1



# Comment Summary and Response Document

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

Proposed Rule
(Docket # EPA

- HQ

- RCRA

- 2009

- 0640)

Volume 12: Beneficial Use and Definition of CCR Landfill (only)

December 20142

Background
The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for the management of coal combustion residuals (CCRs) which was published in the Federal Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act (RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at electric utilities and from independent power producers. Two regulatory options were proposed. Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May 2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in landfill or surface impoundments. Under the seco nd option, EPA proposed to leave the Bevill determination in place and regulate the disposal of CCR as non

- hazardous solid waste under subtitle D of RCRA by issuing minimum national criteria. Both options would require composite liners, groundwater monito ring, structural stability requirements, corrective action, and closure/post closure care. EPA also solicited comments on all aspects of both proposed options. The Agency received over 450,000 comments on the proposed rule. The majority of the comments focused on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C or subtitle D. EPA also conducted eight public hearings and took additional comments on the proposed rule. EPA has established three docke ts for this regulatory action under Docket ID No.
EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.
EPA

- HQ

- RCRA

- 2012

- 0028. All documents in these dockets are available at http://www.re gulations.gov . Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is3

restricted by statute. Certain other material, such as copyrighted material, i s not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

– 1744, and the telephone number for the OSWER Docket is 202

– 566

– 0276. After reviewing all the comments and additional data received, EPA is promulgating a final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. Th is rule addresses the risks from structural failures of CCR surface impoundments, groundwater contamination from the improper management of CCR in landfills and surface impoundments and fugitive dust emissions. The Agency has developed seventeen volumes of summarizing comments on major topics covered in the proposed rule (see table below) and the Agency’s responses to those comments, as well as a separate volume summarizing comments provided during public hearings. Since EPA is finalizing a rule under s ubtitle D of RCRA, only those comments submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed in the comment and response documents.

Volume Topic
1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional4

Volume Topic

Engineer/Recordkeeping, State Submissions, Posting to the Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site Disposal/Definitions
4 Location Restrictions
5 Design Criteria: Liners and Leachate Collection Systems
6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Inspections/Run

- on

Run

- off
8 Operating Criteria: Air Criteria
9 Groundwater and Corrective Action
10 Closure and Post

- Closure Care
11 Additional Comments including Overfills/ Harmonization with E LG.
12 Beneficial Use
13 Risk Assessment
14 State Authorities, Programs and Regulations
15 Compendium of Damage Cases
16 Regulatory Impact Analysis (RIA)
17 EPA’s Assessment Program

This volume summarizes comments received on the topic of beneficial use and the definition of the term “CCR Landfill.”5

CommentWorks sections reviewed for this comment/response document (to be deleted for final document): Section 10.1

– Issue of General Support for or Opposition to CCR Beneficial Use

Section 10.2

– Issue Regarding Bevill

Section 10.3

– Definition of Beneficial Use vs. Disposal

Section 10.4

– Stigma

Section 10.5

– Safety

Sections 10.5.2

– 10.5.2.8

– Characterizing Beneficial uses that are Protective of Human Health

and the Environment and Provide Benefits

Sections 10.5.3

– 10.5.3.3

– Potential Standards/Regulations, Comments on Banning Unencapsulated Uses in Direct Contact with Water Bodies

Section 10.5.3.4

– What Should be covered if EPA were to Regulate Beneficial Use

Section 10.5.4

– Information/Data on Agricultural Use

Section 4.4.3

– Definitions (Definition of CCR Landfill)6 

### COMMENT RESPONSES



## Section 10.1
--- Response to Comments on the Issue of General Support for or Opposition to CCR Beneficial Use
. Response: The Agency received a total of 773 comments in support of beneficial use of CCRs and 25 comments against the beneficial use of CCRs. As all of these comments are not technically significant , no response is provided.



## Section 10.2.
--- Response to Comments on the Issue of Bevill
Response: EPA generally proposed to retain the May 2000 Regulatory Determination that beneficially used CCRs do not warrant federal regulation under subtitle C of RCRA. As EPA stated in the May 2000 Regulatory Determination, ‘‘In the [Report to Congress], we were not able to identify damage cases associated with these types of beneficial uses, nor do we now believe that these uses of coal combustion wastes present a significant risk to human health and the environment. While some commenters disagreed with our findi ngs, 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 abov e pose risks of concern.’’ See, 65 FR 32230. EPA noted that since the original Regulatory Determination, the Agency had found no data or other information to indicate that existing efforts of states, EPA, and other federal agencies had been inadequate to address the environmental issues associated with the beneficial uses of CCRs that7

were originally identified in the Regulatory Determination. EPA explained that it had proposed this approach in recognition that some uses of CCRs, such as encapsulated uses in concrete, and use as an ingredient in the manufacture of wallboard, provide benefits and raise minimal health or environmental concerns. Consequently, EPA preliminarily concluded that encapsulated uses of CCR, which are common in many consumer products, did not merit regulation based on the available information. However, EPA noted that the issues were more difficult with respect to unencapsulated uses of CCRs and specifically solicited comment on whether such uses should continue to be included as “ben eficial use” under the Bevill exemption. EPA explained that unencapsulated uses have raised concerns and therefore merited closer attention. For example, the placement of unencapsulated CCRs on the land, such as in road embankments or in agricultural uses , presented a set of issues similar to those that caused the Agency to propose to regulate CCRs destined for disposal. But the Agency also acknowledged that the amounts and, in some cases, the manner in which CCRs are used

— i.e., subject to engineering spe cifications and material requirements rather than landfilling techniques

— are potentially very different from land disposal. EPA is retaining the original 2000 Regulatory Determination for CCRs that are beneficially used. EPA has made this determination ba sed on consideration of the available information and the RCRA section 8002(n) study factors.

1. Source and Volume of CCRs Generated Each Year The American Coal Ash Association (ACAA) conducts a voluntary, annual survey of the coal

fired electric utilit y industry to track the quantities of CCRs generated and beneficially used.8

According to the latest survey, the electric utility industry generated nearly 110 million tons of CCRs in 2012. Approximately 39 million tons of these CCRs were identified by ACAA as beneficially used in either encapsulated or unencapsulated products. An additional 12.8 million tons were placed in mine

- fill operations, while the remaining 57.8 million tons were disposed of in landfills and surface impoundments (ACAA, 2013). 1

2. Pre sent Utilization Practices Based on the beneficial use rates reported by ACAA, approximately 50% of the CCRs beneficially used on an annual basis falls into two categories: (1) fly ash used as a direct substitute for portland cement during the production o f concrete (referred to as “fly ash concrete”); and (2) flue gas desulfurization (FGD) gypsum used as a replacement for mined gypsum in wallboard (referred to as “FGD gypsum wallboard”) during use by the consumer. Specifically, the 2012 ACAA survey indicat es that the largest encapsulated beneficial uses of CCRs, by more than a factor of two, are fly ash used in “concrete/concrete products/grout” (12.6 million tons) and FGD gypsum used in “gypsum panel products” (7.6 million tons).

3. Potential Danger, if An y, to Human Health or the Environment from the Reuse of CCRs The risks associated with the disposal of CCRs stem from the specific nature of that activity; that is, the disposal of CCRs in (often unlined) landfills or surface impoundments, with thousands , if not millions, of tons placed in a single concentrated location. And in the case of surface impoundments, the CCRs are managed with water, under a hydraulic head, which promotes more rapid leaching of contaminants into neighboring groundwater than cond itions in

1 ACAA (American Coal Ash Association). 2013. 2012 Coal Combustion Product (CCP) Production & Use Survey Report. Farmington Hills, MI 48331. Available online at: http://www.acaa

usa.org/Portals/9/Files/PDFs/revisedFINAL2012CCPSurveyReport.pdf9

landfills. The beneficial uses identified as excluded under the Bevill exemption for the most part present a significantly different risk profile.

a. Encapsulated beneficial uses An encapsulated beneficial use is one that binds the CCRs into a solid matrix that minimizes their mobilization into the surrounding environment. Examples of encapsulated uses include, but are not limited to: (1) filler or lightweight aggregate in concrete; (2) a replacement for, or raw material used in production of, cementitious components in concrete or bricks; (3) filler in plastics, rubber, and similar products; and (4) raw material in wallboard production. Since publication of the proposal, EPA developed a methodology for evaluating encapsulated beneficial uses. A copy of the methodology can be found at http://www.epa.gov/wastes/conserve/imr/ccps/benfuse_fq.htm . EPA applied this methodology to the two largest CCR uses

— the use of fly ash a s a replacement for portland cement in concrete, and the use of FGD gypsum as a replacement for mined gypsum in wallboard. A complete copy of the evaluation can be found at http://www.epa.gov/wastes/conserve/imr/ccps/pdfs/ccr_bu_eval.pdf

The evaluation co nsidered products that meet relevant physical and performance standards, that conform to standard design specifications, and that incorporate fly ash and FGD gypsum from pollution control devices currently used in the United States. Based on the findings of the evaluation, the Agency concluded that environmental releases of constituents of potential concern from CCR fly ash concrete and FGD gypsum wallboard during use by the consumer are comparable to or lower than those from analogous non

- CCR products, or are at or below relevant regulatory and health

- based benchmarks for human and ecological receptors.10

b. Unencapsulated uses EPA acknowledged in the proposal that unencapsulated uses generally presented more difficult issues than encapsulated uses. CCR s can leach toxic metals at levels of concern, so depending on the characteristics of the CCR, the amount of material placed, how it is placed, and the site conditions, there is a potential for environmental concern. However, EPA cannot extrapolate from th e risk assessments conducted to evaluate the management practices associated with CCR landfills and CCR surface impoundments, because the exposure patterns are too dissimilar: the amounts and manner involved with beneficial use are very different than the thousands, if not millions of tons of CCRs that are mounded in a single concentrated location in a landfill. And the potential exposures are entirely unlike surface impoundments, where CCRs are managed with water under a hydraulic head, which promotes mo re rapid leaching of contaminants. By contrast “beneficial uses,” even unencapsulated uses, are typically subject to engineering specifications, and for certain uses, federal oversight, and material requirements. For example, fly ash used as a stabilized base course in highway construction is subject to both regulatory standards under DOT/FHA, and engineering specifications, such as the ASTM C 593 test for compaction, the ASTM D 560 freezing and thawing test, and a seven day compressive strength above 2760 (400 psi). See, 75 FR 35163

- 35165 for additional examples. In 1999, EPA conducted a risk assessment of certain agricultural uses of CCRs, since this was considered the most likely to raise human health or environmental concerns. EPA estimated the risks associated with such uses to be with in the range of 1×10 - 6 . These results as well as EPA’s conclusion that the use of CCRs in agricultural settings was the most likely use to raise concerns, caused EPA to conclude that none of the beneficial uses identified in the 2000 Regulatory Determinat ion warranted federal regulation, because ‘‘we were not able to identify damage cases11

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 environm ent.’’ (65 FR 32230, May 22, 2000.) EPA also noted that beneficially using secondary materials conserves natural resources, and can serve as an important alternative to disposal.

4. Documented Cases in Which Damage to Human Health or the Environment from Surface Runoff or Leachate has Been Proved To date, EPA has seen no evidence of damages from the encapsulated beneficial uses of CCRs that EPA identified in the proposal. For example, there is wide acceptance of the use of CCRs in encapsulated uses, such as wallboard, concrete, and bricks because the CCRs are bound into products. However, as of the date of the proposed rule, seven proven damage cases associated with unencapsulated uses have occurred, in which large quantities of unencapsulated CCRs were used indiscriminately to re

- grade the landscape or to fill old quarries or gravel pits. The proposed rule discussed two of these cases. 75 FR at 35147. The first case was in Gambrills, Maryland and involved the disposal of fly ash and bottom ash (beginn ing in 1995) in two sand and gravel quarries. EPA considers this site a proven damage case, because groundwater samples from residential drinking wells near the site include heavy metals and sulfates at or above groundwater quality standards, and the state of Maryland is overseeing remediation. The second case is the Battlefield Golf Course in Chesapeake, Virginia where 1.5 million yards of fly ash were used as fill and to contour a golf course. Groundwater contamination above MCLs has been found at the edg es and corners of the golf course, but not in residential wells. An EPA study in April 2010,12

established that residential wells near the site were not impacted by the fly ash and, therefore, EPA does not consider this site to be a proven damage case. Howev er, due to the onsite groundwater contamination, EPA considers this site to be a potential damage case. During the development of this final rule, EPA obtained information on a comparable situation in which large quantities of unencapsulated CCRs were plac ed on the land in a manner that presented significant concerns. The AES coal

- fired power plant in Puerto Rico lacked capacity to dispose of their CCRs on

- site, and off

- site landfills in Puerto Rico were prohibited from accepting CCRs. In lieu of transport ing their CCRs off of the island for disposal, AES created an aggregate (“AGREMAX”) with the CCRs generated at their facility, and used the aggregate as fill in housing developments and in road projects. Over 2 million tons of this material was used betwe en 2004 and 2012. Currently, there is insufficient information to determine whether groundwater has been contaminated as a result of this practice, and thus, EPA cannot classify this as either a proven or potential “damage case.” Nevertheless, the avail able facts illustrate several of the significant concerns associated with unencapsulated uses. Specifically, the AGREMAX was applied without appropriate engineering controls and in volumes that far exceeded the amounts necessary for the engineering use of the materials. Inspections of some of the sites where the material had been placed showed use in residential areas, and to environmentally vulnerable areas, including areas close to wetlands and surface waters and over shallow, sole

- source drinking water aquifers. In addition, some sites appeared to have been abandoned. Consistent with the proposed rule, EPA does not consider the practices described in this section to be beneficial use, but rather waste management that would be subject to the requirements of the final rule.13

5. Alternatives to Current Disposal Methods, the Costs of Such Alternatives, and the Impact of Such Alternatives on the Use of Coal and Other Natural Resources The beneficial use of CCRs is a primary alternative to current disposal m ethods. And as EPA has repeatedly concluded, it is a method that, when performed correctly, can offer significant environmental benefits, including greenhouse gas (GHG) reduction, energy conservation, reduction in land disposal ( along with the correspondi ng avoidance of potential CCR disposal impacts), and reduction in the need to mine and process virgin materials and the associated environmental impacts.

a. Greenhouse Gas and Energy Benefits The beneficial use of CCRs reduces energy consumption and GHG emissions in a number of ways. Three of the most widely recognized beneficial applications of CCRs are the use of coal fly ash as a substitute for Portland cement in the manufacture of concrete, the use of FGD gypsum as a substitute for mined gypsum in th e manufacture of wallboard, and the use of CCRs as a substitute for sand, gravel, and other materials in structural fill. Reducing the amount of cement, mined gypsum, and virgin fill produced by substituting CCRs leads to large supply chain

- wide reduction s in energy use and GHG emissions. Specifically, the RIA estimates 3

- year rolling average of 53,054,246 MMBtu per year in energy savings and 11,571,116 tons per year in GHG (i.e., carbon dioxide and methane) emissions reductions in 2015. This estimate is likely to underestimate the total benefits that can be achieved from all beneficial uses. Furthermore, the use of fly ash generally makes concrete stronger and more durable. This results in a longer lasting material, thereby marginally reducing the need for future cement manufacturing and corresponding avoided emissions and energy use.14

b. Benefits from Reducing the Need to Mine and Process Virgin Materials CCRs can be substituted for many virgin materials that would otherwise have to be mined and
proce ssed for use. These virgin materials include limestone to make cement, and Portland cement to make concrete; mined gypsum to make wallboard, and aggregate, such as stone and gravel for uses in concrete and road bed. Using virgin materials for these applica tions requires mining and processing, which can impair wildlife habitats and disturb otherwise undeveloped land. It is beneficial to use secondary materials

— provided it is done in an environmentally sound

manner

— that would otherwise be disposed of, rather than to mine and process virgin materials, while simultaneously reducing waste and environmental footprints. Reducing mining, processing and transport of virgin materials also conserves energy, avoids GHG emissions, and reduces impacts on communities.

c . Benefits from Reducing the Disposal of CCRs Beneficially using CCRs instead of disposing of them in landfills and surface impoundments also reduces the need for additional landfill space and any risks associated with their disposal. In particular, the U.S. disposed of over 57.8 million tons of CCRs in landfills and surface impoundments in 2012, which is equivalent to the space required of 20,222 quarter

- acre home sites under 8 feet of CCRs.
As discussed in the final rule RIA, the current beneficial us e of CCRs as a replacement for industrial raw materials (e.g., Portland cement, virgin stone aggregate, lime, gypsum) provides substantial annual life cycle environmental benefits for these industrial applications. Specifically, the 3

- year rolling average of environmental benefits estimated for 2015 includes: (a) 53,054,246 MMBtu per year in energy savings; (b) 1,661,900 million gallons per year in water savings; (c)15

11,571,116 tons per year in GHG (i.e., carbon dioxide and methane) emissions reductions; (d ) 45,770 tons of criteria air pollutant (i.e., NOx, SOx, particulate matter, and CO) emissions reductions; and (e) 3,207 lbs. toxic air pollutant (i.e., Hg and Pb) emissions reductions. All together, the beneficial use of CCRs in 2015 is estimated to provi de over $2.3 billion in annual national environmental benefits. In addition, since EPA estimates annual baseline disposal costs of approximately $2.4 billion for the just over 50% of tons disposed each year, current beneficial use and minefilling also resu lt in annual material and disposal cost savings of approximately $2 billion annually.

5. Current and Potential Utilization of CCRs In 2012, nearly 36% (39 million tons) of CCRs were beneficially used (excluding minefill operations) and nearly 12% (12.8 mi llion tons) were placed in minefills. (This compares to 23% of CCRs that were beneficially used, excluding minefilling, at the time of the May 2000 Regulatory Determination, and represents a significant increase.)

6. Conclusions
On balance, after consideri ng all of the available information, EPA has concluded that the most appropriate approach toward beneficial use is to retain the May 2000 Regulatory Determination that regulation under subtitle C of the beneficial use of CCRs is not warranted. EPA has als o determined that regulation under subtitle D is generally not necessary for these beneficial uses. As discussed in the preceding section, the most important of the 8002(n) factors are those that relate to the potential risks to human health and the env ironment. See, e.g ., Horsehead Resource Development Co. v EPA , 16 F.3d 1246, 1258 (DC Cir, 1994 ) ( Upholding EPA’s interpretation that wastes resulting from the combustion of mixtures of Bevill

- exempt and non

- exempt wastes16

could only retain Bevill

- exempt s tatus so long as the combustion waste remained of low toxicity); EDF v EPA , 852 F.2d 1316, 1328

- 1329 (DC Cir. 1988 ) ( Overturning EPA rule that included as Bevill exempt, wastes that were not of low toxicity). EPA is adopting this Regulatory Determination in recognition that many uses of CCRs, such as encapsulated uses in concrete, and use as an ingredient in the manufacture of wallboard, provide environmental benefits and raise minimal health or environmental concerns. To date, the information available do es not demonstrate the existence of any risks associated with encapsulated uses of CCR that merit regulation under either subtitle C or D. While there can be some risks associated with unencapsulated uses

-- for example, the placement of unencapsulated CCRs on the land, such as in large scale fill operations or in agricultural uses, depending on the specific site conditions

-- in general the amounts and, in some cases, the manner in which they are used are very different than land disposal. For example, agric ultural uses involve the placement of inches rather than tons of CCRs, and placement of CCRs in a thin layer rather than mounded in a single concentrated location. In addition, these uses are subject to engineering specifications and materials requirement s, which will limit the ultimate amount of material placed on the land. EPA recognizes that several proven damage cases involving the large

- scale placement, akin to disposal, of CCRs have occurred under the guise of ‘‘beneficial use’’

— the ‘‘beneficial’ ’ use being the filling up of old quarries or gravel pits, or the re

- grading of landscape with large quantities of CCRs. EPA did not consider this type of use as a ‘‘beneficial’’ use in its May 2000 Regulatory Determination, and still does not consider th is type of use to be covered by the exclusion. Therefore, the final rule explicitly removes these types of uses from the category of beneficial use, and from this Regulatory Determination. As discussed in the next section of this17

preamble, EPA has adopted criteria in the final rule to ensure that inappropriate uses that effectively are disposal will be regulated as disposal. The final rule expressly defines the placement of CCRs in sand and gravel pits or quarries as disposal in a landfill. In addition, the final rule provides that the use of large volumes of CCRs in restructuring landscape that does not meet specific criteria will constitute disposal. While EPA has not definitively concluded that all unencapsulated beneficial uses are “safe,”
based on the current record for this rulemaking, EPA is unable to point to evidence demonstrating that the unencapsulated uses subject to this Determination warrant federal regulation. While the absence of demonstrated harm in this instance is not proof of safety, neither is the lack of information proof of risk. In this regard, EPA notes that many states have developed beneficial use programs that allow the use of CCRs, provided they are demonstrated to be non

- hazardous materials; and many require a site specifi c assessment before authorizing placement on the land of large amounts of unencapsulated CCRs. For example, Wisconsin’s Department of Natural Resources has developed a regulation (NR 538 Wis. Adm. Code), which includes a five

- category system to allow for the beneficial use of industrial by

- products, including coal ash, provided they meet the specified criteria. In addition, the ASTSWMO 2006 Beneficial Use Survey Report states that a total of 34 of the 40 reporting States, or 85 percent, indicated they had either formal or informal decision

- making processes or beneficial use programs relating to the use of solid wastes.’’ (http://www.astswmo.org/files/ publications/solidwaste/ 2007BUSurveyReport11

– 30

– 07.pdf). 2

2 EPA has worked with the states to support the development of a national database on state beneficial use determinations. Information on the beneficial use determination database can be found on the Northeast Waste Management Officials’ Association (NEWMOA ) Web site at18

Because EPA has not identified significant ris ks associated with the beneficial uses covered by this Regulatory Determination, the adequacy of these state programs does not factor into EPA’s
Determination. Nevertheless, to the extent that that these materials do have the potential to pose risk at an individual site, that fact that many states exercise regulatory oversight of these materials provides an additional level of assurance. Finally, EPA does not wish to inhibit or eliminate the measurable environmental and economic benefits derived from the use of this valuable material given the current lack of evidence affirmatively demonstrating an environmental or health risk. Consequently, EPA is confident that the combination of the final rule, EPA guidance, current industrial standards and practi ces, and in many cases, state regulatory oversight is sufficient to address concerns associated with the beneficial uses to which this Determination applies.

http://www.newmoa.org/solidwaste/bud.cfm. This database helps states share information on beneficial use decisions providing for more consistent and informed decisions.19



## Section 10.3
-- - Definition of Beneficial use vs. Disposal

Comment : The Agency uses two definitions (CCPs and CCRs) and the use of those terms is incorrect and causes a problem. We recommend only using one term. Others argued that the term CCR meant materials destined for disposal and that CCPs are destined for benef icial use. Therefore , if the Agency uses that term CCRs there can be no beneficial use. R esponse : The Agency has elected to use the term CCR throughout the final rule and preamble. The Agency has provided a definition for the term “ beneficial use of CCR ” to allow for a distinction between beneficial use and disposal.

Comment : Commenters were concerned that the proposal to limit the regulation of CCRs to only CCRs which are destined for disposal, rather than beneficial use is unworkable in that it

a ssumes that the final destination of the CCRs is known at the time of generation.
R esponse : See final Preamble for response

.

Comment : Numerous comments argued that the Agency had failed to establish any environmental benefit in the definition of the term beneficial use.
R esponse : The Agency has established an additional criterion as part of the definition of beneficial use of CCR. T his environmental criteri on is for the unencapsulated uses of CC R. The environmental criterion is as follows : When unencapsulated use of CCR involving placement on the land of 12,400 tons or more in non

- roadway applications, the user must demonstrate, and maintain a copy of that demonstration, showing that environmental releases to ground water, surface water, soil and air are comparable to or lower than those from analogous20

products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecolo gical receptors during use.

Comment: Several commenters stated that the criteria proposed for the definition of beneficial use were too vague. R esponse : As previously noted, the first three criteria were discussed in the proposal and commenters genera lly supported these criteria, which establish flexible performance standards. In addition, as noted, these criteria are consistent with how the agency generally distinguishes between legitimate recycling and sham disposal under subtitle C.

Comment: EPA proposed to include in the definition of disposal units, uses that the Agency believed were not appropriate, however, the Agency used vague terms to define them.
R esponse : The Agency has provided definitions for the terms, “sand and gravel pits or quarry ” and “CCR pile or pile” as these types of facilities are considered a “CCR landfill”. See final preamble for response.

Comment : A number of commenters stated that the definition of beneficial use clearly supports the use of FGD gypsum for agricultural purposes. . R espo n se : The final rule contains a definition for the term “beneficial use of CCR” ; as long as an unencapsulated application (e.g., FGD gypsum in agricultural setting) meets the 4 criteria that are contained in the definition of “beneficial use of CCR” then that application is indeed
considered beneficial use.21

Comment : Commenters were c oncerned that the definition of beneficial use was arbitrarily and capriciously proposed and that only encapsulated uses could meet the criteria. Along similar lines, commenters stated that the criteria were very appropriate for fly ash used in concrete and other bound materials and that no further criteria were necessary for bound materials.
R esponse : Encapsulated uses of CCR need only comply with the first three criteria. Encapsulated beneficial uses are those that bind the CCR into a solid matrix that minimizes their mobilization into the surrounding environment. Examples of encapsulated uses include, but are not limited to: • Filler or lightweight aggregate in concrete • A replacement for, or raw material used in production of, cementitious components in concrete or bricks • Filler in plastics, rubber, and similar products • Raw material in wallboard production
Compliance with the first three criteria suffices because, as discussed in the preamble of today’s
final rule , the available informa tion demonstrates that encapsulated uses of CCR raise minimal health or environmental concerns. Compliance with all 4 criteria is required for unencapsulated uses. The Agency believes that it is possible for unencapsulated CCR uses to achieve compliance with the beneficial use criteria,

Com men t: Commenters requested that the Agency list all be neficial uses or com m ented that the Agency should not list all beneficial uses.
R esponse : The Agency elected not to list all possible CCR uses in the event that additional uses were developed at a later date. These future uses w ould then require the Agency to go back and develop a separate federal Register notice to list their use. The Age ncy elected to not list all22

possible beneficial uses of CCR but instead provided a definition of beneficial use that users must comply with.

Comment : EPA should work with the CPSC to establish beneficial use criteria.
R esponse: The Agency elected not t o work with the Consumer Product Safety Commission as the Agency felt that it was capable of developing criteria for beneficial use without the need to involve the CPSC. On the other hand, the Agency recently (Feb. 2014) released the “ Coal Combustion Resi dual Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard ” document and the CPSC was asked to comment on the document

Comment : It was stated that it was entirely appropriate to use ASTM standards for beneficial use projects

. R esponse : The Agency acknowledges the use of ASTM standards, as well as others, that can be used to support the appropriate use of CCR.

Comment : CCRs used to make asphalt roofing should be considered beneficial use.
R esponse : The Agency has established crite ria so that potential users can demonstrate that CCR used in roofing asphalt , as well as other materials, can be used in an environmentally protective

manner.

Comment : Any attempt to define large scale fills or provide regulations for unencapsulated uses needs a separate proposal.23

R esponse : The Agency acknowledged in the proposal that additional guidance was warranted on what would constitute a large scale fill operation, and received numerous comments on this issue in response to the proposal. EPA requested comments again on the topic of large scale fills in a Notice of Data Availability (NODA) published in 2013. 78 FR 46940, (August 2, 2013). The NODA discussed the fact that many commenters on the proposed CCR rule stated that EPA should have de veloped a size criterion to define large scale fill operations. One commenter suggested 5,000 cubic yards as a size criterion for a CCR landfill, but did not provide a basis for this. Other commenters suggested size criteria but for different reasons than defining disposal criteria; for example, Wisconsin has a standard where all CCRs used for unconfined and confined “fill projects exceeding 5,000 cubic yards require concurrence by the State prior to commencement of the project.” Similarly, West Virginia stated that “unencapsulated use of CCRs as structural fills not exceeding 10,000 cubic yards are approvable on a case

- by

- case basis.”
In the NODA, EPA identified three different types of data sets that could provide information relevant to deve loping appropriate criteria or to otherwise defining what constitutes a “large scale” fill operation. EPA solicited comment on the adequacy of the data sets and whether EPA should consider them for the purpose of creating criteria or a definition. The thre e data sets were: (1) The size of the structural fills that have resulted in damage cases; (2) The distribution of landfill sizes, derived either from an EPA Office of Water's questionnaire or from the landfill size distribution used in the proposed rule; and (3) The size distribution for large scale fills that have been constructed in North Carolina.
Focusing on the risks of concern

— that large scale fills were effectively operating as landfills

-- the Agency reviewed the database of landfills us ed in the 2014 risk assessment and24

has established a threshold limit that corresponds to the smallest size landfill in the risk assessment database. EPA selected this threshold as the trigger for requiring an affirmative demonstration by the user that th ere will be no releases of concern as a consequence of the land application, because the available evidence in the record (i.e., the 2014 risk assessment) demonstrates that at these volumes the potential risks are of such significance to warrant regulation . Based on this evidence, the burden then shifts to the potential user to demonstrate that these potential risks do not exist at the particular site or have been adequately mitigated. Under this approach, unencapsulated beneficial use applications greate r than or equal to 12,400 tons can still be conducted without becoming subject to the disposal regulations by using engineering principles, such as a liner system, and demonstrating that environmental releases to ground water, surface water, soil and air a re comparable to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptor s.

Comment : A number of commenters supported NOT removing the bevill exemption

- removing the bevill exemption would jeopardize many existing exist State policies. Beneficial use should still be bevill exempt. R esponse : The final rule retains the Bevill exclusion for CCRs going to beneficial use and provides a definition of beneficial use to distinguish between beneficial use and disposal. See preamble discussion of Bevill wastes and beneficial use.25

Comment : EPA must change the proposed definition of beneficial use to make sure that final definition does not sweep in environmentally protective beneficially practices such as large scale fill operations.
R esponse : T he Agency has developed an additional criterion in response to comments de signed to address the environmental and human health concerns associated with large

- scale, unencapsulated uses that have features similar to landfills. Beneficial uses that are able to meet the criteria for beneficial use of CCR will be considered BU. Th e Agency expects by establishing these final criteria that environmentally protective beneficial uses will not be captured under the definition of CCR landfill.

Comment : EPA needs to rely on more than engineering performance standards and comparisons t o natural gypsum is inappropriate

. R esponse : The Agency is not just relying on engineering performance standards and comparisons to virgin materials but instead is also incorporating an environmental standard.

Comment : EPA needs to establish threshold limits for environmental protection.
R esponse : The Agency has established an environmental standard which requires the use of relevant regulatory and health

- based benchmarks for human and ecological receptors during u se

w hen unencapsulated use of CCR involving placement on the land of 12,400 tons or more in

non - roadway applications

.26

Comment : EPA needs to better define and draw a distinction between encapsulated and unencapsulated uses.
R esponse : The Agency has discussed how it defines encapsulated materials

- Encapsulated beneficial uses are those that bind the CCR into a solid matrix that minimizes their mobilization into the surrounding environment. Although there is no formal definition f or unencapsulated materials, unencapsulated applications would be those that are the opposite of encapsulated , i.e ., the CCR materials are not bound into a solid matrix that minimizes their mobilization into the surrounding environment

.

Commen t: Request ed that the Agency use the terms “bound ” and “unbound’ for encapsulated and unencapsulated.
R esponse : The Agency has decided not to use the terms “bound” and “unbound” but stay with the encapsulated and unencapsulated terms with encapsulated meaning

– “ beneficial uses that bind the CCR into a solid matrix that minimizes their mobilization into the surrounding environment. ” The use of either collection of terms is workable, but there is no apparent benefit to switching the terminology.

Comment : Most al l uses of CCRs to reclaim quarries should not be considered beneficial uses.
R esponse : The final definition of CCR landfill continues to classify sand and gravel pits and quarries as CCR landfills. See preamble discussion for further response.27

Comment : Numerous commenters argued that temporary piles used for storage should not be regulated.
R esponse : See final preamble for response.

Comment : Numerous commenters suggested a better definition of beneficial use or that the Agency develop detailed guidance.
R esponse : The Agency has refined the proposed definition of beneficial use of CCR to include an environmental criterion designed to ensure protection of human health and the environment.

Comment : Numerous commenters discussed flowable fill with most commenters arguing the flowable fill is an encapsulated use.
R esponse : The final rule contains a definition for the term “beneficial use of CCR”; as long as an application (e.g., flowable fill) me ets the criteria that are contained in the definition of “beneficial use of CCR” then that application is indeed considered beneficial use. Persons wishing to use CCRs in flowable fill situations , or any application, should consult with their State Agency to ascertain whether the State believes the application to be a beneficial use of
CCR.

Comment: Commenters wanted reassurance that once CCRs are designated for beneficial use, they will remain so and will not later b e subject to disposal standards.
R esponse : Materials that are designed for beneficial use continue to be considered beneficial use until these materials are destined for disposal; once a material is destined for disposal that material must comply with appropriate disposal criteria.28

Comment: Excavation of materials previously disposed of surface impoundments for repurposing as beneficial use should be allowed.
R esponse : See final preamble for response.

Comment : Unencapsulated uses drew many comments ; unencapsulated uses should be prohibited; need to avoid sham recycling with unencapsulated uses; As long as unencapsulated uses are not guises for disposal they should be evaluated as beneficial use; Agency should continue to rely on States to make decisions regarding u nencapsulated uses R esponse : When unen capsulated use of CCR involves placement on the land of 12,400 tons or more in non

- roadway applications, the user must demonstrate that environmental releases to ground water, surface water, soil and air are comparab le to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during us e. Unencapsulated non - roadway uses involving placement on the land of 12,400 tons or more that fail to meet all the beneficial use criteria are considered a CCR landfill. Unencapsulated non - roadway uses involving placement on the land of 12,400 tons or

m ore that meet the beneficial use criteria will be considered beneficial use for the purposes of this rule.29



## Section 10.4 . --- Stigma Response: EPA received 745 comments that discussed instances of actual stigma where the
actual benefi cial use of CCR has been affected. In addition, the Agency received over an additional 1,000 comments on the subject of stigma. On balance, after considering all of the available information, EPA has concluded that the most appropriate approach toward benefic ial use is to retain the May 2000 Regulatory Determination that regulation under subtitle C of the beneficial use of CCR is not warranted. EPA has also determined that regulation under subtitle D is generally not necessary for these beneficial uses.30



## Section 10.5
--- Safety

Comment: The EPA should conduct comprehensive risk assessments on products. Response: The Agency has conducted a comprehensive risk assessment on fly ash concrete and FGD gypsum use in wallboard. The Agency also has plans to conduct a comprehensive risk assessment for FGD gypsum use in agricultural settings. In addition, the Agency has performed an assessment of some applications of spent foundry sands. The Agency has plans to review current literature for additional materials (e.g., tires, iron and steel slag, construction and demolition materials) to assist users in determining the sa fety of these materials when beneficially used. Lastly, the Agency plans for the release of the new IWEM highway module in addition to the release of the Risk Compendium and the Framework to assist users

Comment: Our goal is to ensure that beneficial uses are safe and that the promotion of “beneficial use” of CCRs is not don e at the expense of the public or environmental health. Response: The Agency’s goal is also to be protective of human health and the environment and, as such, has added an environmental criter ion t o the definition of the term “beneficial use of CCR”.

Comment: Concerned about dust exposure to workers. Response: The Agency’s final rule is concerned about the management of CCR; the use of CCR in a setting that may affect workers is addressed by the Occupational Safety and Health Administration (OSHA).31

Comment: EPA should determine if it is possible to draw a distinction between encapsulated and unencapsulated uses. Response : The Agency’s final rule does draw a dist inction between encapsulated and unencapsulated uses by requiring th at encapsulated uses meet the first 3 criteria in the definition of the term “beneficial use of CCR” while unencapsulated uses must meet all 4 criteria contained in the definition of the tem “beneficial use of CCR.”

Comment: In the request for comments on whether tighter controls are necessary for unencapsulated uses, some felt that tighter controls were necessary while others highlighted successful unencapsulated uses without adverse effects

. Response: The Agency has determined that unencapsulated uses must meet all 4 of the criteria contained in the definition of the term “beneficial use of CCR.” The agency did determine that tighter environmental controls were needed for unencapsulated applications vs. encapsulated

uses.

Comment: Flowable fill is a n unencapsulated use of CCRs where no damage cases exist. Response 

### : The final rule contains a definition for the term “beneficial use of CCR”; as long as an application (e.g., flowable fill) meets the criteria that are contained in the definition of “beneficial use of CCR” then that application is indeed considered beneficial use. Persons wishing to use CCR in flowable fill situations , or any application, should consult with their State Agency to ascertain whether the State believes the application to be a beneficial use of CCR.32

Comment : Unregulated spreading of CCRs on agricultural fields is more like disposal . Other comments stated that use of CCRs on agricultural fields is a viable and safe application. Response : The Agency’s final rule will specify that excess materials must not be used in agricultural settings , and that when used , the environmental criterion in the term “beneficial use of CCR” will need to be demonstrated.

Comment : Ur ge that beneficial use of CCRs be regulated under Subtitle C

. Response : See Preamble of Final Rule

Comment : Coal Slag shoul d not be used as a n abrasive blasting material and should be excluded as a beneficial use

. Response: The Agency’s final rule establishes a distinction between disposal and beneficial use. To the extent that coal slag can be shown to achieve the criteri a contained in the definition of the term “beneficial use of CCR” then the coal slag can be used as a beneficial use application. It is also recognized that all abrasive blasting operations can potentially impact the operators but appropriate protection mea sures for workers are established by OSHA.33



## Section 10.5.2

– 10.5.2.8
--- Characterizing Beneficial U ses that are Protecti v e of HH&E and P rovide Benefits

Comment: The use of CCPs for unencapsulated projects constitutes beneficial use if they are constructed or applied in a manner consistent with the protection of human health and the environment, good engineering practices, and is consistent with the goal of preserving natural

resources . Response : See final preamble for response.

Comment : Extensive reports and studies provided that show that unencapsulated uses are safe and with no indication of damage. Response: See final preamble for response.

Comment: Request that EPA establish a new CPG that mandates the use of CCPs in geotechnica l applications in any project receiving federal funds over $10,000. Response : This issue is outside the scope of the final rulemaking

.

Comment : Puerto Rico and other States allow the uncontrolled land disposal of CCRs and this has caused a disproportion ate burden on the people of power States. Response : While EPA is exempting roadbed applications of 12,400 tons or larger from the fourth criterion, EPA is mindful of situations where large quantities of CCR have been used without appropriate engineering controls or where placement on the land has apparently far exceeded those necessary for the engineering use of the materials. One such situation occurred34

in Puerto Rico with CCR generated by the AES Coal Fired Power Plant in Guayama. As discussed in Unit IV.B, CCRs and an aggregate created from them (“AGREM AX”) were being used as fill in housing developments and in road projects. Over two million tons of this material was used between 2004 and 2012. When made aware of the situation, EPA raised concerns over the use of CCRs and AGREMAX based on the fact tha t the Environmental Quality Board had not imposed engineering controls, specified appropriate uses, or otherwise limited the use of AGREMAX by the end users. Inspections of some of the sites where the material had been placed showed use in residential ar eas, areas close to wetlands and surface waters and/or over shallow sole source drinking water aquifers. In addition, in some cases the volumes appeared to be in excess of what was necessary for engineering uses and some sites appeared to be abandoned. T his kind of situation will be directly addressed by the new beneficial use criteria promulgated in the final rule. To qualify as a beneficial use, the use of AGREMAX would need to meet all four of the criteria

– that is, it must provide a functional benefi t, substitute for a virgin material, meet product specifications, and in this case, the user would be required to make the environmental demonstration for the non

- roadbed applications.

Comment: States provide adequate control in the 29 States where the majority of FGD gypsum is used in agricultural uses. Response: To the extent that States provide adequate control over the use of FGD gypsum in agricultural settings, then compliance with the 4 th criterion under the term “beneficial use of CCR” should be easy for a potential user of FGD gypsum to demonstrate.35

Comment : State regulations vary and it would be helpful for EPA to issue guidance for the beneficial use of CCRs. Response: The final rule contains a definition for beneficial use of CCR , as well as , the preamble contains information and reports that can be useful guidance tools.

Comment : Without a clear definition of beneficial use , State beneficial use determinations will leave some citizens disproportionately more vulnerable

. Re s p onse: The final definition of beneficial use of CCR includes an environmental component designed to ensure protection of human health and the environmen t

. If the environmental criterion is met, then citizens will be protected while i f the environmental criterion is not meet then that planned applications will have t o comply with the disposal stand ards in today’s final

ru le wh ich also e nsures p ro te c tion o f h u man health and th e environment.

Comment : The State DOT s have a tremendous volume of wealth and knowledge regarding the use of fly ash in highways and transportation projects. Response: The Agency has excluded roadways and associated embankments from the fourth criterion because the methods of application are sufficiently different from CCR landfills that EPA cannot extrapolate from the available risk information to determine whether these activities present similar risks. Roadways are subject to engineering specifications that generally specify CCR to be placed in a thin layer (e.g., 6 to 12 inches) under a road. The placement under the surface of the road limits the degree to which rainwater can influence the leaching of the CCR. There are also significant differences between the manner in which roadways and landfills can potentially impact groundwater. These include the nature of mixing in the media, the leaching36

patterns, and how input infiltration rates are generated. First, CCR landfills a re typically a homogenously mixed system, and as a result, there are no spatial variations of the chemical and physical properties of the media (for example, bulk density, hydraulic conductivity and contaminant concentration). By contrast, roadways are ge nerally constructed of several layers with different material properties (heterogeneity). This difference affects the hydraulic conductivity of a mass of CCR in a landfill, as compared to CCR placed in an embankment. Any potential leaching will tend to s pread over the length of the embankment, as opposed to the leaching in a downward motion that would occur in a homogenously filled landfill. Finally, (and perhaps most critically) the construction of roads and associated embankments are supervised and appr oved by State and/or Federal Department of Transportation (DOT) engineers who ensure compliance with engineering specifications

Comment: State s have extensive beneficial use programs, several of which have been recently revised, that require extensive characterization of the waste and in some cases prohibit certain unencapsulated uses. States require that risk

- based standards be achieved prior to use. States already perform site

- specific risk evaluations, based on site

- specific risk assessment, takin g into consideration various factors including CCR character and composition and l eaching potential under a range of conditions

. Minimal risk can only be determined by evaluating a series of factors that deal with all of the circumstances surrounding the planned use. Respo nse : States should be familiar with the concepts outlined in the environmental criterion in today’s final rul e. The environmental fourth criterion requires a potential use of CCRs to compare analogous products or to perform an environmental assessment evaluating whether37

releases to the environment are at or below relevant regulatory and health

- based benchmarks fo r human and ecological receptors during use. A demonstration should consider the development of a conceptual model to assist in the determination of whether the environmental criteria contained in the definition of the term “beneficial use of CCR” can be demonstrated. Numerous potential pathways exist and these should be evaluated as necessary depending on the potential application of the CCR. Potential exposure pathways include exposure to ground water, surface water, air, and soils. Generation of dust, leaching to ground water and surface water, inhalation of mercury, and plant uptake are areas that may need to be evaluated. A complete evaluation of the types of releases, the types of exposure and the receptors that may be potentially affected by
a p otential application will need to be conducted. A screening comparison will need to be performed comparing the concentrations of individual constituents of potential concern to the following benchmarks: human soil ingestion, ecological soil, tap water in gestion, fish ingestion, surface water, sediment, and inhalation. As an example, a user could compare a mercury concentration to a human health screening benchmark with an inhalation value of 300 ng/m 3

. Example of documents that can be used to gain an un derstanding of conceptual models, pathways, regulatory limits include: Risk Assessment Guidance for Superfund, Exposure Factors Handbook, Volumes I, II and III, Risk Assessment Guidance for Superfund Volume I: Human Health Evaluation Manual Part A, Indust rial Waste Management Model (IWEM) Technical Backgrounds Document, Exposure Factors Handbook, Human and Ecological Risk Assessment of Coal Combustion Wastes
. In addition, although it is not directly applicable, a potential user of unencapsulated CCR may find it useful to consult the previously mentioned “ Coal Combustion Residual Beneficial Use Evaluation: Fly Ash Concrete and FGD Gypsum Wallboard ” and the “ Methodology for Evaluating Encapsulated Beneficial Uses of Coal38

Combustion Residuals ” to assist in t he determination of whether the unencapsulated CCR is comparable to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during use.

Comment : Commenters objected to the use of the TCLP in all cases. Response: EPA notes that the composition and leaching behavior of CCRs being beneficially used may change over time due to upgrades in air pollution controls devices at coal

- fired power plants. Further, initial determinations for existing BU applications may have r elied on single

point pH test methods (e.g., TCLP, SPLP) that, depending on actual field conditions in which the applications are occurring, can under

- or over - estimate leachate concentrations. Scientific advancements in leach test protocols have found th at the degree of leaching can vary by several orders of magnitude. Accordingly, States overseeing CCR BU programs are encouraged to closely evaluate existing BU applications in light of ongoing scientific advances in tools and technologies to ensure these applications remain protective of human health and the environment. In addition, the Agency is working to provide assistance to states and potential users; this includes the release of the Agency’s Industrial Waste Evaluation Model (IWEM), and the develop ment of a framework for systematically assessing unencapsulated BU applications to aid in assessing whether there are environmental risks associated with site specific structural fills.39



## Section 10.5.3.
- 10.5.3.3

– - Potential Standards/Regulations , Comments on Banning Unencapsulated Uses in Direct Contact with Water Bodies

Comment: EPA needs to clearly define “safely

. ” Response: The 4 th criterion in the definition of “beneficial use of CCR ” contains an environmental criterion that better defines safety.

Comment: EPA must prohibit the direct placement of CCRs in water Response : To address commenters concern that a potential criterion for regulating fills operations should be the inclusion of a sta tement that prevents the placement of CCRs in water

sources; the Agency believes that the fourth criterion, dealing with the environmental criterion, addresses the commenters concern. The damage cases that exist show that the placement of CCR in sand and gravel pits was almost always associated with the CCR being placed in contact with water. The fourth criterion was designed to addresses these types of issues. The fourth criterion will require that the user of the CCR demonstrate that environmental rel eases to ground water, surface water, soil and air are comparable to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and healt h

- based benchmarks for human and ecological receptors during use. This demonstration may change the potential use of the CCR; the demonstration may show that the potential use will not protect human health and the40

environment or it may show that the only way to achieve compliance is to install engineering features. The Agency firmly believes that the fourth criterion addresses the commenters concern regarding placement of CCR in or near water sources and expects that demonstrating a use is environmentally protective will be a more difficult hurdle in circumstances where placement is in or near water sources.

Comment: Market

- driven use of CCPs by contractors in competitive bidding situations ensures that CCRs are used appropriately and not in excess and that project performance requirements
are met. Response : The Agency agrees that market

- driven use by contractors i n competitive bidding helps ensure proper use. However, to address those aberrations involving misuse , the Agency believes that compliance with the 4 th criterion in the definition of the term “beneficial use of CCR” ensures protection of human health and the environment and that compliance with all of the criteria will ensure that excessive amounts of CCR are not used.

Comment : The Department recommends that the use of CCRs be prohibited within 5 vertical feet of the seasonal high groundwater table, without a liner. Response: To address commenters concern that a potential criterion for regulating fills operations should be the inclusion of a statement that prevents the placement of CCRs in water

sources; the Agency believes that the fourth criterio n, dealing with the environmental criterion, addresses the commenters concern. The damage cases that exist show that the placement of CCR in sand and gravel pits was almost always associated with the CCR being placed in contact with water. The fourth cr iterion was designed to addresses these types of issues. The fourth41

criterion will require that the user of the CCR demonstrate that environmental releases to ground water, surface water, soil and air are comparable to or lower than those from analogous p roducts made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during use. This demonstration may change the pote ntial use of the CCR; the demonstration may show that the potential use will not protect human health and the environment or it may show that the only way to achieve compliance is to install engineering features. The Agency firmly believes that the fourth criterion addresses the commenters concern regarding placement of CCR in or near water sources.

Comment : No site

- specific application rates are necessary for FGD gypsum in agricultural uses. Response : The Agency has not specified site

- specific rates for FGD gypsum in agricultural applications only that excessive amounts not be used and that compliance with the environmental criterion be achieved.

Comment : Unencapsulated uses that may directly impact seasonal high groundwater table should be banned. Response: To address commenters concern that a potential criterion for regulating fill operations should be the inclusion of a statement that prevents the placement of CCR in water

sources; the Agency be lieves that the fourth criterion, dealing with the environmental criterion, addresses the commenters concern. The damage cases that exist show that the placement of CCR in sand and gravel pits was almost always associated with the CCR being placed in cont act with water. The fourth criterion was designed to addresses these types of issues. The fourth42

criterion will require that the user of the CCR demonstrate that environmental releases to ground water, surface water, soil and air are comparable to or lo wer than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during use. This de monstration may change the potential use of the CCR; the demonstration may show that the potential use will not protect human health and the environment or it may show that the only way to achieve compliance is to install engineering features. The Agency firmly believes that the fourth criterion addresses the commenters concern regarding placement of CCR in or near water sources.

Comment: No need to ban placement within direct contact with water bodies as documentation shows that placement of CCRs can be done without adverse effects on human health and the environment. Response: To address commenters concern that a potential criterion for regulating fill operations should be the inclusion of a statement that prevents the placement of CCRs in water sources, the Agency believes that the fourth criterion, dealing with the environmental criterion, addresses the commenters concern. The damage cases that exist show that the placement of CCR in sand and gravel pits was almost always associated with the CC R being placed in contact with water. The fourth criterion was designed to addresses these types of issues. The fourth criterion will require that the user of the CCRs demonstrate that environmental releases to ground water, surface water, soil and air are comparable to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and43

ecological recepto rs during use. This demonstration may change the potential use of the CCRs; the demonstration may show that the potential use will not protect human health and the environment or it may show that the only way to achieve compliance is to install engineerin g features. The Agency firmly believes that the fourth criterion addresses the commenters concern regarding placement of CCR in or near water sources.44



## Se ction 10.5.3.4

– - Comments on What Should be Covered in Regulations if EPA were to Regulate Beneficial Use

Response: Comments on this topic are outside the scope of the final rule as EPA is not developing regulations for ben e ficial use.45



## Section 10.5.4 . - Information/Data on Agricultural Use.

Comment : Pending outcome of EPA/USDA study, agricultural uses of CCRs should be banned. Response : The environmental criterion in the definition of the term “beneficial use of CCR” ensures that the environment and human health will be protected. Furthermore, there has been no substantive information provided indicating that such action is warranted.

Comment: It is highly unlikely that FGD gypsum would be applied at rates above those justified by agronomic rates as agronomic rates are strictly govern by the economics of farming. Response: The Agency’s final rule will specify that excess materials must not be used in agricultural settings, and that when used the environmentally criterion in the term “beneficial use of CCR” will need to be demonstrated. Comment : Studies have shown that FGD gypsum can be safely used in agricultural uses. Response : To the extent that States provide adequate control over the use of FGD gypsum in agricultural settings, then compliance with the 4 th criterion under the term “beneficial use of CCR” should be easy for a potential user of FGD gypsum to demonstrate.46



## D efinition of CCR Landfill
Section 4.4.3 . -- Definitions

Comment : A number of commenters stated that the definition of CCR landfill was overbroad and it would inappropriately capture the use of CCRs that are being used for a legitimate purpose and thus are not a solid waste. In addition, the phase “large scale fill operation” is vague and cannot be included in the final regulatory definition.
Response: See final Preamble for response .

Comment: A number of commenters were concerned that the term CCR l andfill included all “piles” of CCRs and they found this to be inappropriate.
Response: See final preamble for response.

Comment: A commenter stated that the second option for the definition of “CCR landfill” states: “The owner or operator has enter ed into contractual obligations which cannot be cancelled or modified without substantial loss for physical construction of the CCR landfill.” The commenter stated that the definition was vague, unenforceable and thus did not protective human health and the environment.
Response: Give n the proposed language in the definition, “ the owner or operator has entered into contractual obligations

– which cannot be cancelled or modified without substantial loss

– for physical construction of the CCR landfill to be completed within a reasonable time,” the Agency has concluded, that absent some type of guidance that objectively discusses how47

“substantial loss” could be calculated by the owner or operator, the purpose and/or effect of this requirement in meeting the objectives of this rule remain unclear. Consequently, the Agency has decide d to remove this provision from the definition of “ existing CCR landfill ” but is retaining what the Agency considers are the two most important elements of the definition. First, that the owner or operator has obtained the federal, state, and local approva ls or permits necessary to begin physical construction; and second, that a continuous on

- site, physical construction program has begun (i.e., groundbreaking has occurred). Therefore, EPA is finalizing the definition of

“ existing CCR landfill” as follows.
E xisting CCR landfill means a CCR landfill that receives CCR both before and after [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER ] , or for which construction commenced prior to [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER] and receives CCR on or after [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]. A CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous on

site, physical construction program had begun prior to [INSERT DATE 180 DAYS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER]

.

Comment : Several commenters stated that the Agency needed to make changes to the definition of “CCR landfill” because it was overly

- broad and would have significant detrimental effects on beneficial use. In addition, commenters stated that the phrase “large sca le fill; operation” cannot be included in the final regulatory definition without setting forth discernible and readily48

understandable parameters as to what type of large scale fill operations would constitute a CCR landfill.
Response : On August 2, 201 3, EPA published an additional FR notice that solicited comment on two potential approaches to further defining large scale fill operations, as well as the information on which the Agency intended to rely in reaching a final decision on this issue.

Comm ent : One commenter questioned whether the definition of CCR landfill excludes co

disposal with MSW or other non

- MSW wastes.
Response: EPA recognizes that there are MSW landfills that either accept CCR for disposal, use CCR for as daily cover, or both. Since the proposed and final RCRA subtitle D standards for CCR landfills are modeled after the standards for MSW landfills found at 40 CFR 258, EPA has concluded that disposal of CCR in MSW landfills is as protective as disposal in CCR landfills. Like the MSWLF requirements, the CCR technical criteria require new units to have composite liners or their equivalent, and all units are subject to run

- on and run

- off controls, fugitive dust controls, groundwater monitoring and corrective action, closure and post

- closure care requirements. While the MSW fugitive dust criteria (air criteria) are not as specific as those in this rule, § 258.4(a) states that “owners or operators of all MSW landfills must ensure that the units not violate any applicable requirements developed under a State Implementation Plan (SIP) approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended. It is expected that states will impose additional requirements to address fugitive dusts,49

of the sort codified in Illinois’ 415 ILCS 5/9(a ) ( 2012) 3 and enforced by the state (see People of the State of Illinois v KCBX Terminals Company , Injunction no. 2013CH24788 in the Circuit Court of Cook County, Illinois; http://www.cityofchicago/org/...environmental. ../SETF_Exhibit_Thre...). The Agency is not requiring MSW landfills that receive CCR for disposal or for use as daily cover to modify their groundwater monitoring programs to comply with the rule; for example, the final list of constituents to be used fo r detection monitoring at CCR units includes Boron, which is known to be a leading indicator of releases of contaminants from CCRs, but is not on the list of detection monitoring constituents for MSW landfills. EPA is not requiring that MSW landfills that receive CCR add Boron to their existing list of detection monitoring constituents for several reasons. First, the existing list of detection monitoring constituents found in 40 CFR 258 will generally be sufficient to detect potential releases of CCR cons tituents from a MSW landfill. This is because the pH of most CCR leachate tends to be slightly alkaline to near neutral depending on coal chemistry; arsenic and selenium are associated with existing CCR damage cases, which tends to confirm CCR leachate as being near neutral to slightly alkaline. MSW landfill leachate also tends to be near neutral. Under suboxic, near neutral pH conditions, the following constituents in CCR are known to be mobile; sulfate, magnesium, iron, zinc, nickel, arsenic, selenium, and boron. Of this group, the following are also detection monitoring

con stituents for MSW landfills under 40 CFR 258: zinc, nickel, arsenic, and selenium. So with

3 “No person shall (a) Cause o r threaten or allow the discharge or emissi on of any contaminant into the environment in any state so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted b y the Bo ard under this Act; (b) Construct, install or operate any equipment, facility, vehicle, vessel, or aircraft capable of causing or contributing to air pollution or designed to prevent air pollution, of any typed designated by Board regulations, (1) without a permit g ranted by the Agency unless otherwise exempt by this Act or Board regulations; or (2) in violation of any conditions imposed by such permit.”50

all other factors affecting mobility being equal, adding Boron to the list of detection monitoring constituents for MSW landfills is not necessary. In addition, EPA does not have any evidence of environmental or human health damage resulting from the disposal or use of CCR as daily cover at MSW landfills. Therefore, the Agency sees no need to impose duplicative requirements for MSW landfills that receive CCR. Conse quently, the final rule excludes MSW landfills from the requirements of the rule by adding them in a list of excluded facilities or activities under § 257.50. EPA agrees with the commenters that, since the proposed and final RCRA subtitle D standards for C CR landfills are modeled after the standards for MSW landfills found at 40 CFR 258, disposal of CCR in MSW landfills will be as protective as disposal in CCR landfills. Both the MSW and CCR standards require composite liners, groundwater monitoring, corr ective action, and fugitive dust controls. Therefore, the Agency sees no need to impose duplicative requirements for MSW landfills that receive CCR for disposal or daily cover.

Comment: Piles are used for short term storage or staging and their conte nts are removed on a routine basis . To subject piles to the landfill requirements will require significant capital expenditures. In addition, CCRs used for roads and dust berms should not be prohibited. Beneficial use of CCRs should not be precluded jus t because of their size.
Resp onse : See final pre a m b le for response.

Comment: Several commenters were concerned that on

- site waste piles that held CCRs that were destined for beneficial use would be captured under the definition of CCR landfill. The51

commenters highlighted that the rule only applied to materials destined for disposal and materials destined for beneficial use are not destined for disposal.
Response : See final preamble for response.

Comment: Several commenters wanted the Agency to cl arify that the term “CCR landfill” does not include the use of CCRs at surface coal mining and reclamation sites.
Response : EPA is working with the U.S. Department of Interior’s Office of Surface Mining (OSM) to develop effective federal regulations to en sure that the placement of CCR in minefill operations is adequately controlled. In doing so, EPA and OSM are considering the recommendations of the National Research Council (NRC), which, at the direction of Congress, studied the health, safety, and envir onmental risks associated with the placement of CCR in active and abandoned coal mines in all major U.S. coal basins. The NRC published its findings on March 1, 2006, in the report entitled, “Managing Coal Combustion Residues (CCRs) in Mines.” 4 The repo rt concluded that the “placement of CCRs in mines as part of coal mine reclamation may be an appropriate option for the disposal of this material. In such situations, however, an integrated process of CCR characterization, site characterization, managemen t and engineering design of placement activities, and design and implementation of monitoring is required to reduce the risk of contamination moving from the mine site to the ambient environment.” The NRC report recommended that enforceable federal standa rds be established for the disposal of CCR in minefills to ensure that states have specific authority and that the state implements

4 This report is available at http://books.nap.edu/openbook.php?=isbn=0309100496.52

adequate safeguards. The NRC Committee on Mine Placement of Coal Combustion Wastes also stated that OSM and its SMCRA state partners should take the lead in developing new national standards for CCR use in mines because the framework is already in place to deal with mine

related issues. Consistent with the recommendation of the National Academy of Sciences, the U. S. Departme nt of the Interior (DOI) is taking the lead in developing these regulations. EPA will continue to work closely with DOI throughout this process. Therefore, the Agency is not addressing minefilling operations in this final rule.