[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
[Proposed Rules]
[Pages 83478-83484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27525]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 85, No. 246 / Tuesday, December 22, 2020 / 
Proposed Rules

[[Page 83478]]



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.

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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: <a href="/cdn-cgi/l/email-protection#07446f687029556e73664762776629606871"><span class="__cf_email__" data-cfemail="185b70776f364a716c79587d6879367f776e">[email protected]</span></a>. 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

[[Page 83479]]

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-epa-dockets. 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 Sec.  257.50 of title 40 of the Code of 
Federal Regulations. If you have questions regarding the applicability 
of this action to a particular entity, consult 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.
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    \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.
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    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.
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    \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.
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    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

[[Page 83480]]

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 mass-based 
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 location-based 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

[[Page 83481]]

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-publicly-accessible-internet-sites-hosting-compliance-data-and-information-required) to identify electric 
utilities and independent power producers that manage CCR 
accumulations. EPA's review focused on the following documents:
    <bullet> Fugitive dust control plans;
    <bullet> Annual CCR landfill inspection reports;
    <bullet> CCR landfill run-on/run-off control system reports; and
    <bullet> 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.
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    \3\ See document, Illinois Pollution Control Board Court Order 
for Midwest Generation Utility, dated June 20, 2019, in the docket 
for this Notice.
    \4\ See 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.
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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:

[[Page 83482]]

    <bullet> Various CCR beneficial use applications,
    <bullet> CCR generation specifically for beneficial use (e.g., 
wallboard-grade flue-gas desulfurization (FGD) gypsum) and any 
associated specifications,
    <bullet> CCR accumulation management throughout the CCR 
distribution system,
    <bullet> Applicable state beneficial use and storage provisions and 
regulations of CCR, and
    <bullet> 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 co-location 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 wallboard-grade 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:
    <bullet> What are the different types of CCR?
    <bullet> What are the environmental and economic tradeoffs among 
the CCR beneficial use and its alternatives, e.g., disposal?
    <bullet> What are the typical beneficial use applications for each 
type of CCR?
    <bullet> How much CCR is used per typical beneficial use 
application?
    <bullet> What are the chemical and physical characteristics of the 
CCR that make it suitable for beneficial use application?
    <bullet> What is the virgin material the CCR is replacing?
    <bullet> What are the product specifications and design standards 
the CCR must meet?
    <bullet> What are examples of measures used to control releases for 
CCR destined for beneficial use?
    <bullet> For structural fill projects, what are the site and 
location characteristics and the design and construction requirements 
for CCR used in such projects?
    <bullet> What state and local policies/regulations pertain to 
specific unencapsulated uses of CCR for beneficial use?
    <bullet> How do state and local policies/regulations distinguish 
beneficial use from disposal?
    <bullet> What data, documented damage cases, or other information 
pertaining to beneficial use applications have become available since 
2010?
    <bullet> 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

[[Page 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:
    <bullet> How is the CCR generated and processed if it is destined 
for beneficial use?
    <bullet> What are the specifications to which the CCR is processed?
    <bullet> What type of testing is performed on the CCR (e.g., to 
meet the required specifications) and which entity performs the 
testing?
    <bullet> What material safety data sheets are available for CCR 
destined for beneficial use?
    <bullet> What are the design and engineering standards for CCR 
accumulations, e.g., shape, slope, circumference, height?
    <bullet> What controls are utilized to manage environmental 
releases from on-site CCR accumulations?
    <bullet> How is CCR destined for beneficial use staged compared to 
CCR destined for disposal?
    <bullet> How is CCR destined for beneficial use accumulated, e.g., 
continuously replenished; first spent and then resupplied; etc.?
    <bullet> How long does a CCR accumulation stay on the utility 
property before it is disposed of or transferred for beneficial use?
    <bullet> What is the average size of a CCR accumulation before it 
is disposed of or transferred for beneficial use?
    <bullet> Which entity is responsible for the transfer of CCR, 
either for beneficial use or disposal?
    <bullet> What additional environmental monitoring data are 
available for on-site CCR accumulations?
    <bullet> 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:
    <bullet> What additional testing is performed by intermediaries or 
beneficial users on the CCR to ensure it meets the required 
specifications?
    <bullet> What happens to deliveries rejected by beneficial users 
and what entity is responsible for them?
    <bullet> What are the types of units used for the staging of CCR by 
intermediaries and beneficial users?
    <bullet> What are the design and engineering standards for CCR 
accumulations at intermediaries and beneficial users, e.g., shape, 
slope, circumference, height?
    <bullet> 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?
    <bullet> How is CCR accumulated at beneficial use sites, e.g., 
continuously replenished; first spent and then resupplied; etc.?
    <bullet> How long does the CCR accumulation stay at the beneficial 
use site before it gets beneficially used?
    <bullet> What state and local policies/regulations pertain to one-
time short-term storage at intermediaries and beneficial use sites?
    <bullet> What state and local policies/regulations pertain to 
indefinite recurring storage at intermediaries and beneficial use 
sites?
    <bullet> What environmental monitoring data are available for CCR 
accumulations at intermediaries and beneficial use sites?
    <bullet> If in the past there have been environmental releases that 
exceeded state limits at intermediaries and beneficial use sites, what 
corrective actions were implemented?
    <bullet> What material safety data sheets are available for CCR 
being used in the manufacturing process and the products incorporating 
it?
    <bullet> What are the inventorying and tracking procedures for the 
transfer and use of CCR in the intended manufacturing process or for 
beneficial use?
    <bullet> 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-
and-comment rulemaking.

List of Subjects in 40 CFR Part 257

    Environmental protection, Coal combustion products, Coal combustion 
residuals, Coal combustion waste,

[[Page 83484]]

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


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