32214 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[FRL–6588–1]

RIN 2050–AD91

Notice of Regulatory Determination on

Wastes From the Combustion of Fossil

Fuels

AGENCY: Environmental Protection

Agency.

ACTION: Regulatory determination.

SUMMARY: This document explains

EPA’s determination of whether

regulation of fossil fuel combustion

wastes is warranted under subtitle C of

the Resource Conservation and

Recovery Act (RCRA). Today’s action

applies to all remaining fossil fuel

combustion wastes other than high

volume coal combustion wastes

generated at electric utilities and

independent power producing facilities

and managed separately, which were

addressed by a 1993 regulatory

determination. These include: Largevolume coal combustion wastes

generated at electric utility and

independent power producing facilities

that are co-managed together with

certain other coal combustion wastes;

coal combustion wastes generated by

non-utilities; coal combustion wastes

generated at facilities with fluidized bed

combustion technology; petroleum coke

combustion wastes; wastes from the

combustion of mixtures of coal and

other fuels (i.e., co-burning); wastes

from the combustion of oil; and wastes

from the combustion of natural gas.

The Agency has concluded these

wastes do not warrant regulation under

subtitle C of RCRA and is retaining the

hazardous waste exemption under

RCRA section 3001(b)(3)(C). However,

EPA has also determined national

regulations under subtitle D of RCRA

are warranted for coal combustion

wastes when they are disposed in

landfills or surface impoundments, and

that regulations under subtitle D of

RCRA (and/or possibly modifications to

existing regulations established under

authority of the Surface Mining Control

and Reclamation Act (SMCRA)) are

warranted when these wastes are used

to fill surface or underground mines.

So that coal combustion wastes are

consistently regulated across all waste

management scenarios, the Agency also

intends to make these national

regulations for disposal in surface

impoundments and landfills and

minefilling applicable to coal

combustion wastes generated at electric

utility and independent power

producing facilities that are not comanaged with low volume wastes,.

The Agency has concluded that no

additional regulations are warranted for

coal combustion wastes that are used

beneficially (other than for minefilling)

and for oil and gas combustion wastes.

We do not wish to place any

unnecessary barriers on the beneficial

use of fossil fuel combustion wastes so

that they can be used in applications

that conserve natural resources and

reduce disposal costs. Currently, about

one-quarter of all coal combustion

wastes are diverted to beneficial uses.

We support increases in these beneficial

uses, such as for additions to cement

and concrete products, waste

stabilization and use in construction

products such as wallboard.

DATES: Comments in response to data

and information requests in this

document are due to EPA on September

19, 2000.

ADDRESSES: Public comments and

supporting materials are available for

viewing in the RCRA Information Center

(RIC). In addition to the data and

information that was included in the

docket to support the RTC on FFC waste

and the Technical Background

Documents, the docket also includes the

following document: Responses to

Public Comments on the Report To

Congress, Wastes from the Combustion

of Fossil Fuels. The RIC is located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

The Docket Identification Number is F–

2000–FF2F–FFFFF. The RIC is open

from 9 a.m. to 4 p.m., Monday through

Friday, excluding federal holidays. To

review docket materials, we recommend

that the public make an appointment by

calling 703 603–9230. The public may

copy a maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See the

SUPPLEMENTARY INFORMATION section for

information on accessing them.

Commenters must send an original

and two copies of their comments

referencing docket number F–2000–

FF2F–FFFFF to: (1) If using regular US

Postal Service mail: RCRA Docket

Information Center, Office of Solid

Waste (5305G), U.S. Environmental

Protection Agency Headquarters (EPA,

HQ), Ariel Rios Building, 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460–0002; or (2) if

using special delivery, such as overnight

express service: RCRA Docket

Information Center (RIC), Crystal

Gateway One, 1235 Jefferson Davis

Highway, First Floor, Arlington, VA

22202. Comments may also be

submitted electronically through the

Internet to: rcra-docket@epa.gov.

Comments in electronic format should

also be identified by the docket number

F–2000–FF2F–FFFFF and must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, Ariel Rios Building,

1200 Pennsylvania Avenue, NW.,

Washington, DC 20460–0002.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at 800 424–9346 or TDD 800

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

703 412–9810 or TDD 703 412–3323.

For more detailed information on

specific aspects of this regulatory

determination, contact Dennis Ruddy,

Office of Solid Waste (5306W), U.S.

Environmental Protection Agency, Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, DC 20460–

0002, telephone (703) 308–8430, e-mail

address ruddy.dennis@epa.gov.

SUPPLEMENTARY INFORMATION: The index

and several of the primary supporting

materials are available on the Internet.

You can find these materials at <http:/

/www.epa.gov/epaoswer/other/fossil/

index.htm.

The official record for this action will

be kept in paper form. Accordingly, EPA

will transfer all comments received

electronically into paper form and place

them in the official record, which will

also include all comments submitted

directly in writing. The official record is

the paper record maintained at the

address in ADDRESSES at the beginning

of this notice.

EPA will not immediately reply to

commenters electronically other than to

seek clarification of electronic

comments that may be garbled in

transmission or during conversion to

paper form, as discussed above.

The contents of today’s notice are

listed in the following outline:

1. General Information

A. What action is EPA taking today?

B. What is the statutory authority for this

action?

C. What was the process EPA used in

making today’s decision?

D. What is the significance of ‘‘uniquely

associated wastes’’ and what wastes does

EPA consider to be uniquely associated

wastes?

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32215

E. Who is affected by today’s action and

how are they affected?

F. What additional actions will EPA take

after this regulatory determination regarding

coal, oil and natural gas combustion wastes?

2. What Is the Basis for EPA’s Regulatory

Determination for Coal Combustion Wastes?

A. What is the Agency’s decision regarding

the regulatory status of coal combustion

wastes and why did EPA make that decision?

B. What were EPA’s tentative decisions as

presented in the Report to Congress?

C. How did commenters react to EPA’s

tentative decisions and what was EPA’s

analysis of their comments?

D. What is the basis for today’s decisions?

E. What approach will EPA take in

developing national regulations?

3. What Is the Basis for EPA’s Regulatory

Determination for Oil Combustion Wastes?

A. What is the Agency’s decision regarding

the regulatory status of oil combustion wastes

and why did EPA make that decision?

B. What were EPA’s tentative decisions as

presented in the Report to Congress?

C. How did commenters react to EPA’s

tentative decisions and what was EPA’s

analysis of their comments?

D. What is the basis for today’s decisions?

4. What Is the Basis for EPA’s Regulatory

Determination for Natural Gas Combustion

Wastes?

A. What is the Agency’s decision regarding

the regulatory status of natural gas

combustion wastes and why did EPA make

that decision?

B. What was EPA’s tentative decision as

presented in the Report to Congress?

C. How did commenters react to EPA’s

tentative decisions?

D. What is the basis for today’s decisions?

5. What Is the History of EPA’s Regulatory

Determinations for Fossil Fuel Combustion

Wastes?

A. On what basis is EPA required to make

regulatory decisions regarding the regulatory

status of fossil fuel combustion wastes?

B. What was EPA’s general approach in

making these regulatory determinations?

C. What happened when EPA failed to

issue its determination of the regulatory

status of the large volume utility combustion

wastes in a timely manner?

D. When was the Part 1 regulatory decision

made and what were EPA’s findings?

6. Executive Orders and Laws Addressed in

Today’s Action

A. Executive Order 12866—Determination

of Significance.

B. Regulatory Flexibility Act, as amended.

C. Paperwork Reduction Act (Information

Collection Requests).

D. Unfunded Mandates Reform Act.

E. Executive Order 13132: Federalism.

F. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments.

G. Executive Order 13045: Protection of

Children from Environmental Health Risks

and Safety Risks.

H. National Technology Transfer and

Advancement Act of 1995.

I. Executive Order 12898: Environmental

Justice.

J. Congressional Review Act.

7. How To Obtain more Information

1. General Information

A. What Action Is EPA Taking Today?

In today’s action, we are determining

that regulation of fossil fuel combustion

(FFC) wastes under subtitle C of the

Resource Conservation and Recovery

Act (RCRA) is not warranted. This

determination covers the following

wastes:

• Large-volume coal combustion

wastes generated at electric utility and

independent power producing facilities

that are co-managed together with

certain other coal combustion wastes;

• Coal combustion wastes generated

at non-utilities;

• Coal combustion wastes generated

at facilities with fluidized bed

combustion technology;

• Petroleum coke combustion wastes;

• Wastes from the combustion of

mixtures of coal and other fuels (i.e., coburning of coal with other fuels where

coal is at least 50% of the total fuel);

• Wastes from the combustion of oil;

and

• Wastes from the combustion of

natural gas.

While these wastes remain exempt

from subtitle C, we have further decided

to establish national regulations under

subtitle D of RCRA (RCRA sections

1008(a) and 4004(a)) for coal

combustion wastes that are disposed in

landfills or surface impoundments or

used to fill surface or underground

mines. For coal combustion wastes used

as minefill, we will consult with the

Office of Surface Mining in the

Department of the Interior and

thoroughly assess whether equivalent

protectiveness could be achieved by

using regulatory authorities available

under the Surface Mining Control and

Reclamation Act (SMCRA), as well as

those afforded under the Resource

Conservation and Recovery Act. We will

consider whether RCRA subtitle D or

SMCRA authorities or some

combination of both are most

appropriate to regulate the disposal of

coal combustion wastes when used for

minefill in surface and underground

mines to ensure protection of human

health and the environment. These

standards will be developed through

notice and comment rulemaking and in

consultation with states and other

stakeholders. These regulations will, in

EPA’s view, ensure that the trend

towards improved management of coal

combustion wastes over recent years

will accelerate and will ensure a

consistent level of protection of human

health and the environment is put in

place across the United States.

If, as a result of comments in response

to this notice; the forthcoming analyses

identified in this notice; or additional

information garnered in the course of

developing these national regulations;

we find that there is a need for

regulation under the authority of RCRA

subtitle C, the Agency will revise this

determination accordingly.

We recognize our decision to develop

regulations under RCRA subtitle D (or,

for minefilling, possibly under SMCRA)

for the above-listed coal combustion

wastes was not specifically identified as

an option in our March 31, 1999 Report

to Congress. Our final determination

reflects our consideration of public

comments received on the Report to

Congress and other analyses that we

conducted.

Today’s decision was, in the Agency’s

view, a difficult one, given the many

competing considerations discussed

throughout today’s notice. After

considering all of the factors specified

in RCRA section 8002(n), we have

decided as discussed further below, that

the decisive factors are the trends in

present disposal and utilization

practices (section 8002 (n)(2)), the

current and potential utilization of the

wastes (Section 8002 (n)(8), and the

admonition against duplication of

efforts by other federal and state

agencies.

As described in the Report to

Congress, the utility industry has made

significant improvements in its waste

management practices over recent years,

and most state regulatory programs are

similarly improving. For example, in the

utility industry the use of liners and

groundwater monitoring at landfills and

surface impoundments has increased

substantially over the past 15 years as

indicated in the following table.

32216 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

PERCENT OF UTILITY COAL COMBUSTION WASTE MANAGEMENT UNITS WITH CONTROLS IN 1995

Waste management unit

Liners Groundwater monitoring

Percent of

all units

Percent of

new units *

Percent of

all units

Percent of

new units *

Landfills ............................................................................................................................ 57 75 85 88

Surface Impoundments .................................................................................................... 26 60 38 65

* New units constructed between 1985–1995.

Source: USWAG, EPRI 1995.

Public comments and other analyses,

however, have convinced us that these

wastes could pose risks to human health

and the environment if not properly

managed, and there is sufficient

evidence that adequate controls may not

be in place—for example, while most

states can now require newer units to

include liners and groundwater

monitoring, 62% of existing utility

surface impoundments do not have

groundwater monitoring. This, in our

view, justifies the development of

national regulations. We note, however,

that some waste management units may

not warrant liners and/or groundwater

monitoring, depending on site-specific

characteristics.

New information we received in

public comments includes additional

documented damage cases, as well as

cases indicating at least a potential for

damage to human health and the

environment. We did not independently

investigate these damage cases; rather,

we relied on information contained in

state files. While the absolute number of

documented damage cases is not large,

we have considered the evidence of

proven and potential damage in light of

the proportion of facilities that lack

basic environmental controls (e.g.,

groundwater monitoring). We

acknowledge, moreover, that our

inquiry into the existence of damage

cases was focused primarily on a subset

of states—albeit states that account for

almost 20 percent of coal fired utility

electricity generation capacity. Given

the volume of coal combustion wastes

generated nationwide (115 million tons)

and the numbers of facilities that

currently lack some basic environmental

controls, especially groundwater

monitoring, other cases of proven and

potential damage are likely to exist.

Because EPA did not use a statistical

sampling methodology to evaluate the

potential for damage, the Agency is

unable to determine whether the

identified cases are representative of the

conditions at all facilities and, therefore,

cannot quantify the extent and

magnitude of damages at the national

level.

Since the Report to Congress, we have

conducted additional analyses of the

potential for the constituents of coal

combustion wastes to leach in

dangerous levels into ground water.

Based on a comparison of drinking

water and other appropriate standards

to leach test data from coal combustion

waste samples, we identified a potential

for risks from arsenic that we cannot

dismiss at this time. This conclusion is

based on possible exceedences of a

range of values that EPA is currently

considering for a revised arsenic MCL.

Once a new arsenic MCL is established,

additional groundwater modeling may

be required to evaluate the likelihood of

exceeding that MCL.

As discussed further below, in light of

certain comments received on the

Report to Congress, we are not relying

on a quantitative groundwater risk

assessment to assess potential risks to

human health or the environment. In

the absence of a more complete

groundwater risk assessment, we are

unable at this time to draw quantitative

conclusions regarding the risks due to

arsenic or other contaminants posed by

improper waste management. Once we

have completed a review of our

groundwater model and made any

necessary changes, we will reevaluate

groundwater risks and take appropriate

regulatory actions. We will specifically

assess new modeling results as they

relate to any promulgated changes in the

arsenic MCL.

We acknowledge that, even without

federal regulatory action, many facilities

in the utility industry have either

voluntarily instituted adequate

environmental controls or have done so

at the direction of states that regulate

these facilities. In addition, we found

that for the proven damage cases, the

states (and in two cases, EPA under the

Superfund program) have taken action

to mitigate risk and require corrective

action. However, in light of the evidence

of actual and potential environmental

releases of metals from these wastes; the

large volume of wastes generated from

coal combustion; the proportion of

existing and even newer units that do

not currently have basic controls in

place; and the presence of hazardous

constituents in these wastes; we believe,

on balance, that the best means of

ensuring that adequate controls are

imposed where needed is to develop

national subtitle D regulations. As we

develop and issue the national

regulations, we will try to minimize

disruptions to operation of existing

waste management units.

In taking today’s action, we carefully

considered whether to develop national

regulations under RCRA subtitle D or

subtitle C authorities. One approach we

considered was to promulgate

regulations pursuant to subtitle C

authority, similar to recently proposed

regulations applicable to cement kiln

dust. Under this approach, EPA would

have established national management

standards for coal combustion wastes

managed in landfills and surface

impoundments and used for minefilling,

as well as a set of tailored subtitle C

requirements, promulgated pursuant to

RCRA section 3004(x). If wastes were

properly managed in accordance with

subtitle D-like standards, they would

not be classified as a hazardous waste.

If wastes were not properly managed,

they would become listed hazardous

wastes subject to tailored subtitle C

standards. This approach would give

EPA enforcement authority in states

following their adoption of the

contingent management listing.

We believe, however, for the reasons

described below, the better approach at

this time to ensuring adequate

management of FFC wastes is to develop

national regulations under subtitle D

rather than subtitle C. EPA has reached

this conclusion in large part based on

consideration of ‘‘present disposal and

utilization practices.’’ RCRA § 8002(n).

As noted above, present disposal

practices in landfills and surface

impoundments are significantly better

than they have been in the past in terms

of imposing basic environmental

controls such as liners and groundwater

monitoring. This trend is the result of

increasing regulatory oversight by states

of the management of these wastes as

well as voluntary industry

improvements. In the 1980’s, only 11

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32217

states had authority to require facilities

to install liners, and 28 states had the

authority to require facilities to conduct

groundwater monitoring at landfills. As

of 1995, these rates were significantly

higher, with 43 states having the

authority to require liners and 46 states

having the authority to require

groundwater monitoring at landfills.

When authority under state

groundwater and drinking water

regulations are considered, some

commenters have suggested that nearly

all states can address the management of

these wastes. Thus, with the exception

of relatively few states, the regulatory

infrastructure is generally in place at the

state level to ensure adequate

management of these wastes.

While the trend both in terms of state

regulatory authorities and the

imposition of controls at these facilities

has been positive, between 40 and 70

percent of sites lacked controls such as

liners and/or groundwater monitoring as

of 1995. This gap is of environmental

concern given the potential for risks

posed by mismanagement of coal

combustion wastes in certain

circumstances. Nonetheless, given most

of the states’ current regulatory

capabilities and the evidence that basic

controls are increasingly being put in

place by the states and facilities (see

RCRA section 8002(n), which directs

EPA to consider actions of state and

other federal agencies with a view to

avoiding duplication of effort), EPA

believes that subtitle D controls will

provide sufficient clarity and incentive

for states to close the remaining gaps in

coverage, and for facilities to ensure that

their wastes are managed properly.

For minefilling, although we have

considerable concern about certain

current practices (e.g., placement

directly into groundwater) we have not

yet identified a case where placement of

coal wastes can be determined to have

actually caused increased damage to

ground water. In addition, there is a

federal regulatory program—SMCRA—

expressly designed to address

environmental risks associated with

coal mines. Finally, given that states

have been diligent in expanding and

upgrading programs, as they have done

for surface impoundments and landfills,

we believe they will be similarly

responsive in addressing environmental

concerns arising from this emerging

practice. In short, we arrive at the same

conclusions, for substantially the same

reasons, for this practice as we did for

landfills and surface impoundments:

that subtitle D controls, or upgraded

SMCRA controls or a combination of the

two, should provide sufficient clarity

and incentive to ensure proper handling

of this waste. Having determined that

subtitle C regulation is not warranted for

all other management practices, EPA

does not see a basis in the record for

carving this one practice out for separate

regulatory treatment.

Once these regulations are effective,

facilities would be subject to citizen

suits for any violation of the standards.

If EPA were addressing wastes that had

not been addressed by the states (or the

federal government) in the past, or an

industry with wide evidence of

irresponsible solid waste management

practices, EPA may well conclude that

the additional incentives for

improvement and compliance provided

by the subtitle C scheme—the threat of

federal enforcement and the stigma

associated with improper management

of RCRA subtitle C waste—were

necessary. But the record before us

indicates that the structure and the

sanctions associated with a subtitle D

approach (or a SMCRA approach if EPA

determines it is equivalent) should be

sufficient.

We also see a potential downside to

pursuing a subtitle C approach. Section

8002(n)(8) directs us to consider, among

other factors, ‘‘the current and potential

utilization of such materials.’’ Industry

commenters have indicated that they

believe subjecting any coal combustion

wastes to a subtitle C regime would

place a significant stigma on these

wastes, the most important effect being

that it would adversely impact

beneficial reuse. As we understand it,

the concern is that, even though

beneficially reused waste would not be

hazardous under the contemplated

subtitle C approach, the link to subtitle

C would nonetheless tend to discourage

purchase and re-use of the waste. We do

not wish to place any unnecessary

barriers on the beneficial uses of these

wastes, because they conserve natural

resources, reduce disposal costs and

reduce the total amount of waste

destined for disposal. States and

industry have also expressed concern

that regulation under subtitle C could

cause a halt in the use of coal

combustion wastes to reclaim

abandoned and active mine sites. We

recognize that when done properly,

minefilling can lead to substantial

environmental benefits. EPA believes

the contingent management scheme we

discussed should diminish any stigma

that might be associated with the

subtitle C link. Nonetheless, we

acknowledge the possibility that the

approach could have unintended

consequences. We would be particularly

concerned about any adverse effect on

the beneficial re-use market for these

wastes because more than 23 percent

(approximately 28 million tons) of the

total coal combustion waste generated

each year is beneficially reused and an

additional eight percent (nine million

tons) is used for minefilling. EPA

believes that such reuse when

performed properly, is by far the

environmentally preferable destination

for these wastes, including when

minefilled. Normally, concerns about

stigma are not a deciding factor in EPA’s

decisions under RCRA, given the central

concern under the statute for protection

of human health and the environment.

However, given our conclusion that the

subtitle D approach here should be fully

effective in protecting human health

and the environment, and given the

large and salutary role that beneficial

reuse plays for this waste, concern over

stigma is a factor supporting our

decision today that subtitle C regulation

is unwarranted in light of our decision

to pursue a subtitle D approach.

Additionally, in a 1993 regulatory

determination, EPA previously

addressed large volume coal combustion

wastes generated at electric utility and

independent power producing facilities

that manage the wastes separately from

certain other low volume and uniquely

associated coal combustion wastes (see

58 FR 42466; August 9, 1993). Our 1993

regulatory determination maintained the

exemption of these large volume coal

combustion wastes from being regulated

as hazardous wastes when managed

separately from other wastes (e.g., in

monofills). We intend that the national

subtitle D regulations we develop for the

coal combustion wastes subject to

today’s regulatory determination will

also be applicable to the wastes covered

in the 1993 regulatory determination for

the reasons listed below, so that all coal

combustion wastes are consistently

regulated for placement in landfills,

surface impoundments, and minefills.

• The co-managed coal combustion

wastes that we studied extensively in

making today’s regulatory determination

derive their characteristics largely from

these large-volume wastes and not from

the other wastes that are co-managed

with them.

• We believe that the risks posed by

the co-managed coal combustion wastes

result principally from the large-volume

wastes.

• These large-volume coal

combustion wastes, account for over

20% of coal combustion wastes.

As we proceed with regulation

development, we will also take

enforcement action under RCRA section

7003 when we identify cases of

imminent and substantial

endangerment. We will also use

Superfund remedial and emergency

32218 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

1The consent decree entered into by EPA (Frank

Gearhart, et al. v. Browner, et al., No. 91–2435

(D.D.C.) for completing the studies and regulatory

determination for fossil fuel combustion wastes

used the term ‘‘remaining wastes’’ to differentiate

the wastes to be covered in today’s decision from

the large-volume utility coal combustion wastes

that were covered in the August 1993 regulatory

determination (see 58 FR 42466).

response authorities under the

Comprehensive Environmental

Response Compensation and Liabilities

Act (CERCLA), as appropriate, to

address damages that result in risk to

human health and the environment.

However, as stated above, this

decision was a difficult one and EPA

believes that, absent our conclusions

regarding the current trends in

management of this waste, the waste

might present sufficient potential threat

to human health and the environment to

justify subtitle C regulation. There are

several factors that might cause us to

rethink our current determination. First,

and perhaps most importantly, if

current trends toward protective

management do not continue, EPA may

well determine that subtitle C regulation

is warranted for this waste. As we have

stated, we do not believe the current

gaps in the basic controls are acceptable,

and our determination that subtitle C

regulation is not warranted is premised

to a large extent on our conclusion that

subtitle D regulation will be sufficient to

close these gaps. If this conclusion turns

out not to be warranted, we would be

inclined to re-examine our current

decision.

Second, EPA will continue to

examine available information and, as a

result of the ongoing review, may

conclude over the next several months

that this decision should be revised. Our

ongoing review will include

consideration of: (1) The extent to

which fossil fuel combustion wastes

have caused actual or potential damage

to human health or the environment; (2)

the environmental effects of filling

underground and surface coal mines

with fossil fuel combustion wastes; and

(3) the adequacy of existing state and/

or federal regulation of these wastes.

Finally, the agency will consider the

results of a report of the National

Academy of Sciences regarding the

adverse human health effects of

mercury, one of the constituents in

fossil fuel combustion wastes. EPA

believes that this report will enhance

our understanding of the risks due to

exposure to mercury. All of these efforts

may result in a subsequent revision of

today’s regulatory determination.

Finally, relating to oil combustion

wastes, we will work with relevant

stakeholders so that any necessary

measures are taken to ensure that oil

combustion wastes currently managed

in the two known remaining unlined

surface impoundments are managed in

a manner that protects human health

and the environment.

B. What Is the Statutory Authority for

This Action?

We are issuing today’s notice under

the authority of RCRA section 3001 (b)

(3) (C), as amended. This section

exempts certain wastes, including fossil

fuel combustion wastes, from hazardous

waste regulation until the Agency

completes a Report to Congress

mandated by RCRA section 8002 (n) and

maintains the exemption, unless the

EPA Administrator makes a

determination that subtitle C (hazardous

waste) regulation is warranted. RCRA

section 3004 (x) provides the Agency

with flexibility in developing subtitle C

standards. If appropriate, these formerly

exempted wastes may not be subjected

to full subtitle C requirements in areas

such as treatment standards, liner

design requirements and corrective

action.

C. What Was the Process EPA Used in

Making Today’s Decision?

1. What Approach Did EPA Take to

Studying Fossil Fuel Combustion

Wastes?

We conducted our study of wastes

generated by the combustion of fossil

fuels in two phases. The first phase,

called the Part 1 determination, covered

high volume coal combustion wastes

(e.g., bottom ash and fly ash) generated

at electric utility and independent

power producing facilities (non-utility

electric power producers that are not

engaged in any other industrial activity)

and managed separately from other

fossil fuel combustion wastes. In 1993,

EPA issued a regulatory determination

that exempted Part 1 wastes from

regulation as hazardous wastes (see 58

FR 42466; August 9, 1993). Today’s

regulatory determination is the second

phase of our effort, or the Part 2

determination. It covers all other fossil

fuel combustion wastes not covered in

Part 1. This includes high volume,

utility-generated coal combustion

wastes when co-managed with certain

low volume wastes that are also

generated by utility coal burners; coal

combustion wastes generated by

industrial, non-utility, facilities; and

wastes from the combustion of oil and

gas. Under court order, we are required

to complete the Part 2 regulatory

determination by April 25, 2000. 1

2. What Statutory Requirements Does

EPA Have To Meet in Making Today’s

Regulatory Determinations?

RCRA section 8002(n) specifies eight

study factors that we must take into

account in our decision-making. These

are:

1. The source and volumes of such

materials generated per year.

2. Present disposal practices.

3. Potential danger, if any, to human

health and the environment from the

disposal of such materials.

4. Documented cases in which danger

to human health or the environment has

been proved.

5. Alternatives to current disposal

methods.

6. The costs of such alternatives.

7. The impact of those alternatives on

the use of natural resources.

8. The current and potential

utilization of such materials.

Additionally, in developing the

Report to Congress, we are directed to

consider studies and other actions of

other federal and State agencies with a

view toward avoiding duplication of

effort (RCRA section 8002(n)). In

addition to considering the information

contained in the Report, EPA is required

to base its regulatory determination on

information received in public hearings

and comments submitted on the Report

to Congress (RCRA section

3001(b)(3)(C)).

3. What Were the Agency’s Sources of

Information and Data That Serve as the

Basis for This Decision?

We gathered publicly available

information from a broad range of

sources, including federal and state

agencies, industry trade groups,

environmental organizations, and open

literature searches. We requested

information from all stakeholder groups

on each of the study factors Congress

requires us to evaluate. For many of the

study factors, very limited information

existed prior to this study. We worked

closely with the Edison Electric Institute

(EEI), Utility Solid Waste Activities

Group (USWAG), the Electric Power

Research Institute (EPRI), and the

Council of Industrial Boiler Owners

(CIBO) as those organizations developed

new information. Because other ongoing

EPA projects currently focus on portions

of the FFC waste generator universe, we

also leveraged data collection efforts

conducted for air, industrial waste, and

hazardous waste programs. In addition,

we obtained information from

environmental organizations regarding

beneficial uses of some FFC wastes and

methods for characterizing the risks

associated with FFC wastes.

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32219

Specifically, we gathered and

analyzed the following information from

industry, states and environmental

groups:

• Published and unpublished

materials obtained from state and

federal agencies, utilities and trade

industry groups, and other

knowledgeable parties on the volumes

and characteristics of coal, oil, and

natural gas combustion wastes and the

corresponding low-volume and

uniquely associated wastes (see the

following section for a description of

‘‘uniquely associated wastes’’).

• Published and unpublished

materials on waste management

practices (including co-disposal and reuse) associated with FFC wastes and the

corresponding low-volume and

uniquely associated wastes.

• Published and unpublished

materials on the potential

environmental impacts associated with

FFC wastes.

• Published and unpublished

materials on trends in utility plant

operations that may affect waste

volumes and characteristics. We

gathered specific information on

innovations in scrubber use and the

potential impacts of the 1990 Clean Air

Act Amendments on waste volumes and

characteristics.

• Energy Information Agency (EIA),

Department of Energy, data on utility

operations and waste generation

obtained from EIA’s Form 767 database.

These data are submitted to EIA

annually by electric utilities.

• Site visit reports and accompanying

facility submittals for utility and nonutility plants we visited during the

study.

• Materials obtained from public files

maintained by State regulatory agencies.

These materials focus on waste

characterization, waste management,

and environmental monitoring data,

along with supporting background

information.

We visited five states to gather

specific information about state

regulatory programs, FFC waste

generators, waste management practices

and candidate damage cases related to

fossil fuel combustion. The five states

we examined in great detail were:

Indiana, Pennsylvania, North Carolina,

Wisconsin, and Virginia. These five

states account for almost 20 percent of

coal-fired utility electrical generation

capacity.

We also performed a variety of

analyses, including human health and

ecological risk assessments, analyses of

existing federal and state regulatory

programs, and economic impact

analyses. We discussed and shared

these results with all of our

stakeholders. We also conducted an

external peer review of our risk analysis.

4. What Process Did EPA Follow To

Obtain Comments on the Report to

Congress?

RCRA requires that we publish a

Report to Congress (RTC) evaluating the

above criteria. Further, within six

months of submitting the report, we

must, after public hearings and

opportunity for comment, decide

whether to retain the exemption from

hazardous waste requirements or

whether regulation as hazardous waste

is warranted. On March 31, 1999, we

issued the required RTC on those fossil

fuel combustion wastes (coal, oil and

gas) not covered in the Part 1 regulatory

determination, which are also known as

the ‘‘remaining wastes’’ (see footnote 1).

We asked the public to comment on

the Report and the appropriateness of

regulating fossil fuel wastes under

subtitle C of RCRA. To ensure that all

interested parties had an opportunity to

present their views, we held a public

meeting with stakeholders on May 21,

1999. The April 28, 1999 Federal

Register notice provided a 45-day

public comment period, until June 14,

1999. We received over 150 requests to

extend the public comment period by

up to six months. However, we were

obligated by a court-ordered deadline to

issue our official Regulatory

Determination by October 1, 1999. (See

64 FR 31170; June 10, 1999.) In response

to requests for an extension, we entered

into discussions with the parties to

consider an extension of the comment

period to ensure that all interested

members of the public had sufficient

time to complete their review and

submit comments. Subsequently, the

plaintiffs in Gearhart v. Reilly moved to

modify the consent decree to reopen the

comment period and to allow EPA until

March 10, 2000 to complete the

Regulatory Determination. We

supported the motion, and on

September 2, 1999, the Court granted

the motion. In compliance with the

court order, on September 20, 1999, we

announced that public comments would

be accepted through September 24, 1999

(64 FR 50788; Sept. 20, 1999). We have

since received two extensions to the

date for the final determination.

Currently, EPA is directed to issue the

Part 2 regulatory determination by April

25, 2000.

We received about 220 comments on

the RTC from the public hearing and our

Federal Register requests for comments.

The docket for this action (Docket No.

F–99–FF2P–FFFFF) contains all

individual comments presented in the

public meetings and hearing, and a

transcript from the public hearing, and

all written comments. The docket is

available for public inspection. Today’s

decision is based on the RTC, its

underlying data and analyses, public

comments, and EPA analyses of these

comments.

The comments covered a wide variety

of topics discussed in the Report to

Congress, such as fossil fuel combustion

waste generation and characteristics;

current and alternative practices for

managing FFC waste; documented

damage cases and potential danger to

human health and the environment;

existing regulatory controls on FFC

waste management; cost and economic

impacts of alternatives to current

management practices; FFC beneficial

use practices; and our review of

applicable state and federal regulations.

D. What Is the Significance of ‘‘Uniquely

Associated Wastes’’ and What Wastes

Does EPA Consider To Be ‘‘Uniquely

Associated Wastes?’

Facilities that burn fossil fuels

generate combustion wastes and also

generate other wastes from processes

that are related to the main fuel

combustion processes. Often, as a

general practice, facilities co-dispose

these wastes with the large volume

wastes that are subject to the RCRA

section 3001 (b) (3) (C) exemption.

Examples of these related wastes are:

• Precipitation runoff from the coal

storage piles at the facility.

• Waste coal or coal mill rejects that

are not of sufficient quality to burn as

fuel.

• Wastes from cleaning the boilers

used to generate steam.

There are numerous wastes like these,

collectively known as ‘‘low-volume’’

wastes. Further, when one of these lowvolume wastes, during the course of

generation or normal handling at the

facility, comes into contact with either

fossil fuel (e.g., coal, oil) or fossil fuel

combustion waste (e.g., coal ash or oil

ash) and it takes on at least some of the

characteristics of the fuel or combustion

waste, we call it a ‘‘uniquely associated’’

waste. When uniquely associated wastes

are co-managed with fossil fuel

combustion wastes, they fall within the

coverage of today’s regulatory

determination. When managed

separately, uniquely associated wastes

are subject to regulation as hazardous

waste if they are listed wastes or exhibit

the characteristic of a hazardous waste

(see 40 CFR 261.20 and 261.30, which

specify when a solid waste is

considered to be a hazardous waste).

The Agency recognizes that

determining whether a particular waste

32220 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

is uniquely associated with fossil fuel

combustion involves an evaluation of

the specific facts of each case. In the

Agency’s view, the following qualitative

criteria should be used to make such

determinations on a case-by-case basis:

(1) Wastes from ancillary operations

are not ‘‘uniquely associated’’ because

they are not properly viewed as being

‘‘from’’ fossil fuel combustion.

(2) In evaluating a waste from nonancillary operations, one must consider

the extent to which the waste originates

or derives from the fossil fuels, the

combustion process, or combustion

residuals, and the extent to which these

operations impart chemical

characteristics to the waste.

The low-volume wastes that are not

uniquely associated with fossil fuel

combustion would not be subject to

today’s regulatory determination. That

is, they would not be accorded an

exemption from RCRA subtitle C,

whether or not they were co-managed

with any of the exempted fossil fuel

combustion wastes. Instead, they would

be subject to the RCRA characteristic

standards and hazardous waste listings.

The exemption applies to mixtures of an

exempt waste with a non-hazardous

waste, but when an exempt waste is

mixed with a hazardous waste, the

mixture is not exempt.

Based on our identification and

review of low volume wastes associated

with the combustion of fossil fuels, we

are considering offering the following

guidance concerning which low volume

wastes are uniquely associated with and

which are not uniquely associated with

fossil fuel combustion. Unless there are

some unusual site-specific

circumstances, we would generally

consider that the following lists of low

volume wastes are uniquely and nonuniquely associated wastes:

Uniquely Associated

• Coal Pile Runoff

• Coal Mill Rejects and Waste Coal

• Air Heater and Precipitator Washes

• Floor and Yard Drains and Sumps

• Wastewater Treatment Sludges

• Boiler Fireside Chemical Cleaning

Wastes

Not Uniquely Associated

• Boiler Blowdown

• Cooling Tower Blowdown and

Sludges

• Intake or Makeup Water Treatment

and Regeneration Wastes

• Boiler Waterside Cleaning Wastes

• Laboratory Wastes

• General Construction and Demolition

Debris

• General Maintenance Wastes

Moreover, we do not generally

consider spillage or leakage of materials

used in the processes that generate these

non-uniquely associated wastes, such as

boiler water treatment chemicals, to be

uniquely associated wastes, even if they

occur in close proximity to the fossil

fuel wastes covered by this regulatory

determination.

An understanding of whether a waste

is uniquely associated can be important

in one circumstance. If a waste is not

uniquely associated and is a hazardous

waste, co-managment with a Bevill

waste will result in loss of the Bevill

exemption. As a general matter, the

wastes identified above as potentially

not uniquely associated do not tend to

be hazardous. This issue may therefore

not be critical. The Agency, however,

must still define appropriate boundaries

for the Bevill exemption, because there

is no authority to grant Bevill status to

wastes that are not uniquely

associated—the exemption was not

intended as an umbrella for wastes that

other industries must treat as hazardous.

EPA solicits comment on this

discussion of uniquely associated

wastes in the context of fossil fuel

combustion and will issue final

guidance after reviewing and evaluating

information we receive as a result of this

request.

E. Who Is Affected by Today’s Action

and How Are They Affected?

As explained above, fossil fuel

combustion wastes generated from the

combustion of coal, oil and natural gas

will continue to remain exempt from

being regulated as hazardous wastes

under RCRA. No party is affected by

today’s determination to develop

regulations applicable to coal

combustion wastes when they are land

disposed or used to fill surface or

underground mines because today’s

action does not impose requirements.

However, if such regulations are

promulgated, they would affect coal

combustion wastes subject to today’s

regulatory determination as well as

wastes covered by the Part 1 regulatory

determination when they are disposed

in landfills and surface impoundments,

or when used to fill surface or

underground mines.

While we do not intend that national

subtitle D regulations would be

applicable to oil combustion wastes, we

intend to work with relevant

stakeholders so that any necessary

measures are taken to ensure that oil

combustion wastes currently managed

in the two known remaining unlined

surface impoundments are managed in

a manner that protects human health

and the environment.

F. What Additional Actions Will EPA

Take After this Regulatory

Determination Regarding Coal, Oil and

Natural Gas Combustion Wastes?

To ensure that entities who generate

and/or manage fossil fuel combustion

wastes provide long-term protection of

human health and the environment, we

plan several actions:

• We will review comments

submitted in response to today’s notice

on uniquely associated wastes and on

the adequacy of the guidance developed

by the utility industry on comanagement of mill rejects (pyrites)

with large volume coal combustion

wastes.

• We will work with the State of

Massachusetts and the owners and

operators of the remaining two oil

combustion facilities that currently

manage their wastes in unlined surface

impoundments to ensure that any

necessary measures are taken so these

wastes are managed in a manner that

protects human health and the

environment (described in section 3.D.

of this document).

• We are evaluating the groundwater

model and modeling methods that were

used in the RTC to estimate risks for

these wastes. This review may result in

a re-evaluation of the potential

groundwater risks posed by the

management of fossil fuel combustion

wastes and action to revise our Part 1

and Part 2 determinations if appropriate

(see section 2.C. of this document).

• There are a number of ongoing and

evolving efforts underway at EPA to

improve our understanding of the

human health impacts of wastes used in

agricultural settings. We expect to

receive substantial comments and new

scientific information based on a risk

assessment of the use of cement kiln

dust as a substitute for agricultural lime

(see 64 FR 45632; August 20, 1999) and

other Agency efforts. As a result, we

may refine our methodology for

assessing risks related to the use of

wastes in agricultural settings. If these

efforts lead us to a different

understanding of the risks posed by

fossil fuel combustion wastes when

used as a substitute for agricultural

lime, we will take appropriate action to

reevaluate today’s regulatory

determination (see section 2.C. of this

document).

• We will review the findings and

recommendations of the National

Academy of Sciences upcoming report

on mercury and assess its implications

on risks due to exposure to mercury. We

will ensure that the regulations we

develop as a result of today’s regulatory

determination address any additional

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32221

risks posed by these wastes if hazardous

constituent levels exceed acceptable

levels

• We will reevaluate risk posed by

managing coal combustion solid wastes

if levels of mercury or other hazardous

constituents change due to any future

Clean Air Act air pollution control

requirements for coal burning utilities

(see section 2.C. of this document).

• We will continue EPA’s partnership

with the states to finalize voluntary

industrial solid waste management

guidance that identifies baseline

protective practices for industrial waste

management units, including fossil fuel

combustion waste management units.

We will use relevant information and

knowledge that we obtain as a result of

this effort to assist us in developing

national regulations applicable to coal

combustion wastes.

2. What Is the Basis for EPA’s

Regulatory Determination for Coal

Combustion Wastes?

A. What Is the Agency’s Decision

Regarding the Regulatory Status of Coal

Combustion Wastes and Why Did EPA

Make That Decision?

We have determined at this time that

regulation of coal combustion wastes

under subtitle C is not warranted.

However, we have also decided that it

is appropriate to establish national

regulations under non-hazardous waste

authorities for coal combustion wastes

that are disposed in landfills and

surface impoundments. We believe that

subtitle D regulations are the most

appropriate mechanism for ensuring

that these wastes disposed in landfills

and surface impoundments are managed

safely.

EPA’s conclusion that some form of

national regulation is warranted to

address these wastes is based on the

following considerations: (a) The

composition of these wastes could

present danger to human health and the

environment under certain conditions,

and ‘‘potential’’ damage cases identified

by EPA and commenters, while not

definitively demonstrating damage from

coal combustion wastes, may indicate

that these wastes have the potential to

pose such danger; (b) we have identified

eleven documented cases of proven

damages to human health and the

environment by improper management

of these wastes in landfills and surface

impoundments; (c) present disposal

practices are such that, in 1995, these

wastes were being managed in 40

percent to 70 percent of landfills and

surface impoundments without

reasonable controls in place,

particularly in the area of groundwater

monitoring; and (d) while there have

been substantive improvements in state

regulatory programs, we have also

identified gaps in state oversight.

When we considered a tailored

subtitle C approach, we estimated the

potential costs of regulation of coal

combustion wastes (including the utility

coal combustion wastes addressed in

the 1993 Part 1 determination) to be $1

billion per year. While large in absolute

terms, we estimate that these costs are

less than 0.4 percent of industry sales.

To improve our estimates we solicit

public comment on the potential

compliance costs to coal combustion

waste generators as well as the indirect

costs to users of these combustion byproducts.

We have also decided that it is

appropriate to establish national

regulations under RCRA non-hazardous

waste authorities (and/or possibly

modifications to exiting regulations

established under authority of SMCRA)

applicable to the placement of coal

combustion wastes in surface or

underground mines. We have reached

this decision because (a) we find that

these wastes when minefilled could

present a danger to human health and

the environment under certain

circumstances, and (b) there are few

states that currently operate

comprehensive programs that

specifically address the unique

circumstances of minefilling, making it

more likely that damage to human

health or the environment could go

unnoticed.

With the exception of minefilling as

described above, we have decided that

national regulation under subtitle C or

subtitle D is not warranted for any of the

other beneficial uses of coal combustion

wastes. We have reached this decision

because: (a) We have not identified any

other beneficial uses that are likely to

present significant risks to human

health or the environment; and (b) no

documented cases of damage to human

health or the environment have been

identified. Additionally, we do not want

to place any unnecessary barriers on the

beneficial uses of coal combustion

wastes so they can be used in

applications that conserve natural

resources and reduce disposal costs.

B. What Were EPA’s Tentative Decisions

as Presented in the Report to Congress?

On March 31, 1999, EPA indicated a

preliminary decision that disposal of

coal combustion wastes should remain

exempt from regulation under RCRA

subtitle C. We also presented our

tentative view that most beneficial uses

of these wastes should remain exempt

from regulation under RCRA subtitle C.

However, in the RTC we identified three

situations where we had particular

concerns with the disposition or uses of

these wastes.

First, we indicated some concern with

the co-management of mill rejects

(‘‘pyrites’’) with coal combustion wastes

which, under certain circumstances,

could cause or contribute to ground

water contamination or other localized

environmental damage. We indicated

that the utility industry responded to

our concern by implementing a

voluntary education and technical

guidance program for the proper

management of these wastes. We

expressed satisfaction with the industry

program and tentatively concluded that

additional regulation in this area was

not necessary. We explained that we

were committed to overseeing industry’s

progress on properly managing pyritic

wastes, and would revisit our regulatory

determination relative to comanagement of pyrites with large

volume coal combustion wastes at a

later date, if industry progress was

insufficient in this area.

Second, in the RTC we identified

potential human health risks from

arsenic when these wastes are used for

agricultural purposes (e.g., as a lime

substitute). To address this risk, we

indicated our preliminary view that

Subtitle C regulations may be

appropriate for this management

practice. We explained that an example

of such controls could include

regulation of the content of these

materials such that, when used for

agricultural purposes, the arsenic level

could be no higher than that found in

agricultural lime. As an alternative to

subtitle C regulation, we indicated that

EPA could engage the industry to

implement a voluntary program to

address the risk, for example, by

limiting the level of arsenic in coal

combustion wastes when using them for

agricultural purposes. Moreover, we

indicated that a decision to establish

hazardous waste regulations applicable

to agricultural uses of co-managed coal

combustion wastes would likely affect

the regulatory status of the Part 1 wastes

(i.e., electric utility high volume coal

combustion wastes managed separately

from other coal combustion wastes)

when used for agricultural purposes.

This is because the source of the

identified risk was the arsenic content

of the high volume coal combustion

wastes and not other materials that may

be co-managed with them.

Third, we expressed concern with

potential impacts from the expanding

practice of minefilling coal combustion

wastes (i.e., backfilling the wastes into

mined areas) and described the

32222 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

difficulties we had with assessing the

impacts and potential risks of this

practice. We explained that these

difficulties include:

• Determining if elevated

contaminants in ground water are due to

minefill practices or pre-existing

conditions resulting from mining

operations,

• Trying to model situations that may

be more complex than our groundwater

models can accommodate,

• The lack of long-term experience

with the recent practice of minefilling,

which limits the amount of

environmental data for analysis, and

• The site-specific nature of these

operations.

Accordingly, we did not present a

tentative decision in the RTC for this

practice. We indicated that subtitle C

regulation would remain an option for

minefilling, but that we needed

additional information prior to making

a final decision. Rather, we solicited

additional information from

commenters on these and other aspects

of minefilling practices and indicated

we would carefully consider that

information in the formulation of

today’s decision.

C. How Did Commenters’ React to EPA’s

Tentative Decisions and What Was

EPA’s Analysis of Their Comments?

Commenter’s provided substantial

input and information on several

aspects of our overall tentative decision

to retain the exemption for these wastes

from RCRA subtitle C regulation. These

aspects are: modeling and risk

assessment for the groundwater

pathway, documented damage cases, the

potential for coal combustion waste

characteristics to change as a result of

possible future Clean Air Act

regulations, proper management of mill

rejects (pyrites), agricultural use of coal

combustion wastes, the practice of

minefilling coal combustion wastes, and

our assessment of existing State

programs and industry waste

management practices.

1. How Did Commenters React to the

Groundwater Modeling and Risk

Assessment Analyses Conducted by

EPA To Support its Findings in the

Report to Congress?

Comments. Industry and public

interest group commenters submitted

detailed critiques of the groundwater

model, EPACMTP, that we used for our

risk analysis. Industry commenters

believe that the model will overestimate

the levels of contaminants that may

migrate down-gradient from disposed

wastes. Environmental groups expressed

the opposite belief; that is, that the

model underestimates down-gradient

chemical concentrations and, therefore,

underestimates the potential risk posed

by coal combustion wastes.

The breadth and potential

implications of the numerous technical

comments on the EPACMTP model are

significant. Examples of the comments

include issues relating to:

• The thermodynamic data that are

the basis for certain model calculations,

• The model’s ability to account for

the effects of oxidation-reduction

potential,

• The model’s ability to account for

competition between multiple

contaminants for adsorption sites,

• The model’s algorithm for selecting

adsorption isotherms,

• The impact of leachate chemistry

on adsorption and aquifer chemistry,

and

• The model’s inherent assumptions

about the chemistry of the underlying

aquifer.

EPA’s Analysis of the Comments. We

have been carefully reviewing all of the

comments on the model. We determined

that the process of thoroughly

investigating all of the comments will

take substantially more time to complete

than is available within the court

deadline for issuing this regulatory

determination. At this time, we are

uncertain of the overall outcome of our

analysis of the issues raised in the

comments. Accordingly, we have

decided not to use the results of our

groundwater pathway risk analysis in

support of today’s regulatory

determination on fossil fuel combustion

wastes. As explained below, in making

today’s regulatory determination, we

have relied in part on other information

related to the potential danger that may

result from the management of fossil

fuel combustion wastes.

Meanwhile, we will continue with

our analysis of comments on the

groundwater model and risk analysis.

This may involve changing or restructuring various aspects of the model,

if appropriate. It may also include

additional analyses to determine

whether any changes to the model or

modeling methodology would

materially affect the groundwater risk

analysis results that were reported in

the RTC. If our investigations reveal that

a re-analysis of groundwater risks is

appropriate, we will conduct the

analysis and re-evaluate today’s

decisions as warranted by the reanalysis.

In addition to our ongoing review of

comments on the groundwater model,

one element of the model—the metals

partitioning component called

‘‘MINTEQ’’—has been proposed for

additional peer review. When additional

peer review is completed, we will take

the findings and recommendations into

account in any overall decision to reevaluate today’s regulatory

determination.

While not relying on the EPACMTP

groundwater modeling as presented in

the RTC, we have since conducted a

general comparison of the metals levels

in leachate from coal combustion wastes

to their corresponding hazardous waste

toxicity characteristic levels. Fossil fuel

wastes infrequently exceed the

hazardous waste characteristic. For comanaged wastes, 2% (1 of 51 samples)

exceeded the characteristic level. For

individual wastes streams, 0% of the

coal bottom ash, 2% of the coal fly ash,

3% of the coal flue gas desulfurization,

and 7% of the coal boiler slag samples

that were tested exceeded the

characteristic level. Nevertheless, once

we have completed a review of our

groundwater model and made any

necessary changes, we will reevaluate

groundwater risks and take appropriate

regulatory actions. We will specifically

assess new modeling results as they

relate to any promulgated changes in the

arsenic MCL.

We also compared leach

concentrations from fossil fuel wastes to

the drinking water MCLs. In the case of

arsenic, we examined a range of values

because EPA expects to promulgate a

new arsenic drinking water regulation

by January 1, 2001. This range includes

the existing arsenic MCL (50 ug/l), a

lower health based number presented in

the FFC Report to Congress (RTC) (0.29

ug/l), and two assumed values in

between (10 and 5 ug/l). We examined

this range of values because of our

desire to bracket the likely range of

values that EPA will be considering in

its effort to revise the current MCL for

arsenic. The National Research

Council’s 1999 report on Arsenic in

Drinking Water indicated that the

current MCL is not sufficiently

protective and should be revised

downward as soon as possible. For this

reason, we selected the current MCL of

50 ug/L for the high end of the range

because EPA is now considering

lowering the current MCL and does not

anticipate that the current MCL would

be revised to any higher value. We

selected the health-based number

presented in the Report to Congress for

the low end of the range because we

believe this represents the lowest

concentration that would be considered

in revising the current MCL. Because at

this time we cannot project a particular

value as the eventual MCL, we also

examined values in between these lowend and high-end values, a value of 5

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32223

2The Part 1 determination identified six cases of

documented damages. Upon further reveiw, we

determined that two of these cases involve utility

coal ash monofills which are covered by the Part

1 determination. However, the other four cases

involved remaining wastes that are covered by

today’s determination.

ug/L and a value of 10 ug/L, for our

analyses supporting today’s regulatory

determination. The choice of these midrange values for analyses does not

predetermine the final MCL for arsenic.

Those circumstances where the leach

concentrations from the wastes exceed

the drinking water criteria have the

greatest potential to cause significant

risks. This ‘‘potential’’ risk, however,

may not occur at actual facilities.

Pollutants in the leachate of the wastes

undergo dilution and attenuation as

they migrate through the ground. The

primary purpose of models such as

EPACMTP is to account for the degree

of dilution and attenuation that is likely

to occur, and to obtain a realistic

estimate of the concentration of

contaminants at a groundwater receptor.

To provide a view of potential

groundwater risk, we tabulated the

number of occurrences where the waste

leachate hazardous metals

concentrations were: (a) Less than the

criteria, (b) between 1 and 10 times the

criteria, (c) between 10 and 100 times

the criteria, and (d) greater than 100

times the criteria. Groundwater models

that we currently use, when applied to

large volume monofill sources of metals,

frequently predict that dilution and

attenuation will reduce leachate levels

on the order of a factor of 10 under

reasonable high end conditions. This

multiple is commonly called a dilution

and attenuation factor (DAF). For this

reason and because lower dilution and

attenuation factors (e.g., 10) are often

associated with larger disposal units

such as those typical at facilities where

coal is burned, we assessed the

frequency of occurrence of leach

concentrations for various hazardous

metals which were greater than 10 times

the drinking water criteria. Based on

current MCLs, there was only one

exceedence (for cadmium). However,

when we considered the arsenic health

based criterion from the RTC, we found

that a significant percentage (86%) of

available waste samples had leach

concentrations for arsenic that were

greater than ten times the health-based

criterion. Even considering intermediate

values closer to the current MCL, a

significant percentage of available waste

samples had leach concentrations for

arsenic that were greater than ten times

the criteria (30% when the criterion was

assumed to be 5 ug/l, and 14% when the

criterion was assumed to be 10 ug/l).

Similar concerns also occurred when

comparing actual groundwater samples

associated with FFC waste units and

this range of criteria for arsenic. We

believe this is an indication of potential

risks from arsenic.

For the above analysis, we used a

value equal to half the detection level to

deal with those situations where

analyses resulted in ‘‘less than

detection’’ values that exceeded the

MCL criteria. The actual concentration

may be as low as zero or up to the

detection level. To illustrate the impact

of this assumption, an analysis was

performed setting the ‘‘less than

detection’’ values to zero, and an arsenic

criteria at 50 ug/l. While 30% of the

values exceeded 10 times the criteria

when using half the detection level,

exceedences dropped to 13% when

‘‘less than detection’’ values were set to

zero.

The comparison of the leachate levels

to 10 times MCL criteria is a screening

level analysis that supports our

concerns, which are primarily based on

damage cases and the lack of installed

controls (liners and groundwater

monitoring). We recognize, however,

that prior to issuing a regulation the

Agency expects to address the issues

raised on the groundwater model and

complete a comprehensive groundwater

modeling effort. Furthermore, we

anticipate that uncertainty regarding

whether the arsenic MCL will be

amended and to what level, will be

more settled prior to regulation of these

wastes. These factors could heighten or

reduce concerns with regard to the need

for Federal regulation of fossil fuel

combustion wastes.

2. How Did Commenters React to EPA’s

Assessment of Documented Damage

Cases Presented in the Report to

Congress?

Prior to issuing the RTC, we sought

and reviewed potential damage cases

related to these particular wastes. The

activities included:

• A re-analysis of the potential

damage cases identified during the Part

1 determination,

• A search of the CERCLA

Information System for instances of

these wastes being cited as causes or

contributors to damages,

• Contacts and visits to regulatory

agencies in five states with high rates of

coal consumption to review file

materials and discuss with state officials

the existence of damage cases,

• A review of information provided

by the Utility Solid Waste Act Group

and the Electric Power Research

Institute on 14 co-management sites,

and

• A review of information provided

by the Council of Industrial Boiler

Owners on eight fluidized bed

combustion (FBC) facilities.

These activities yielded three damage

case sites in addition to the four cases

initially identified in the Part 1

determination.2 Five of the damage

cases involved surface impoundments

and the two other cases involved

landfills. The waste management units

in these cases were all older, unlined

units. The releases in these cases were

confined to the vicinity of the facilities

and did not affect human receptors.

None of the damages impacted human

health. We did not identify any damage

cases that were associated with

beneficial use practices.

Comments. Public interest group

commenters criticized our approach to

identifying damage cases associated

with the management of fossil fuel

combustion (FFC) wastes, stating that

EPA did not use the same procedure

used to identify damage cases for the

cement kiln dust (CKD) Report to

Congress. These commenters believed

that we were too conservative in our

interpretation and determination of FFC

damage cases and dismissed cases that

commenters believe are relevant

instances of damage. For example, these

commenters indicated that EPA, in the

RTC, did not consider cases where the

only exceedences of ground water

standards were for secondary MCLs

(Maximum Contaminant Levels as

established by EPA for drinking water

standards). They further indicated that

the states often require ground water

monitoring only for secondary MCL

constituents and that elevated levels of

the secondary MCL constituents are an

indication of future potential for more

serious, health-based standards to be

exceeded for other constituents in the

wastes, such as toxic metals.

Additionally, these commenters stated

that the Agency’s analysis for damage

cases was incomplete and they provided

information on 59 possible damage

cases involving these wastes, mostly at

utilities. Additionally, commenters

submitted seven cases of ecological

damage that allege damage to mammals,

amphibians, fish, benthic layer

organisms and plants from comanagement of coal combustion wastes

in surface impoundments.

Industry commenters cited EPA’s

finding of so few damage cases as

important support for our tentative

conclusion to exempt these wastes from

hazardous waste regulation. Further,

some of the industry commenters

indicated that the few damage cases that

EPA identified do not represent current

32224 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

utility industry management practices,

but rather reflect less environmentally

protective management practices at

older facilities that pre-date the

numerous state and federal

requirements that are now in effect for

managing these wastes.

EPA’s Analysis of the Comments.

Regarding ecological damage, while we

did not identify any ecological damage

cases in the RTC associated with

management of coal combustion wastes,

we reviewed the information on

ecological damage submitted by

commenters and agree that four of the

seven submitted are documented

damage cases that involve FFC wastes.

All of these involve some form of

discharge from waste management units

to nearby lakes or creeks. These confirm

our risk modeling conclusions as

presented in the RTC that there could be

adverse impacts on amphibians, birds,

or mammals if they were subject to the

elevated concentrations of selected

chemicals that had been measured in

some impoundments. However, no

information was submitted in comments

that would lead us to alter our

conclusion that these threats are not

substantial enough to cause large scale,

system level ecological disruptions.

These damage cases, attributable to

runoff or overflow that is already subject

to Clean Water Act discharge or

stormwater regulations, are more

appropriately addressed under the

existing Clean Water Act requirements.

Regarding our assessment of damage

to ground water, we believe our

approach to FFC damage cases in the

RTC was consistent with the approach

we used for identifying CKD damage

cases. For CKD, we established two

categories of damage cases—‘‘proven’’

damage cases and ‘‘potential’’ damage

cases. Proven damage cases were those

with documented MCL exceedences that

were measured in ground water at a

sufficient distance from the waste

management unit to indicate that

hazardous constituents had migrated to

the extent that they could cause human

health concerns. Potential damage cases

were those with documented MCL

exceedences that were measured in

ground water beneath or close to the

waste source. In these cases, the

documented exceedences had not been

demonstrated at a sufficient distance

from the waste management unit to

indicate that waste constituents had

migrated to the extent that they could

cause human health concerns. We do

not believe that it would be appropriate

to consider an exceedence directly

beneath a waste management unit or

very close to the waste boundary to be

a documented, proven damage case.

State regulations typically use a

compliance procedure that relies on

measurement at a receptor site or in

ground water at a point beyond the

waste boundary (e.g., 150 meters). While

our CKD analysis did not distinguish

between primary and secondary MCL

exceedences, most CKD damage cases

involved a primary MCL constituent.

Our principal basis for determining that

CKD when managed in land-based units

would no longer remain exempt from

being regulated as a hazardous waste

was our concern about generally poor

management practices characteristic of

that industry. Our conclusion was

further supported by the extremely high

percentage of proven damage cases

occurring at active CKD sites for which

groundwater monitoring data were

available.

For FFC, we used the same test of

proof to identify possible damage cases.

Our FFC analysis drew a distinction

between primary and secondary MCL

exceedences because we believe this

factor is appropriate in weighing the

seriousness of FFC damage in terms of

indicating risk to human health and the

environment. For FFC, in the RTC, we

reported only the ‘‘proven’’ damage (i.e.,

exceedence of a health-based standard

such as a primary MCL and

measurement in ground water or surface

water). As was done in the CKD

analysis, we also identified a number of

potential FFC damage cases (eleven)

which were included in the background

documents that support the RTC.

Unlike the primary MCLs, secondary

MCLs are not based on human health

considerations. (Examples are dissolved

solids, sulfate, iron, and chloride for

which groundwater standards have been

established because of their effect on

taste, odor, and color.) While some

commenters believe that elevated levels

of some secondary MCL parameters

such as soluble salts are likely

precursors or indicators of future

hazardous constituent exceedences that

could occur at coal combustion

facilities, we are not yet able and will

not be able to test their hypothesis until

we complete our analysis of all

comments received on our groundwater

model and risk analysis, which will not

be concluded until next year.

Of the 59 damage cases reported by

commenters, 11 cases appear to involve

exceedences of primary MCLs or other

health-based standards as measured

either in off-site ground water or in

nearby surface waters, the criteria we

used in the RTC to identify proven

damage cases. Of these eleven cases,

two are coal ash monofills which were

included in the set of damage cases

described by EPA in its record

supporting the Part 1 regulatory

determination. The remaining nine

cases involve the co-management of

large volume coal combustion wastes

with other low volume and uniquely

associated coal combustion wastes. We

had already identified five of these nine

cases in the RTC. Thus, only four of

these eleven damage cases are newly

identified to us. Briefly, the four new

cases involve:

• Exceedence of a state standard for

lead in downgradient ground water at a

coal fly ash landfill in New York. There

were also secondary MCL exceedences

for sulfate, dissolved solids, and iron.

• Primary MCL exceedences for

arsenic and selenium in downgradient

monitoring wells for a coal ash

impoundment at a power plant in North

Dakota. There were also secondary MCL

exceedences for sulfate and chloride.

• Primary MCL exceedences for

fluoride and exceedence of a state

standard for boron in downgradient

monitoring wells at a utility coal

combustion waste impoundment in

Wisconsin. There was also a secondary

MCL exceedence for sulfate.

• Exceedence of a state standard for

boron and the secondary MCL for

sulfate and manganese in downgradient

monitoring wells at a utility coal

combustion landfill in Wisconsin.

We found that in nine of the 11

proven damage cases (including one

Superfund site), states took appropriate

action to require or conduct remedial

activities to reduce or eliminate the

cause of contamination. EPA took action

in the remaining two cases under the

Superfund program

Nineteen of the candidate damage

cases submitted by commenters involve

either on-site or off-site exceedences of

secondary MCLs, but not primary MCLs

or other health-based standards.

Consistent with our CKD analysis, we

consider these cases to be indicative of

a potential for damage to occur at these

sites because they demonstrate that

there has been a release to ground water

from the waste management unit.

Regarding the remaining 29 cases

submitted by commenters:

• Six involve primary MCL

exceedences, but measurements were in

ground water either directly beneath the

waste or very close to the waste

boundary, i.e., no off-site ground water

or receptor measurements indicated that

ground water standards had been

exceeded. Consistent with our analysis

of damage cases for cement kiln dust,

we consider these six cases to be

indicative of a potential for damage to

occur at these sites because they

demonstrate that there has been a

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32225

release to ground water from the waste

management unit..

• Eighteen case summary

submissions contained insufficient

documentation and data for us to verify

and draw a conclusion about whether

we should consider these to be potential

or proven damage cases. Of these 18

cases, commenters claimed that 11 cases

involve primary MCL exceedences, and

another two involve secondary MCLs,

but not primary MCLs. The other five

cases lacked sufficient information and

documentation to determine whether

primary or secondary MCLs are

involved. Examples of information

critical to assessing and verifying

candidate damage cases that was not

available for these particular cases

include: Identification of the pollutants

causing the contamination;

identification of where or how the

damage case information was obtained

(e.g., facility monitoring data, state

monitoring or investigation, third party

study or analysis); monitoring data used

to identify levels of contaminants; and/

or sufficient information to determine

whether the damages were actually

attributable to fossil fuel combustion

wastes; and/or location of the identified

contamination (i.e., directly beneath the

unit or very close to the waste boundary

or at a point some distant (e.g., 150

meters) from the unit boundary).

• Three case submissions are cases

we identified in the Part 1

determination and involve monofilled

utility coal ash wastes. However, as

explained in the Report to Congress for

the Part 1 determination, EPA

determined that there was insufficient

evidence to consider them to be

documented damage cases.

• One case did not involve fossil fuel

combustion wastes.

• One case involved coal combustion

wastes and other unrelated wastes in an

illegal, unpermitted dump site. This site

was handled by the state as a hazardous

waste cleanup site.

Our detailed analysis of the damage

cases submitted by commenters is

available in the public docket for this

regulatory determination.

In summary, based on damage case

information presented in the RTC and

our review of comments, we conclude

that there are 11 proven damage cases

associated with wastes covered by

today’s regulatory determination. We

identified seven of these damage cases

in the RTC, so there are four new proven

damage cases that were identified by

commenters. All of the sites were at

older, unlined units, with disposal

occurring prior to 1993. For all 11 of the

proven damage cases, either the state or

EPA provided adequate follow-up to

require or else undertake corrective

action. Although these damage cases

indicate that coal combustion wastes

can present risks to human health and

the environment, they also show the

effectiveness of states’ responses when

damages were identified. None of these

cases involved actual human exposure.

Additionally, we determined that

another 25 of the commenter submitted

cases are potential damage cases for the

reasons described above. Thus,

including the 11 potential damage cases

that we identified in the background

documents that support the RTC, we are

aware of 36 potential damage cases.

While we do not believe the latter 36

cases satisfy the statutory criteria of

documented, proven damage cases

because damage to human health or the

environment has not been proven, we

believe that these cases may indicate

that these wastes pose a ‘‘potential’’

danger to human health and the

environment in some circumstances.

In conclusion, while the absolute

number of documented, proven damage

cases is not large, we believe that the

evidence of proven and potential

damage should be considered in light of

the proportion of new and existing

facilities, particularly surface

impoundments, that today lack basic

environmental controls such as liners

and groundwater monitoring.

Approximately one-third of coal

combustion wastes are managed in

surface impoundments. We note that

controls such as liners may not be

warranted at some facilities, due to sitespecific conditions. We acknowledge,

however, that our inquiry into the

existence of damage cases was focused

primarily on a subset of states. Given

the volume of coal combustion wastes

generated nationwide and the number of

facilities that lacked groundwater

monitoring as of 1995, there is at least

a substantial likelihood other cases of

actual and potential damage likely exist.

Because we did not use a statistical

sampling methodology to evaluate the

potential for damage, we are unable to

determine whether the identified cases

are representative of the conditions at

all facilities and, therefore, cannot

quantify the extent and magnitude of

damages at the national level.

3. What Concerns Did Commenters

Express About the Impact of Potential

Future Regulation of Hazardous Air

Pollutants Under the Clean Air Act on

Today’s Regulatory Determination?

Comments. In both public hearing

testimony and written comments, public

interest groups expressed concern about

potential changes in the characteristics

of these wastes when new air pollution

controls are established under the Clean

Air Act. The commenters referred to the

possible future requirement for

hazardous air pollutant controls at coal

burning electric utility power plants,

which could result in an increased level

of metals and possibly other hazardous

constituents in coal combustion wastes.

The commenters indicated that these

increased levels, in turn, could have

serious implications for cross-media

environmental impacts such as leaching

to groundwater and volatilization to the

air. The commenters argued that the

Agency should include these factors in

its current decision making on the

regulatory status of coal combustion

under the Resource Conservation and

Recovery Act.

EPA’s Analysis of the Comments. We

have carefully considered the issue of

cross-media impacts and the

commenters’ specific concerns that

future air regulations could have an

adverse impact on the characteristics of

coal combustion wastes. We have

concluded that it is premature to

consider the possible future impact of

such new air pollution controls on the

wastes that are subject to today’s

regulatory determination. The Agency

plans to issue a regulatory

determination in the latter part of 2000

regarding hazardous air pollutant (HAP)

controls at coal-burning, power

generating facilities. If EPA decides to

initiate a rulemaking process, final

rulemaking under the Clean Air Act is

projected to occur in 2004. Thus, no

final decision has been made on what,

if any, constituents will be regulated by

future air pollution control

requirements. Additionally, the

regulatory levels of the those specific

pollutants that might be controlled and

the control technologies needed to

attain any regulatory requirements have

not yet been identified. Therefore, we

believe there is insufficient information

at this time for evaluating the

characteristics and potential

environmental impacts of solid wastes

that would be generated as a result of

new Clean Air Act requirements.

When any rulemaking under the

Clean Air Act proceeds to a point where

we can complete an assessment of the

likely changes to the character of coal

combustion wastes, we will evaluate the

implications of these changes relative to

today’s regulatory determination and

take appropriate action.

4. How Did Commenters React to the

Findings Presented in the Report to

Congress Related to Proper Management

of Mill Rejects (Pyrites)?

The RTC explained that we identified

situations where pyrite-bearing

32226 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

materials such as mill rejects (a low

volume and uniquely associated waste)

that are co-managed with coal

combustion wastes may cause or

contribute to risks or environmental

damage if not managed properly. These

materials when managed improperly

with exposure to air and water can

generate acid. The acid, in turn, can

mobilize metals contained in the comanaged combustion wastes. The RTC

also explained that the Agency engaged

the utility industry in a voluntary

program to ensure appropriate

management of these wastes. The

industry responded by developing

technical guidance and a voluntary

industry education program on proper

management of these wastes.

Comments. Utility industry

commenters supported our tentative

decision to continue the exemption for

coal combustion wastes co-managed

with mill rejects from regulation as a

hazardous waste. Their position is based

primarily on the industry’s voluntary

implementation of an education

program and technical guidance on the

proper management of these wastes, as

described in the RTC.

Public interest groups and other

commenters disagreed with our

tentative decision, explaining their

belief that such voluntary controls or

programs are inadequate. They

indicated that coal combustion wastes

should be subject to hazardous waste

regulations.

EPA’s Analysis of the Comments. We

remain encouraged by the utility

industry program to educate and inform

its members by implementing guidance

on the proper management of coal mill

rejects. However, as pointed out by

commenters, there is no assurance that

facilities where coal combustion wastes

co-managed with pyritic wastes will

follow the guidance developed by

industry. In light of the number of

demonstrated and potential damage

cases identified to date, we are

concerned that simply relying on

voluntary institution of necessary

controls would not adequately ensure

the protection of human health and the

environment. At this time, to ensure

that we are aware of all stakeholders

views on the adequacy of the control

approaches described in the guidance to

protect human health and the

environment, we are soliciting public

comment on the final version of the

industry coal mill rejects guidance. This

guidance is available in the docket

supporting today’s decisions.

5. How Did Commenters React to the

Findings Presented in the Report to

Congress Related to Agricultural Use of

Coal Combustion Wastes?

In the RTC, we presented findings on

the human health risks associated with

agricultural use of coal wastes as an

agricultural lime substitute. The

pathway examined embodies risks from

ingestion of soil and inhalation, and

from ingestion of contaminated dairy,

beef, fruit and vegetable products. The

resultant ‘‘high end’’ cancer risk

reported in the RTC was 1 × 10¥5 (one

in one hundred thousand exposed

population), for the child of a farmer.

The variables held at high end for this

calculation were contaminant

concentration and children’s soil

ingestion. With all variables set to

central tendency values, the risk was

calculated to be 1 × 10¥7 (one in ten

million exposed population). We did

not identify the presence of any noncancer hazard of concern. Based on the

high end risk, the Agency raised the

possibility in the RTC of developing

Subtitle C controls or seeking

commitments from industry to a

voluntary program.

Comments. A number of industry,

academic, and federal agency

commenters disagreed with our

tentative conclusion that some level of

regulation may be appropriate for coal

combustion wastes when used as an

agricultural soil supplement. They

indicated that EPA used unrealistically

conservative levels for four key inputs

used in our risk analysis and that use of

a realistic level for any one of these

inputs would result in a risk level less

than 1 × 10¥6. The four inputs

identified by the commenters are:

application rate of the wastes to the

land, the rate of soil ingestion by

children, the bioavailability of arsenic

and the phytoavailability of arsenic.

These commenters further

recommended that EPA not regulate, but

rather encourage voluntary restrictions

because:

• Agricultural use of coal combustion

wastes creates no adverse

environmental impacts and EPA

identified no damage cases associated

with this practice;

• Agricultural use of these wastes has

significant technical and economic

benefits;

• Federal controls would be

unnecessarily costly and would create a

barrier for research and development on

the practice;

• Existing regulatory programs are

sufficient to control any risks from this

practice; and

• The limits suggested in the RTC for

arsenic levels in coal combustion wastes

are inconsistent with limits applied to

other materials used in agriculture.

Public interest groups stated their

belief that a voluntary approach would

not be sufficiently protective of human

health and the environment. They

believe the Agency should apply

restrictions on the use of these wastes in

agriculture because the Agency’s

analyses of the risks and benefits of this

practice were inadequate. They further

recommended that EPA should prohibit

the land application of coal combustion

wastes generated by conventional

boilers, and make the arsenic limitation

of EPA’s sewage sludge land application

regulations applicable to the land

application of coal combustion wastes

generated by fluidized bed combustors,

which add lime as part of the

combustion process.

EPA’s Analysis of Comments. After

reviewing these comments and

supporting information provided by the

commenters, we concluded that a

revised input into the model for

children’s soil ingestion rate is

appropriate. Based on further review of

the Agency’s Exposure Factors

Handbook (EFH), we decided to model

a children’s soil ingestion rate of 0.4

grams per day instead of the 1.4 grams

per day that underlay the results given

in the RTC.

Many studies have been conducted to

estimate soil ingestion by children.

Early studies focused on dirt present on

children’s hands. More recently, studies

have focused on measuring trace

elements in soil and then in feces as a

function of internal absorption. These

measurements are used to estimate

amounts of soil ingested over a specified

time period. The EFH findings for

children’s soil ingestion are based on

seven key studies and nine other

relevant studies that the Agency

reviewed on this subject. These studies

showed that mean values for soil

ingestion ranged from 39 mg/day to 271

mg/day with an average of 146 mg/day.

These results are characterized for

studies that were for short periods with

little information reported for pica

behavior. To account for longer periods

of time, the EFH reviewed the upper

percentile ranges of the data studied and

found ingestion rates that ranged from

106 mg/day to 1,432 mg/day with an

average of 383 mg/day for soil ingestion.

Rounding to one significant figure, the

EFH recommended an upper percentile

children’s soil ingestion rate of 400 mg/

day. The Agency believes that this

recommendation is the best available

information to address children’s

exposure through the soil ingestion

route. Reducing the ingestion rate to the

EFH handbook recommended level of

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32227

400 mg/day reduced the calculated risk

to 3.4 × 10–6 for this one child risk

situation and suggests that agricultural

use of FFC wastes does not cause a risk

of concern.

EPA believes its inputs for

phytoavailability are accurate, although

there are studies that suggest

phytoavailability will decrease over

time. Arsenic bioavailability is a

function of all sources of arsenic and

EPA believes it has characterized this

accurately. However, as noted

elsewhere, arsenic toxicity is now being

studied by the Agency in conjunction

with a proposed new arsenic MCL and

may necessitate re-visiting today’s

judgement on agricultural use.

Our technical analysis that resulted in

revised risk is explained in a document

titled Reevaluation of Non-groundwater

Pathway Risks from Agricultural Use of

Coal Combustion Wastes, which is

available in the docket for this action.

The comment on inappropriateness of

application frequency was caused by a

misunderstanding of the language in the

RTC. The rate used was actually every

two or three years, not two or three

times per year.

Two ongoing studies of wastes of

potential use as agricultural soil

supplements relate to the use of FFC

wastes for this purpose. Although these

did not play a direct role in EPA’s

decision regarding FFC wastes, they are

summarized below and may play a role

in any future review of today’s decision.

(1) On August 20, 1999, the agency

proposed risk-based standards for

cement kiln dust when used as a liming

agent (see 64 FR 45632; August 20,

1999). This analysis was completed in

1998 just prior to our completion of the

analysis of FFC wastes when used as

agricultural supplements. The CKD

analysis underwent a special peer

review by a standing committee that is

used by the Department of Agriculture.

We were not able to respond to the peer

review comments in either the CKD

proposal or in our assessment for fossil

fuel combustion wastes prior to

publication of today’s regulatory

determination. The comment period for

the CKD proposal closed on February

17, 2000, and we will soon begin our

review and analyses of the public and

peer review comments.

(2) In December 1999, EPA proposed

new risk based standards for the use of

municipal sewage sludge under section

503 of the Clean Water Act (the ‘‘503

standards’’). It is important to note that

municipal sludge has unique properties,

application rates, and uses. This makes

it inappropriate to transfer the 503

standards directly. Even though the

standards cannot be used directly, there

may be interest in the risk assessment

methodologies used to support the

development of these standards. We

disagree that it is appropriate to

establish an arsenic limitation for coal

combustion ash when used for

agricultural purposes equivalent to that

contained in the EPA sewage sludge

land application regulations. The

organic nature of sewage sludge makes

it behave very differently from inorganic

wastes such as coal combustion wastes.

We conclude at this time that arsenic

levels in coal combustion wastes do not

pose a significant risk to human health

when used for agricultural purposes. We

expect to continue to review and refine

the related risk assessments noted

above, and will consider comments on

the Agency’s CKD and municipal sludge

proposals, as well as new scientific

developments related to this issue such

as additional peer review of the EPA

MINTEQ model that was used as a

component of our risk analysis. If these

efforts lead us to a different

understanding of the risks posed by coal

combustion wastes when used as a

substitute for agricultural lime, we will

take appropriate action to reevaluate

today’s regulatory determination.

6. How Did Commenters React to the

Findings Presented in the Report to

Congress Related to Minefilling of Coal

Combustion Wastes?

In the RTC, we explained that we had

insufficient information to adequately

assess the risks associated with the use

of coal combustion wastes to fill surface

and underground mines, whether the

mines are active or abandoned.

Accordingly, we did not present a

tentative conclusion in the RTC with

respect to the use of coal combustion

wastes for disposal in active mines or

for reclamation of mines. However, we

did indicate that regulation of

minefilling under hazardous waste

rulemaking authority would remain an

option for minefilling, but that we

needed additional information prior to

making a final decision. Thus, we

solicited additional information on

specific minefilling techniques,

problems that may be inherent in this

management practice, risks posed by

this practice, existing state regulatory

requirements, and environmental

monitoring data. We indicated that we

would consider any comments and new

information on minefilling received in

comments and would address this

management practice in today’s

regulatory determination.

Comments. A number of commenters

responded to our request by providing

reports on individual case studies,

including minefilling in underground as

well as in surface mines, descriptions of

current state regulatory requirements

that address this practice, monitoring

data, and information about risk

analysis techniques.

Industry commenters and one federal

agency supported our decision to study

the issue further and not attempt to

estimate the risks posed by this practice

using existing methods. Further,

numerous industry, academic, state

agency, and federal agency commenters

encouraged EPA not to adopt national

regulations or voluntary restrictions on

minefilling because: (a) Nationwide

standards would not be conducive to

the site-specific evaluations needed to

appropriately control these operations;

(b) minefilling creates no adverse

environmental impacts and EPA

identified no damage cases associated

with this practice; (c) existing state and

federal regulatory programs and

industry practices are sufficient to

control any risks from this practice, and

(d) federal standards would be an

unreasonable interference with states’

authorities.

Additionally, several industry

representatives, legislators, and state

mining and environmental agencies

mentioned that this practice, when used

to remediate abandoned mine lands,

will produce considerably greater

environmental benefits than risks.

Further, they maintained that

minefilling is a relatively inexpensive

means to stop or even reverse the

environmental damage caused by old

mining practices. They indicated that

through remediation by minefilling,

these lands frequently can be returned

to productive use. These commenters

recommended no additional regulation

of this practice.

Public interest groups and others

believe we should regulate minefilling

under RCRA subtitle C or prohibit it for

several reasons including weaknesses in

existing state and federal regulatory

programs, the poor practices and

performance at existing minefilling

operations, and potential impacts on

potable water sources. Commenters

stated that state programs effectively

allow open dumps without any design

or construction standards. For

minefilling, one commenter urged EPA

to defer to state regulations only if the

Agency specifically found existing state

regulations to be adequate.

EPA’s Analysis of Comments. We

agree with commenters that it is

inappropriate to estimate the risks

posed by minefilling using the existing

methods that we employed to conduct

risk analyses for disposal of coal

combustion wastes in landfills and

impoundments. We found that the

32228 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

groundwater models available to us are

unsuitable for estimating risks from

minefills because, for example, they are

not able to account for conditions such

as fractured flow that are typical of the

hydrogeology associated with mining

operations. In addition, as explained

above, EPA’s primary groundwater

model, EPACMTP, is now undergoing

careful review on the basis of comments

received on the Report to Congress.

We are aware that the use of coal

combustion wastes to conduct

remediation of mine lands can improve

conditions caused by mining activities.

We also recognize that this often is the

lowest cost option for conducting these

remediation activities. We generally

encourage the practice of remediating

mine lands with coal combustion wastes

when minefilling is conducted properly

and when there is adequate oversight of

the remediation activities. We are also

aware that relatively few states currently

operate regulatory or other programs

that specifically address minefilling,

and that many states where this practice

is occurring do not have programs in

place. Based on our review of

information on existing state minefill

programs, we find serious gaps such as

a lack of adequate controls and

restrictions on unsound practices, e.g.,

no requirement for groundwater

monitoring and no control or

prohibitions on waste placement in the

aquifer.

At this time, we cannot reach

definitive conclusions about the

adequacy of minefilling practices

employed currently in the United States

and the ability of government oversight

agencies to ensure that human health

and the environment are being

adequately protected. For example, it is

often impossible to determine if existing

groundwater quality has been impacted

by previous mining operations or as a

result of releases of hazardous

constituents from the coal combustion

wastes used in the minefilling

applications. Additionally, data and

information submitted during the public

comment period indicate that if the

chemistry of the mine relative to the

chemistry of the coal combustion wastes

is not properly taken into account, the

addition of coal combustion wastes to

certain environmental settings can lead

to an increase in hazardous metals

released into the environment. This

phenomena has been substantiated by

data available to the Agency that show

when pyrites, which can cause acid

generation, have been improperly comanaged with coal combustion wastes,

high levels of metals, especially arsenic,

have leached from the wastes.

Finally, we concluded in our recent

study of disposal of cement kiln dust

that placement of cement kiln dust

directly in contact with ground water

led to a substantially greater release of

hazardous metal constituents than we

predicted would occur when such

placement in ground water did not

occur. We are aware of situations where

coal combustion wastes are being placed

in direct contact with ground water in

both underground and surface mines.

This could lead to increased releases of

hazardous metal constituents as a result

of minefilling. Thus, if the complexities

related to site-specific geology,

hydrology, and waste chemistry are not

properly taken into account when

minefilling coal combustion wastes, we

believe that certain minefilling practices

have the potential to degrade, rather

than improve, existing groundwater

quality and can pose a potential danger

to human health and the environment.

Subsequent impacts on human health

would depend in part on the proximity

of drinking water wells, if any, to

elevated levels of metals in the water.

To date we are unaware of any proven

damage cases resulting from minefilling

operations.

7. How Did Commenters React to EPA’s

Tentative Reliance on State Programs

and Voluntary Industry Implementation

of Improved Management Practices To

Mitigate Potential Risks From Coal

Combustion Waste Management?

In the RTC, EPA considered retaining

the exemption for coal combustion

wastes disposed in surface

impoundments and landfills and for

mill rejects (pyrites) that are managed

with those wastes. The Agency cited a

reliance on state programs that have

improved substantially over the past 10

to 15 years and continue to improve,

combined with voluntary industry

implementation of guidance for

improved management practices to

mitigate risk. In addition, we stated that

we would continue to work with

industries and states to promote and

monitor improvements.

To assess the adequacy of state

programs and the potential for voluntary

implementation of improved practices,

we looked at the current number of

facilities with liners and groundwater

monitoring (which may reflect

voluntary industry upgrading as well as

state requirements), and the number of

state programs that currently have

authority to require a broad range of

environmental controls. For units

operating as of 1995, we found that

among utilities, slightly more than half

of the disposal units were surface

impoundments. Of these

impoundments, 38 percent had

groundwater monitoring and 26 percent

had liners. Eighty-five percent of the

utility landfills had groundwater

monitoring and 57 percent had liners.

For non-utility landfills, 94 percent had

groundwater monitoring, and between

16 percent and 52 percent had liners.

Between 1985 and 1995, 75 percent of

new landfills and 60 percent of new

surface impoundments within the

utility sector had been lined. We have

no information regarding the percentage

of units built since 1995 (the date when

the study we have relied on ended) that

have liners or groundwater monitoring

programs.

In looking at state programs, we found

that for landfills, more than 40 states

have the authority to require permits,

siting restrictions, liners, leachate

collection, groundwater monitoring,

closure controls, and cover/dust

controls. Forty-three states can require

liners and 46 can require groundwater

monitoring compared to 11 and 28

states, respectively, in the 1980’s. For

surface impoundments, more than 40

states have authority to require permits,

siting restrictions, liners, groundwater

monitoring, and closure control; 33 can

require leachate collection (there is no

earlier comparison data for surface

impoundments). Forty-five states can

require liners and 44 can require

groundwater monitoring for

impoundments.

Comments. Industry and state agency

commenters generally stated that the

Agency presented an accurate and

comprehensive analysis of state

programs and that existing state

regulations are adequate. Public interest

commenters raised many concerns

about the adequacy of state programs:

Either they do not have provisions to

cover all elements of a protective

program; they do not consistently

impose the requirements for which they

have authority; and/or enforcement is

lax. Evidence commenters cited for the

inadequacy of state programs included

grandfathering for older management

units and an apparent lack of controls

for surface impoundments. For these

reasons, some found EPA’s review of

state programs inaccurate or incomplete.

Public interest commenters were also

skeptical of programs or efforts that rely

on voluntary industry implementation

because adherence to guidance is not

guaranteed. Several commenters,

primarily from industry, urged the

Agency not to regulate pyrite comanagement because of the voluntary,

industry-developed guidance.

EPA’s Analysis of Comments. We

believe that state programs have, in fact,

substantially improved over the last 15

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32229

years or so. A high percentage of states

have authority to impose protective

management standards on surface

impoundments and landfills, especially

for groundwater monitoring, liners, and

leachate collection, which mitigate

potential risks posed by these units.

Over 40 states today have these

authorities (33 states have authority to

require leachate collection in surface

impoundments). When authority under

state groundwater and drinking water

regulations are considered, some

commenters have suggested that nearly

all states can address the management of

these wastes. In addition, we believe

that the trend to line and install

groundwater monitoring for new surface

impoundments and landfills is positive.

However, as some commenters noted,

we acknowledge that our state program

review looked at the authorities

available to states and their overall

regulatory requirements, not the specific

requirements applied to given facilities,

which could be more or less stringent.

In addition, we recognize that

individual state programs may have

some gaps in coverage, as indicated

below, so that some controls may not

now be required at coal combustion

waste impoundments and landfills. We

would expect to see some differences in

the application of requirements,

depending on site-specific conditions.

One consistent trend that raises

concern for the Agency is that controls

are much less common at surface

impoundment than at landfills. Even for

newer units at utilities (constructed

between 1985 and 1995), liners are used

at 75 percent of landfills and only 60

percent of surface impoundments. Also

at newer units, groundwater monitoring

is implemented at 88 percent of landfills

and at only 65 percent of surface

impoundments. Approximately onethird of coal combustion wastes were

managed in surface impoundments in

1995. Hydraulic pressure in a surface

impoundment increases the likelihood

of releases. We believe that groundwater

monitoring, at a minimum, in existing

as well as new impoundments, is a

reasonable approach to monitor

performance of the unit and a critical

first step to addressing groundwater

damage that may be caused by the unit.

As of 1995, 38 percent of currently

operating utility surface impoundments

had groundwater monitoring and only

26 percent had liners.

While liners and groundwater

monitoring are applied more frequently

at landfills, there are still many utility

and non-utility landfills that do not

have liners. In addition, 15 percent of

utility landfills do not have

groundwater monitoring, and some six

percent of non-utility landfills do not

have groundwater monitoring, based on

a limited survey.

The utility industry through its trade

associations has demonstrated a

willingness to work with EPA to

develop protective management

practices, and individual companies

have committed to upgrading their own

practices. However, the Agency

recognizes that participation in

voluntary programs is not assured. Also,

individual facilities and companies may

not implement protective management

practices and controls, for a variety of

reasons, in spite of their endorsement by

industry-wide groups.

We see a trend toward significantly

improving state programs and voluntary

industry investment in liners and

groundwater monitoring that we believe

can mitigate potential risks over time.

However, we identified significant gaps

in controls already in place and, in

particular, requirements that may be

lacking in some states, either in

authority to impose the requirements or

potentially in exercising that authority.

In response to comments, we further

analyzed risks posed by coal

combustion wastes taking into account

waste characteristics and potential and

actual damage cases. Based on these

analyses, we concluded that coal

combustion wastes, in certain

circumstances, could unnecessarily

increase risks to human health and the

environment, and that a number of

proven damages have been documented,

and that more are likely if we had been

able to conduct a more thorough search

of available state records and if

groundwater monitoring data were

available for all units. We recognize

there will probably continue to be some

gaps in practices and controls and are

concerned at the possibility that these

will go unaddressed. We also believe

the time frame for improvement of

current practices is likely to be longer in

the absence of federal regulations.

D. What Is the Basis for Today’s

Decisions?

Based on our collection and analysis

of information reflecting the criteria in

section 8002(n) of RCRA that EPA must

consider in making today’s regulatory

determination, materials developed in

preparing the RTC and supportive

background materials, existing state and

federal regulations and programs that

affect the management of coal

combustion wastes, and comments

received from the public on the findings

we presented in the RTC, we have

concluded the following:

1. Beneficial Uses

To the extent coal combustion wastes

are used for beneficial purposes, we

believe they should continue to remain

exempt from being regulated as

hazardous wastes under RCRA.

Beneficial purposes include waste

stabilization, beneficial construction

applications (e.g., cement, concrete,

brick and concrete products, road bed,

structural fill, blasting grit, wall board,

insulation, roofing materials),

agricultural applications (e.g., as a

substitute for lime) and other

applications (absorbents, filter media,

paints, plastics and metals manufacture,

snow and ice control, waste

stabilization). For the reasons presented

in section 3 below, we are separately

addressing the use of coal combustion

wastes to fill surface or underground

mines.

For beneficial uses other than

minefilling, we have reached this

decision because: (a) We have not

identified any beneficial uses that are

likely to present significant risks to

human health or the environment; and

(b) no documented cases of damage to

human health or the environment have

been identified. Additionally, we do not

want to place any unnecessary barriers

on the beneficial use of coal combustion

wastes so that they can be used in

applications that conserve natural

resources and reduce disposal costs.

Disposal can be burdensome and fails

to take advantage of beneficial

characteristics of fossil fuel combustion

wastes. About one-quarter of the coal

combustion wastes now generated are

diverted to beneficial uses. Currently,

the major beneficial uses of coal

combustion wastes include:

Construction (including building

products, road base and sub-base,

blasting grit and roofing materials)

accounting for approximately 21%;

sludge and waste stabilization and acid

neutralization accounting for

approximately 3%; and agricultural use

accounting for 0.1%. Based on our

conclusion that these beneficial uses of

coal combustion wastes are not likely to

pose significant risks to human health

and the environment, we support

increases in these beneficial uses of coal

combustion wastes.

Off-site uses in construction,

including wallboard, present low risk

due to the coal combustion wastes being

bound or encapsulated in the

construction materials or because there

is low potential for exposure. Use in

waste and sludge stabilization and in

acid neutralization are either regulated

(under RCRA for hazardous waste

stabilization or when placed in

32230 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

municipal solid waste landfills, or

under the Clean Water Act in the case

of municipal sewage sludge or

wastewater neutralization), or appear to

present low risk due to low exposure

potential. While in the RTC, we

expressed concern over risks presented

by agricultural use, we now believe our

previous analysis assumed

unrealistically high-end conditions, and

that the risk, which we now believe to

be on the order of 10–6, does not warrant

national regulation of coal combustion

wastes that are used in agricultural

applications.

In the RTC, we were not able to

identify damage cases associated with

these types of beneficial uses, nor do we

now believe that these uses of coal

combustion wastes present a significant

risk to human health or the

environment. While some commenters

disagreed with our findings, no data or

other support for the commenters’

position was provided, nor was any

information provided to show risk or

damage associated with agricultural use.

Therefore, we conclude that none of the

beneficial uses of coal combustion

wastes listed above pose risks of

concern.

2. Disposal in Landfills and Surface

Impoundments

In this section, we discuss available

information regarding the potential risks

to human health and the environment

from the disposal of coal combustion

wastes into landfills and

impoundments. In sum, our conclusion

is these wastes can pose significant risks

when mismanaged and, while

significant improvements are being

made in waste management practices

due to increasing state oversight, gaps in

the current regulatory regime remain.

We have determined that the

establishment of national regulations is

warranted for coal combustion wastes

when they are disposed in landfills and

surface impoundments, because: (a) The

composition of these wastes has the

potential to present danger to human

health and the environment under some

circumstances and ‘‘potential’’ damage

cases identified by EPA and

commenters, while not definitively

demonstrating damage from coal

combustion wastes, lend support to our

conclusion that these wastes have the

potential to pose such danger; (b) we

have identified eleven cases of proven

damage to human health and the

environment by improper management

of these wastes when land disposed; (c)

while industry management practices

have improved measurably in recent

years, there is sufficient evidence these

wastes are currently being managed in

a significant number of landfills and

surface impoundments without proper

controls in place, particularly in the

area of groundwater monitoring; and (d)

while there have been substantive

improvements in state regulatory

programs, we have also identified

significant gaps either in states’

regulatory authorities or in their

exercise of existing authorities.

Moreover, we believe that the costs of

complying with regulations that

specifically address these problems,

while large in absolute terms, are only

a small percentage of industry revenues.

When we considered a tailored

subtitle C regulatory approach, we

estimated the potential costs of

regulation of coal combustion wastes

(including the utility coal combustion

wastes addressed in the 1993 Part 1

determination) to be $1 billion per year.

While large in absolute terms, we

estimate that these costs are less than

0.4 percent of industry sales. Our

preliminary estimate of impact on

profitability is a function of facility size,

among other factors. For the larger

facilities, we estimate that reported pretax profit margins of about 13 percent

may be reduced to about 11 percent. For

smaller facilities, margins may be

reduced from about nine percent to

about seven percent.

We identified that the constituents of

concern in these wastes are metals,

particularly hazardous metals. We

further identified that leachate from

various large volume wastes generated

at coal combustion facilities

infrequently exceed the hazardous

waste toxicity characteristic, for one or

more of the following metals: arsenic,

cadmium, chromium, lead, and

mercury. Additionally, when we

compared waste leachate concentrations

for hazardous metals to their

corresponding MCLs (or potential MCLs

in the case of arsenic), we found that

there was a potential for risk as a result

of arsenic leaching from these wastes.

The criteria we examined included the

existing arsenic MCL, a lower health

based number presented in the RTC,

and two assumed values in between. We

examined this range of values because,

as explained earlier in this notice, EPA

is in the process of revising the current

MCL for arsenic to a lower value as a

result of a detailed study of arsenic in

drinking water and we wanted to assess

the likely range of values that would be

under consideration by EPA. Once we

have completed a review of our

groundwater model and made necessary

changes, we will reevaluate the

potential risks from metals in coal

combustion wastes and compare any

projected groundwater contamination to

the MCLs that exist at that time.

We also identified situations where

the improper management of mill

rejects, a low volume and uniquely

associated waste, with high volume coal

combustion wastes has the potential to

cause releases of higher quantities of

hazardous metals. When these wastes

are improperly managed, the mill rejects

can create an acidic environment which

enhances leachability and can lead to

the release of hazardous metals in high

concentrations from the co-managed

wastes to ground water or surface

waters. Thus, our analysis of the

characteristics of coal combustion

wastes leads us to conclude that these

wastes have the potential to pose risk to

human health and the environment. We

also plan to address such waste

management practices in our

subsequent rulemaking.

Additionally, we identified 11 proven

damage cases that documented disposal

of coal combustion wastes in unlined

landfills or surface impoundments that

involved exceedences of primary MCLs

or other health-based standards in

ground water or drinking water wells.

Three of the proven damage cases were

on the EPA Superfund National

Priorities List. Although these damage

cases indicate that coal combustion

wastes can present risks to human

health and the environment, they also

show the effectiveness of states’

responses when damages were

identified. All of the sites were at older,

unlined units, with disposal occurring

prior to 1993. None of these cases

involved actual human exposure. Given

the large number of facilities that do not

now conduct groundwater monitoring,

we have a concern that additional cases

of damage may be undetected.

As detailed in the RTC and explained

earlier in this notice, we identified that

the states and affected industry have

made considerable progress in recent

years toward more effective

management of coal combustion wastes.

We also identified that the ability for

most states to impose specific regulatory

controls for coal combustion wastes has

increased almost three-fold over the past

15 years. Forty-three states can now

impose a liner requirements at landfills

whereas 15 years ago, 11 had the same

authority. In addition to regulatory

permits, the majority of states now have

authority to require siting controls,

liners, leachate collection, groundwater

monitoring, closure controls, and other

controls and requirements for surface

impoundments and landfills.

Nonetheless, we have concluded that

there are still gaps in the actual

application of these controls and

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32231

requirements, particularly for surface

impoundments. While most states now

have the appropriate authorities and

regulations to require liners and

groundwater monitoring that would

reduce or minimize the risks that we

have identified, we have also identified

numerous situations where these

controls are not being applied. For

example, only 26 percent of utility

surface impoundments and 57 percent

of utility landfills have liner systems in

place. We have insufficient information

to determine whether the use of these

controls is significantly different for

non-utility disposal units, due to a small

sample size.

While many of these unlined units

may be subject to grandfathering

provisions that allow them to continue

to operate without being lined, or may

not need to be lined due to site-specific

conditions, we are especially concerned

that a substantial number of units do not

employ groundwater monitoring to

ensure that if significant releases occur

from these unlined units, they will be

detected and controlled. In 1995,

groundwater was monitored at only 38

percent of utility surface

impoundments. While monitoring is

more frequent at landfills, there are still

many units at which releases of

hazardous metals could go undetected.

For example, of the approximately 300

utility landfills, 45 newer landfills

(15%) do not monitor ground water. We

are concerned that undetected releases

could cause exceedences of drinking

water or other health-based standards

that may threaten public health or

groundwater and surface water

resources. Thus, we conclude that

national regulations would lead to

substantial improvements in the

management of coal combustion wastes.

3. Minefilling

We have determined that the

establishment of national regulations is

warranted for coal combustion wastes

when they are placed in surface or

underground mines because: (a) We

wind that these wastes when minefilled

have the potential to present a danger to

human health and the environment, (b)

minefilling of these wastes has been an

expanding practice and there are few

states that currently operate

comprehensive programs that

specifically address the unique

circumstances of minefilling, making it

more likely that any damage to human

health or the environment would go

unnoticed or unaddressed, and (c) we

believe that the cost of complying with

regulations that address these potential

dangers may not have a substantial

impact on this practice because

minefilling continues to grow in those

few states that already have

comprehensive programs.

We recognize that at this time, we

cannot quantify the nature of damage

that may be occurring or may occur in

the future as a result of using coal

combustion wastes as minefill. It is

often impossible to determine if existing

groundwater quality has been impacted

by previous mining operations or as a

result of releases of hazardous

constituents from the coal combustion

wastes used in minefilling applications.

We have not as yet identified proven

damage cases resulting from the use of

coal combustion wastes for minefilling.

We also acknowledge that when the

complexities related to site-specific

geology, hydrology, waste chemistry

and interactions with the surrounding

matrix, and other relevant factors are

properly taken into account, coal

combustion wastes used as minefill can

provide significant benefits. However,

when not done properly, minefilling has

the potential to contaminate ground

water to levels that could damage

human health and the environment.

Based on materials submitted during the

public comment period, coal

combustion wastes used as minefill can

lead to increases in hazardous metals

released into ground water if the acidity

within the mine overwhelms the

capacity of the coal combustion wastes

to neutralize the acidic conditions. This

is due to the increased leaching of

hazardous metals from the wastes. The

potential for this to occur is further

supported by data showing that

management of coal combustion wastes

in the presence of acid-generating

pyritic wastes has caused metals to

leach from the combustion wastes at

much higher levels than are predicted

by leach test data for coal combustion

wastes when strongly acidic conditions

are not present. Such strongly acidic

conditions often exist at mining sites.

Although we have identified no

damage cases involving minefilling, we

are also aware of situations where coal

combustion wastes are being placed in

direct contact with ground water in both

surface and underground mines. We

concluded in our recent study of cement

kiln dust management practices that

placement of cement kiln dust in direct

contact with ground water led to a

substantially greater release of

hazardous metals than we predicted

would occur when the waste was placed

above the water table. For this reason,

we find that there is a potential for

increased releases of hazardous metals

as a result of placing coal combustion

wastes in direct contact with

groundwater. Also, there are damage

cases associated with coal combustion

wastes in landfills. The Agency believes

it is reasonable to be concerned when

similar quantities of coal combustion

wastes are placed in mines, which often

are not engineered disposal units and in

some cases involve direct placement of

wastes into direct contact with ground

water.

We are concerned that government

oversight is necessary to ensure that

minefilling is done appropriately to

protect human health and the

environment, particularly since

minefilling is a recent, but rapidly

expanding use of coal combustion

wastes. Government oversight has not

yet ‘‘caught up’’ with the practice

consistently across the country. There

are some states that have programs that

specifically address minefilling

practices. We are likely to find that their

programs or certain elements of their

programs could serve as the basis for a

comprehensive, flexible set of national

management standards that ensure

protection of human health and the

environment. We also believe that these

state programs will provide valuable

experience in coordinating with SMCRA

program requirements. However, at this

time, few of the programs are

comprehensive. Commenters pointed

out, and we agree, there are significant

gaps in other states. We believe that

additional requirements for long-term

groundwater monitoring, and controls

on wastes placed directly into

groundwater might be prudent.

E. What Approach Will EPA Take in

Developing National Regulations?

We will not promulgate any

regulations for beneficial uses other

than minefilling. We do not wish to

place any unnecessary barriers on the

beneficial use of fossil fuel combustion

wastes so that they can be used in

applications that conserve natural

resources and reduce disposal costs.

Once we concluded there is a need for

some form of national regulation of coal

combustion wastes disposed in landfills

and surface impoundments and used as

minefill, we considered two approaches.

One approach would involve

promulgating subtitle D regulations,

pursuant to sections 1008 and 4004(a) of

RCRA, that would contain criteria

defining landfills and impoundments

that would constitute ‘‘sanitary

landfills.’’ Any facility that failed to

meet the standards would constitute an

open dump, which is prohibited by

section 4005(a) of RCRA. Such

standards would set a consistent

baseline for protective management

throughout the country. We would also

work with the Department of Interior,

32232 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

Office of Surface Mining to evaluate

whether equivalent protectiveness for

minefilling could be afforded by relying

on revision of existing SMCRA

regulations or by relying on a

combination of RCRA and SMCRA

authorities.

The second approach was to

promulgate regulations pursuant to

Subtitle C of RCRA, that would have

been similar to our recent proposed

regulation of cement kiln dust.

Following this approach, EPA would

develop national management standards

based on the Subtitle D open dump

criteria as discussed above, as well as a

set of tailored Subtitle C requirements

promulgated pursuant to RCRA section

3004(x). If the wastes were properly

managed in accordance with the subtitle

D-like standards, they would not be

classified as hazardous wastes. When

they were not properly managed, they

would become listed hazardous wastes

subject to tailored subtitle C standards.

This scheme would be effective in each

state authorized for the hazardous waste

program when that state modified its

hazardous waste program to incorporate

the listing.

Under this approach, after states have

adopted the contingent listing, facilities

that have egregious or repeated

violations of the management standards

would be moved into the subtitle C

program (subject to the tailored RCRA

3004 (x) requirements, rather than to the

full set of subtitle C requirements).

Thus, EPA would have authority to

enforce the management standards.

The decision whether to establish

regulations under subtitle C or D of

RCRA for disposal of coal combustion

wastes in landfills and surface

impoundments and when minefilled

was a difficult one. EPA believes that,

in this case, either approach would

ensure adequate protection of public

health and the environment. Either

subtitle C or D provides EPA with the

authority to prescribe protective

standards for the management of these

wastes. Moreover, as described above,

the standards that EPA would adopt

under either regime, because of the

flexibility provided by section 3004 (x),

would be substantively the same. Also,

under either approach, a facility that

fails to comply with the standards is in

violation of RCRA—in the case of

subtitle C, the facility would be in

violation of the tailored standards

promulgated under section 3004(x). In

the case of subtitle D, the facility would

be in violation of the prohibition in

section 4005(a) of RCRA against ‘‘open

dumping.’’ The prohibition against open

dumping is, however, enforceable only

by private citizens and states, not EPA.

Management standards established

under the authority of subtitle C

(including tailored section 3004(x)

standards) are also enforceable by EPA.

It appears that more than 40 states

already have sufficient authority to

implement most, if not all of the

national standards we contemplate

would be appropriate for surface

impoundments and landfills. One

difference between the two regimes may

be that states could cite revised subtitle

D standards as a basis for exercising

their existing authorities more

vigorously, potentially promoting

swifter adoption of appropriate controls

for surface impoundments and landfills.

In addition, subtitle D standards would

be applicable and enforceable by

citizens as soon as the federal rule

becomes effective. subtitle C standards

in contrast, would not apply until

incorporated into state subtitle C

programs. For minefilling, we would

also explore SMCRA as a possible

mechanism to speed implementation,

even if we relied on subtitle D to

establish protective standards, because

minefilling operations already are

subject to SMCRA permitting authority.

Taking into account the common and

distinct features of these alternative

approaches, EPA believes at this time,

based on the current record, that subtitle

D regulations are the more appropriate

mechanism for a number of reasons. In

view of the very substantial progress

that states have made in regulating

disposal of fossil fuel combustion

wastes in surface impoundments and

landfills in recent years, as well as the

active role that this industry has played

recently in facilitating responsible waste

disposal practices, EPA believes that

subtitle D controls will provide

sufficient clarity and incentive for states

to close the remaining gaps in coverage,

and for facilities to ensure that their

wastes are managed properly.

For minefilling, although we have

considerable concern about certain

current practices (e.g., placement

directly into groundwater), we have not

yet identified a case where placement of

coal wastes can be determined to have

actually caused increased damage to

ground water. In addition, there is a

federal regulatory program—SMCRA—

expressly designed to address

environmental risks associated with

coal mines. Finally, given that states

have been diligent in expanding and

upgrading programs for surface

impoundments and landfills, we believe

they will be similarly responsive in

addressing environmental concerns

arising from this emerging practice. In

short, we arrive at the same conclusions,

for substantially the same reasons, for

this practice as we did for landfills and

surface impoundments: that subtitle D

controls, or upgraded SMCRA controls

or a combination of the two, should

provide sufficient clarity and incentive

to ensure proper handling of this waste

when minefilled. Having determined

that subtitle C regulation is not

warranted for all other management

practices, EPA does not see a basis in

the record for carving this one practice

out for separate regulatory treatment.

Once these subtitle D regulations are

effective, facilities would be subject to

citizen suits for any violation of the

standards. If EPA were addressing

wastes that had not been addressed by

the states (or the federal government) in

the past, or an industry with wide

evidence of irresponsible solid waste

management practices, EPA may well

conclude that the additional incentives

for improvement and compliance

provided by the subtitle C scheme—the

threat of federal enforcement and the

stigma associated with improper

management of RCRA subtitle C waste—

were necessary. But the record before us

indicates that the structure and the

sanctions associated with a subtitle D

approach (or a SMCRA approach if EPA

determines it is equivalent) should be

sufficient.

We also see a potential downside to

pursuing a subtitle C approach. Section

8002(n)(8) directs us to consider, among

other factors, ‘‘the current and potential

utilization of such materials.’’ Industry

commenters have indicated that they

believe subjecting any coal combustion

wastes to a subtitle C regime would

place a significant stigma on these

wastes, the most important effect being

that it would adversely impact

beneficial reuse. As we understand it,

the concern is that, even though

beneficially reused waste would not be

hazardous under the contemplated

subtitle C approach, the link to subtitle

C would nonetheless tend to discourage

purchase and re-use of the wastes or

products made from the wastes. We do

not wish to place any unnecessary

barriers on the beneficial uses of these

wastes, because they conserve natural

resources, reduce disposal costs and

reduce the total amount of waste

destined for disposal. States and

industry have also expressed concern

that regulation under subtitle C could

cause a halt in the use of coal

combustion wastes to reclaim

abandoned and active mine sites. If this

were to occur, it would be unfortunate

in that when done properly, we

recognize this practice can lead to

substantial environmental benefits. EPA

believes the contingent management

scheme we discussed should diminish

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32233

any stigma that might be associated with

the subtitle C link. Nonetheless, we

acknowledge the possibility that the

approach could have unintended

consequences. We would be particularly

concerned about any adverse effect on

the beneficial re-use market for these

wastes because more than 23 percent

(approximately 28 million tons) of the

total coal combustion waste generated

each year is beneficially reused and an

additional eight percent (nine million

tons) is used for minefilling. EPA

believes that such reuse when

performed properly, is by far the

environmentally preferable destination

for these wastes, including when

minefilled. Normally, concerns about

stigma are not a deciding factor in EPA’s

decisions under RCRA, given the central

concern under the statute for protection

of human health and the environment.

However, given our conclusion that the

subtitle D approach here should be fully

effective in protecting human health

and the environment, and given the

large and salutary role that beneficial

reuse plays for this waste, concern over

stigma is a factor supporting our

decision today that subtitle C regulation

is unwarranted in light of our decision

to pursue a subtitle D approach.

As we proceed with regulation

development, we will also take

enforcement action under RCRA section

7003 when we identify cases of

imminent and substantial

endangerment. We will also use

Superfund remedial and emergency

response authorities under the

Comprehensive Environmental

Response Compensation and Liabilities

Act (CERCLA), as appropriate, to

address damages that result in risk to

human health and the environment. We

will also take into account new

information as it becomes available. We

are awaiting a National Academy of

Sciences report scheduled to be released

in June 2000. This report will present a

comprehensive review of mercury and

recommendations on appropriate

adverse health effects levels for this

constituent. We believe that this report

will enhance our understanding of the

risks due to exposure to mercury, and

we will review and assess its

implications for today’s decision on

fossil fuel combustion wastes. These

efforts may result in a re-evaluation of

the risks posed by managing coal

combustion wastes.

3. What Is the Basis for EPA’s

Regulatory Determination for Oil

Combustion Wastes?

A. What Is the Agency’s Decision

Regarding the Regulatory Status of Oil

Combustion Wastes and Why Did EPA

Make This Decision?

We have determined that it is not

appropriate to issue regulations under

subtitle C of RCRA applicable to oil

combustion wastes because: (a) We have

not identified any beneficial uses that

are likely to present significant risks to

human health or the environment; and

(b) except for a limited number of

unlined surface impoundments, we

have not identified any significant risks

to human health and the environment

associated with any waste management

practices.

We intend to work with the State of

Massachusetts and the owners and

operators of the remaining two oil

combustion facilities that currently

manage their wastes in unlined surface

impoundments to ensure that their

wastes are managed in a manner that

protects human health and the

environment.

B. What Were EPA’s Tentative Decisions

as Presented in the Report to Congress

and Why Did EPA Make That Decision?

In the Report to Congress, we stated

that the only management scenario for

which we found risks posed by

management of oil combustion wastes

was when oil combustion wastes are

managed in unlined surface

impoundments. The Report to Congress

further explained that we were

considering two approaches to address

these identified risks. One approach was

to regulate using RCRA subtitle C

authority. The other approach was to

encourage voluntary changes so that no

oil combustion wastes are managed in

unlined surface impoundments. This

voluntary approach is based on recent

industry and state regulatory trends to

line oil combustion waste disposal units

and implement groundwater

monitoring.

We also tentatively decided that the

existing beneficial uses of oil

combustion wastes should remain

exempt from RCRA subtitle C. There are

few existing beneficial uses of these

wastes, which include use in concrete

products, structural fill, roadbed fill,

and vanadium recovery. We determined

that no significant risks to human health

exist for the beneficial uses of these

wastes. For the case of facilities that

accept these wastes to recover vanadium

from them, we explained that if the

wastes resulting from the metal recovery

processes are hazardous, they will be

subject to existing hazardous waste

requirements.

We found in most cases that OCW,

whether managed alone or co-managed,

are rarely characteristically hazardous.

Additionally, we identified no

significant ecological risks posed by

land disposal of OCW. We identified

only one documented damage case

involving OCW in combination with

coal combustion wastes, and it did not

affect human receptors.

Although most of the disposed oil

combustion wastes are managed in lined

surface impoundments, we did identify

six utility sites where wastes are

managed in unlined units. We

expressed particular concern with

management of these wastes in unlined

settling basins and impoundments that

are designed and operated to discharge

the aqueous portion of the wastes to

ground water. Our risk analysis

indicated that, in these situations, three

metals—arsenic, nickel, and

vanadium—may pose potential risk by

the groundwater pathway.

C. How Did Commenters React to EPA’s

Tentative Decisions and What Was

EPA’s Analysis of Their Comments?

Because we were able to identify so

few unlined surface impoundments, the

only management scenario for which we

found risks, the primary focus of the

comments regarding oil combustion

wastes was on the six unlined surface

impoundments that we identified. In

addition, there were extensive

comments on our modeling and risk

assessment methodology for the

groundwater pathway that are

applicable to our assessment of risks

posed by oil combustion wastes.

1. How Did Commenters React to the

Six Unlined Oil Combustion Waste

Surface Impoundments That We

Identified?

Comments. Industry commenters

supported the approach to encourage

voluntary changes in industry practices

on a site-specific basis, and explained

why they believed hazardous waste

regulations are unnecessary. The

environmental community supported

the development of hazardous waste

regulations.

EPA’s Analysis of Comments. In the

RTC, we identified that our only

concern about oil combustion wastes

was based on the potential for migration

of arsenic, nickel, and vanadium from

unlined surface impoundments. We

requested information on this issue and

did not receive any additional data and/

or information to refute our tentative

finding stated in the RTC that these

32234 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

unlined surface impoundments could

pose a significant risk.

As stated in the RTC, there are only

six sites involving two companies that

have unlined surface impoundments.

Four of the sites are in Florida and are

operated by one company. The company

operating the four unlined

impoundments in Florida is

undertaking projects to mitigate

potential risks posed by their unlined

management units. At a May 21, 1999

public hearing, the company announced

its plans to remove all the oil ash and

basin material from its unlined

impoundments and to line or close the

units. The company informed us in

January 2000 that it had completed the

lining of all the units. Based on this

information, we do not believe that

these units pose a significant risk to

human health and the environment.

The other two sites with unlined

impoundments are operated by one

utility in Massachusetts. Both sites are

permitted under Massachusetts’ ground

water discharge permit program and

have monitoring wells around the

unlined basins. Arsenic is monitored for

compliance with state regulations.

Although the company expressed no

plans to line their impoundments, they

are preparing to implement monitoring

for nickel and vanadium in ground

water around the waste management

units. We have been working with the

State and the company to obtain

additional information to evaluate these

two management units. We will

continue this effort and will work with

the company and the State to ensure

that any necessary measures are taken

so that these wastes are managed in a

manner that protects human health and

the environment.

2. How Did Commenters React to the

Groundwater Modeling and Risk

Assessment Analyses Conducted by

EPA to Support Its Findings in the

Report to Congress?

Comments. Industry and public

interest group commenters submitted

detailed critiques of the ground water

model, EPACMTP, that we used for our

risk analysis. Industry commenters

believe that the model will overestimate

the levels of contaminants that may

migrate down-gradient from disposed

wastes. Environmental groups expressed

the opposite belief; that is, that the

model underestimates down-gradient

chemical concentrations and, therefore,

underestimates the potential risk posed

by oil combustion wastes.

EPA’s Analysis of the Comments. We

are carefully reviewing all of the

comments on the model and have

determined that the process of

thoroughly investigating all of the

comments will take substantially more

time to complete than is available

within the court deadline for issuing

this regulatory determination. At this

time, we are uncertain of the overall

outcome of our analysis of the issues

raised in the comments. Accordingly,

we have decided not to use the results

of our ground water pathway risk

analysis in support of today’s regulatory

determination on fossil fuel combustion

wastes. As explained above, we believe

that actions have been taken or are

under way by specific companies and/

or the State of Massachusetts to address

potential risks at the six impoundments

that we have been able to identify.

Therefore we believe that further

groundwater analysis is unnecessary at

this time.

Meanwhile, we will continue with

our analysis of comments on the

groundwater model and risk analysis.

This may involve changing or

restructuring various aspects of the

model, if appropriate. It may also

include additional analyses to

determine whether any changes to the

model or modeling methodology would

materially affect the groundwater risk

analysis results that were reported in

the RTC. If our investigations reveal that

a reanalysis of groundwater risks is

appropriate, we will conduct the

analysis and reevaluate today’s

decisions as appropriate.

In addition to our ongoing review of

comments on the groundwater model,

one element of the model—the metals

partitioning component called

‘‘MINTEQ’’—has been proposed for

additional peer review. When this

additional peer review is completed, we

will take the findings and

recommendations into account in any

overall decision to re-evaluate today’s

regulatory determination.

D. What Is the Basis for Today’s

Decisions?

We have determined that it is not

appropriate to establish national

regulations applicable to oil combustion

wastes because: (a) We have not

identified any beneficial uses that are

likely to present significant risks to

human health or the environment; and

(b) except for two remaining unlined

surface impoundments, we have not

identified any significant risks to human

health and the environment associated

with any waste management practices.

As explained in the previous section,

we intend to work with the State of

Massachusetts and the owners and

operators of the remaining two oil

combustion facilities that currently

manage their wastes in unlined surface

impoundments to ensure that any

necessary measures are taken so that

their wastes are managed in a manner

that protects human health and the

environment. Given the limited number

of sites at issue and our ability to

adequately address risks from these

waste management units through sitespecific response measures, we see no

need for issuing regulations under

subtitle C or D of RCRA.

4. What Is the Basis for EPA’s

Regulatory Determination for Natural

Gas Combustion Wastes?

A. What Is the Decision Regarding the

Regulatory Status of Natural Gas

Combustion Wastes?

For the reasons described in the

Report to Congress (pages 7–1 to 7–3),

EPA has decided that regulation of

natural gas combustion wastes as

hazardous wastes under RCRA subtitle

C or D is not warranted. The burning of

natural gas generates virtually no solid

waste.

B. What Was EPA’s Tentative Decision

as Presented in the Report to Congress?

The Agency’s tentative decision was

to retain the subtitle C exemption for

natural gas combustion because

virtually no solid waste is generated.

C. How Did Commenters React to EPA’s

Tentative Decision?

No commenters on the RTC disagreed

with EPA’s findings or its tentative

decision to continue the exemption for

natural gas combustion wastes.

Specific comments on this issue

supported our tentative decision to

retain the exemption for natural gas

combustion waste. One industry

association encouraged us to foster the

use of natural gas as a substitute for

other fossil fuels. While some public

interest group commenters disagreed

broadly with our tentative conclusions

to retain the exemption for fossil fuel

combustion wastes, they did not

specifically address natural gas

combustion wastes.

D. What Is the Basis for Today’s

Decision?

The burning of natural gas generates

virtually no solid waste. We, therefore,

believe that there is no basis for EPA

developing subtitle C or D regulations

applicable to natural gas combustion

wastes.

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32235

5. What Is the History of EPA’s

Regulatory Determinations for Fossil

Fuel Combustion Wastes?

A. On What Basis Is EPA Required To

Make Regulatory Determinations

Regarding the Regulatory Status of

Fossil Fuel Combustion Wastes?

Section 3001(b)(3)(C) of the Resource

Conservation and Recovery Act (RCRA)

as amended requires that, after

completing a Report to Congress

mandated by section 8002(n) of RCRA,

the EPA Administrator must determine

whether Subtitle C (hazardous waste)

regulation of fossil fuel combustion

wastes is warranted.

B. What Was EPA’s General Approach

in Making These Regulatory

Determinations?

We began our effort to make our

determination of the regulatory status of

fossil fuel combustion wastes by

studying high volume coal combustion

wastes managed separately from other

fossil fuel combustion wastes that are

generated by electric utilities. In

February 1988, EPA published the

Report to Congress on Wastes from the

Combustion of Coal by Electric Utility

Power Plants. The report addressed four

large-volume coal combustion wastes

generated by electric utilities and

independent power producers when

managed alone. The four wastes are fly

ash, bottom ash, boiler slag, and flue gas

desulfurization (FGD) wastes. The

report did not address co-managed

utility coal combustion wastes

(UCCWs), other fossil fuel wastes

generated by utilities, or wastes from

non-utility boilers burning any type of

fossil fuel. Because of other priorities at

the time, we did not immediately

complete a determination of the

regulatory status of these large-volume

coal combustion wastes.

C. What Happened When EPA Failed To

Issue Its Determination of the

Regulatory Status of the Large Volume

Utility Combustion Wastes in a Timely

Manner?

In 1991, a suit was filed against EPA

for not completing a regulatory

determination on fossil fuel combustion

wastes (Gearhart v. Reilly, Civil No. 91–

2345 (D.D.C.)). On June 30, 1992, the

Agency entered into a Consent Decree

that established a schedule for us to

complete the regulatory determination

for all fossil fuel combustion wastes in

two phases:

• The first phase covers fly ash,

bottom ash, boiler slag, and flue gas

emission control wastes from the

combustion of coal by electric utilities

and independent commercial power

producers. These are the four large

volume wastes that were the subject of

the 1988 Report to Congress described

above. We refer to this as the Part 1

regulatory determination.

• The second phase covers all of the

‘‘remaining’’ fossil fuel combustion

wastes not covered in the Part 1

regulatory determination. We refer to

this as the Part 2 regulatory

determination, which is the subject of

today’s action. Under the current courtorder, EPA was directed to issue the

Part 2 regulatory determination by April

25, 2000.

D. When Was the Part 1 Regulatory

Decision Made and What Were EPA’s

Findings?

In 1993, EPA issued the Part 1

regulatory determination, in which we

retained the exemption for Part 1 wastes

(see 58 FR 42466; August 9, 1993). The

four Part 1 large-volume utility coal

combustion wastes (UCCWs) are also

addressed in the Part 2 regulatory

determination when they are comanaged with low-volume fossil fuel

combustion wastes not covered in the

Part 1 determination.

6. Executive Orders and Laws

Addressed in Today’s Action

A. Executive Order 12866—

Determination of Significance

Under Executive Order 12866, (58 FR

51735, Oct. 4, 1993) we must determine

whether the regulatory action is

‘‘significant’’ and therefore subject to

review by the Office of Management and

Budget (OMB) and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

• Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

• Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

• Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

• Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

in the Executive Order.’’

Under Executive Order 12866, this is

a ‘‘significant regulatory action.’’ Thus,

we have submitted this action to OMB

for review. Changes made in response to

OMB suggestions or recommendations

are documented in the public record.

B. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

Today’s action is not subject to the

RFA, which generally requires an

agency to prepare a regulatory flexibility

analysis for any rule that will have a

significant economic impact on a

substantial number of small entities.

The RFA applies only to rules subject to

notice-and-comment rulemaking

requirements under the Administrative

Procedure Act (APA) or any other

statute. This action is not subject to

notice and comment requirements

under the APA or any other statute.

Today’s action is being taken pursuant

to section 3001(b)(3)(C) of the Resource

Conservation and Recovery Act. This

provision requires EPA to make a

determination whether to regulate fossil

fuel combustion wastes after submission

of its Report to Congress and public

hearings and an opportunity for

comment. This provision does not

require the publication of a notice of

proposed rulemaking and today’s action

is not a regulation. See American

Portland Cement Alliance v. E.P.A., 101

F.3d 772 (D.C.Cir. 1996).

C. Paperwork Reduction Act

Information Collection Requests

Today’s final action contains no

information collection requirements.

D. Unfunded Mandates Reform Act

Today’s action is not subject to the

requirements of sections 202 and 205 of

the Unfunded Mandates Reform Act of

1995 (UMRA), Public Law 104–4. Title

II of UMRA establishes requirements for

federal agencies to assess the effects of

their regulatory actions on state, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘federal mandates’’ that may result

in expenditures to state, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year.

Before we issue a rule for which a

written statement is needed, section 205

of the UMRA generally requires us to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective, or least burdensome

alternative that achieves the rule’s

objectives. Section 205 doesn’t apply

when it is inconsistent with applicable

law. Moreover, section 205 allows us to

adopt an alternative other than the least

costly, most cost-effective, or least

32236 Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations

burdensome alternative if the final rule

explains why that alternative was not

adopted. Before we establish any

regulatory requirements that may

significantly affect small governments,

including tribal governments, we must

have developed under section 203 of the

UMRA a small-government-agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling them to have meaningful and

timely input in the developing EPA

regulatory proposals with significant

federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today’s final action contains no

federal mandates (under the regulatory

provisions of Title II of the UMRA) for

state, local, or tribal governments or the

private sector. Today’s final action

imposes no enforceable duty on any

state, local or tribal governments or the

private sector.

In addition, we have determined this

action contains no federal mandate that

may result in expenditures of $100

million or more for state, local, and

tribal governments, in the aggregate, or

the private sector in any one year.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled

Federalism (64 FR 43255, August 10,

1999) requires us to develop an

accountable process to ensure

meaningful and timely input by state

and local officials in the development of

regulatory policies that have federalism

implications. The executive order

defines policies that have federalism

implications to include regulations that

have substantial direct effects on the

states, on the relationship between the

national government and the states, or

on the distribution of power and

responsibilities among the various

levels of government.

Under section 6 of Executive Order

13132, we may issue a regulation that

has federalism implications, that

imposes substantial direct compliance

costs, and that isn’t required by statute,

only if the federal government provides

funds the direct compliance costs

incurred by state and local governments,

or if EPA consults with state and local

officials early in the development of the

proposed regulation. Also, EPA may

issue a regulation that has federalism

implications and that preempts state

law, only if we consult with state and

local officials early in the development

of the proposed regulation.

If EPA complies by consulting,

Executive Order 13132 requires us to

provide OMB, in a separately identified

section of the rule’s preamble, a

federalism summary impact statement

(FSIS). The FSIS must describe the

extent of our prior consultation with

state and local officials, summarizing

the nature of their concerns and our

position supporting the need for the

regulation, and state the extent to which

the concerns of state and local officials

have been met. Also, when we transmit

a draft final rule with federalism

implications to OMB for review under

Executive Order 12866, our federalism

official must include a certification that

EPA has met the requirements of

Executive Order 13132 in a meaningful

and timely manner.

Today’s final action does not have

federalism implications. It will not have

a substantial direct affect on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This is because

no requirements are imposed by today’s

action, and EPA is not otherwise

mandating any state or local government

actions. Thus, the requirements of

section 6 of the Executive Order do not

apply to this final action.

F. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

Under Executive Order 13084, EPA

may take an action that isn’t required by

statute, that significantly or uniquely

affects the communities of Indian tribal

governments, and that imposes

substantial direct compliance costs on

those communities, only if the federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal governments

or EPA consults with those

governments. If EPA complies by

consulting, Executive Order 13084

requires us to describe in a separately

identified section of the preamble to the

rule the extent of our prior consultation

with representatives of affected tribal

governments, summarizing of the nature

of their concerns, and state the need for

the regulation. Also, Executive Order

13084 requires EPA to develop an

effective process permitting elected

officials and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities.’’

Today’s final action does not

significantly or uniquely affect the

communities of Indian tribal

governments. This is because today’s

action by EPA involves no regulations

or other requirements that significantly

or uniquely affect Indian tribal

governments. So, the requirements of

section 3(b) of Executive Order 13084

do not apply to this action.

G. Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997)

applies to any rule that: (1) Is

‘‘economically significant’’ as defined

under Executive Order 12866, and (2)

concerns an environmental health or

safety risk that EPA has reason to

believe may have a disproportionate

effect on children. If the regulatory

action meets both criteria, we must

evaluate the environmental health or

safety effects of the planned rule on

children and explain why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

Today’s final action isn’t subject to

the Executive Order because it is not

economically significant as defined in

Executive Order 12866, and because we

have no reason to believe the

environmental health or safety risks

addressed by this action present a

disproportionate risk to children. Risks

were thoroughly evaluated during the

course of developing today’s decision

and were determined not to

disproportionately affect children.

H. National Technology Transfer and

Advancement Act of 1995

As noted in the proposed rule, section

12(d) of the National Technology

Transfer and Advancement Act of 1995

(‘‘NTTAA’’), Public Law. No. 104–113,

section12(d) (15 U.S.C. 272 note) directs

EPA to use voluntary-consensus

standards in its regulatory activities

unless doing so would be inconsistent

with applicable law or otherwise

impractical. Voluntary-consensus

standards are technical standards (such

as materials specifications, test

methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary-consensus

standards bodies. The NTTAA directs

us to explain to Congress, through OMB,

when we decide not to use available and

applicable voluntary-consensus

standards.

Today’s final action involves no

technical standards. So, EPA didn’t

consider using any voluntary-consensus

standards.

Federal Register / Vol. 65, No. 99 / Monday, May 22, 2000 / Rules and Regulations 32237

I. Executive Order 12898:

Environmental Justice

EPA is committed to addressing

environmental justice concerns and is

assuming a leadership role in

environmental justice initiatives to

enhance environmental quality for all

populations in the United States. The

Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, or income

bears disproportionately high and

adverse human health or environmental

impacts as a result of EPA’s policies,

programs, and activities, and that all

people live in safe and healthful

environments. In response to Executive

Order 12898 and to concerns voiced by

many groups outside the Agency, EPA’s

Office of Solid Waste and Emergency

Response formed an Environmental

Justice Task Force to analyze the array

of environmental justice issues specific

to waste programs and to develop an

overall strategy to identify and address

these issues (OSWER Directive No.

9200.317).

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, does not apply

because this action is not a rule for

purposes of 5 U.S.C. 804(3). Rather, this

action is an order as defined by 5 U.S.C.

551(6).

7. How To Obtain More Information

Documents related to this regulatory

determination, including EPA’s

response to the public comments, are

available for inspection in the docket.

The relevant docket numbers are: F–99–

FF2D–FFFFF for the regulatory

determination, and F–99–FF2P–FFFFF

for the RTC. The RCRA Docket

Information Center (RIC), is located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington, VA.

The RIC is open from 9 a.m. to 4 p.m.,

Monday through Friday, excluding

Federal holidays. To review docket

materials, it is recommended that the

public make an appointment by calling

703-603–9230. The public may copy a

maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See the

Supplementary Information section for

information on accessing them.

List of Subjects in 40 CFR Part 261

Fossil fuel combustion waste, Coal

combustion, Gas combustion, Oil

combustion, Special wastes, Bevill

exemption

Dated: April 25, 2000.

Carol M. Browner,

Administrator.

[FR Doc. 00–11138 Filed 5–19–00; 8:45 am]

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