This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

83478 

Vol. 85, No. 246 

Tuesday, December 22, 2020 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 257 

[EPA–HQ–OLEM–2020–0463; FRL–10015– 

45–OLEM] 

RIN 2050–AG98 

Hazardous and Solid Waste 

Management System: Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Reconsideration of Beneficial 

Use Criteria and Piles; Notification of 

Data Availability 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule; notice of data 

availability; request for comment. 

SUMMARY: The Environmental Protection 

Agency (EPA) is announcing the 

availability of new information and data 

pertaining to the agency’s August 14, 

2019 proposed rule Federal Register 

publication. EPA is seeking public 

comment on whether this additional 

information may inform the Agency’s 

reconsideration of the beneficial use 

definition and provisions for coal 

combustion residuals (CCR) 

accumulations. Moreover, the Agency 

will accept additional information and 

data from the public that may further 

help inform the Agency’s 

reconsideration of these two issues. The 

Agency is requesting comment only on 

those two issues. EPA is not reopening 

any other aspect of the proposal, the 

CCR regulations, or the underlying 

support documents that were previously 

available for comment. 

DATES: Comments must be received on 

or before February 22, 2021. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2020–0463, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

Instructions: All submissions received 

must include the Docket ID No. EPA– 

HQ–OLEM–2020–0463 for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are closed to the public, 

with limited exceptions, to reduce the 

risk of transmitting COVID–19. Our 

Docket Center staff will continue to 

provide remote customer service via 

email, phone, and webform. We 

encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. Hand deliveries and couriers may 

be received by scheduled appointment 

only. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning this document, 

contact Rita Chow, Office of Resource 

Conservation and Recovery, Resource 

Conservation and Sustainability 

Division, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, Mail Code 5306–P, Washington DC 

20460; telephone number: (703) 308– 

6158; email address: Chow.Rita@

epa.gov. For more information on this 

action please visit https://www.epa.gov/ 

coalash. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

A. Docket 

EPA has established a docket for this 

action under Docket ID No. EPA–HQ– 

OLEM–2020–0463. EPA has previously 

established dockets for the April 17, 

2015, CCR final rule (80 FR 21302) 

under Docket ID No. EPA–HQ–RCRA– 

2009–0640; and for the August 14, 2019, 

CCR proposed rule (84 FR 40353) under 

Docket ID No. EPA–HQ–OLEM–2018– 

0524. All documents in the docket are 

listed in an index at https://

www.regulations.gov/ under Docket ID 

No. EPA–HQ–OLEM–2018–0524. 

Publicly available docket materials are 

available electronically at https://

www.regulations.gov/ or in hard copy at 

the EPA Docket Center. The EPA Docket 

Center hours of operation are 8:30 a.m.– 

4:30 p.m., Monday through Friday 

(except Federal Holidays). The 

telephone number for the EPA Docket 

Center is (202) 566–1742. 

The EPA is suspending its Docket 

Center and Reading Room for public 

visitors, with limited exceptions, to 

reduce the risk of transmitting COVID– 

19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 

We encourage the public to submit 

comments via https://

www.regulations.gov/ as there may be a 

delay in processing mail and faxes. 

Hand deliveries or couriers will be 

received by scheduled appointment 

only. For further information and 

updates on EPA Docket Center services, 

please visit us online at https://

www.epa.gov/dockets. 

The EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that we can respond rapidly as 

conditions change regarding COVID–19. 

B. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OLEM–2020– 

0463 at https://www.regulations.gov/ 

(our preferred method), or the other 

methods identified in the ADDRESSES

section. Once submitted, comments 

cannot be edited or removed from the 

docket. EPA may publish any comment 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 83479 

1 During the development of the 2019 proposed 

rule, the Agency had not considered the compliance 

websites mandated by the 2015 CCR rule as a 

potential data and information source for EPA’s 

reconsideration of the provisions for CCR 

accumulations. However, several of the public 

comments EPA received on the August 2019 

proposed rule referred to data on the utility CCR 

compliance websites. 

2 During the development of the 2019 proposed 

rule, the Agency had not considered the compliance 

websites mandated by the 2015 CCR rule as a 

potential data and information source for EPA’s 

reconsideration of the provisions for CCR 

accumulations. However, several of the public 

comments EPA received on the August 2019 

proposed rule referred to data on the utility CCR 

compliance websites. 

received to its public docket. Do not 

submit electronically any information 

you consider to be CBI or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. Comments submitted on any 

issues other than those specifically 

identified in this document will be 

considered ‘‘late comments,’’ and EPA 

will not respond to them, nor will they 

be part of the administrative record. 

C. Submitting CBI 

Do not submit information that you 

consider to be CBI electronically 

through https://www.regulations.gov/ or 

email. Send or deliver information 

identified as CBI to only the following 

address: ORCR Document Control 

Officer, Mail Code 5305–P, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; Attn: Docket ID No. EPA– 

HQ–OLEM–2020–0463. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or a CD– 

ROM that you mail to EPA, mark the 

outside of the disk or CD–ROM as CBI 

and then identify electronically within 

the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. If you 

submit a CD–ROM or disk that does not 

contain CBI, mark the outside of the 

disk or CD–ROM clearly that it does not 

contain CBI. Information marked as CBI 

will not be disclosed except in 

accordance with procedures set forth in 

40 Code of Federal Regulations (CFR) 

part 2. 

II. General Information 

1. Does this document apply to me? 

This document applies to the electric 

utilities and independent power 

producers that fall within the North 

American Industry Classification 

System (NAICS) code 221112 that 

generate CCR for disposal and beneficial 

use, and it may affect the following 

entities: Electric utility facilities and 

independent power producers that fall 

under the NAICS code 221112; Concrete 

batch plant manufacturing facilities 

under NAICS codes 327320, 32733, and 

327390; Cement kiln manufacturing 

facilities under NAICS code 327310; 

Highway construction projects under 

NAICS code 237310; and Wallboard 

manufacturing plants under NAICS 

code 327420. It also may be of interest 

to CCR beneficial use stakeholders such 

as coal ash marketers and the 

agricultural industry; public interest 

groups, and citizens potentially 

impacted by CCR disposal and 

beneficial use. This list is not intended 

to be exhaustive, but rather provides a 

guide for readers regarding entities 

likely to be interested in this document. 

This list includes the types of entities 

that EPA is now aware could potentially 

be interested in this document. Other 

types of entities could also be 

interested. To determine whether your 

entity is potentially impacted by this 

document, you should carefully 

examine this document, as well as the 

applicability criteria found in § 257.50 

of title 40 of the Code of Federal 

Regulations. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

2. What is the purpose of this NODA? 

With this document, EPA is accepting 

comment on data and information EPA 

received during the comment period on 

the ‘‘Hazardous and Solid Waste 

Management System: Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Enhancing Public Access to 

Information; Reconsideration of 

Beneficial Use Criteria and Piles’’ (84 FR 

40353, Aug., 14, 2019) (hereinafter 

referred to as ‘‘August 2019 proposed 

rule’’) and in follow-up meetings held 

with stakeholders between the end of 

May 2020 and August 2020, which may 

inform the Agency’s reconsideration of 

the beneficial use definition in 40 

CFR.257.53 and the provisions for CCR 

accumulations. In this document, EPA 

uses the phrase ‘‘CCR accumulations’’ to 

capture any and all such accumulations, 

including those with CCR destined for 

beneficial use or disposal, and those 

that constitute disposal (such as a ‘‘CCR 

pile or pile’’ as defined in 40 CFR 

257.53).1 In making a decision on the 

beneficial use definition and provisions 

for CCR accumulations, EPA may 

consider information received as part of 

the initial comment period for the 

August 2019 proposed rule, information 

obtained after the close of the initial 

comment period in stakeholder 

meetings and added to the docket, and 

future information that may be 

submitted to EPA as a result of this 

document. 

Some of the information included in 

this document was received during the 

comment period for the August 2019 

proposed rule, such as information 

about the CCR compliance websites 

mandated by the rule titled, ‘‘Hazardous 

and Solid Waste Management System; 

Disposal of Coal Combustion Residuals 

from Electric Utilities,’’ (80 FR 21302) 

(‘‘2015 CCR rule’’ or ‘‘CCR rule’’) being 

a potential data source. Other 

information included in this document 

was obtained after the close of the 

comment period, such as information 

from stakeholder meetings EPA held 

between the end of May 2020 and 

August 2020. Therefore, the information 

about the compliance websites 

mandated by the 2015 CCR rule as a 

data source and information from 

stakeholder meetings was not available 

for public comment during the initial 

comment period on the August 2019 

proposed rule.2 EPA is placing that 

information in the docket for this 

document and making it available for 

public comment. 

EPA is still in the process of 

evaluating information contained in the 

docket for this document as potentially 

relevant to the two issues that the 

Agency is reconsidering—the beneficial 

use definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal. Therefore, EPA cannot 

definitively state whether this 

information will provide support in the 

reconsideration of the beneficial use 

definition or the provisions for CCR 

accumulations or that the Agency has 

determined that it is appropriate to rely 

on this information to inform the 

Agency’s decision-making process on 

these issues. In addition, the specific 


jbell on DSKJLSW7X2PROD with PROPOSALS
83480 Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 

information contained in the docket for 

this document may not necessarily 

reflect all potentially relevant 

information available to support the 

Agency’s reconsideration of the two 

issues. However, the Agency’s intent is 

to ensure that the public has had a full 

and complete opportunity to comment 

on the information contained in the 

docket for this document, which EPA 

identified has the potential to be 

considered by the Agency. Therefore, 

EPA is, in this document, accepting the 

public’s comment on the validity and 

suitability of using the information and 

data contained in the docket for this 

document. Moreover, through this 

document the Agency will accept 

additional data and information from 

the public that may help inform the 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal. 

In sum, by this action, EPA is 

providing public notice of information 

the Agency received in response to the 

initial comment period for the August 

2019 proposed rule, providing notice of 

information that EPA obtained after the 

close of the initial comment period from 

stakeholder meetings, and accepting 

additional data and information that the 

public has that may help inform the 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal. EPA is not reopening 

any existing regulations through this 

document. 

3. What is the Agency’s authority for 

taking this action? 

EPA is publishing this document 

under the authority of sections 1008(a), 

2002(a), 4004, and 4005(a) and (d) of the 

Solid Waste Disposal Act of 1970, as 

amended by the Resource Conservation 

and Recovery Act of 1976 (RCRA), as 

amended by the Hazardous and Solid 

Waste Amendments of 1984 (HSWA) 

and the Water Infrastructure 

Improvements for the Nation (WIIN) Act 

of 2016, 42 U.S.C. 6907(a), 6912(a), 

6944, and 6945(a) and (d). 

III. Background 

On April 17, 2015, in the CCR rule 

EPA finalized national regulations to 

regulate the disposal of CCR as solid 

waste under subtitle D of the Resource 

Conservation and Recovery Act (RCRA). 

The CCR rule established national 

minimum criteria for existing and new 

CCR landfills, existing and new CCR 

surface impoundments, and all lateral 

expansions of these types of CCR units 

that are codified in Subpart D of Part 

257 of Title 40 of the Code of Federal 

Regulations (CFR). The 2015 CCR rule 

also established a beneficial use 

definition to distinguish legitimate 

beneficial use from disposal. The 

beneficial use definition is comprised of 

four criteria, with criterion 4 

establishing a requirement to perform an 

environmental demonstration to address 

any potential risks associated with 

unencapsulated uses of CCR that are in 

excess of 12,400 tons. See 80 FR 21351– 

52 (April 15, 2015). The 2015 CCR rule 

also provided provisions for piles and 

CCR that is currently being used 

beneficially off-site. For example, the 

CCR rule provided a definition of ‘‘CCR 

pile or pile,’’ as well as provided that 

CCR that is beneficially used off-site is 

not a CCR pile. However, the CCR being 

used off-site must be stored temporarily 

and comply with all of the criteria in the 

beneficial use definition. See 80 FR 

21356. The rule also provided that a 

CCR landfill as defined in 40 CFR 

257.53, includes CCR piles. 

On August 14, 2019, EPA proposed a 

rule to address two provisions of the 

2015 CCR rule remanded back to EPA 

on August 21, 2018, by the U.S. Court 

of Appeals for the District of Columbia 

Circuit: The 12,400-ton threshold in the 

beneficial use definition for 

unencapsulated uses; and the 

requirements for piles located on-site of 

a utility and off-site but destined for 

beneficial use. With respect to the massbased numerical threshold, EPA 

proposed to eliminate the 12,400-ton 

numerical threshold and replace it with 

specific location-based criteria for CCR 

disposal units. In addition, EPA 

accepted comment on whether to retain 

a mass-based numerical threshold, and 

if so, what the appropriate threshold 

should be; whether a combination of the 

mass-based threshold and locationbased criteria would be an appropriate 

trigger to require an environmental 

demonstration for unencapsulated uses; 

and whether the environmental 

demonstration required under the 

beneficial use definition’s criterion 4 

should be conducted for all 

unencapsulated CCR uses. For piles, 

EPA proposed a single approach to 

consistently address the potential 

environmental and human health issues 

associated with piles, regardless of the 

location of the pile and whether the 

CCR is destined for disposal or 

beneficial use. For more information on 

the history of EPA’s CCR beneficial use 

definition and requirements for piles 

on-site and off-site, please refer to the 

August 2019 proposed rule and 2015 

CCR rule. 

Responding to concerns raised about 

the proposed rule during the public 

comment period by industry, 

environmental groups, private citizens 

and states, EPA is continuing to 

reconsider these issues by evaluating 

existing data and accepting additional 

information. 

IV. What information has EPA received 

to date that is potentially relevant to 

reconsidering the definition of 

beneficial use and its provisions for 

CCR accumulations destined for 

beneficial use or disposal? 

EPA is considering whether to use the 

following additional information 

sources in support of the 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal: Select 2019 proposed 

rule data and comments and 

information obtained in stakeholder 

meetings. The information that EPA is 

noticing for comment can be found in 

EPA’s annotated bibliography titled, 

‘‘U.S. Environmental Protection Agency 

Beneficial Use and Accumulations of 

Coal Combustion Residuals Rulemaking, 

Notice of Data Availability: Annotated 

Bibliography of Information Being 

Noticed,’’ which is in the docket 

supporting this document, EPA–HQ– 

OLEM–2020–0463. Some documents 

listed or referenced in the annotated 

bibliography are also in the docket, 

while others can be accessed from 

websites at internet addresses provided 

in the bibliography. 

A. 2019 Proposed Rule Data and 

Comments Received 

Several of the public comments EPA 

received on the August 2019 proposed 

rule referred to data on the utility CCR 

compliance websites. Other comments 

referred to a court case related to a CCR 

accumulation at the Midwest 

Generation Utility, LLC (Powerton 

Station in Tazewell County, Illinois) as 

well as a case study about CCR 

accumulations on-site at Duke Energy in 

Noblesville, Indiana. 

1. Comments on Using Publicly 

Accessible Data From the Utility CCR 

Compliance Websites on the 

Management of CCR Accumulations and 

Potential Environmental Releases 

The Agency has been and continues 

to be interested in obtaining information 

about the management of CCR 

accumulations and data about 

environmental releases from CCR 

accumulations. The management of CCR 

accumulations includes any practices 

which provide for the staging and 

storage of CCR destined for beneficial 

use or disposal, onsite or offsite, 

including the accumulation size, 

duration and recurrence; designs related 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 83481 

3See document, Illinois Pollution Control Board 

Court Order for Midwest Generation Utility, dated 

June 20, 2019, in the docket for this Notice. 

4See document, Responses to EPA Solicitation for 

Comments Hutson Expert Report Phase II dated 10/ 

14/2019, at https://beta.regulations.gov/document/ 

EPA-HQ-OLEM-2019-0173-0197. 

to placement and mounding of CCR; and 

practices related to dust control or 

minimization of releases to soil, 

groundwater and surface water. Data 

about environmental releases from CCR 

accumulations of different size, 

duration, recurrence and practices to 

control releases to soil, groundwater and 

surface water may aid the Agency in 

identifying the measures sufficient to 

protect human health and the 

environment. EPA intends to review 

and use the information on the utility 

compliance websites to obtain data on 

the management of CCR accumulations 

and instances of environmental releases 

from the CCR accumulations. 

EPA has reviewed the documents 

posted on utility CCR compliance 

websites linked from the Agency’s CCR 

compliance web page (https://

www.epa.gov/coalash/list-publiclyaccessible-internet-sites-hostingcompliance-data-and-informationrequired) to identify electric utilities 

and independent power producers that 

manage CCR accumulations. EPA’s 

review focused on the following 

documents: 

• Fugitive dust control plans; 

• Annual CCR landfill inspection 

reports; 

• CCR landfill run-on/run-off control 

system reports; and 

• Annual groundwater monitoring 

and corrective action reports (sometimes 

power plant-wide, sometimes specific to 

individual CCR units at the facility). 

Based on that review, EPA identified 

the presence of CCR accumulations at 

several power plants. 

EPA intends to confirm the presence 

of CCR accumulations for staging or 

storing CCR on power plant sites 

identified on the CCR utility websites, 

by contacting the state environmental 

agencies that correspond to facility 

locations. Furthermore, EPA expects to 

review the utility website documents for 

information on the characteristics of 

identified CCR accumulations, the 

protective measures taken to prevent or 

mitigate releases, and the data about 

environmental releases attributable to 

these CCR accumulations. More 

specifically, the Agency intends to 

review available information on the 

characteristics of these accumulations, 

such as size, duration, recurrence and 

design; protective measures, such as 

dust suppression, compaction, use of 

liners and berms; and incidences of 

environmental releases. The Agency 

intends to use such information to 

analyze the incidences of environmental 

releases from the CCR accumulations as 

a function of the accumulation 

characteristics and protective measures 

used, to inform the Agency’s next steps 

on the remanded issues. EPA expects 

this analysis may indicate the 

conditions likely to cause 

environmental releases and may aid the 

Agency in identifying the measures/ 

controls/practices sufficient to protect 

human health and the environment. 

EPA is taking comment on whether 

the utility compliance websites should 

be used as a data source for information 

and data pertaining to the management 

of CCR accumulations. EPA is also 

seeking comment on whether 

environmental release data attributable 

to CCR accumulations at utility sites can 

be used to estimate environmental 

releases from CCR accumulations at 

intermediary (e.g., marketer and retailer) 

and beneficial use sites. EPA is also 

requesting approaches (e.g., surveys) the 

public would consider appropriate to 

understand environmental releases from 

intermediary and beneficial use sites if 

the public finds the data from the utility 

compliance websites is not applicable. 

EPA is also seeking comment on the 

Agency’s approach to use the 

information on the utility compliance 

websites to identify management of CCR 

accumulation practices that could be 

part of CCR regulations to prevent a 

reasonable probability of adverse effects 

on human health and the environment. 

Finally, EPA is requesting comment on 

other approaches (e.g., surveys) to 

collect data on characteristics of CCR 

accumulations that are not publicly 

available. 

2. Case Studies and Court Case Related 

to CCR Accumulations and Fill Projects 

A few comments on the August 2019 

proposed rule referenced several fill 

projects and cases of environmental 

releases caused by unencapsulated CCR. 

In response to the August 2019 

proposal to change the beneficial use 

definition, the Hoosier Environmental 

Council (Hoosier) referenced several fill 

projects that did not incorporate 

protections for groundwater and surface 

water. Hoosier provided these examples 

to illustrate that lack of oversight and 

regulation of CCR beneficial use can 

result in CCR disposal being incorrectly 

characterized as beneficial use, leading 

to environmental contamination. 

Among those examples, Hoosier 

included a possible project that, while 

not executed, could have resulted in 

environmental issues had it gone 

unchallenged by county officials and 

nearby residents, because of its 

proposed location. Another example 

that Hoosier referenced relates to the 

extensive use of CCR for landscaping 

and road embankments throughout the 

town of Pines, Indiana. 

Furthermore, to argue that 

requirements are needed to prevent 

environmental releases from CCR 

accumulations, Hoosier provided an 

example case study of unencapsulated 

CCR at a Duke Energy site in 

Noblesville, Indiana. According to 

Hoosier, the presence of unencapsulated 

CCR in the same location results in 

groundwater contamination and impacts 

on private water wells regardless of the 

distance to the groundwater table. 

Specifically, the presence of 

unencapsulated CCR from the start of 

the facility’s operation in the 1950s 

resulted in impacts despite the 

groundwater table being more than 15 

feet below the surface. 

Similarly, Earthjustice provided 

information to illustrate that even when 

present for a short period of time, 

unencapsulated CCR has the potential to 

result in environmental releases. 

Earthjustice referenced a court case 

involving coal ash cinders deposited 

directly upon the land 3 at the Midwest 

Generation Utility, LLC (Powerton 

Station in Tazewell County) identified 

in a report 4 prepared for Earthjustice by 

Mark Hutson at Geo-Hydro Inc. 

Specifically, the Illinois Pollution 

Control Board found that the coal ash 

cinders that were deposited directly 

upon the land and that were present for 

two to three months, contributed to 

exceedances of state groundwater 

standards. 

B. Stakeholder Meetings 

From the end of May 2020 to August 

2020, EPA held ten stakeholder 

meetings with the trade associations and 

their members, encompassing utilities, 

agricultural, wallboard, cement and 

concrete beneficial uses; CCR marketers; 

state environmental and transportation 

agencies; environmental organizations 

and private citizens. EPA and 

stakeholders discussed technical 

information and data on beneficial use 

applications and the specific practices 

facilities use to manage their CCR 

accumulations (e.g., the specific 

practices facilities use to control CCR 

releases). These discussions were 

designed to inform the Agency’s 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal. EPA identified topics of 

interest which included: 


jbell on DSKJLSW7X2PROD with PROPOSALS
83482 Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 

• Various CCR beneficial use 

applications, 

• CCR generation specifically for 

beneficial use (e.g., wallboard-grade 

flue-gas desulfurization (FGD) gypsum) 

and any associated specifications, 

• CCR accumulation management 

throughout the CCR distribution system, 

• Applicable state beneficial use and 

storage provisions and regulations of 

CCR, and 

• Environmental and risk data, 

including documented environmental 

and public health impacts. 

V. What information is EPA seeking? 

As explained, EPA is today noticing 

the data and information received from 

the 2019 proposed rule and the 

stakeholder discussions held from the 

end of May 2020 to August 2020. The 

Agency will accept additional data and 

information that may help inform the 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations destined for beneficial 

use or disposal. 

Specifically, EPA is today seeking 

information about how CCR is 

beneficially used, including any use of 

particular measures to control 

environmental releases that can help the 

Agency distinguish among the different 

types of beneficial use applications (e.g., 

structural fill, flowable fill, waste 

stabilization and solidification, 

agricultural applications, snow and ice 

control, soil stabilization, fly ash used 

as a substitute for portland cement in 

concrete, flue-gas desulfurization (FGD) 

gypsum in wallboard manufacture). EPA 

is also seeking information on the 

management of CCR accumulations at 

each point in its distribution system, 

from its generation at the utility to its 

destination, including management at 

CCR retailers, distributors/marketers, 

beneficial use facilities/sites, and 

landfills. EPA is seeking information 

about the use of controls to prevent and 

minimize CCR releases from CCR 

accumulations and environmental data 

for CCR accumulations. 

As part of this request, EPA is 

specifically interested in site-specific 

information that pertains to the 

practices used for the handling of 

wallboard-grade FGD gypsum. As 

explained in the 2015 rule preamble, 

some FGD gypsum has never been 

discarded and is treated as a valuable 

product throughout its entire lifecycle; 

when managed in this way, it is not a 

waste that would be regulated under 

part 257. See 80 FR 21348. EPA is 

interested in obtaining information on: 

The investment in special additional 

systems to generate wallboard-grade 

FGD gypsum; the investment in colocation of wallboard manufacturing 

plants with utilities; the inventorying 

and tracking procedures for the transfer 

and use of wallboard-grade FGD gypsum 

in the intended manufacturing process; 

the handling of CCR accumulations to 

prevent the loss of valuable material; 

other ways of handling the wallboardgrade FGD gypsum as a product rather 

than something that is intended to be 

discarded. 

Lastly, EPA is seeking specific 

information on federal, state and local 

program provisions and regulations 

related to CCR beneficial use 

applications and provisions for CCR 

accumulations, such as example state 

permits or other beneficial use 

approvals. EPA is particularly interested 

in hearing from regulated entities that 

comply with the different regulations 

and can therefore, provide the full 

picture of requirements with which they 

comply. 

A. Beneficial Uses of CCR 

EPA is reevaluating CCR beneficial 

uses that may be considered 

encapsulated beneficial use. In the 2015 

rule preamble, the Agency defined 

encapsulated beneficial use as 

applications that bind the CCR into a 

solid matrix that minimizes 

mobilization into the surrounding 

environment. Examples of encapsulated 

uses include replacement for, or raw 

material used in production of, 

cementitious components in concrete; 

and raw material in wallboard 

production. See 80 FR at 21328. In 

addition, the Agency provided examples 

of unencapsulated uses to include: 

Flowable fill; structural fill; waste 

stabilization/solidification; and use in 

agriculture as a soil amendment. See 80 

FR at 21353. The Agency is considering 

revising the designation of flowable fill 

and waste stabilization from 

unencapsulated to encapsulated uses 

and therefore, redefining the scope of 

beneficial uses that are subject to 

compliance with criterion 4 of the 

beneficial use definition which applies 

to unencapsulated uses. EPA is further 

considering whether criterion 4 should 

apply only to a subset of remaining 

unencapsulated uses. For example, as 

appropriate, certain uses could 

potentially be excluded if there are 

sufficient regulations at the federal, 

state, and local level that provide for 

engineering controls of the beneficial 

use application. Such beneficial uses 

may include agricultural applications. 

Other options the Agency is considering 

include developing guidance such as a 

best practice guide for using CCR in fill, 

structural fill, or other unencapsulated 

uses. To help inform EPA’s next steps, 

the Agency is seeking comments, data 

and information on the following: 

• What are the different types of CCR? 

• What are the environmental and 

economic tradeoffs among the CCR 

beneficial use and its alternatives, e.g., 

disposal? 

• What are the typical beneficial use 

applications for each type of CCR? 

• How much CCR is used per typical 

beneficial use application? 

• What are the chemical and physical 

characteristics of the CCR that make it 

suitable for beneficial use application? 

• What is the virgin material the CCR 

is replacing? 

• What are the product specifications 

and design standards the CCR must 

meet? 

• What are examples of measures 

used to control releases for CCR 

destined for beneficial use? 

• For structural fill projects, what are 

the site and location characteristics and 

the design and construction 

requirements for CCR used in such 

projects? 

• What state and local policies/ 

regulations pertain to specific 

unencapsulated uses of CCR for 

beneficial use? 

• How do state and local policies/ 

regulations distinguish beneficial use 

from disposal? 

• What data, documented damage 

cases, or other information pertaining to 

beneficial use applications have become 

available since 2010? 

• What are the environmental and 

economic tradeoffs among CCR 

beneficial use applications, e.g., 

agricultural use vs. roadway use? 

B. CCR Distribution System 

EPA is seeking information on the 

generation and management of CCR at 

each point in its distribution system, 

from the utility, to any intermediaries or 

final destinations, such as CCR retailers, 

distributors/marketers, beneficial use 

facilities, sites, or landfills. EPA is 

considering developing a best practice 

guide on the appropriate environmental 

controls that should be utilized for 

various storage and staging situations. 

EPA is also specifically interested in 

site-specific information and data 

demonstrating how utilities and 

beneficial use facilities manage 

wallboard-grade FGD gypsum as a 

valuable product. The Agency is 

considering whether to incorporate into 

the regulations a specific exemption for 

wallboard-grade FGD gypsum that has 

not been discarded and is continually 

managed as a valuable product from the 

point of generation at the utility to the 

manufacturing of the wallboard. EPA is 

also considering whether to develop 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 83483 

additional guidance on the specific 

indicators to demonstrate when 

wallboard-grade FGD gypsum is not 

discarded and therefore not subject to 

regulation under the 2015 rule. 

To help inform the Agency’s 

reconsideration of the beneficial use 

definition and provisions for CCR 

accumulations, EPA is seeking the 

following information pertaining to the 

generation and on-site management of 

CCR accumulations at the electric 

utility: 

• How is the CCR generated and 

processed if it is destined for beneficial 

use? 

• What are the specifications to 

which the CCR is processed? 

• What type of testing is performed 

on the CCR (e.g., to meet the required 

specifications) and which entity 

performs the testing? 

• What material safety data sheets are 

available for CCR destined for beneficial 

use? 

• What are the design and 

engineering standards for CCR 

accumulations, e.g., shape, slope, 

circumference, height? 

• What controls are utilized to 

manage environmental releases from onsite CCR accumulations? 

• How is CCR destined for beneficial 

use staged compared to CCR destined 

for disposal? 

• How is CCR destined for beneficial 

use accumulated, e.g., continuously 

replenished; first spent and then 

resupplied; etc.? 

• How long does a CCR accumulation 

stay on the utility property before it is 

disposed of or transferred for beneficial 

use? 

• What is the average size of a CCR 

accumulation before it is disposed of or 

transferred for beneficial use? 

• Which entity is responsible for the 

transfer of CCR, either for beneficial use 

or disposal? 

• What additional environmental 

monitoring data are available for on-site 

CCR accumulations? 

• If in the past there have been on-site 

environmental releases that exceeded 

state limits, what corrective actions 

were implemented? 

The Agency is also interested in 

information pertaining to the off-site 

management of CCR, such as at CCR 

distribution/marketer centers, beneficial 

use construction projects, agricultural 

retail facilities; wallboard, cement, and 

concrete manufacturing sites; and other 

beneficial use sites. Specifically, the 

Agency is seeking information on: 

• What additional testing is 

performed by intermediaries or 

beneficial users on the CCR to ensure it 

meets the required specifications? 

• What happens to deliveries rejected 

by beneficial users and what entity is 

responsible for them? 

• What are the types of units used for 

the staging of CCR by intermediaries 

and beneficial users? 

• What are the design and 

engineering standards for CCR 

accumulations at intermediaries and 

beneficial users, e.g., shape, slope, 

circumference, height? 

• What controls are utilized by 

intermediaries and beneficial users to 

manage environmental releases from 

CCR accumulations? How long does the 

CCR accumulation stay at the 

intermediaries before it is transferred for 

beneficial use? 

• How is CCR accumulated at 

beneficial use sites, e.g., continuously 

replenished; first spent and then 

resupplied; etc.? 

• How long does the CCR 

accumulation stay at the beneficial use 

site before it gets beneficially used? 

• What state and local policies/ 

regulations pertain to one-time shortterm storage at intermediaries and 

beneficial use sites? 

• What state and local policies/ 

regulations pertain to indefinite 

recurring storage at intermediaries and 

beneficial use sites? 

• What environmental monitoring 

data are available for CCR 

accumulations at intermediaries and 

beneficial use sites? 

• If in the past there have been 

environmental releases that exceeded 

state limits at intermediaries and 

beneficial use sites, what corrective 

actions were implemented? 

• What material safety data sheets are 

available for CCR being used in the 

manufacturing process and the products 

incorporating it? 

• What are the inventorying and 

tracking procedures for the transfer and 

use of CCR in the intended 

manufacturing process or for beneficial 

use? 

• What additional business or 

financial information is available to 

show that the CCR is a valuable 

commodity for the intended 

manufacturing process or beneficial 

use? 

C. Applicable and Relevant Federal, 

State, and Local Programs and 

Provisions 

The Agency is reviewing federal, state 

and local requirements and provisions 

for CCR beneficial use applications and 

CCR accumulations to consider whether 

those standards could inform the 

Agency’s reconsideration of the 

beneficial use definition and provisions 

for CCR accumulations. The Agency is 

also considering whether, and which, 

particular beneficial use applications 

are sufficiently regulated at the federal, 

state or local levels (e.g., by the United 

States Department of Agriculture or 

state departments of transportation), 

such that additional federal regulation 

under RCRA would not be required for 

these applications. Furthermore, the 

Agency is seeking detailed information 

on whether the management of CCR 

accumulations is uniformly and 

sufficiently regulated at all points in the 

CCR distribution system, by existing 

federal, state and local regulations (e.g., 

Clean Air Act, Clean Water Act, etc.), 

such that additional provisions under 

RCRA would not be required. 

Specifically, the Agency is seeking 

detailed and specific information about 

facilities and sites to which existing 

regulations apply (e.g., cement and 

concrete manufacturing plants, 

wallboard manufacturing plants, 

agricultural retail facilities and farms, or 

utilities). The Agency is also seeking 

specific examples of these regulations 

and requirements (e.g., leachate 

controls, surface water runoff sampling, 

area groundwater monitoring in the 

form of permits, beneficial use 

determinations, or other documentation 

of compliance). 

VI. What are the next steps EPA will 

take? 

EPA intends to carefully review all 

the comments and information received 

in response to this document specific to 

the beneficial use definition and 

provisions for CCR accumulations 

destined for beneficial use or disposal. 

EPA may also consider any previously 

collected and assembled information 

pertaining to the two specific issues 

addressed in this NODA. In determining 

how to proceed with reconsidering the 

beneficial use definition and provisions 

for CCR accumulations destined for 

beneficial use or disposal, EPA may 

consider any relevant information and 

data available to the Agency. Future 

action with respect to the Agency’s 

reconsideration of the 2019 proposed 

rule on the beneficial use definition and 

provisions for CCR accumulations 

destined for beneficial use or disposal 

will be made through notice-andcomment rulemaking. 

List of Subjects in 40 CFR Part 257 

Environmental protection, Coal 

combustion products, Coal combustion 

residuals, Coal combustion waste, 


jbell on DSKJLSW7X2PROD with PROPOSALS
83484 Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / Proposed Rules 

1Section 103, Public Law 110–432, Division A, 

122 Stat. 4848 et seq. 

2Section 20156 uses the term ‘‘fatigue 

management plans’’ so sections of this preamble 

discussing the statutory requirements likewise use 

this term, as do the sections discussing the Railroad 

Safety Advisory Committee task statement on 

fatigue and Fatigue Working Group. However, 

because section 20156 requires fatigue to be 

addressed as part of a railroad’s safety risk 

reduction program, for consistency with the 

terminology used in FRA’s final rules governing 

those programs (81 FR 53849 (Aug. 12, 2016) and 

85 FR 9262 (Feb. 18, 2020)), elsewhere throughout 

this proposed rule, FRA uses the terms ‘‘fatigue risk 

management program’’ (FRMP) and ‘‘FRMP plan.’’ 

3Risk is defined as a combination of the 

probability of an adverse event occurring and the 

potential severity of that adverse event. Fatigue 

increases the likelihood of certain negative events 

occurring. Therefore, reducing fatigue helps reduce 

fatigue-related risks. See United States Department 

of Transportation, Partnering in Safety: Managing 

Fatigue: A Significant Problem Affecting Safety, 

Security, and Productivity, 1999. 

Beneficial use, Disposal, Hazardous 

waste, Landfill, Surface impoundment. 

Peter Wright, 

Assistant Administrator, Office of Land and 

Emergency Management. 

[FR Doc. 2020–27525 Filed 12–21–20; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 270 and 271 

[Docket No. FRA–2015–0122, Notice No. 1] 

RIN 2130–AC54 

Fatigue Risk Management Programs 

for Certain Passenger and Freight 

Railroads 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: Pursuant to the Rail Safety 

Improvement Act of 2008, FRA 

proposes to issue regulations requiring 

certain railroads to develop and 

implement a Fatigue Risk Management 

Program, as one component of the 

railroads’ larger railroad safety risk 

reduction programs. 

DATES: Written comments must be 

received by February 22, 2021. 

Comments received after that date will 

be considered to the extent practicable 

without incurring additional expense or 

delay. 

ADDRESSES: Comments related to Docket 

No. FRA–2015–0122 may be submitted 

by going to http://www.regulations.gov 

and follow the online instructions for 

submitting comments. 

Instructions: All submissions must 

include the agency name, docket name 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking (2130–AC54). Note that all 

comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal information provided. Please 

see the Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information on any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Miriam Kloeppel, Staff Director, Audit 

Management Division, at 202–493–6224 

or miriam.kloeppel@dot.gov; Amanda K. 

Emo, Ph.D., Fatigue Program Manager, 

at 202–281–0695 or amanda.emo@

dot.gov; or Colleen A. Brennan, Deputy 

Assistant Chief Counsel, at 202–493– 

6028 or colleen.brennan@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Introduction and Executive Summary 

A. Purpose of Rulemaking 

B. Summary of Costs and Benefits 

II. Rulemaking Authority and Background 

A. RSIA 

1. Mandate for Rulemaking on Railroad 

Safety Risk Reduction Programs 

2. Mandate for Rulemaking on Fatigue 

Management Plans 

3. Authority for Rulemaking on 

Information Protection 

B. Fatigue and Fatigue Risk Management 

Plans 

III. Railroad Safety Advisory Committee 

Process 

A. Fatigue Management Plans Working 

Group 

B. Task Forces 

IV. FRMP Considerations 

A. General Overview 

B. Roles and Responsibilities 

C. Components of an FRMP 

1. Identifying Safety Hazards 

2. Assessing Risks Associated With 

Identified Hazards 

3. Prioritizing Risks and Implementing 

Mitigation 

4. Summary of the Work of the FRMP 

Working Group’s Task Forces 

5. Tracking Performance 

V. Section-by-Section Analysis 

VI. Regulatory Impact and Notices 

A. Executive Orders 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272; Initial Regulatory 

Flexibility Analysis 

C. Federalism 

D. International Trade Impact Assessment 

E. Paperwork Reduction Act 

F. Environmental Assessment 

G. Executive Order 12898 (Environmental 

Justice) 

H. Unfunded Mandates Reform Act of 1995 

I. Energy Impact 

J. Privacy Act Statement 

I. Introduction and Executive Summary 

A. Purpose of Rulemaking 

This proposed rule is part of FRA’s 

efforts to improve rail safety continually 

and to satisfy the statutory mandate of 

Section 103 of the Rail Safety 

Improvement Act of 2008 (RSIA).1 That 

section, codified at 49 U.S.C. 20156, 

requires Class I railroads; railroad 

carriers with inadequate safety 

performance (ISP), as determined by the 

Secretary; and railroad carriers that 

provide intercity rail passenger or 

commuter rail passenger transportation 

to develop and implement a safety risk 

reduction program to improve the safety 

of their operations. The section further 

requires a railroad’s safety risk 

reduction program to include a ‘‘fatigue 

management plan’’ meeting certain 

requirements. 

This proposed rule, if finalized, 

would fulfill RSIA’s mandate for 

railroads to include fatigue management 

plans in their safety risk reduction 

programs by requiring railroads to 

develop and implement Fatigue Risk 

Management Programs (FRMPs).2 As 

proposed, a railroad would implement 

its FRMP through an FRMP plan. 

Under this proposed rule, consistent 

with the mandate of Section 20156, an 

FRMP is a comprehensive, systemoriented approach to safety in which a 

railroad determines its fatigue risk by 

identifying and analyzing applicable 

hazards and takes action to mitigate, if 

not eliminate, that fatigue risk.3 As 

proposed, a railroad would be required 

to prepare a written FRMP plan and 

submit it to FRA for review and 

approval. A railroad’s written FRMP 

plan would become part of its existing 

safety risk reduction program plan. A 

railroad would also be required to 

implement its FRA-approved FRMP 

plan, conduct an internal annual 

assessment of its FRMP, and consistent 

with Section 20156’s mandate, update 

its FRMP plan periodically. As part of 

a railroad safety risk reduction program, 

a railroad’s FRMP would also be subject 

to assessments by FRA. 

B. Summary of Costs and Benefits 

FRA estimated the costs and benefits 

of this proposed rule using discount 

rates of 3 and 7 percent over a ten-year 

time horizon. FRA presents monetized 

costs and benefits where possible and 

discusses those non-quantifiable 

elements qualitatively where data is 


jbell on DSKJLSW7X2PROD with PROPOSALS