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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 2014
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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 second 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 monitoring, 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 dockets 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.regulations.gov. Although listed in the index, some information is not publicly 

available, e.g., Confidential Business Information (CBI) or other information whose disclosure is 
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restricted by statute. Certain other material, such as copyrighted material, is 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. This 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 subtitle 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 Professional 
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Volume Topic

Engineer/Recordkeeping, State Submissions, Posting to the 

Internet/Finance Assurance/Alternative Approaches) 

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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 

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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 ELG. 

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.”
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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) 
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 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 findings, no data or other support 

for the commenters’ position was provided, nor was any information provided to show risk or 

damage associated with agricultural use. Therefore, we conclude that none of the beneficial uses 

of coal combustion wastes listed above pose risks of concern.’’ See, 65 FR 32230. 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 that 
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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 

“beneficial 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 specifications 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 based 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 coalfired electric utility industry to track the quantities of CCRs generated and beneficially used. 
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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. Present 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 of 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 indicates 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 Any, 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 conditions 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.acaausa.org/Portals/9/Files/PDFs/revisedFINAL2012CCPSurveyReport.pdf
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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 as 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 considered 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.
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b. Unencapsulated uses 

EPA acknowledged in the proposal that unencapsulated uses generally presented more difficult 

issues than encapsulated uses. CCRs can leach toxic metals at levels of concern, so depending 

on the characteristics of the CCR, the amount of material placed, how it is placed, and the site 

conditions, there is a potential for environmental concern. However, EPA cannot extrapolate 

from the 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 more 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 within 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 

Determination warranted federal regulation, because ‘‘we were not able to identify damage cases 
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associated with these types of beneficial uses, nor do we now believe that these uses of coal 

combustion wastes present a significant risk to human health or the environment.’’ (65 FR 

32230, May 22, 2000.) 

EPA also 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 (beginning in 1995) in two sand and gravel 

quarries. EPA considers this site a proven damage case, because groundwater samples from 

residential drinking wells near the site include heavy metals and sulfates at or above groundwater 

quality standards, and the state of Maryland is overseeing remediation. The second case is the 

Battlefield Golf Course in Chesapeake, Virginia where 1.5 million yards of fly ash were used as 

fill and to contour a golf course. Groundwater contamination above MCLs has been found at the 

edges and corners of the golf course, but not in residential wells. An EPA study in April 2010, 
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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. However, 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 placed 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 transporting 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 

between 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 available 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. 
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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 methods. 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 corresponding 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 the 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 reductions 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.
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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 

processed for use. These virgin materials include limestone to make cement, and Portland 

cement to make concrete; mined gypsum to make wallboard, and aggregate, such as stone and 

gravel for uses in concrete and road bed. Using virgin materials for these applications requires 

mining and processing, 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 use of CCRs as a replacement for 

industrial raw materials (e.g., Portland cement, virgin stone aggregate, lime, gypsum) provides 

substantial annual life cycle environmental benefits for these industrial applications. Specifically, 

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) 
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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 provide 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 result 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 million tons) were placed in minefills. (This compares to 23% 

of CCRs that were beneficially used, excluding minefilling, at the time of the May 2000 

Regulatory Determination, and represents a significant increase.)

6. Conclusions

On balance, after considering 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 also 

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 environment. 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 wastes 
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could only retain Bevill-exempt status 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 

does 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, agricultural 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 requirements, 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 this 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 this 
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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 specific 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 at 
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Because EPA has not identified significant risks 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 practices, 

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.
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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 beneficial use. 

Therefore, if the Agency uses that term CCRs there can be no beneficial use. 

Response: 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 

assumes that the final destination of the CCRs is known at the time of generation. 

Response: 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.

Response: The Agency has established an additional criterion as part of the definition of 

beneficial use of CCR. This environmental criterion is for the unencapsulated uses of CCR. 

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 analogous 
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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: Several commenters stated that the criteria proposed for the definition of beneficial 

use were too vague.

Response: As previously noted, the first three criteria were discussed in the proposal and 

commenters generally 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.

Response: 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. .

Response: 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. 
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Comment: Commenters were concerned 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. 

Response: 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 information 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, 

Comment: Commenters requested that the Agency list all beneficial uses or commented that the 

Agency should not list all beneficial uses. 

Response: 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 would then require the Agency to go back and 

develop a separate federal Register notice to list their use. The Agency elected to not list all 
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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.

Response: The Agency elected not to 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 Residual 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.

Response: 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. 

Response: The Agency has established criteria 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

Response: 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 developed 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 developing 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 three 

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 used in the 2014 risk assessment and 
24

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 there 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 greater 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 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 and 

ecological receptors. 

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. 

Response: 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.

Response: The Agency has developed an additional criterion in response to comments designed 

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. The 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 to natural gypsum is inappropriate. 

Response: 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. 

Response: The Agency has established an environmental standard which requires the use of 

relevant regulatory and health-based benchmarks for human and ecological receptors during use 

when 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.

Response: 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 for 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.

Comment: Requested that the Agency use the terms “bound” and “unbound’ for encapsulated

and unencapsulated.

Response: 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 all uses of CCRs to reclaim quarries should not be considered beneficial uses.

Response: 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.

Response: See final preamble for response.

Comment: Numerous commenters suggested a better definition of beneficial use or that the 

Agency develop detailed guidance. 

Response: 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. 

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 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 be subject to disposal standards. 

Response: 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.

Response: 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 unencapsulated uses

Response: When unencapsulated 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 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. 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 

more 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 beneficial 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 beneficial 

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 safety 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 done 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 criterion to 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 distinction between encapsulated and 

unencapsulated uses by requiring that 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 an 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: Urge that beneficial use of CCRs be regulated under Subtitle C.

Response: See Preamble of Final Rule

Comment: Coal Slag should not be used as an 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 criteria 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 measures for workers are established by OSHA. 
33

Section 10.5.2 – 10.5.2.8 --- Characterizing Beneficial Uses that are 

Protective of HH&E and Provide 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 

geotechnical 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 disproportionate 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 occurred 
34

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 (“AGREMAX”) 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 that 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 areas, 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. This 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 benefit, 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.

Response: The final definition of beneficial use of CCR includes an environmental component 

designed to ensure protection of human health and the environment. If the environmental 

criterion is met, then citizens will be protected while if the environmental criterion is not meet 

then that planned applications will have to comply with the disposal standards in today’s final 

rule which also ensures protection of human health and the environment. 

Comment: The State DOTs 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 leaching 
36

patterns, and how input infiltration rates are generated. First, CCR landfills are 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 generally 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 spread 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 approved by State and/or Federal Department of Transportation (DOT) engineers 

who ensure compliance with engineering specifications

Comment: States 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, taking into 

consideration various factors including CCR character and composition and leaching 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. 

Response: States should be familiar with the concepts outlined in the environmental criterion in 

today’s final rule. The environmental fourth criterion requires a potential use of CCRs to 

compare analogous products or to perform an environmental assessment evaluating whether 
37

releases to the environment are at or below relevant regulatory and health-based benchmarks for 

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 potential 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 ingestion, 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/m3. 

Example of documents that can be used to gain an understanding 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, Industrial 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 Coal 
38

Combustion Residuals” to assist in the 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 relied on singlepoint 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 that 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 development 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 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 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 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 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 the 
40

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 in competitive bidding 

helps ensure proper use. However, to address those aberrations involving misuse, the Agency 

believes that compliance with the 4th 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 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 
41

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 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 demonstration 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 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 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 
42

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 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 demonstration 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 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 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 and 
43

ecological receptors 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 engineering 

features. The Agency firmly believes that the fourth criterion addresses the commenters concern 

regarding placement of CCR in or near water sources.
44

Section 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 beneficial 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 4th criterion under the term “beneficial use of 

CCR” should be easy for a potential user of FGD gypsum to demonstrate. 
46

Definition 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 landfill 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 entered 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: Given 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 how 
47

“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 

decided 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 approvals 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.

Existing 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 onsite, 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 scale fill; operation” cannot 

be included in the final regulatory definition without setting forth discernible and readily 
48

understandable parameters as to what type of large scale fill operations would constitute a CCR 

landfill. 

Response: On August 2, 2013, 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.

Comment: One commenter questioned whether the definition of CCR landfill excludes codisposal 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)3and 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 for 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 constituents 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 

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

 

3

“No person shall (a) Cause or threaten or allow the discharge or emission 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 by

the Board 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 granted 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. Consequently, 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 CCR 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, corrective 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 contents 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 just because of their size. 

Response: See final preamble 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. The 
51

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 clarify 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 ensure 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 environmental 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 report concluded that the “placement of CCRs in mines as part of coal mine reclamation 

may be an appropriate option for the disposal of this material. In such situations, however, an 

integrated process of CCR characterization, site characterization, management and engineering 

design of placement activities, and design and implementation of monitoring is required to 

reduce the risk of contamination moving from the mine site to the ambient environment.” The 

NRC report recommended that enforceable federal standards be established for the disposal of 

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 minerelated issues. Consistent with the recommendation of the National Academy of Sciences, the U. 

S. Department 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.