's publicly accessible internet site and notify 
the state that these actions have been taken.
    (e) Any changes or modifications to the plans for CCR surface 
impoundments shall be certified by an independent registered 
professional engineer and provided to the state prior to the initiation 
of such changes or modifications. The certification required in this 
paragraph shall be placed on the owner's or operator's publicly 
accessible internet site.
    (f) For CCR surface impoundments classified by as having a high or 
significant hazard potential, as certified by an independent registered 
professional engineer, the owner or operator shall develop and maintain 
in the operating record and on the owner's or operator's publicly 
accessible internet site, an Emergency Action Plan which: Defines 
responsible persons and the actions to be taken in the event of a dam-
safety emergency; provides contact information for emergency 
responders; includes a map which delineates the downstream area which 
would be affected in the event of a dam failure; and includes 
provisions for an annual face-to-face meeting or exercise between 
representatives of the facility owner and the local emergency 
responders.


Sec. Sec.  257.73-257.79  [Reserved]

Operating Criteria


Sec.  257.80  Air criteria.

    (a) CCR surface impoundments and CCR landfills must be managed in a 
manner that fugitive dusts do not exceed 35 [micro]g/m\3\, unless some 
alternative standard has been established pursuant to applicable 
requirements developed under a State Implementation Plan (SIP) approved 
or promulgated by the Administrator pursuant to section 110 of the 
Clean Air Act, as amended.
    (b) CCR surface impoundments must be managed to control wind 
dispersal of dusts, consistent with the standard in paragraph (a) of 
this section.
    (c) CCR landfills must be managed to control wind dispersal of 
dusts, consistent with the standard in paragraph (a). CCRs must be 
emplaced as conditioned CCRs as defied in paragraph (d) of this 
section.
    (d) For purposes of this section, conditioning means wetting CCRs 
with water to a moisture content that will prevent wind dispersal, but 
will not result in free liquids.
    (e) Documentation of the measures taken to comply with the 
requirements of this section must be certified by an independent 
registered professional engineer and notification provided to the state 
that the documentation has been placed in the operating record and on 
the owner's or operator's publicly accessible internet site.


Sec.  257.81  Run-on and run-off controls.

    (a) Owners or operators of all CCR landfills and surface 
impoundments must design, construct, and maintain:
    (1) A run-on control system to prevent flow onto the active portion 
of the CCR landfill or surface impoundment during the peak discharge 
from a 24-hour, 25-year storm;
    (2) A run-off control system from the active portion of the CCR 
landfill or surface impoundment to collect and control at least the 
water volume resulting from a 24-hour, 25-year storm.
    (b) The design required in paragraph (a) of this section must be 
certified by an independent registered professional engineer that the 
design meets the requirements of this section. The owner or operator 
must notify the state that the design has been placed in the operating 
record and on the owner's or operator's publicly accessible internet 
site.
    (c) The owner or operator must prepare a report, certified by an 
independent registered professional engineer, that documents how 
relevant calculations were made, and how the control systems meet the 
requirements of this subpart and notify the state that the report has 
been placed in the operating record and made available to the public on 
the owner's or operator's publicly accessible internet site.
    (d) Run-off from the active portion of the CCR landfill or surface 
impoundment must be handled in accordance with Sec.  257.3-3.


Sec.  257.82  Surface water requirements.

    (a) CCR landfills and surface impoundments shall not:
    (1) Cause a discharge of pollutants into waters of the United 
States, including wetlands, that violates any requirements of the Clean 
Water Act, including, but not limited to, the National Pollutant 
Discharge Elimination System (NPDES) requirements, pursuant to section 
402 of the Clean Water Act.
    (2) Cause the discharge of a nonpoint source of pollution to waters 
of the United States, including wetlands, that violates any requirement 
of an area-wide or State-wide water quality management plan that has 
been approved under section 208 or 319 of the Clean Water Act, as 
amended.
    (b) [Reserved]


Sec.  257.83  Surface impoundment inspection requirements.

    (a) All existing CCR surface impoundments shall be examined as 
follows:
    (1) At intervals not exceeding 7 days for appearances of structural 
weakness and other hazardous conditions.
    (2) At intervals not exceeding 7 days all instruments shall be 
monitored.
    (3) All inspections required by paragraphs (a)(1) and (2) of this 
section shall be performed by a qualified person, as defined in 
paragraph (e) of this section, designated by the person owning or 
operating the CCR surface impoundment.
    (4) All existing CCR surface impoundments shall be inspected

[[Page 35246]]

annually by an independent registered professional engineer to assure 
that the design, operation, and maintenance of the surface impoundment 
is in accordance with generally accepted engineering standards. The 
owner or operator must notify the state that a certification by the 
independent registered professional engineer that the design, 
operation, and maintenance of the surface impoundment is in accordance 
with generally accepted engineering standards has been placed in the 
operating record and on the owner's or operator's publicly accessible 
internet site.
    (b) When a potentially hazardous condition develops, the person 
owning or operating the CCR surface impoundment shall immediately:
    (1) Take action to eliminate the potentially hazardous condition;
    (2) Notify potentially affected persons and state and local first 
responders;
    (3) Notify and prepare to evacuate, if necessary, all personnel 
from the owner or operator's property which may be affected by the 
potentially hazardous conditions; and
    (4) Direct a qualified person to monitor all instruments and 
examine the structure at least once every eight hours, or more often as 
required by an authorized representative of the state.
    (c) After each inspection and instrumentation monitoring referred 
to in paragraphs (a) and (b) of this section, each qualified person who 
conducted all or any part of the inspection or instrumentation 
monitoring shall promptly record the results of such inspection or 
instrumentation monitoring in a book which shall be available in the 
operating record and such qualified person shall also promptly report 
the results of the inspection or monitoring to the state. A report of 
each inspection and instrumentation monitoring shall also be placed on 
the owner's or operator's publicly accessible internet site.
    (d) All inspection and instrumentation monitoring reports recorded 
in accordance with paragraph (c) of this section shall include a report 
of the action taken to abate hazardous conditions and shall be promptly 
signed by the person designated by the owner or operator as responsible 
for health and safety at the owner or operator's facility.
    (e) The qualified person or persons referred to in this section 
shall be trained to recognize specific signs of structural instability 
and other hazardous conditions by visual observation and, if 
applicable, to monitor instrumentation.


Sec.  257.84  Recordkeeping requirements.

    (a) The owner or operator of a CCR landfill or surface impoundment 
must record and retain near the facility in an operating record and on 
the owner's or operator's publicly accessible internet site, all 
records, reports, studies or other documentation required to 
demonstrate compliance with Sec. Sec.  257.60 through 257.83 and 257.90 
through 257.101.
    (b) Except as provided in paragraph (c) of this section, every 
twelfth month following [the effective date of the final rule] for CCR 
surface impoundments addressed under Sec.  257.71, and every twelfth 
month following the date of the initial plan for the design (including 
lateral expansions), construction, and maintenance of the surface 
impoundments addressed under Sec.  257.72(b), the owner or operator of 
such CCR surface impoundments that have not been closed in accordance 
with Sec.  257.100 shall place in the operating record and on the 
owner's or operator's publicly accessible internet site, a report 
containing the following information. The owner or operator shall 
notify the state that the report has been placed in the operating 
record and on the owner's or operator's publicly accessible internet 
site.
    (1) Changes in the geometry of the impounding structure for the 
reporting period.
    (2) Location and type of installed instruments and the maximum and 
minimum recorded readings of each instrument for the reporting period.
    (3) The minimum, maximum, and present depth and elevation of the 
impounded water, sediment, or slurry for the reporting period.
    (4) Storage capacity of the impounding structure.
    (5) The volume of the impounded water, sediment, or slurry at the 
end of the reporting period.
    (6) Any other change which may have affected the stability or 
operation of the impounding structure that has occurred during the 
reporting period.
    (7) A certification by an independent registered professional 
engineer that all construction, operation, and maintenance were in 
accordance with the approved plan.
    (c) A report is not required under this section when the owner or 
operator provides the state with a certification by an independent 
registered professional engineer that there have been no changes under 
paragraphs (b)(1) through (b)(6) of this section to the surface 
impoundment. However, a report containing the information set out in 
paragraph (b) of this section shall be placed in the operating record 
and on the owner's or operator's publicly accessible internet site and 
notification submitted to the state at least every 5 years.


Sec. Sec.  257.85-257.89  [Reserved]

Groundwater Monitoring and Corrective Action


Sec.  257.90  Applicability.

    (a) Owners and operators of all CCR landfills, surface impoundments 
subject to this subpart must comply with the groundwater monitoring 
requirements according to the following schedule:
    (1) Existing CCR landfills and surface impoundments must comply 
with the groundwater monitoring requirements specified in Sec. Sec.  
257.91 through 257.95 within [one year after the effective date of the 
final rule];
    (2) New CCR landfills and surface impoundments must comply with the 
groundwater monitoring requirements specified in Sec. Sec.  257.91 
through 257.95 before CCR can be disposed of in the CCR landfill or 
surface impoundment.
    (b) The owner or operator must notify the state once each year 
throughout the active life and post-closure care period that the CCR 
landfill or surface impoundment is in compliance with the groundwater 
monitoring and corrective action provisions of this subpart.
    (c) Once established at a CCR landfill or surface impoundment, 
groundwater monitoring shall be conducted throughout the active life 
and post-closure care period of that CCR landfill or surface 
impoundment as specified in Sec.  257.101.


Sec.  257.91  Groundwater monitoring systems.

    (a) A groundwater monitoring system must be installed that consists 
of a sufficient number of wells, installed at appropriate locations and 
depths, to yield groundwater samples from the uppermost aquifer (as 
defined in Sec.  257.41) that:
    (1) Represent the quality of background groundwater that has not 
been affected by leakage from a CCR landfill or surface impoundment. A 
determination of background quality may include sampling of wells that 
are not hydraulically upgradient of the CCR management area where:
    (i) Hydrogeologic conditions do not allow the owner or operator to 
determine what wells are hydraulically upgradient; or
    (ii) Sampling at other wells will provide an indication of 
background groundwater quality that is as representative or more 
representative than that provided by the upgradient wells; and
    (2) Represent the quality of groundwater passing the waste

[[Page 35247]]

boundary. The downgradient monitoring system must be installed at the 
waste boundary that ensures detection of groundwater contamination in 
the uppermost aquifer.
    (b) The groundwater monitoring system must include at a minimum one 
up gradient and three downgradient wells.
    (c) A multiunit groundwater monitoring system may be installed 
instead of separate groundwater monitoring systems for each CCR 
landfill or surface impoundment when the facility has several units, 
provided the multi-unit groundwater monitoring system meets the 
requirement of Sec.  257.91(a) and will be as protective of human 
health and the environment as individual monitoring systems for each 
CCR landfill or surface impoundment, based on the following factors:
    (1) Number, spacing, and orientation of the CCR landfill or surface 
impoundment;
    (2) Hydrogeologic setting;
    (3) Site history;
    (4) Engineering design of the CCR landfill or surface impoundment; 
and
    (d) Monitoring wells must be cased in a manner that maintains the 
integrity of the monitoring well bore hole. This casing must be 
screened or perforated and packed with gravel or sand, where necessary, 
to enable collection of groundwater samples. The annular space (i.e., 
the space between the bore hole and well casing) above the sampling 
depth must be sealed to prevent contamination of samples and the 
groundwater.
    (1) The owner or operator of the CCR landfill or surface 
impoundment must notify the state that the design, installation, 
development, and decommission of any monitoring wells, piezometers and 
other measurement, sampling, and analytical devices documentation has 
been placed in the operating record and on the owner's or operator's 
publicly accessible internet site; and
    (2) The monitoring wells, piezometers, and other measurement, 
sampling, and analytical devices must be operated and maintained so 
that they perform to design specifications throughout the life of the 
monitoring program.
    (e) The number, spacing, and depths of monitoring systems shall be:
    (1) Determined based upon site-specific technical information that 
must include thorough characterization of:
    (i) Aquifer thickness, groundwater flow rate, groundwater flow 
direction including seasonal and temporal fluctuations in groundwater 
flow; and
    (ii) Saturated and unsaturated geologic units and fill materials 
overlying the uppermost aquifer, materials comprising the uppermost 
aquifer, and materials comprising the confining unit defining the lower 
boundary of the uppermost aquifer; including, but not limited to: 
thicknesses, stratigraphy, lithology, hydraulic conductivities, 
porosities and effective porosities.
    (2) Certified by an independent registered professional engineer or 
hydrologist. Within 14 days of this certification, the owner or 
operator must notify the state that the certification has been placed 
in the operating record and on the owner's or operator's publicly 
accessible internet site.


Sec.  257.92  [Reserved]


Sec.  257.93  Groundwater sampling and analysis requirements.

    (a) The groundwater monitoring program must include consistent 
sampling and analysis procedures that are designed to ensure monitoring 
results that provide an accurate representation of groundwater quality 
at the background and downgradient wells installed in compliance with 
Sec.  257.91. The owner or operator of the CCR landfill or surface 
impoundment must notify the State that the sampling and analysis 
program documentation has been placed in the operating record and on 
the owner's or operator's publicly accessible internet site and the 
program must include procedures and techniques for:
    (1) Sample collection;
    (2) Sample preservation and shipment;
    (3) Analytical procedures;
    (4) Chain of custody control; and
    (5) Quality assurance and quality control.
    (b) The groundwater monitoring program must include sampling and 
analytical methods that are appropriate for groundwater sampling and 
that accurately measure hazardous constituents and other monitoring 
parameters in groundwater samples. Groundwater samples shall not be 
field-filtered prior to laboratory analysis.
    (c) The sampling procedures and frequency must be protective of 
human health and the environment.
    (d) Groundwater elevations must be measured in each well 
immediately prior to purging, each time groundwater is sampled. The 
owner or operator of the CCR landfill or surface impoundment must 
determine the rate and direction of groundwater flow each time 
groundwater is sampled. Groundwater elevations in wells which monitor 
the same CCR management area must be measured within a period of time 
short enough to avoid temporal variations in groundwater flow which 
could preclude accurate determination of groundwater flow rate and 
direction.
    (e) The owner or operator of the CCR landfill or surface 
impoundment must establish background groundwater quality in a 
hydraulically upgradient or background well(s) for each of the 
monitoring parameters or constituents required in the particular 
groundwater monitoring program that applies to the CCR landfill or 
surface impoundment, as determined under Sec.  257.94(a) or Sec.  
257.95(a). Background groundwater quality may be established at wells 
that are not located hydraulically upgradient from the CCR landfill or 
surface impoundment if it meets the requirements of Sec.  257.91(a)(1).
    (f) The number of samples collected to establish groundwater 
quality data must be consistent with the appropriate statistical 
procedures determined pursuant to paragraph (g) of this section. The 
sampling procedures shall be those specified under Sec.  257.94(b) for 
detection monitoring, Sec.  257.95(b) and (c) for assessment 
monitoring, and Sec.  257.96(b) for corrective action.
    (g) The owner or operator of the CCR landfill or surface 
impoundment must specify in the operating record and on the owner's or 
operator's publicly accessible Internet site, one of the following 
statistical methods to be used in evaluating groundwater monitoring 
data for each hazardous constituent. The statistical test chosen shall 
be conducted separately for each hazardous constituent in each well.
    (1) A parametric analysis of variance (ANOVA) followed by multiple 
comparison procedures to identify statistically significant evidence of 
contamination. The method must include estimation and testing of the 
contrasts between each compliance well's mean and the background mean 
levels for each constituent.
    (2) An analysis of variance (ANOVA) based on ranks followed by 
multiple comparison procedures to identify statistically significant 
evidence of contamination. The method must include estimation and 
testing of the contrasts between each compliance well's median and the 
background median levels for each constituent.
    (3) A tolerance or prediction interval procedure in which an 
interval for each constituent is established from the distribution of 
the background data, and the level of each constituent in each 
compliance well is compared to the upper tolerance or prediction limit.

[[Page 35248]]

    (4) A control chart approach that gives control limits for each 
constituent.
    (5) Another statistical test method that meets the performance 
standards of paragraph (h) of this section. The owner or operator of 
the CCR landfill or surface impoundment must place a justification for 
this alternative in the operating record and on the owner's or 
operator's publicly accessible internet site and notify the state of 
the use of this alternative test. The justification must demonstrate 
that the alternative method meets the performance standards of 
paragraph (h) of this section.
    (h) Any statistical method chosen under paragraph (g) of this 
section shall comply with the following performance standards, as 
appropriate:
    (1) The statistical method used to evaluate groundwater monitoring 
data shall be appropriate for the distribution of chemical parameters 
or hazardous constituents. If the distribution of the chemical 
parameters or hazardous constituents is shown by the owner or operator 
of the CCR landfill or surface impoundment to be inappropriate for a 
normal theory test, then the data should be transformed or a 
distribution-free theory test should be used. If the distributions for 
the constituents differ, more than one statistical method may be 
needed.
    (2) If an individual well comparison procedure is used to compare 
an individual compliance well constituent concentration with background 
constituent concentrations or a ground-water protection standard, the 
test shall be done at a Type I error level no less than 0.01 for each 
testing period. If a multiple comparison procedure is used, the Type I 
experiment wise error rate for each testing period shall be no less 
than 0.05; however, the Type I error of no less than 0.01 for 
individual well comparisons must be maintained. This performance 
standard does not apply to tolerance intervals, prediction intervals, 
or control charts.
    (3) If a control chart approach is used to evaluate groundwater 
monitoring data, the specific type of control chart and its associated 
parameter values shall be protective of human health and the 
environment. The parameters shall be determined after considering the 
number of samples in the background data base, the data distribution, 
and the range of the concentration values for each constituent of 
concern.
    (4) If a tolerance interval or a predictional interval is used to 
evaluate groundwater monitoring data, the levels of confidence and, for 
tolerance intervals, the percentage of the population that the interval 
must contain, shall be protective of human health and the environment. 
These parameters shall be determined after considering the number of 
samples in the background data base, the data distribution, and the 
range of the concentration values for each constituent of concern.
    (5) The statistical method shall account for data below the limit 
of detection with one or more statistical procedures that are 
protective of human health and the environment. Any practical 
quantitation limit (pql) that is used in the statistical method shall 
be the lowest concentration level that can be reliably achieved within 
specified limits of precision and accuracy during routine laboratory 
operating conditions that are available to the facility.
    (6) If necessary, the statistical method shall include procedures 
to control or correct for seasonal and spatial variability as well as 
temporal correlation in the data.
    (i) The owner or operator of the CCR landfill or surface 
impoundment must determine whether or not there is a statistically 
significant increase over background values for each parameter or 
constituent required in the particular groundwater monitoring program 
that applies to the CCR landfill or surface impoundment, as determined 
under Sec. Sec.  257.94(a) or 257.95(a).
    (1) In determining whether a statistically significant increase has 
occurred, the owner or operator must compare the groundwater quality of 
each parameter or constituent at each monitoring well designated 
pursuant to Sec.  257.91(a)(2) to the background value of that 
constituent, according to the statistical procedures and performance 
standards specified under paragraphs (g) and (h) of this section.
    (2) Within a reasonable period of time after completing sampling 
and analysis, the owner or operator of the CCR landfill or surface 
impoundment must determine whether there has been a statistically 
significant increase over background at each monitoring well.


Sec.  257.94  Detection monitoring program.

    (a) Detection monitoring is required at CCR landfills and surface 
impoundments at all groundwater monitoring wells. At a minimum, a 
detection monitoring program must include monitoring for the parameters 
listed in Appendix III to this part.
    (b) The monitoring frequency for all parameters listed in Appendix 
III to this part shall be at least semiannual during the active life of 
the CCR landfill or surface impoundment (including closure) and the 
post-closure period. A minimum of four independent samples from each 
background and downgradient well must be collected and analyzed for the 
Appendix III parameters during the first semiannual sampling event.
    (c) At least one sample from each background and downgradient well 
must be collected and analyzed during subsequent semiannual sampling 
events.
    (d) If the owner or operator of the CCR landfill or surface 
impoundment determines, pursuant to Sec.  257.93(g) that there is a 
statistically significant increase over background for one or more of 
the parameters listed in Appendix III to this part at any monitoring 
well at the waste boundary specified under Sec.  257.91(a)(2), the 
owner or operator:
    (1) Must, within 14 days of this finding, place a notice in the 
operating record and on the owner's or operator's publicly accessible 
internet site indicating which parameters have shown statistically 
significant changes from background levels, and notify the state that 
this notice was placed in the operating record and on the owner's or 
operator's publicly accessible internet site; and
    (2) Must establish an assessment monitoring program meeting the 
requirements of Sec.  257.95 of this part within 90 days except as 
provided for in paragraph (c)(3) of this section.
    (3) The owner/operator may demonstrate that a source other than the 
CCR landfill or surface impoundment caused the statistically 
significant increase or that the statistically significant increase 
resulted from error in sampling, analysis, statistical evaluation, or 
natural variation in groundwater quality. A report documenting this 
demonstration must be certified by an independent registered 
professional engineer or hydrologist and be placed in the operating 
record and on the owner's or operator's publicly accessible internet 
site and the state notified of this finding. If a successful 
demonstration is made and documented, the owner or operator of the CCR 
landfill or surface impoundment may continue detection monitoring as 
specified in this section. If, after 90 days, a successful 
demonstration is not made, the owner or operator of the CCR landfill or 
surface impoundment must initiate an assessment monitoring program as 
required in Sec.  257.95.


Sec.  257.95  Assessment monitoring program.

    (a) Assessment monitoring is required whenever a statistically 
significant increase over background has been detected for one or more 
of the

[[Page 35249]]

constituents listed in the Appendix III to this part.
    (b) Within 90 days of triggering an assessment monitoring program, 
and annually thereafter, the owner or operator of the CCR landfill or 
surface impoundment must sample and analyze the groundwater for all 
constituents identified in Appendix IV to this part. A minimum of one 
sample from each downgradient well must be collected and analyzed 
during each sampling event. For any constituent detected in the 
downgradient wells as a result of the complete Appendix IV analysis, a 
minimum of four independent samples from each well (background and 
downgradient) must be collected and analyzed to establish background 
for the constituents.
    (c) After obtaining the results from the initial or subsequent 
sampling events required in paragraph (b) of this section, the owner or 
operator of the CCR landfill or surface impoundment must:
    (1) Within 14 days, place a notice in the operating record and on 
the owner's or operator's publicly accessible internet site identifying 
the Appendix IV constituents that have been detected and notify the 
state that this notice has been placed in the operating record and on 
the owner's or operator's publicly accessible internet site;
    (2) Within 90 days, and on at least a semiannual basis thereafter, 
resample all wells specified by Sec.  257.91(a), conduct analyses for 
all parameters in Appendix III to this part and for those constituents 
in Appendix IV to this part that are detected in response to paragraph 
(b) of this section, and record their concentrations in the facility 
operating record and place the results on the owner's or operator's 
publicly accessible internet site. At least one sample from each well 
(background and downgradient) must be collected and analyzed during 
these sampling events.
    (3) Establish background concentrations for any constituents 
detected pursuant to paragraph (b) or (c)(2) of this section; and
    (4) Establish groundwater protection standards for all constituents 
detected pursuant to paragraph (b) or (c) of this section. The 
groundwater protection standards shall be established in accordance 
with paragraphs (g) or (h) of this section.
    (d) If the concentrations of all Appendix IV constituents are shown 
to be at or below background values, using the statistical procedures 
in Sec.  257.93(g), for two consecutive sampling events, the owner or 
operator of the CCR landfill or surface impoundment must place that 
information in the operating record and on the owner's or operator's 
publicly accessible internet site and notify the state of this finding 
and may return to detection monitoring.
    (e) If the concentrations of any Appendix IV constituents are above 
background values, but all concentrations are below the groundwater 
protection standard established under paragraphs (g) or (h) of this 
section, using the statistical procedures in Sec.  257.93(g), the owner 
or operator must continue assessment monitoring in accordance with this 
section.
    (f) If one or more Appendix IV constituents are detected at 
statistically significant levels above the groundwater protection 
standard established under paragraphs (g) or (h) of this section in any 
sampling event, the owner or operator must, within 14 days of this 
finding, place a notice in the operating record and on the owner's or 
operator's publicly accessible internet site identifying the Appendix 
IV constituents that have exceeded the groundwater protection standard 
and notify the state and all appropriate local government officials 
that the notice has been placed in the operating record and on the 
owner's or operator's publicly accessible internet site. The owner or 
operator of the CCR landfill or surface impoundment also must:
    (1)(i) Characterize the nature and extent of the release by 
installing additional monitoring wells as necessary;
    (ii) Install at least one additional monitoring well at the 
facility boundary in the direction of contaminant migration and sample 
this well in accordance with paragraph (c)(2) of this section;
    (iii) Notify all persons who own the land or reside on the land 
that directly overlies any part of the plume of contamination if 
contaminants have migrated off-site if indicated by sampling of wells 
in accordance with paragraph (f)(1) of this section; and
    (iv) Initiate an assessment of corrective measures as required by 
Sec.  257.96 of this part within 90 days; or
    (2) May demonstrate that a source other than the CCR landfill or 
surface impoundment caused the contamination, or that the statistically 
significant increase resulted from error in sampling, analysis, 
statistical evaluation, or natural variation in groundwater quality. A 
report documenting this demonstration must be certified by an 
independent registered professional engineer or hydrologist and placed 
in the operating record and on the owner's or operator's publicly 
accessible internet site, and the state notified of this action. If a 
successful demonstration is made the owner or operator of the CCR 
landfill or surface impoundment must continue monitoring in accordance 
with the assessment monitoring program pursuant to this section, and 
may return to detection monitoring if the Appendix IV constituents are 
at or below background as specified in paragraph (d) of this section. 
Until a successful demonstration is made, the owner or operator of the 
CCR landfill or surface impoundment must comply with paragraph (f) of 
this section including initiating an assessment of corrective measures.
    (g) The owner or operator of the CCR landfill or surface 
impoundment must establish a groundwater protection standard for each 
Appendix IV constituent detected in the groundwater. The groundwater 
protection standard shall be:
    (1) For constituents for which a maximum contaminant level (MCL) 
has been promulgated under section 1412 of the Safe Drinking Water Act 
(codified) under 40 CFR part 141, the MCL for that constituent;
    (2) For constituents for which MCLs have not been promulgated, the 
background concentration for the constituent established from wells in 
accordance with Sec.  257.91(a)(1); or
    (3) For constituents for which the background level is higher than 
the MCL identified under paragraph (g)(1) of this section or health 
based levels identified under paragraph (h)(1) of this section, the 
background concentration.
    (h) The owner or operator may establish an alternative groundwater 
protection standard for constituents for which MCLs have not been 
established provided that the alternative ground-water protection 
standard has been certified by an independent registered professional 
engineer and the state has been notified that the alternative 
groundwater protection standard has been placed in the operating record 
and on the owner's or operator's publicly accessible internet site. 
These groundwater protection standards shall be appropriate health 
based levels that satisfy the following criteria:
    (1) The level is derived in a manner consistent with Agency 
guidelines for assessing the health risks of environmental pollutants;
    (2) The level is based on scientifically valid studies conducted in 
accordance with the Toxic Substances Control Act Good Laboratory 
Practice Standards (40 CFR part 792) or equivalent;
    (3) For carcinogens, the level represents a concentration 
associated with an excess lifetime cancer risk level

[[Page 35250]]

(due to continuous lifetime exposure) within the 1x10-4 to 
1x10-6 range; and
    (4) For systemic toxicants, the level represents a concentration to 
which the human population (including sensitive subgroups) could be 
exposed to on a daily basis that is likely to be without appreciable 
risk of deleterious effects during a lifetime. For purposes of this 
subpart, systemic toxicants include toxic chemicals that cause effects 
other than cancer or mutation.
    (i) In establishing groundwater protection standards under 
paragraph (h) of this section, the owner or operator of the CCR 
landfill or surface impoundment may consider the following:
    (1) Multiple contaminants in the groundwater;
    (2) Exposure threats to sensitive environmental receptors; and
    (3) Other site-specific exposure or potential exposure to 
groundwater.


Sec.  257.96  Assessment of corrective measures.

    (a) Within 90 days of finding that any of the constituents listed 
in Appendix IV to this part have been detected at a statistically 
significant level exceeding the groundwater protection standards 
defined under Sec.  257.95 (g) or (h) of this part, the owner or 
operator of the CCR landfill or surface impoundment must initiate an 
assessment of corrective measures. Such an assessment must be completed 
within 90 days.
    (b) The owner or operator of the CCR landfill or surface 
impoundment must continue to monitor in accordance with the assessment 
monitoring program as specified in Sec.  257.95.
    (c) The assessment shall include an analysis of the effectiveness 
of potential corrective measures in meeting all of the requirements and 
objectives of the remedy as described under Sec.  257.97, addressing at 
least the following:
    (1) The performance, reliability, ease of implementation, and 
potential impacts of appropriate potential remedies, including safety 
impacts, cross-media impacts, and control of exposure to any residual 
contamination;
    (2) The time required to begin and complete the remedy;
    (3) The costs of remedy implementation; and
    (4) The institutional requirements such as state or local permit 
requirements or other environmental or public health requirements that 
may substantially affect implementation of the remedy(s).
    (d) The owner or operator of the CCR landfill or surface 
impoundment must provide notification of the corrective measures 
assessment to the state and the public.
    (e) The owner or operator must discuss the results of the 
corrective measures assessment, prior to the selection of remedy, in a 
public meeting with interested and affected parties.


Sec.  257.97  Selection of remedy.

    (a) Based on the results of the corrective measures assessment 
conducted under Sec.  257.96, the owner or operator of the CCR landfill 
or surface impoundment must select a remedy that, at a minimum, meets 
the standards listed in paragraph (b) of this section. The owner or 
operator of the CCR landfill or surface impoundment must notify the 
state and the public within 14 days of selecting a remedy, that a 
report certified by an independent registered professional engineer or 
hydrologist describing the selected remedy, has been placed in the 
operating record and on the owner's or operator's publicly accessible 
internet site, and how it meets the standards in paragraph (b) of this 
section.
    (b) Remedies must:
    (1) Be protective of human health and the environment;
    (2) Attain the groundwater protection standard as specified 
pursuant to Sec. Sec.  257.95 (g) or (h);
    (3) Control the source(s) of releases so as to reduce or eliminate, 
to the maximum extent practicable, further releases of Appendix IV of 
this part constituents into the environment that may pose a threat to 
human health or the environment; and
    (4) Comply with standards for management of wastes as specified in 
Sec.  257.98(d).
    (c) In selecting a remedy that meets the standards of paragraph (b) 
of this section, the owner or operator of the CCR landfill or surface 
impoundment shall consider the following evaluation factors:
    (1) The long- and short-term effectiveness and protectiveness of 
the potential remedy(s), along with the degree of certainty that the 
remedy will prove successful based on consideration of the following:
    (i) Magnitude of reduction of existing risks;
    (ii) Magnitude of residual risks in terms of likelihood of further 
releases due to CCRs remaining following implementation of a remedy;
    (iii) The type and degree of long-term management required, 
including monitoring, operation, and maintenance;
    (iv) Short-term risks that might be posed to the community, 
workers, or the environment during implementation of such a remedy, 
including potential threats to human health and the environment 
associated with excavation, transportation, and redisposal of 
containment;
    (v) Time until full protection is achieved;
    (vi) Potential for exposure of humans and environmental receptors 
to remaining wastes, considering the potential threat to human health 
and the environment associated with excavation, transportation, 
redisposal, or containment;
    (vii) Long-term reliability of the engineering and institutional 
controls; and
    (viii) Potential need for replacement of the remedy.
    (2) The effectiveness of the remedy in controlling the source to 
reduce further releases based on consideration of the following 
factors:
    (i) The extent to which containment practices will reduce further 
releases;
    (ii) The extent to which treatment technologies may be used.
    (3) The ease or difficulty of implementing a potential remedy(s) 
based on consideration of the following types of factors:
    (i) Degree of difficulty associated with constructing the 
technology;
    (ii) Expected operational reliability of the technologies;
    (iii) Need to coordinate with and obtain necessary approvals and 
permits from other agencies;
    (iv) Availability of necessary equipment and specialists; and
    (v) Available capacity and location of needed treatment, storage, 
and disposal services.
    (4) The degree to which community concerns are addressed by a 
potential remedy(s).
    (d) The owner or operator of the CCR landfill or surface 
impoundment shall specify as part of the selected remedy a schedule(s) 
for initiating and completing remedial activities. Such a schedule must 
require the initiation of remedial activities within a reasonable 
period of time taking into consideration the factors set forth in 
paragraphs (d) (1) through (8) of this section. The owner or operator 
of the CCR landfill or surface impoundment must consider the following 
factors in determining the schedule of remedial activities:
    (1) Extent and nature of contamination;
    (2) Reasonable probabilities of remedial technologies in achieving 
compliance with the groundwater protection standards established under 
Sec.  257.95 (f) or (g) and other objectives of the remedy;
    (3) Availability of treatment or disposal capacity for CCRs managed 
during implementation of the remedy;

[[Page 35251]]

    (4) Desirability of utilizing technologies that are not currently 
available, but which may offer significant advantages over already 
available technologies in terms of effectiveness, reliability, safety, 
or ability to achieve remedial objectives;
    (5) Potential risks to human health and the environment from 
exposure to contamination prior to completion of the remedy;
    (6) Resource value of the aquifer including:
    (i) Current and future uses;
    (ii) Proximity and withdrawal rate of users;
    (iii) Groundwater quantity and quality;
    (iv) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to CCR constituents;
    (v) The hydrogeologic characteristic of the facility and 
surrounding land;
    (vi) Groundwater removal and treatment costs; and
    (vii) The cost and availability of alternative water supplies.
    (7) Other relevant factors.
    (e) The owner or operator of the CCR landfill or surface 
impoundment may determine that remediation of a release of an Appendix 
IV constituent from a CCR landfill or surface impoundment is not 
necessary if the owner or operator of the CCR landfill or surface 
impoundment demonstrates the following, and notifies the state that the 
demonstration, certified by an independent registered professional 
engineer or hydrologist, has been placed in the operating record and on 
the owner's or operator's publicly accessible internet site:
    (1) The groundwater is additionally contaminated by substances that 
have originated from a source other than a CCR landfill or surface 
impoundment and those substances are present in concentrations such 
that cleanup of the release from the CCR landfill or surface 
impoundment would provide no significant reduction in risk to actual or 
potential receptors; or
    (2) The constituent(s) is present in groundwater that:
    (i) Is not currently or reasonably expected to be a source of 
drinking water; and
    (ii) Is not hydraulically connected with waters to which the 
hazardous constituents are migrating or are likely to migrate in a 
concentration(s) that would exceed the ground-water protection 
standards established under Sec.  257.95 (g) or (h); or
    (3) Remediation of the release(s) is technically impracticable; or
    (4) Remediation results in unacceptable cross-media impacts.
    (f) A determination by the owner or operator pursuant to paragraph 
(e) of this section shall not affect the obligation of the owner or 
operator to undertake source control measures or other measures that 
may be necessary to eliminate or minimize further releases to the 
groundwater, to prevent exposure to the groundwater, or to remediate 
the groundwater to concentrations that are reasonable and significantly 
reduce threats to human health or the environment.


Sec.  257.98  Implementation of the corrective action program.

    (a) Based on the schedule established under Sec.  257.97(d) for 
initiation and completion of remedial activities the owner or operator 
must:
    (1) Establish and implement a corrective action groundwater 
monitoring program that:
    (i) At a minimum, meets the requirements of an assessment 
monitoring program under Sec.  257.95;
    (ii) Indicates the effectiveness of the corrective action remedy; 
and
    (iii) Demonstrates compliance with ground-water protection standard 
pursuant to paragraph (e) of this section.
    (2) Implement the corrective action remedy selected under Sec.  
257.97; and
    (3) Take any interim measures necessary to ensure the protection of 
human health and the environment. Interim measures should, to the 
greatest extent practicable, be consistent with the objectives of and 
contribute to the performance of any remedy that may be required 
pursuant to Sec.  257.97. The following factors must be considered by 
an owner or operator in determining whether interim measures are 
necessary:
    (i) Time required to develop and implement a final remedy;
    (ii) Actual or potential exposure of nearby populations or 
environmental receptors to any of the Appendix IV constituents;
    (iii) Actual or potential contamination of drinking water supplies 
or sensitive ecosystems;
    (iv) Further degradation of the groundwater that may occur if 
remedial action is not initiated expeditiously;
    (v) Weather conditions that may cause any of the Appendix IV of 
this part constituents to migrate or be released;
    (vi) Potential for exposure to any of the Appendix IV of this part 
constituents as a result of an accident or failure of a container or 
handling system; and
    (vii) Other situations that may pose threats to human health and 
the environment.
    (b) An owner or operator of the CCR landfill or surface impoundment 
may determine, based on information developed after implementation of 
the remedy has begun or other information, that compliance with 
requirements of Sec.  257.97(b) are not being achieved through the 
remedy selected. In such cases, the owner or operator of the CCR 
landfill or surface impoundment must implement other methods or 
techniques that could reasonably achieve compliance with the 
requirements, unless the owner or operator makes the determination 
under paragraph (c) of this section.
    (c) If the owner or operator determines that compliance with 
requirements under Sec.  257.97(b) cannot be reasonably achieved with 
any currently available methods, the owner or operator of the CCR 
landfill or surface impoundment must:
    (1) Obtain certification of an independent registered professional 
engineer or hydrologist that compliance with requirements under Sec.  
257.97(b) cannot be reasonably achieved with any currently available 
methods;
    (2) Implement alternate measures to control exposure of humans or 
the environment to residual contamination, as necessary to protect 
human health and the environment; and
    (3) Implement alternate measures for control of the sources of 
contamination or for removal or decontamination of equipment, units, 
devices, or structures that are consistent with the overall objective 
of the remedy.
    (4) Notify the state within 14 days that a report, including the 
certification required in paragraph (c)(1) of this section, justifying 
the alternative measures prior to implementing the alternative measures 
has been placed in the operating record and on the owner's or 
operator's publicly accessible internet site.
    (d) All CCRs that are managed pursuant to a remedy required under 
Sec.  257.97, or an interim measure required under paragraph (a)(3) of 
this section, shall be managed in a manner:
    (1) That is protective of human health and the environment; and
    (2) That complies with applicable RCRA requirements.
    (e) Remedies selected pursuant to Sec.  257.97 shall be considered 
complete when:
    (1) The owner or operator of the CCR landfill or surface 
impoundment complies with the groundwater protection standards 
established under Sec. Sec.  257.95 (h) or (i) at all points within the 
plume of contamination that lie beyond the groundwater monitoring well 
system established under Sec.  257.91(a).

[[Page 35252]]

    (2) Compliance with the groundwater protection standards 
established under Sec. Sec.  257.95 (h) or (h) has been achieved by 
demonstrating that concentrations of Appendix IV constituents have not 
exceeded the groundwater protection standard(s) for a period of three 
consecutive years using the statistical procedures and performance 
standards in Sec.  257.93 (g) and (h).
    (3) All actions required to complete the remedy have been 
satisfied.
    (f) Upon completion of the remedy, the owner or operator of the CCR 
landfill or surface impoundment must notify the state within 14 days 
that a certification that the remedy has been completed in compliance 
with the requirements of paragraph (e) of this section has been placed 
in the operating record and on the owner's or operator's publicly 
accessible internet site. The certification must be signed by the owner 
or operator and by an independent registered professional engineer or 
hydrologist.


Sec.  257.99  [Reserved]

Closure and Post-Closure Care


Sec.  257.100  Closure criteria.

    (a) Prior to closure of any CCR landfill or surface impoundment 
covered by this subpart, the owner or operator shall submit to the 
state, a plan for closure of the unit based on recognized and generally 
accepted good engineering practices and certified by an independent 
registered professional engineer. The closure plan shall be consistent 
with paragraph (g) of this section and provide for major slope 
stability, include a schedule for the plan's implementation and contain 
provisions to preclude the probability of future impoundment of water, 
sediment, or slurry. The closure plan shall be placed in the operating 
record and on the owner's or operator's publicly accessible internet 
site.
    (b) Closure of a CCR landfill or surface impoundment may be 
accomplished with CCRs in place or through CCR removal and 
decontamination of all areas affected by releases from the CCR landfill 
or surface impoundment. CCR removal and decontamination are complete 
when constituent concentrations throughout the CCR landfill or surface 
impoundment and any areas affected by releases from the CCR landfill or 
surface impoundment do not exceed numeric cleanup levels for those 
constituents found in the CCRs established by the state in which the 
CCR landfill or surface impoundment is located.
    (c) At closure, the owner or operator of a surface impoundment 
must:
    (1) Eliminate free liquids by removing liquid wastes or solidifying 
the remaining wastes and waste residues;
    (2) Stabilize remaining wastes to a bearing capacity sufficient to 
support the final cover; and
    (3) Cover the surface impoundment with a final cover designed and 
constructed to:
    (i) Provide long-term minimization of the migration of liquids 
through the closed impoundment;
    (ii) Function with minimum maintenance; and
    (iii) Promote drainage and minimize erosion or abrasion of the 
cover;
    (iv) Accommodate settling and subsidence so that the cover's 
integrity is maintained; and
    (v) Have a final cover system that meets the requirements of 
subsection (d).
    (d) For closure with CCRs in place, a final cover system must be 
installed at all CCR landfills and surface impoundments that is 
designed to minimize infiltration and erosion. The final cover system 
must be designed and constructed to:
    (1) Have a permeability less than or equal to the permeability of 
any bottom liner system or natural subsoils present, or a permeability 
no greater than 1x10-5 cm/sec, whichever is less, and
    (2) Minimize infiltration through the closed CCR landfill or 
surface impoundment by the use of an infiltration layer that contains a 
minimum 18-inches of earthen material, and
    (3) Minimize erosion of the final cover by the use of an erosion 
layer that contains a minimum 6-inches of earthen material that is 
capable of sustaining native plant growth, and
    (4) Minimize the disruption of the final cover through a design 
that accommodates settling and subsidence.
    (e) The owner or operator of the CCR landfill or surface 
impoundment may select an alternative final cover design, provided the 
alternative cover design is certified by an independent registered 
professional engineer and notification is provided to the state and the 
EPA Regional Administrator that the alternative cover design has been 
placed in the operating record and on the owner's or operator's 
publicly accessible internet site. The alternative final cover design 
must include:
    (1) An infiltration layer that achieves an equivalent reduction in 
infiltration as the infiltration layer specified in paragraphs (d)(1) 
and (d)(2) of this section, and
    (2) An erosion layer that provides equivalent protection from wind 
and water erosion as the erosion layer specified in paragraph (d)(3) of 
this section.
    (f) The design of the final cover system shall be placed on the 
owner's or operator's publicly accessible internet site.
    (g) The owner or operator of the CCR landfill or surface 
impoundment must prepare a written closure plan that describes the 
steps necessary to close the CCR landfill or surface impoundment at any 
point during the active life in accordance with the cover design 
requirements in paragraph (d) or (e) of this section, as applicable. 
The closure plan, at a minimum, must include the following information:
    (1) A description of the final cover, designed in accordance with 
paragraph (d) or (e) of this section and the methods and procedures to 
be used to install the cover;
    (2) An estimate of the largest area of the CCR landfill or surface 
impoundment ever requiring a final cover as required under paragraph 
(d) or (e) of this section at any time during the active life;
    (3) An estimate of the maximum inventory of CCRs ever on-site over 
the active life of the CCR landfill or surface impoundment; and
    (4) A schedule for completing all activities necessary to satisfy 
the closure criteria in this section.
    (h) The owner or operator of the CCR landfill or surface 
impoundment must notify the state that a closure plan, certified by an 
independent registered professional engineer, has been prepared and 
placed in the operating record and on the owner's or operator's 
publicly accessible internet site no later than the effective date of 
this part, or by the initial receipt of CCRs, whichever is later.
    (i) Prior to beginning closure of each CCR landfill or surface 
impoundment as specified in paragraph (j) of this section, an owner or 
operator of a CCR landfill or surface impoundment must notify the state 
that a notice of the intent to close the unit has been placed in the 
operating record and on the owner's or operator's publicly accessible 
internet site.
    (j) The owner or operator of the CCR landfill or surface 
impoundment must begin closure activities no later than 30 days after 
the date on which the CCR landfill or surface impoundment receives the 
known final receipt of CCR or, if the CCR landfill or surface 
impoundment has remaining capacity and there is a reasonable likelihood 
that the CCR landfill or surface impoundment will receive additional 
CCRs, no later than one year after the most recent receipt of CCRs.

[[Page 35253]]

    (k) The owner or operator of the CCR landfill or surface 
impoundment must complete closure activities in accordance with the 
closure plan within 180 days following the beginning of closure as 
specified in paragraph (j) of this section.
    (l) Following closure of each CCR landfill or surface impoundment, 
the owner or operator of the CCR landfill or surface impoundment must 
notify the state that a certification, signed by an independent 
registered professional engineer, verifying that closure has been 
completed in accordance with the closure plan and the requirements of 
this subpart that has been placed in the operating record and on the 
owner's or operator's publicly accessible internet site.
    (m)(1) Following closure of all CCR landfills or surface 
impoundments, the owner or operator of the CCR landfill or surface 
impoundment must record a notation on the deed to the property, or some 
other instrument that is normally examined during title search, and 
notify the state that the notation has been recorded and a copy has 
been placed in the operating record and on the owner's or operator's 
publicly accessible internet site.
    (2) The notation on the deed must in perpetuity notify any 
potential purchaser of the property that:
    (i) The land has been used as a CCR landfill or surface 
impoundment; and
    (ii) Its use is restricted under Sec.  257.101(c)(3).


Sec.  257.101  Post-closure care requirements.

    (a) Following closure of each CCR landfill or surface impoundment, 
the owner or operator must conduct post-closure care. Post-closure care 
must be conducted for 30 years, except as provided under paragraph (b) 
of this section, and consist of at least the following:
    (1) Maintaining the integrity and effectiveness of any final cover, 
including making repairs to the cover as necessary to correct the 
effects of settlement, subsidence, erosion, or other events, and 
preventing run-on and run-off from eroding or otherwise damaging the 
final cover;
    (2) Maintaining the integrity and effectiveness of the leachate 
collection and removal system and operating the leachate collection and 
removal system in accordance with the requirements of Sec. Sec.  
257.70, 257.71, and 257.72.
    (3) Maintaining the groundwater monitoring system and monitoring 
the groundwater in accordance with the requirements of Sec. Sec.  
257.91 through 257.98 of this part.
    (b) The length of the post-closure care period may be:
    (1) Decreased if the owner or operator of the CCR landfill or 
surface impoundment demonstrates that the reduced period is sufficient 
to protect human health and the environment and this demonstration is 
certified by an independent registered professional engineer and notice 
is provided to the state that the demonstration has been placed in the 
operating record and on the owner's or operator's publicly accessible 
Internet site; or
    (2) Increased if the owner or operator of the CCR landfill or 
surface impoundment determines that a lengthened period is necessary to 
protect human health and the environment.
    (c) The owner or operator of the CCR landfill or surface 
impoundment must prepare a written post-closure plan, certified by an 
independent registered professional engineer that includes, at a 
minimum, the following information:
    (1) A description of the monitoring and maintenance activities 
required in paragraph (a) of this section for each CCR landfill or 
surface impoundment, and the frequency at which these activities will 
be performed;
    (2) Name, address, and telephone number of the person or office to 
contact about the facility during the post-closure period; and
    (3) A description of the planned uses of the property during the 
post-closure period. Post-closure use of the property shall not disturb 
the integrity of the final cover, liner(s), or any other components of 
the containment system, or the function of the monitoring systems 
unless necessary to comply with the requirements in this subpart. Any 
other disturbance is allowed if the owner or operator of the CCR 
landfill or surface impoundment demonstrates that disturbance of the 
final cover, liner or other component of the containment system, 
including any removal of CCRs, will not increase the potential threat 
to human health or the environment. The demonstration must be certified 
by an independent registered professional engineer, and notification 
shall be provided to the state that the demonstration has been placed 
in the operating record and on the owner's or operator's publicly 
accessible internet site.
    (d) The owner or operator of the CCR landfill or surface 
impoundment must notify the state that a post-closure plan has been 
prepared and placed in the operating record and on the owner's or 
operator's publicly accessible internet site no later than the 
effective date of this rule, or by the initial receipt of CCRs, 
whichever is later.
    (e) Following completion of the post-closure care period for the 
CCR landfill or surface impoundment, the owner or operator of the CCR 
landfill or surface impoundment must notify the state that a 
certification, signed by an independent registered professional 
engineer, verifying that post-closure care has been completed in 
accordance with the post-closure plan has been placed in the operating 
record and on the owner's or operator's publicly accessible internet 
site.



Sec. Sec.  257.102-257.109  [Reserved]

    6. Add Appendixes III and IV to Part 257 to read as follows:

Appendix III to Part 257--Constituents for Detection Monitoring

------------------------------------------------------------------------
                             Common Name \1\
-------------------------------------------------------------------------
Boron
Chloride
Conductivity
Fluoride
pH
Sulphate
Sulfide
Total Dissolved Solids
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
  scientific publications, and commerce; synonyms exist for many
  chemicals.

Appendix IV to Part 257--Constituents for Assessment Monitoring

------------------------------------------------------------------------
                             Common Name \1\
-------------------------------------------------------------------------
Aluminum
Antimony
Arsenic
Barium
Beryllium
Boron
Cadmium
Chloride
Chromium (total)
Copper
Fluoride
Iron
Lead
Manganese
Mercury
Molybdenum
pH
Selenium
Sulphate
Sulfide
Thallium
Total Dissolved Solids
------------------------------------------------------------------------
\1\ Common names are those widely used in government regulations,
  scientific publications, and commerce; synonyms exist for many
  chemicals.


[[Page 35254]]

Alternative 2: Co-Proposal Under Authority of Subtitle C

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    6a. The authority citation for part 261 continues to read as 
follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

    7. Section 261.4 is amended by revising paragraph (b)(4) to read as 
follows.


Sec.  261.4  Exclusions.

* * * * *
    (b) * * *
    (4)(i) Fly ash, bottom ash, boiler slag, and flue gas emission 
control wastes, generated primarily from the combustion of coal for the 
purpose of generating electricity by the electric power sector if the 
fly ash, bottom ash, boiler slag, and flue gas emission control wastes 
are beneficially used or placed in minefilling operations. Beneficial 
Use of Coal Combustion Products (CCPs) means the use of CCPs that 
provides a functional benefit; replaces the use of an alternative 
material, conserving natural resources that would otherwise need to be 
obtained through practices such as extraction; and meets relevant 
product specifications and regulatory standards (where these are 
available). CCPs that are used in excess quantities, placed as fill in 
sand and gravel pits, or used in large scale fill projects, such as for 
restructuring the landscape, are not considered beneficial uses.
    (ii) Fly ash, bottom ash, boiler slag, and flue gas emission 
control wastes generated primarily from the combustion of coal for the 
purpose of generating electricity by facilities outside of the electric 
power sector (i.e., not included in NAICS code 221112).
    (iii) Fly ash, bottom ash, boiler slag, and flue gas emission 
control wastes, generated primarily from the combustion of fossil fuels 
other than coal, for the purpose of generating electricity, except as 
provided by Sec.  266.112 of this chapter for facilities that burn or 
process hazardous waste.
* * * * *
    8. Part 261 is amended by adding Subpart F to read as follows.

Subpart F--Special Wastes Subject to Subtitle C Regulations


Sec.  261.50  General.

    (a) The following solid wastes are special wastes subject to 
regulation under parts 262 through 268, and parts 270, 271, and 124 of 
this chapter, and to the notification requirements of section 3010 of 
RCRA,

----------------------------------------------------------------------------------------------------------------
      Industry and EPA special waste No.                         Special waste                     Hazard code
----------------------------------------------------------------------------------------------------------------
Coal Combustion Residuals:
    S001......................................  Coal combustion residuals generated by the                  (T)
                                                 electric power sector (Electric Utilities and
                                                 Independent Power Producers).
----------------------------------------------------------------------------------------------------------------

    (b) For the purposes of the S001 listing, the electric power sector 
is defined as electricity-only and combined-heat-and-power (CHP) plants 
whose primary business is to sell electricity, or electricity and heat, 
to the public; i.e., NAICS code 221112 plants. Coal combustion 
residuals are defined to include fly ash, bottom ash, boiler slag, and 
flue gas desulfurization materials generated by the electric utility 
industry. This listing does not apply to coal combustion residuals that 
are:
    (1) Uniquely associated wastes as defined in paragraph (c) of this 
section;
    (2) Beneficially used as defined in paragraph (d) of this section;
    (3) Placed in minefilling operations;
    (4) Generated by facilities outside the electric power sector 
(i.e., not included in NAICS code 22112); or
    (5) Generated from clean-up activities that are conducted as part 
of a state or federally required clean-up that commenced prior to the 
effective date of this rule.
    (c) Uniquely associated wastes are low-volume wastes other than 
those defined as coal combustion residuals in paragraph (a) of this 
section that are related to the coal combustion process. Examples of 
uniquely associated wastes are precipitation runoff from coal storage 
piles at the facility, waste coal or coal mill rejects that are not of 
sufficient quality to burn as fuel, and wastes from cleaning the 
boilers used to generate steam.
    (d) Beneficial Use of Coal Combustion Products (CCPs) means the use 
of CCPs that provides a functional benefit; replaces the use of an 
alternative material, conserving natural resources that would otherwise 
need to be obtained through practices such as extraction; and meets 
relevant product specifications and regulatory standards (where these 
are available). CCPs that are used in excess quantities, placed as fill 
in sand and gravel pits, or used in large scale fill projects, such as 
for restructuring the landscape, are not considered beneficial uses.
    9. Part 261 is amended by adding Appendix X to read as follows.

Appendix X to Part 261--Basis for Listing Special Wastes

------------------------------------------------------------------------
                                      Hazardous constituents for which
       EPA special waste No.                       listed
------------------------------------------------------------------------
S001..............................  Antimony, arsenic, barium,
                                     beryllium, cadmium, chromium, lead,
                                     mercury, nickel, selenium, silver,
                                     thallium.
------------------------------------------------------------------------

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    10. The authority citation for part 264 continues to read as 
follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6924, and 6925.

    11. Section 264.1 is amended by adding paragraph (k) to read as 
follows:


Sec.  264.1  Purpose, scope and applicability.

* * * * *
    (k) Owners or operators who treat, store or dispose of EPA Special 
Waste Number S001, also referred to as coal combustion residuals are 
subject to the requirements of this part, except as specifically 
provided otherwise in this part. In addition, subpart FF of this part 
includes additional requirements for the treatment, storage or disposal 
of EPA Special Waste Number S001.
    12. Section 264.140 is amended by revising paragraph (a) to read as 
follows:

[[Page 35255]]

Sec.  264.140  Applicability.

    (a) The requirements of Sec. Sec.  264.142, 264.143, and 264.147 
through 264.151 apply to owners and operators of all hazardous waste 
facilities and facilities that treat, store or dispose of special 
wastes, except as provided otherwise in this section, or in Sec.  
264.1.
* * * * *
    13. Part 264 is amended by adding subpart FF to read as follows:
Subpart FF--Special Requirements for Coal Combustion Residual (S001) 
Wastes
Sec.
264.1300 Applicability.
264.1301 Definitions.
264.1302 Reporting.
264.1303 Surface impoundments.
264.1304 Inspection requirements for surface impoundments.
264.1305 Requirements for surface impoundment closure.
264.1306 Landfills.
264.1307 Surface water requirements.
264.1308 Air requirements.

Subpart FF--Special Requirements for Coal Combustion Residual 
(S001) Wastes


Sec.  264.1300  Applicability.

    (a) The regulations in this subpart apply to owners or operators of 
facilities that treat, store or dispose of EPA Special Waste Number 
S001.
    (b) Owners or operators of surface impoundments that cease 
receiving EPA Special Waste Number S001, must comply with the closure 
requirements in 40 CFR 265.111 and 40 CFR 265.228. Facilities that have 
not met these closure requirements by the effective date of this 
regulation would be subject to the requirements in Parts 260 through 
268, and 270 through 272, of this chapter.


Sec.  264.1301  Definitions.

    This section contains definitions for terms that appear throughout 
this subpart; additional definitions appear in 40 CFR 260.10 or the 
specific sections to which they apply.
    Area-capacity curves means graphic curves which readily show the 
reservoir water surface area, in acres, at different elevations from 
the bottom of the reservoir to the maximum water surface, and the 
capacity or volume, in acre-feet, of the water contained in the 
reservoir at various elevations.
    CCR landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this subpart, 
landfills also include piles, sand and gravel pits, quarries, and/or 
large scale fill operations. Sites that are excavated so that more coal 
ash can be used as fill are also considered CCR landfills.
    CCR surface impoundment or impoundment means a facility or part of 
a facility which is a natural topographic depression, man-made 
excavation, or diked area formed primarily of earthen materials 
(although it may be lined with man-made materials), which is designed 
to hold an accumulation of CCRs containing free liquids, and which is 
not an injection well. Examples of CCR surface impoundments are 
holding, storage, settling, and aeration pits, ponds, and lagoons. CCR 
surface impoundments are used to receive CCRs that have been sluiced 
(flushed or mixed with water to facilitate movement), or wastes from 
wet air pollution control devices, often in addition to other solid 
wastes.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization materials, destined for disposal. 
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel 
combustion (FFC) wastes, when destined for disposal.
    Existing CCR landfill means a landfill which was in operation or 
for which construction commenced prior to the effective date of the 
final rule. A CCR landfill has commenced construction if the owner or 
operator has obtained the Federal, State and local approvals or permits 
necessary to begin physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction of the CCR landfill to be completed 
within a reasonable time.
    Existing CCR surface impoundment means a surface impoundment which 
was in operation or for which construction commenced prior to the 
effective date of the final rule. A CCR surface impoundment has 
commenced construction if the owner or operator has obtained the 
Federal, State and local approvals or permits necessary to begin 
physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which can not be cancelled or modified without substantial 
loss--for physical construction of the CCR surface impoundment to be 
completed within a reasonable time.
    Factor of safety (Safety factor) means the ratio of the forces 
tending to resist the failure of a structure to the forces tending to 
cause such failure as determined by recognized and generally accepted 
good engineering practices.
    Hazard potential means the possible adverse incremental 
consequences that result from the release of water or stored contents 
due to failure of a dam (or impoundment) or mis-operation of the dam or 
appurtenances.
    (1) High hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation will probably cause loss of 
human life.
    (2) Significant hazard potential surface impoundment means a 
surface impoundment where failure or mis-operation results in no 
probable loss of human life, but can cause economic loss, environment 
damage, disruption of lifeline facilities, or impact other concerns.
    (3) Low hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
    (4) Less than low hazard potential surface impoundment means a 
surface impoundment not meeting the definitions for High, Significant, 
or Low Hazard Potential.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or CCR surface impoundment made 
after the effective date of the final rule.
    New CCR landfill means a landfill, including lateral expansions, or 
installation from which there is or may be placement of CCRs without 
the presence of free liquids, which began operation, or for which the 
construction commenced after the effective date of the final rule.
    New CCR surface impoundment means a surface impoundment, including 
lateral expansions, or installation from which there is or may be 
placement of CCRs with the presence of free liquids, which began 
operation, or for which the construction commenced after the effective 
date of the final rule.
    Probable maximum precipitation means the value for a particular 
area which represents an envelopment of depth-duration-area rainfall 
relations for all storm types affecting that area adjusted 
meteorologically to maximum conditions.
    Recognized and generally accepted good engineering practices 
(RAGAGEPs)

[[Page 35256]]

means engineering, operation, or maintenance activities based on 
established codes, standards, published technical reports or 
recommended practices (RP) or a similar document. RAGAGEPs detail 
generally approved ways to perform specific engineering, inspection or 
mechanical integrity activities.


Sec.  264.1302  Reporting.

    (a) Except as provided in paragraph (b) of this section, every 
twelfth month following the date of the initial plan approval required 
in Sec.  264.1303, the person owning or operating a CCR surface 
impoundment that has not been properly closed in accordance with an 
approved plan shall submit to the Regional Administrator a report 
containing the following information:
    (1) Changes in the geometry of the CCR surface impoundment for the 
reporting period.
    (2) Location and type of installed instruments and the maximum and 
minimum recorded readings of each instrument for the reporting period.
    (3) The minimum, maximum, and present depth and elevation of the 
CCR slurry and CCR wastewater in the CCR surface impoundment for the 
reporting period.
    (4) The storage capacity of the CCR surface impoundment.
    (5) The volume of the CCR slurry and CCR wastewater in the CCR 
surface impoundment at the end of the reporting period.
    (6) Any other change which may have affected the stability or 
operation of the CCR surface impoundment that has occurred during the 
reporting period.
    (7) A certification by an independent registered professional 
engineer that all construction, operation, and maintenance are in 
accordance with the approved plan prepared in accordance with Sec.  
264.1303.
    (b) A report is not required under this section when the person 
owning or operating the CCR surface impoundment provides the Regional 
Administrator with a certification by an independent registered 
professional engineer that there have been no changes in the operation 
of the CCR surface impoundment or to any of the parameters previously 
reported under paragraphs (a)(1) through (a)(6) of this section. 
However, a report containing the information set out in paragraph (a) 
of this section shall be submitted to the Regional Administrator at 
least every 5 years.


Sec.  264.1303  Surface impoundments.

    (a) In addition to the requirements in subpart K of this part, EPA 
Special Waste No. S001 is subject to the requirements in this section.
    (b) Plans for the design, construction, and maintenance of existing 
CCR surface impoundments shall be required if such a unit can:
    (1) Impound CCRs to an elevation of five feet or more above the 
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
    (2) Impound CCRs to an elevation of 20 feet or more above the 
upstream toe of the structure.
    (c) Plans required under paragraph (b) of this section shall be 
submitted in triplicate to the Regional Administrator on or before 
[date one year after the effective date of the final rule].
    (d) A permanent identification marker, at least six feet high and 
showing the identification number of the CCR surface impoundment as 
assigned by the Regional Administrator, the name associated with the 
CCR surface impoundment and the name of the person owning or operating 
the structure, shall be located on or immediately adjacent to each CCR 
surface impoundment by [date 60 days after the effective date of the 
final rule].
    (e) The plan specified in paragraph (b) of this section, shall 
contain at a minimum the following information:
    (1) The name and address of the persons owning or operating the CCR 
surface impoundment; the name associated with the CCR surface 
impoundment; and the identification number of the CCR surface 
impoundment as assigned by the Regional Administrator.
    (2) The location of the CCR surface impoundment indicated on the 
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map, 
or a topographic map of equivalent scale if a USGS map is not 
available.
    (3) A statement of the purpose for which the CCR surface 
impoundment is being used.
    (4) The name and size in acres of the watershed affecting the CCR 
surface impoundment.
    (5) A description of the physical and engineering properties of the 
foundation materials on which the CCR surface impoundment is 
constructed.
    (6) A statement of the type, size, range, and physical and 
engineering properties of the materials used in constructing each zone 
or stage of the CCR surface impoundment; the method of site preparation 
and construction of each zone of the CCR surface impoundment; the 
approximate dates of construction, and each successive stage of 
construction of the CCR surface impoundment; and for existing CCR 
surface impoundments, such history of construction as may be available, 
and any record or knowledge of structural instability.
    (7) At a scale not to exceed 1 inch = 100 feet, detailed 
dimensional drawings of the CCR surface impoundment, including a plan 
view and cross sections of the length and width of the CCR surface 
impoundment, showing all zones, foundation improvements, drainage 
provisions, spillways, diversion ditches, outlets, instrument 
locations, and slope protection, in addition to the measurement of the 
minimum vertical distance between the crest of the CCR surface 
impoundment and the reservoir surface at present and under design storm 
conditions, CCR slurry level and CCR wastewater level, and other 
information pertinent to the CCR surface impoundment itself, including 
any identifiable natural or manmade features which could affect 
operation of the CCR surface impoundment.
    (8) A description of the type and purpose of existing or proposed 
instrumentation.
    (9) Graphs showing area-capacity curves.
    (10) The hazard potential classification for which the facility is 
designed and a detailed explanation of the basis for this 
classification.
    (11) A statement of the runoff attributable to the storm for which 
the CCR surface impoundment is designed and the calculations used in 
determining such runoff and the minimum freeboard during the design 
storm.
    (12) A description of the spillway and diversion design features 
and capacities and calculations used in their determination.
    (13) The computed minimum factor of safety for slope stability of 
the CCR retaining structure(s) and the analyses used in their 
determinations.
    (14) The construction specifications and provisions for 
surveillance, maintenance, and repair of the CCR surface impoundment.
    (15) General provisions for closure.
    (16) Such other information pertaining to the CCR surface 
impoundment which may be requested by the Regional Administrator.
    (17) A certification by an independent registered professional 
engineer that the design of the CCR surface impoundment is in 
accordance with recognized and generally accepted good engineering 
practices for the maximum volume of CCR slurry and CCR wastewater which 
can be impounded therein and for the passage of runoff from the design 
storm which exceeds the capacity of the CCR surface impoundment; or, in 
lieu of the

[[Page 35257]]

certification, a report indicating what additional investigations, 
analyses, or improvement work are necessary before such a certification 
can be made by an independent registered professional engineer, 
including what provisions have been made to carry out such work in 
addition to a schedule for completion of such work.
    (f) Any changes or modifications to the plans for CCR surface 
impoundments shall be approved by the Regional Administrator prior to 
the initiation of such changes or modifications.
    (g) Effective [date two years after the effective date of the final 
rule], all existing CCR surface impoundments that receive CCRs shall be 
operated and maintained with:
    (1) A run-on control system to prevent flow onto the active portion 
of the CCR surface impoundment during the peak discharge from a 24-
hour, 25-year storm;
    (2) A run-off control system from the active portion of the CCR 
surface impoundment to collect and control at least the water volume 
resulting from a 24-hour, 25-year storm. Run-off from the active 
portion of the CCR surface impoundment must be handled in accordance 
with Sec.  264.1307.
    (h) For CCR surface impoundments classified as having high or 
significant hazard potential, the owner or operator shall develop and 
maintain in the operating record an Emergency Action Plan which: 
defines responsible persons and the actions to be taken in the event of 
a dam-safety emergency; provides contact information for emergency 
responders; includes a map which delineates the downstream area which 
would be affected in the event of a dam failure; and includes 
provisions for an annual face-to-face meeting or exercise between 
representatives of the facility owner and the local emergency 
responders.


Sec.  264.1304  Inspection requirements for surface impoundments.

    (a) In addition to the inspection requirements in Sec.  264.226 of 
this part, all CCR surface impoundments that meet the requirements of 
Sec.  264.1303(b) of this subpart shall be inspected by the owner or 
operator as follows:
    (1) At intervals not exceeding 7 days, or as otherwise approved by 
the Regional Administrator, for appearances of structural weakness and 
other hazardous conditions.
    (2) At intervals not exceeding 7 days, or as otherwise approved by 
the Regional Administrator, all instruments shall be monitored.
    (3) Longer inspection or monitoring intervals approved under this 
paragraph shall be justified by the owner or operator of the CCR 
surface impoundment based on the hazard potential and performance of 
the CCR surface impoundment, and shall include a requirement for 
inspection immediately after a specified event approved by the Regional 
Administrator.
    (4) All inspections required by paragraphs (a)(1) and (2) shall be 
performed by a qualified person, as defined in paragraph (e) of this 
section, designated by the person owning or operating the CCR surface 
impoundment.
    (5) All CCR surface impoundments that meet the requirements of 
Sec.  264.1303(b) of this subpart shall be inspected annually by an 
independent registered professional engineer to assure that the design, 
operation, and maintenance of the surface impoundment is in accordance 
with recognized and generally accepted good engineering standards. The 
owner or operator must notify the state and the EPA Regional 
Administrator that a certification by the registered professional 
engineer that the design, operation, and maintenance of the surface 
impoundment is in accordance with recognized and generally accepted 
good engineering standards has been placed in the operating record.
    (b) When a potentially hazardous condition develops, the person 
owning or operating the CCR surface impoundment shall immediately:
    (1) Take action to eliminate the potentially hazardous condition;
    (2) Notify the Regional Administrator and State and local first 
responders;
    (3) Notify and prepare to evacuate, if necessary, all personnel 
from the owner or operator's property which may be affected by the 
potentially hazardous conditions; and
    (4) Direct a qualified person to monitor all instruments and 
examine the structure at least once every eight hours, or more often as 
required by an authorized representative of the Regional Administrator.
    (c) After each inspection and instrumentation monitoring referred 
to in paragraphs (a) and (b) of this section, each qualified person who 
conducted all or any part of the inspection or instrumentation 
monitoring shall promptly record the results of such inspection or 
instrumentation monitoring in a book which shall be available in the 
operating record for inspection by an authorized representative of the 
Regional Administrator and such qualified person shall also promptly 
report the results of the inspection or monitoring to one of the 
persons specified in paragraph (d) of this section.
    (d) All inspection and instrumentation monitoring reports recorded 
in accordance with paragraph (c) of this section shall include a report 
of the action taken to abate hazardous conditions and shall be promptly 
signed or countersigned by the person designated by the owner or 
operator as responsible for health and safety at the owner or 
operator's facility.
    (e) The qualified person or persons referred to in this section 
shall be trained to recognize specific signs of structural instability 
and other hazardous conditions by visual observation and, if 
applicable, to monitor instrumentation.


Sec.  264.1305  Requirements for surface impoundment closure.

    Prior to the closure of any CCR surface impoundment which meets the 
requirements of Sec.  264.1303(b) of this subpart, the person owning or 
operating such CCR surface impoundment shall submit to and obtain 
approval from the Regional Administrator, a plan for closure in 
accordance with the requirements of Sec.  264.228 and subpart G of this 
part. This plan shall provide for major slope stability, include a 
schedule for the plan's implementation and, contain provisions to 
preclude the probability of future impoundment of water.


Sec.  264.1306  Landfills.

    (a) Owners or operators of new CCR landfills and lateral expansions 
of existing landfills are exempt from the double liner and leachate 
collection system requirements of Sec.  264.301(c), and the 
requirements of Sec.  264.302, provided the owner or operator is in 
compliance with the requirements of paragraph (b) of this section. 
Owners or operators of existing landfills are also exempt from the 
liner requirements of paragraph (b)(1) of this section, provided they 
comply with the requirements of paragraph (c) of this section and the 
requirements at 40 CFR part 264 subparts F, G, H, and N.
    (b) Prior to placement of CCRs in new landfills and lateral 
expansions of new and existing landfills, new landfills and lateral 
expansions shall be constructed:
    (1) With a composite liner, as defined in paragraph (b)(2) of this 
section, and a leachate collection and removal system that is designed 
and constructed to maintain less than a 30-cm depth of leachate over 
the liner.
    (2) For purposes of this subpart, composite liner means a system 
consisting of two components; the upper component must consist of a

[[Page 35258]]

minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component.
    (3) For purpose of this subpart, hydraulic conductivity means the 
rate at which water can move through a permeable medium (i.e., the 
coefficient of permeability).
    (c) Effective [date two years after the effective date of the final 
rule], all existing landfills that receive CCRs shall be operated and 
maintained with:
    (1) A run-on control system to prevent flow onto the active portion 
of the CCR landfill during the peak discharge from a 24-hour, 25-year 
storm;
    (2) A run-off control system from the active portion of the CCR 
landfill to collect and control at least the water volume resulting 
from a 24-hour, 25-year storm. Run-off from the active portion of the 
CCR landfill must be handled in accordance with Sec.  264.1307 of this 
subpart.


Sec.  264.1307  Surface water requirements.

    (a) Permits for CCR surface impoundments and CCR landfills shall 
include conditions to ensure that:
    (1) The operation of the unit will not cause any violation of any 
requirements of the Clean Water Act, including, but not limited to, the 
National Pollutant Discharge Elimination System (NPDES) requirements, 
pursuant to section 402 of the Clean Water Act.
    (2) The operation of the unit will not cause any violation of any 
requirement of an area-wide or state-wide water quality management plan 
that has been approved under section 208 or 319 of the Clean Water Act, 
as amended.
    (b) [Reserved]


Sec.  264.1308  Air requirements.

    (a) CCR surface impoundments and CCR landfills must be managed in a 
manner that fugitive dusts do not exceed 35 [mu]g/m\3\, unless an 
alternative standard has been established by the Regional 
Administrator.
    (b) CCR surface impoundments must be managed to control wind 
dispersal of dusts consistent with the standard in paragraph (a) of 
this section unless an alternative standard has been established by the 
Regional Administrator.
    (c) CCR landfills must be managed to control wind dispersal of 
dusts consistent with the standard in paragraph (a) of this section 
unless an alternative standard has been established by the Regional 
Administrator. CCRs placed in landfills as wet conditioned CCRs shall 
not result in the formation of free liquids.
    (d) Tanks, containers, buildings and pads used for the storage must 
be managed to control the dispersal of dust. Pads must have wind 
protection that will ensure comparable levels of control.
    (e) CCRs transported in trucks or other vehicles must be covered or 
otherwise managed to control the wind dispersal of dust consistent with 
the standard in paragraph (a) of this section unless an alternative 
standard has been established by the Regional Administrator.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    14. The authority citation for part 265 continues to read as 
follows:

    Authority:  42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937.

    15. Section 265.1 is amended by adding paragraph (g) to read as 
follows:


Sec.  265.1  Purpose, scope, and applicability.

* * * * *
    (g) Owners or operators who treat, store or dispose of EPA Special 
Waste Number S001, also referred to as coal combustion residuals (CCRs) 
are subject to the requirements of this part, except as specifically 
provided otherwise in this part. In addition, subpart FF of this part 
includes additional requirements for the treatment storage or disposal 
of EPA Special Waste No. S001.
* * * * *
    16. Section 265.140 is amended by revising paragraph (a) to read as 
follows:


Sec.  265.140  Applicability.

    (a) The requirements of Sec. Sec.  265.142, 265.143 and 265.147 
through 265.150 apply to owners or operators of all hazardous and 
special waste facilities, except as provided otherwise in this section, 
or in Sec.  265.1.
* * * * *
    17. Part 265 is amended by adding Subpart FF to read as follows:
Subpart FF--Special Requirements for S001 Wastes
Sec.
265.1300 Applicability.
265.1301 Definitions.
265.1302 Reporting.
265.1303 Surface impoundments.
265.1304 Inspection requirements for surface impoundments.
265.1305 Requirements for surface impoundment closure.
265.1306 Landfills.
265.1307 Surface water requirements.
265.1308 Air requirements.
Subpart FF--Special Requirements for S001 Wastes


Sec.  265.1300  Applicability.

    (a) The regulations in this subpart apply to owners or operators of 
hazardous waste facilities that treat, store or dispose of EPA 
Hazardous Waste Number S001.
    (b) Owners or operators of surface impoundments that cease 
receiving EPA Special Waste Number S001,must comply with the closure 
requirements in 40 CFR Part 265.111 and 40 CFR 265.228. Facilities that 
have not met these closure requirements by the effective date of this 
regulation would be subject to the requirements in Parts 260 through 
268, and 270 through 272, of this chapter.


Sec.  265.1301  Definitions.

    This section contains definitions for terms that appear throughout 
this subpart; additional definitions appear in 40 CFR 260.10 or the 
specific sections to which they apply.
    Area-capacity curves means graphic curves which readily show the 
reservoir water surface area, in acres, at different elevations from 
the bottom of the reservoir to the maximum water surface, and the 
capacity or volume, in acre-feet, of the water contained in the 
reservoir at various elevations.
    Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler 
slag, and flue gas desulfurization materials, destined for disposal. 
CCRs are also known as coal combustion wastes (CCWs) and fossil fuel 
combustion (FFC) wastes, when destined for disposal, and as coal 
combustion products (CCPs) when beneficially used.
    CCR landfill means a disposal facility or part of a facility where 
CCRs are placed in or on land and which is not a land treatment 
facility, a surface impoundment, an underground injection well, a salt 
dome formation, a salt bed formation, an underground mine, a cave, or a 
corrective action management unit. For purposes of this subpart, 
landfills also include piles, sand and gravel pits, quarries, and/or 
large scale fill operations. Sites that are excavated so that more coal 
ash can be used as fill are also considered CCR landfills.
    CCR surface impoundment or impoundment means a facility or part of 
a facility which is a natural topographic

[[Page 35259]]

depression, man-made excavation, or diked area formed primarily of 
earthen materials (although it may be lined with man-made materials), 
which is designed to hold an accumulation of CCRs containing free 
liquids, and which is not an injection well. Examples of CCR surface 
impoundments are holding, storage, settling, and aeration pits, ponds, 
and lagoons. CCR surface impoundments are used to receive CCRs that 
have been sluiced (flushed or mixed with water to facilitate movement), 
or wastes from wet air pollution control devices, often in addition to 
other solid wastes.
    Existing CCR landfill means a landfill which was in operation or 
for which construction commenced prior to the effective date of the 
final rule A CCR landfill has commenced construction if the owner or 
operator has obtained the Federal, State and local approvals or permits 
necessary to begin physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which cannot be cancelled or modified without substantial 
loss--for physical construction of the CCR landfill to be completed 
within a reasonable time.
    Existing CCR surface impoundment means a surface impoundment which 
was in operation or for which construction commenced prior to the 
effective date of the final rule. A CCR surface impoundment has 
commenced construction if the owner or operator has obtained the 
Federal, State and local approvals or permits necessary to begin 
physical construction; and either
    (1) A continuous on-site, physical construction program has begun; 
or
    (2) The owner or operator has entered into contractual 
obligations--which can not be cancelled or modified without substantial 
loss--for physical construction of the CCR surface impoundment to be 
completed within a reasonable time.
    Factor of safety (Safety factor) means the ratio of the forces 
tending to resist the failure of a structure to the forces tending to 
cause such failure as determined by recognized and accepted good 
engineering practices.
    Hazard potential means the possible adverse incremental 
consequences that result from the release of water or stored contents 
due to failure of a dam (or impoundment) or mis-operation of the dam or 
appurtenances.
    (1) High hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation will probably cause loss of 
human life.
    (2) Significant hazard potential surface impoundment means a 
surface impoundment where failure or mis-operation results in no 
probable loss of human life, but can cause economic loss, environment 
damage, disruption of lifeline facilities, or impact other concerns.
    (3) Low hazard potential surface impoundment means a surface 
impoundment where failure or mis-operation results in no probable loss 
of human life and low economic and/or environmental losses. Losses are 
principally limited to the surface impoundment owner's property.
    (4) Less than low hazard potential surface impoundment means a 
surface impoundment not meeting the definitions for High, Significant, 
or Low Hazard Potential.
    Lateral expansion means a horizontal expansion of the waste 
boundaries of an existing CCR landfill, or CCR surface impoundment made 
after the effective date of the final rule.
    New CCR landfill means a landfill, including lateral expansions, or 
installation from which there is or may be placement of CCRs without 
the presence of free liquids, which began operation, or for which the 
construction commenced after the effective date of the final rule.
    New CCR surface impoundment means a surface impoundment, including 
lateral expansion, or installation from which there is or may be 
placement of CCRs with the presence of free liquids, which began 
operation, or for which the construction commenced after the effective 
date of the final rule.
    Probable maximum precipitation means the value for a particular 
area which represents an envelopment of depth-duration-area rainfall 
relations for all storm types affecting that area adjusted 
meteorologically to maximum conditions.
    Recognized and generally accepted good engineering practices 
(RAGAGEPs) means engineering, operation, or maintenance activities 
based on established codes, standards, published technical reports or 
recommended practices (RP) or a similar document. RAGAGEPs detail 
generally approved ways to perform specific engineering, inspection or 
mechanical integrity activities.


Sec.  265.1302  Reporting.

    (a) Except as provided in paragraph (b) of this section, every 
twelfth month following the date of the initial plan approval required 
in Sec.  265.1303 of this subpart, the person owning or operating a CCR 
surface impoundment that has not been properly closed in accordance 
with an approved plan shall submit to the Regional Administrator a 
report containing the following information:
    (1) Changes in the geometry of the CCR surface impoundment for the 
reporting period.
    (2) Location and type of installed instruments and the maximum and 
minimum recorded readings of each instrument for the reporting period.
    (3) The minimum, maximum, and present depth and elevation of the 
CCR slurry and CCR waste water in the CCR surface impoundment for the 
reporting period.
    (4) The storage capacity of the CCR surface impoundment.
    (5) The volume of the CCR slurry and CCR waste water in the CCR 
surface impoundment at the end of the reporting period.
    (6) Any other change which may have affected the stability or 
operation of the CCR surface impoundment that has occurred during the 
reporting period.
    (7) A certification by an independent registered professional 
engineer that all construction, operation, and maintenance are in 
accordance with the approved plan prepared in accordance with Sec.  
265.1303.
    (b) A report is not required under this section when the person 
owning or operating the CCR surface impoundment provides the Regional 
Administrator with a certification by an independent registered 
professional engineer that there have been no changes in the operation 
of the CCR surface impoundment or to any of the parameters previously 
reported under paragraphs (a)(1) through (a)(6) of this section. 
However, a report containing the information set out in paragraph (a) 
of this section shall be submitted to the Regional Administrator at 
least every 5 years.


Sec.  265.1303  Surface impoundments.

    (a) In addition to the requirements in subpart K of this part, EPA 
Special Waste No. S001 is subject to the requirements in this section.
    (b) Plans for the design, construction, and maintenance of existing 
CCR surface impoundments shall be required if such a unit can:
    (1) Impound CCRs to an elevation of five feet or more above the 
upstream toe of the structure and can have a storage volume of 20 acre-
feet or more; or
    (2) Impound CCRs to an elevation of 20 feet or more above the 
upstream toe of the structure.
    (c) Plans required under paragraph (b) of this section shall be 
submitted in triplicate to the Regional Administrator on or before 
[date one year after the effective date of the final rule].

[[Page 35260]]

    (d) A marker, at least six feet high and showing the identification 
number of the CCR surface impoundment as assigned by the Regional 
Administrator, the name associated with the CCR surface impoundment and 
the name of the person owning or operating the structure, shall be 
located on or immediately adjacent to each CCR surface impoundment 
permanent identification by [date 60 days after the effective date of 
the final rule].
    (e) The plan specified in paragraph (b) of this section, shall 
contain at a minimum the following information:
    (1) The name and address of the persons owning or operating the CCR 
surface impoundment; the name associated with the CCR surface 
impoundment; and the identification number of the CCR surface 
impoundment as assigned by the Regional Administrator.
    (2) The location of the CCR surface impoundment indicated on the 
most recent USGS 7\1/2\ minute or 15 minute topographic quadrangle map, 
or a topographic map of equivalent scale if a USGS map is not 
available.
    (3) A statement of the purpose for which the CCR surface 
impoundment is being used.
    (4) The name and size in acres of the watershed affecting the CCR 
surface impoundment.
    (5) A description of the physical and engineering properties of the 
foundation materials on which the CCR surface impoundment is 
constructed.
    (6) A statement of the type, size, range, and physical and 
engineering properties of the materials used in constructing each zone 
or stage of the CCR surface impoundment; the method of site preparation 
and construction of each zone of the CCR surface impoundment; the 
approximate dates of construction, and each successive stage of 
construction of the CCR surface impoundment; and for existing CCR 
surface impoundments, such history of construction as may be available, 
and any record or knowledge of structural instability.
    (7) At a scale not to exceed 1 inch = 100 feet, detailed 
dimensional drawings of the CCR surface impoundment, including a plan 
view and cross sections of the length and width of the CCR surface 
impoundment, showing all zones, foundation improvements, drainage 
provisions, spillways, diversion ditches, outlets, instrument 
locations, and slope protection, in addition to the measurement of the 
minimum vertical distance between the crest of the CCR surface 
impoundment and the reservoir surface at present and under design storm 
conditions, CCR slurry level or CCR waste water level, and other 
information pertinent to the CCR surface impoundment itself, including 
any identifiable natural or manmade features which could affect 
operation of the CCR surface impoundment.
    (8) A description of the type and purpose of existing or proposed 
instrumentation.
    (9) Graphs showing area-capacity curves.
    (10) The hazard potential classification for which the facility is 
designed and a detailed explanation of the basis for this 
classification.
    (11) A statement of the runoff attributable to the storm for which 
the CCR surface impoundment is designed and the calculations used in 
determining such runoff and the minimum freeboard during the design 
storm.
    (12) A description of the spillway and diversion design features 
and capacities and calculations used in their determination.
    (13) The computed minimum factor of safety for slope stability of 
the CCR retaining structure(s) and the analyses used in their 
determinations.
    (14) The construction specifications and provisions for 
surveillance, maintenance, and repair of the CCR surface impoundment.
    (15) General provisions for closure.
    (16) Such other information pertaining to the stability of the CCR 
surface impoundment which may be requested by the Regional 
Administrator.
    (17) A certification by an independent registered professional 
engineer that the design of the CCR surface impoundment is in 
accordance with recognized and generally accepted good engineering 
practices for the maximum volume of CCR slurry and CCR waste water 
which can be impounded therein and for the passage of runoff from the 
design storm which exceeds the capacity of the CCR surface impoundment; 
or, in lieu of the certification, a report indicating what additional 
investigations, analyses, or improvement work are necessary before such 
a certification can be made by an independent registered professional 
engineer, including what provisions have been made to carry out such 
work in addition to a schedule for completion of such work.
    (f) Any changes or modifications to the plans for CCR surface 
impoundments shall be approved by the Regional Administrator prior to 
the initiation of such changes or modifications.
    (g) Effective [date two years after the effective date of the final 
rule], all existing surface impoundments that receive CCRs shall be 
operated and maintained with:
    (1) A run-on control system to prevent flow onto the active portion 
of the CCR surface impoundment during the peak discharge from a 24-
hour, 25-year storm;
    (2) A run-off control system from the active portion of the CCR 
surface impoundment to collect and control at least the water volume 
resulting from a 24-hour, 25-year storm. Run-off from the active 
portion of the CCR surface impoundment must be handled in accordance 
with Sec.  265.1307 of this subpart.
    (h) For CCR surface impoundments classified as having high or 
significant hazard potential, the owner or operator shall develop and 
maintain in the operating record an Emergency Action Plan which: 
defines responsible persons and the actions to be taken in the event of 
a dam-safety emergency; provides contact information for emergency 
responders; includes a map which delineates the downstream area which 
would be affected in the event of a dam failure; and includes 
provisions for an annual face-to-face meeting or exercise between 
representatives of the facility owner and the local emergency 
responders.


Sec.  265.1304  Inspection requirements for surface impoundments.

    (a) In addition to the inspection requirements in Sec.  265.226, 
all CCR surface impoundments that meet the requirements of Sec.  
265.1303(b) of this subpart shall be inspected by the owner or operator 
as follows:
    (1) At intervals not exceeding 7 days, or as otherwise approved by 
the Regional Administrator, for appearances of structural weakness and 
other hazardous conditions.
    (2) At intervals not exceeding 7 days, or as otherwise approved by 
the Regional Administrator, all instruments shall be monitored.
    (3) Longer inspection or monitoring intervals approved under this 
paragraph shall be justified by the owner or operator of the CCR 
surface impoundment based on the hazard potential and performance of 
the CCR surface impoundment, and shall include a requirement for 
inspection immediately after a specified event approved by the Regional 
Administrator.
    (4) All inspections required by paragraphs (a)(1) and (2) of this 
section shall be performed by a qualified person, as defined in 
paragraph (e) of this section, designated by the person owning or 
operating the CCR surface impoundment.

[[Page 35261]]

    (5) All CCR surface impoundments that meet the requirements of 
Sec.  265.1303(b) of this subpart shall be inspected annually by an 
independent registered professional engineer to assure that the design, 
operation, and maintenance of the surface impoundment is in accordance 
with recognized and generally accepted good engineering practices. The 
owner or operator must notify the state and the EPA Regional 
Administrator that a certification by the independent registered 
professional engineer that the design, operation, and maintenance of 
the surface impoundment is in accordance with recognized and generally 
accepted good engineering practices has been placed in the operating 
record.
    (b) When a potentially hazardous condition develops, the person 
owning or operating the CCR surface impoundment shall immediately:
    (1) Take action to eliminate the potentially hazardous condition;
    (2) Notify the Regional Administrator and State and local first 
responders;
    (3) Notify and prepare to evacuate, if necessary, all personnel 
from the owner or operator's property which may be affected by the 
potentially hazardous conditions; and
    (4) Direct a qualified person to monitor all instruments and 
examine the structure at least once every eight hours, or more often as 
required by an authorized representative of the Regional Administrator.
    (c) After each inspection and instrumentation monitoring referred 
to in paragraphs (a) and (b) of this section, each qualified person who 
conducted all or any part of the inspection or instrumentation 
monitoring shall promptly record the results of such inspection or 
instrumentation monitoring in a book which shall be available in the 
operating record for inspection by an authorized representative of the 
Regional Administrator and such qualified person shall also promptly 
report the results of the inspection or monitoring to one of the 
persons specified in paragraph (d) of this section.
    (d) All inspection and instrumentation monitoring reports recorded 
in accordance with paragraph (c) of this section shall include a report 
of the action taken to abate hazardous conditions and shall be promptly 
signed or countersigned by the person designated by the owner or 
operator as responsible for health and safety at the owner or 
operator's facility.
    (e) The qualified person or persons referred to in this section 
shall be trained to recognize specific signs of structural instability 
and other hazardous conditions by visual observation and, if 
applicable, to monitor instrumentation.


Sec.  265.1305  Requirements for surface impoundment closure.

    Prior to the closure of any CCR surface impoundment which meets the 
requirements of Sec.  264.1303(b) of this subpart, the person owning or 
operating such CCR surface impoundment shall submit to and obtain 
approval from the Regional Administrator, a plan for closure in 
accordance with the requirements of Sec.  265.228 and part 265 subpart 
G. This plan shall provide for major slope stability, include a 
schedule for the plan's implementation, and contain provisions to 
preclude the probability of future impoundment of water.


Sec.  265.1306  Landfills.

    (a) Owners or operators of new CCR landfills and lateral expansions 
of existing landfills are exempt from the double liner and leachate 
collection system requirements of Sec.  265.301(c), and the 
requirements of Sec.  265.302, provided the owner or operator is in 
compliance with the requirements of paragraph (b) of this section. 
Owners or operators of existing landfills are also exempt from the 
liner requirements of paragraph (b)(1) of this section, provided they 
comply with the requirements of paragraph (c) of this section and the 
requirements at 40 CFR part 265 subparts F, G, H, and N.
    (b) Prior to placement of CCRs in new landfills and lateral 
expansions, new landfills and lateral expansions shall be constructed:
    (1) With a composite liner, as defined in paragraph (b)(2) of this 
section, and a leachate collection and removal system that is designed 
and constructed to maintain less than a 30-cm depth of leachate over 
the liner.
    (2) For purposes of this subpart, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML 
components consisting of high density polyethylene (HDPE) shall be at 
least 60-mil thick. The FML component must be installed in direct and 
uniform contact with the compacted soil component.
    (3) For purposes of this subpart, hydraulic conductivity means the 
rate at which water can move through a permeable medium. (i.e., the 
coefficient of permeability.)
    (c) Effective [date two years after the effective date of the final 
rule], all existing landfills that receive CCRs shall be operated and 
maintained with:
    (1) A run-on control system to prevent flow onto the active portion 
of the CCR landfill during the peak discharge from a 24-hour, 25-year 
storm;
    (2) A run-off control system from the active portion of the CCR 
landfill to collect and control at least the water volume resulting 
from a 24-hour, 25-year storm. Run-off from the active portion of the 
CCR landfill must be handled in accordance with Sec.  265.1307 of this 
subpart.


Sec.  265.1307  Surface water requirements.

    (a) Permits for CCR surface impoundments and CCR landfills shall 
include conditions to ensure that:
    (1) The operation of the unit will not cause any violation of any 
requirements of the Clean Water Act, including, but not limited to, the 
National Pollutant Discharge Elimination System (NPDES) requirements, 
pursuant to section 402 of the Clean Water Act.
    (2) The operation of the unit will not cause any violation of any 
requirement of an area-wide or state-wide water quality management plan 
that has been approved under section 208 or 319 of the Clean Water Act, 
as amended.
    (b) [Reserved]


Sec.  265.1308  Air requirements.

    (a) CCR surface impoundments and CCR landfills must be managed in a 
manner that fugitive dusts do not exceed 35 [mu]g/m\3\, unless an 
alternative standard has been established by the Regional 
Administrator.
    (b) CCR surface impoundments must be managed to control wind 
dispersal of dusts consistent with the standard in paragraph (a) of 
this section unless an alternative standard has been established by the 
Regional Administrator.
    (c) CCR landfills must be managed to control wind dispersal of 
dusts consistent with the standard in paragraph (a) of this section 
unless an alternative standard has been established by the Regional 
Administrator. CCRs placed in landfills as wet conditioned CCRs shall 
not result in the formation of free liquids.
    (d) Tanks, containers, buildings and pads used for the storage must 
be managed to control the dispersal of dust. Pads must have wind 
protection that will ensure comparable levels of control.
    (e) CCRs transported in trucks or other vehicles must be covered or 
otherwise

[[Page 35262]]

managed to control the wind dispersal of dust consistent with the 
standard in paragraph (a) of this section unless an alternative 
standard has been established by the Regional Administrator.

PART 268--LAND DISPOSAL RESTRICTIONS

    18. The authority citation for part 268 continues to read as 
follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, and 6924.

    19. Section 268.2 is amended by revising paragraph (f) to read as 
follows:


Sec.  268.2  Definitions applicable in this part.

* * * * *
    (f) Wastewaters are wastes that contain less than 1% by weight 
total organic carbon (TOC) and less than 1% by weight total suspended 
solids (TSS), except for coal combustion residuals, [waste code S001], 
which are wastewaters if the moisture content exceeds 50%.
* * * * *
    20. Section 268.14 is amended by adding paragraph (d) to read as 
follows:


Sec.  268.14  Surface impoundment exemptions.

* * * * *
    (d) The waste specified in 40 CFR Part 261 as EPA Special Waste 
Number S001 may continue to be placed in an existing CCR surface 
impoundment of this subpart for 60 months after the promulgation date 
of listing the waste provided the existing CCR surface impoundment is 
in compliance with the requirements of subpart F of part 265 of this 
chapter within 12 months after the promulgation of the new listing. 
Closure in accordance with subpart G of part 264 must be completed 
within two years after placement of waste in the existing CCR surface 
impoundment ceases.
    21. Section 268.21 is added to Subpart C to read as follows:


Sec.  268.21  Waste specific prohibitions--Coal combustion residuals.

    (a) Effective [date six months after the effective date of the 
final rule], nonwastewaters specified in 40 CFR part 261 as EPA Special 
Waste Number S001 are prohibited from land disposal.
    (b) Effective [date 60 months after the effective date of the final 
rule], wastewaters specified in 40 CFR part 261 as EPA Special Waste 
Number S001 are prohibited from land disposal.
    (c) The requirements of paragraphs (a) and (b) of this section do 
not apply if:
    (1) The wastes meet the applicable treatment standards specified in 
subpart D of this Part;
    (2) Persons have been granted an exemption from a prohibition 
pursuant to a petition under Sec.  268.6, with respect to those wastes 
and units covered by the petition;
    (3) The wastes meet the applicable treatment standards established 
pursuant to a petition granted under Sec.  268.44;
    (4) Persons have been granted an extension to the effective date of 
a prohibition pursuant to Sec.  268.5, with respect to these wastes 
covered by the extension.
    22. In Sec.  268.40, the table ``Treatment Standards for Hazardous 
Wastes'' is amended by adding in alphanumeric order the new entry for 
S001 to read as follows:


Sec.  268.40  Applicability of treatment standards.

* * * * *

                                                        Treatment Standards for Hazardous Wastes
                                                             [Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Regulated hazardous  constituent           Wastewaters           Nonwastewaters
                                                                ----------------------------------------------------------------------------------------
                             Waste description and treatment/                                                                      Concentration in  mg/
       Waste code               regulatory subcategory \1\                                                Concentration in  mg/L  kg \5\ unless noted as
                                                                       Common name          CAS \2\ No.     \3\, or technology       ``mg/L TCLP'', or
                                                                                                                 code \4\             technology code
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
S001....................  Coal combustion wastes generated by    Antimony                      7440-36-0  TSS of 100mg/l and      Meet Sec.   268.48.
                           the electric power sector. For        Arsenic................       7440-38-2   meet Sec.   268.48.
                           purposes of this listing, the         Barium.................       7440-39-3
                           electric power sector is defined as   Beryllium..............       7440-41-7
                           electricity-only and combined-heat-   Cadmium................       7440-43-9
                           and-power (CHP) plants whose primary  Chromium...............       7440-47-3
                           business is to sell electricity, or   Lead...................       7439-92-1
                           electricity and heat, to the public;  Mercury................       7439-97-6
                           i.e., NAICS code 221112 plants. For   Nickel.................       7440-02-0
                           the purposes of this listing, coal    Selenium...............       7782-49-2
                           combustion wastes are defined as fly  Silver.................       7440-22-4
                           ash, bottom ash, boiler slag, and     Thallium...............       7440-28-0
                           flue gas desulfurization materials
                           generated by the electric power
                           sector. This listing does not apply
                           to coal combustion residuals that
                           are: (1) Uniquely associated wastes
                           with wastes from the burning of
                           coal; (2) beneficially used; (3)
                           placed in minefilling operations;
                           (4) generated by facilities that are
                           outside the electric power sector;
                           or (5) generated from clean-up
                           activities that are conducted as
                           part of a state or federally
                           required clean-up that commenced
                           prior to the effective date of this
                           rule..

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Footnotes to Treatment Standard Table 268.40
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR 261. Descriptions of Treatment/Regulatory Subcategories
  are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
  and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.

[[Page 35263]]


\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
  Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
  established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264 Subpart O or Part 265
  Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply
  with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of
  grab samples.

* * * * *
    23. In Sec.  268.42, Table 1 is amended by adding an entry for 
``RSLDS'' to read as follows:


Sec.  268.42  Treatment standards expressed as specified technologies.

* * * * *

 Table 1--Technology Codes and Description of Technology-Based Standards
------------------------------------------------------------------------
                                       Description of technology-based
         Technology  code                         standards
------------------------------------------------------------------------

                                * * * * *
RSLDS.............................  Removal of solids and meet Sec.
                                     268.48 treatment levels.

                                * * * * *
------------------------------------------------------------------------

* * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    24. The authority citation for part 271 continues to read as 
follows:

    Authority:  42 U.S.C. 6905, 6912(a), and 6926.

    25. Section 271.1(j) is amended by adding the following entries to 
Table 1 and Table 2 in chronological order by date of publication to 
read as follows.


Sec.  271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                     Title of       Federal Register
       Promulgation date            regulation         reference                    Effective date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
[date of signature of final     Listing of         [Federal Register  [effective date of final rule].
 rule].                          Special Waste      page numbers for
                                 S001.              final rule].
----------------------------------------------------------------------------------------------------------------


                                       Table 2--Self-Implementing Provisions of the Solid Waste Amendments of 1984
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Effective date                Self-implementing provision         RCRA citation                     Federal Register reference
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
[effective date of final rule]........  Prohibition on land disposal    3001(b)(3)(A) and         [date of publication date of final rule Federal
                                         of S001 waste with free         3004(g)(4)(C).            Register page numbers] [FR page numbers].
                                         liquids and prohibition on
                                         the disposal of S001 waste
                                         below the natural water
                                         table. For purposes of this
                                         provision, free liquids means
                                         liquids which readily
                                         separate from the solid
                                         portion of a waste under
                                         ambient temperature and
                                         pressure.
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    26. The authority citation for part 302 continues to read as 
follows:

    Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 
1361.

    27. In Sec.  302.4, Table 302.4 is amended by adding the following 
new entry in alphanumeric order to the table to read as follows:


Sec.  302.4  Designation of hazardous substances.

* * * * *

                       Table 302.4--List of Hazardous Substances and Reportable Quantities
                         [Note: All comments/notes are located at the end of this table]
----------------------------------------------------------------------------------------------------------------
                                                                                                           Final
                                                                              Statutory                     RQ
                     Hazardous substance                          CASRN     code[dagger]  RCRA waste No.  pounds
                                                                                                            (Kg)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
S001\f\ Coal combustion residuals generated by the electric    ...........             4            S001  1 (0.
 power sector (Electric Utilities and Independent Power                                                   4536)
 Producers)..................................................


[[Page 35264]]


                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
[dagger] Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding Table
  302.4.
* * * * *
\f\ See 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste.
* * * * *

    28. Section 302.6 is amended by amending paragraph (b)(1)(iii), 
including the Table, to read as follows:


Sec.  302.6  Notification requirements.

* * * * *
    (b) * * *
    (1) * * *
    (iii) For waste streams K169, K170, K171, K172, K174, K175, and 
S001, knowledge of the quantity of all of the hazardous constituent(s) 
may be assumed, based on the following maximum observed constituent 
concentrations identified by EPA:

------------------------------------------------------------------------
               Waste                      Constituent          Max ppm
------------------------------------------------------------------------
K169...............................  Benzene..............         220.0
K170...............................  Benzene..............           1.2
                                     Benzo (a) pyrene.....         230.0
                                     Dibenz (a,h)                   49.0
                                      anthracene.
                                     Benzo (a) anthracene.         390.0
                                     Benzo (b)                     110.0
                                      fluoranthene.
                                     Benzo (k)                     110.0
                                      fluoranthene.
                                     3-Methylcholanthrene.          27.0
                                     7,12-Dimethylbenz (a)       1,200.0
                                      anthracene.
K171...............................  Benzene..............         500.0
                                     Arsenic..............       1,600.0
K172...............................  Benzene..............         100.0
                                     Arsenic..............         730.0
K174...............................  2,3,7,8TCDD..........      0.000039
                                     1,2,3,7,8-PeCDD......     0.0000108
                                     1,2,3,4,7,8-HxCDD....     0.0000241
                                     1,2,3,6,7,8-HxCDD....      0.000083
                                     1,2,3,7,8,9-HxCDD....      0.000062
                                     1,2,3,4,6,7,8-HpCDD..       0.00123
                                     OCDD.................        0.0129
                                     2,3,7,8-TCDF.........      0.000145
                                     1,2,3,7,8-PeCDF......     0.0000777
                                     2,3,4,7,8-PeCDF......      0.000127
                                     1,2,3,4,7,8-HxCDF....      0.001425
                                     1,2,3,6,7,8-HxCDF....      0.000281
                                     1,2,3,7,8,9-HxCDF....       0.00014
                                     2,3,4,6,7,8-HxCDF....      0.000648
                                     1,2,3,4,6,7,8-HpCDF..        0.0207
                                     1,2,3,4,7,8,9-HpCDF..        0.0135
                                     OCDF.................         0.212
K175...............................  Mercury..............         9,200
S001...............................  Antimony.............         3,100
                                     Arsenic..............           773
                                     Barium...............         7,230
                                     Beryllium............            31
                                     Cadmium..............           760
                                     Chromium.............         5,970
                                     Lead.................         1,453
                                     Mercury..............           384
                                     Nickel...............         6,301
                                     Selenium.............           673
                                     Silver...............           338
                                     Thallium.............           100
------------------------------------------------------------------------

* * * * *
[FR Doc. 2010-12286 Filed 6-18-10; 8:45 am]
BILLING CODE 6560-50-P

