DRAFT DO NOT CITE OR QUOTE 1 of 563 5/03/10 ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Parts 257, 261, 264, 265, 268, 271 and 302 [EPA-HQ-RCRA-2009-0640; FRL- ] RIN - 2050-AE81 HAZARDOUS AND SOLID WASTE MANAG EMENT SYSTEM; IDENTIFICATION AND LISTING OF SPECIAL WASTES; DISPOSAL OF COAL COMBUSTION RESIDUALS FROM ELECTRIC UTILITIES AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA or Agency) is proposing to regulate for the first time, coal combustion residuals (CCRs) under the Resour ce Conservation and Recovery Act (RCRA) to address the risks from the disposal of CCRs generated from the combustion of coal at electric utilities and inde pendent power producers. However, the Agency is considering two options in th is proposal and, thus, is proposi ng two alternative regulations. Under the first proposal, EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding coal combustion residu als (CCRs) and list these residuals as special wastes subject to regulation under subtitle C of RCRA, when they are destined for disposal in landfills or surface impoundments. Under th e second proposal, EPA would leave the Bevill determination in place and regulate disposal of such materials under subtitle D of RCRA by issuing national minimum criteria. Under both alternatives EPA is proposing to establish dam safety requirements to address the structural integrity of surface impoundments to prevent catastrophic releases.DRAFT DO NOT CITE OR QUOTE 2 of 563 5/03/10 EPA is not proposing to change the May 2000 Regul atory Determination for beneficially used CCRs, which are currently exempt from the hazardous waste regul ations under Section 3001(b)(3)(A) of RCRA. However, EPA is clar ifying this determination and seeking comment on potential refinements for certain beneficial uses. EPA is also not proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action.

DATES: Comments must be re ceived on or before [insert 90 days after publication in the Federal Register.] ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2009- 0640 , by one of the following methods:

• www.regulations.gov: Follow the on-line instructions for submitting comments.

• Email: Comments may be sent by electronic mail (e-mail) to rcra-docket@epa.gov,
Attention Docket ID No. EPA–HQ–RCRA–2009–0640 . In contrast to EPA’s electronic public docket, EPA’s e-mail system is not an ‘‘anonymous access’’ system. If you send an e-mail comment directly to the Docket without going through EPA’s electronic public docket, EPA’s e-mail system automatical ly captures your e-mail address. E-mail addresses that are automatically captured by EP A’s e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA’s electronic public docket.

• Fax : Comments may be faxed to 2 02–566–0272; Attention Docket ID No. EPA-HQRCRA-2009-0640.

• Mail: Send your comments to the Hazardous Waste Management System; Identification and Listing of Special Wastes ; Disposal of Coal Combustio n Residuals From ElectricDRAFT DO NOT CITE OR QUOTE 3 of 563 5/03/10 Utilities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640 , Environmental Protection Agency, Mailcode: 5305T, 1200 Pe nnsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies.

• Hand Delivery: Deliver two copies of your comments to the Hazardous Waste Management System; Identification and Listi ng of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utili ties Docket, Attention Docket ID No., EPAHQ-RCRA-2009-0640 , EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2009-0640 . EPA's policy is that all comments received will be in cluded in the public docket without change and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes informa tion claimed to be Confidential Business Information (CBI) or other information whose disclo sure is restricted by st atute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact inform ation unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be auto matically captured and in cluded as part of the comment that is placed in the public doc ket and made available on the Internet. If you submit an electronic comment, EPA recommends th at you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPADRAFT DO NOT CITE OR QUOTE 4 of 563 5/03/10 cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should a void the use of special characters, any form of encryption, and be free of any defects or viru ses. For additional information about EPA’s public docket, vi sit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document. Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not pub licly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material , such as copyrighted material, will be publicly available only in hard copy. P ublicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Hazardous Waste Management System; Identification and Listing of Special Wastes; Dispos al of Coal Combustion Residuals From Electric U tilities Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is (202) 566– 0270. 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.

FOR FURTHER INFORMATION CONTACT: Alexander Livnat, Office of Resource Conservation and Recovery, Environmental Pr otection Agency, 5304P; telephone number: (703) 308-7251; fax number: (703) 605-0595; email a ddress: livnat.alexander@epa.gov, or Steve Souders, Office of Resource Conservation and Recovery, Environmental Protection Agency,DRAFT DO NOT CITE OR QUOTE 5 of 563 5/03/10 5304P; telephone number: (703) 308-8431; fax number: (703) 605-0595; email address: souders.steve@epa.gov. For technical information on the CERCLA aspects of this rule, contact Lynn Beasley, Office of Emergency Management, Regulation and Policy Development Division (5104A), U.S. Environmental Protection Agen cy, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460, [E-mail address and telephone numbe r: Beasley.lynn@ep a.gov (202-564-1965).] For more information on this rulemaking please visit http://www.epa.gov/epawaste/nonhaz/i ndustrial/special/fossil/index.htm.

SUPPLEMENTARY INFORMATION:

A. Does this Action Apply to Me?

The proposed rule would apply to all coal co mbustion residuals (CCRs) generated by electric utilities and independent power producers. However, this pr oposed rule does not address the placement of CCRs in minefills. The U. S. De partment of Interior (DOI) and EPA will address the management of CCRs in minefills in a sepa rate regulatory action(s), consistent with the approach recommended by the National Academy of Sciences, recognizi ng the expertise of DOI’s Office of Surface Mining Reclamation and Enforcement in this area. 1 In addition, under either alternative proposal, EPA is not proposing to affect the current status of coal combustion

1 The National Research Council (NRC) Committee on Mine Placement of Coal Combustion Wastes stated: “The committee believes 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 in place to deal with mine-related issues.” National Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, D.C., 2006.DRAFT DO NOT CITE OR QUOTE 6 of 563 5/03/10 residuals that are beneficially used. 2 (See section IV. D for further details on proposed clarifications of beneficial use.) CCRs from non-utility boilers burni ng coal are not included within today’s proposed rule. EPA will decide on an appropriate action for these wastes after completing this rulemaking effort.

The proposed rule may affect the following entiti es: electric utility faci lities and independent power producers that fall under the North Ameri can Industry Classifica tion System (NAICS) code 221112, and hazardous waste treatment and dis posal facilities that fall under NAICS code 562211. The industry sector(s) identified above ma y not be exhaustive; other types of entities not listed could also be affected. The Agency’s aim is to provide a guide for readers regarding those entities that pote ntially could be affected by this action. To determine whether your facility, company, business, organi zation, etc., is affected by this action, you should refer to the applicability criteria contained in section IV of this preamble. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting confidential business information (CBI)

. Do not submit information that you consider to be CBI through http://www.regulations.gov or by e-mail. Send or deliver information identified as CBI only to the fo llowing address: RCRA CBI Document Control

2 The NRC committee recommended “that seco ndary uses of CCRs that pose minimal risks to human health and the environment be strongly encouraged.” IbidDRAFT DO NOT CITE OR QUOTE 7 of 563 5/03/10 Officer, Office of Resource Conservation and Re covery (5305P), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington DC 20460, Attention Docket No, EPA-HQ-RCRA-2009-0640. You may claim information that you submit to EPA as CBI by marking any part or all of the information as CBI (if you submit CBI on a disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). Informa tion so marked will not be disclosed, except in accordance with the procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes information claime d as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark th e outside of the disk or CD ROM clearly that it does not contain CBI . Information not marked as CBI will be included in the public docket and EPA’s electron ic public docket withou t prior notice. If you have questions about CBI or the procedures fo r claiming CBI, please contact: LaShan Haynes, Office of Resource Conservation and Recovery ( 5305P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washingt on DC 20460-0002, telephone (703) 605-0516, email address haynes.lashan@epa.gov.

2. Tips for Preparing Your Comments

. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Regist er date and page number).

• Follow directions - The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulati ons (CFR) part orDRAFT DO NOT CITE OR QUOTE 8 of 563 5/03/10 section number.

• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes, and explai n your interest in the issue you are attempting to address.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burd ens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and su ggest alternatives.

• Explain your views as clearly as possible.

• Make sure to submit your comments by the comment period deadline identified.

3. Docket Copying Costs

. The first 100-copied pages are free . Thereafter, the charge for making copies of Docket mate rials is 15 cents per page.

C. Definitions, Abbreviations and Acronyms Used in this Notice. (Not e: Any term used in this proposed rulemaking that is not defined in this section will either have its normal dictionary meaning, or is defined in 40 CFR 260.10.)

Acre-foot means the volume of one acre of surface area to a depth of one foot.

Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an altern ative material, conserving natural resources thatDRAFT DO NOT CITE OR QUOTE 9 of 563 5/03/10 would otherwise need to be obtained through prac tices such as extraction; and meets relevant product specifications and regulator y standards (where these are av ailable). CCPs that are used in excess quantities (e.g., the field-applications of FGD gypsum in amounts that exceed scientifically-supported quantities required for enhancing soil pr operties and/or crop yields), placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, are exclud ed from this definition.

Boiler slag means the molten bottom ash collected at the base of slag tap and cyclone type furnaces that is quenched with water. It is made up of hard, black, angular particles that have a smooth, glassy appearance.

Bottom ash means the agglomerated, angular ash partic les, formed in pulverized coal furnaces that are too large to be carried in the flue gases and collect on the furnace walls or fall through open grates to an ash hopper at the bottom of the furnace.

CCR Landfill means a disposal facility or part of a facility where CCRs are placed in or on land and which is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed forma tion, an underground mine, a cave, or a corrective action management unit. For purposes of this proposed rule, landfills also include piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills.DRAFT DO NOT CITE OR QUOTE 10 of 563 5/03/10 CCR Surface Impoundment or impoundment means a facility or part of a facility which is a natural topographic depression, man-made excavati on, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and wh ich is not an injection well. Examples of CCR surface impoundments are holding, storage, se ttling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes.

Cenospheres are lightweight, inert, hollow spheres compri sed largely of silica and alumina glass.

Coal Combustion Products (CCPs) means fly ash, bottom ash, boiler slag, or flue gas desulfurization materials, th at are beneficially used.

Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials destined for disposal. CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes, when destined for disposal.

Electric Power Sector (Electric Util ities and Independent Power Producers) means that sector of the power generating industry that comprises electricity-only and co mbined-heat-and-power (CHP) plants whose primary business is to sell el ectricity, or electricity and heat, to the public.DRAFT DO NOT CITE OR QUOTE 11 of 563 5/03/10 Existing CCR Landfill means a landfill which was in operation or for which construction commenced prior to the effective date of the final rule. A CCR landfill has commenced construction if the owner or operator has obtaine d the Federal, State a nd local approvals or permits necessary to begin physic al construction; and either (1) A continuous on-site, physical cons truction program has begun; or (2) The owner or operator has entered into c ontractual obligations —which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time.

Existing CCR Surface Impoundment means a surface impoundment which was in operation or for which construction commenced prior to the e ffective date of the final rule. A CCR surface impoundment has commenced construction if the ow ner or operator has obtained the Federal, State and local approvals or permits necessary to begin physical cons truction; and either (1) A continuous on-site, physical cons truction program has begun; or (2) The owner or operator has entered into c ontractual obligations—which can not be cancelled or modified without substantial loss—for physic al construction of the CCR surface impoundment to be comple ted within a reasonable time.

Flue Gas Desulfurization (FGD) material means the material pr oduced through a process used to reduce sulfur dioxide (SO 2 ) emissions from the exhaust gas syst em of a coal-fired boiler. The physical nature of these materials varies fr om a wet sludge to a dry powdered material, depending on the process, and their composition comp rises either sulfites, sulfates or a mixture thereof.DRAFT DO NOT CITE OR QUOTE 12 of 563 5/03/10 Fly ash means the very fine globular particles of silica glass which is a product of burning finely ground coal in a boiler to produce electricity, and is removed from the plant exhaust gases by air emission control devices.

Hazard potential means the possible adverse incrementa l consequences that result from the release of water or stored contents due to failu re of a dam (or impoundment) or mis-operation of the dam or appurtenances. 3 High hazard potential surface impoundment means a surface impoundment where failure or mis-operation will probably cause loss of human life.

Significant hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of huma n life, but can cause economic loss, environment damage, disruption of life line facilities, or imp act other concerns.

Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/or environmental losses. Losses are principall y limited to the surface impoundment owner’s property.

3 The Hazard Potential Classification Sy stem for Dams was developed by the U. S. Army Corps of Engineers for the National Inventory of Dams (see https://rsgis.crrel.u sace.army.mil/apex/f?p=397:1 :913698079375545 ). Hazard potential ratings do not provide an estimate of the prob ability of failure or mis-operation, but rather what the consequences of such a failure or mis-operation would be.DRAFT DO NOT CITE OR QUOTE 13 of 563 5/03/10 Less than low hazard potential surface impoundment means a surface impoundment not meeting the definitions for High, Significant, or Low Hazard Potential.

Independent registered profes sional engineer or hydrologist means a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or surf ace impoundment who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training and experience in groundwat er hydrology and related fields as may be demonstrated by state registration, professiona l certifications, or completion of accredited university programs that enable that individual to make sound pr ofessional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.

Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or existing CCR surface impoundment made af ter the effective date of the final rule.

Maximum Contaminant Level (MCL) means the highest level of a c ontaminant that is allowed in drinking water under the Safe Dri nking Water Act (SDWA). MCLs are set as close to the MCL goals as feasible using the best available treatment technology and taking cost into consideration. MCLs are enforceable standards for drinking water.

Minefill means a project involving the placement of CC Rs in coal mine voids for use as fill, grouting, subsidence control, cappi ng, mine sealing, and treating aci d mine drainage, whether for purposes of disposal or for beneficial use, such as mine reclamation.DRAFT DO NOT CITE OR QUOTE 14 of 563 5/03/10 Natural water table means the natural level at which wate r stands in a shallow well open along its length and penetrating the surf icial deposits just deeply enough to encounter standing water at the bottom. This level is uni nfluenced by groundwater pumping or other engineered activities.

Organosilanes are o rganic compounds containing at leas t one carbon to silicon bond, and are typically used to promote adhesion.

Potential damage case means those cases with documen ted MCL exceedances that were measured in ground water beneath or close to th e waste source. In these cases, while the association with CCRs has been establishe d, the documented exceedances had not been demonstrated at a sufficient distance from the waste management unit to indicate that waste constituents had migrated to the extent th at they could cause hu man health concerns.

Pozzolanic material means primarily vitreous siliceous materials, such as many types of CCRs that, when combined with calcium hydroxide and in the presence of water, exhibit cementitious properties.

Proven damage case means those cases with (i) documented exceedances of primary maximum contaminant levels (MCLs) or other health-b ased standards measur ed in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study provides documented evidence of another type of damage to human health or theDRAFT DO NOT CITE OR QUOTE 15 of 563 5/03/10 environment (e.g., ecological damage), and/or (iii ) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co-management of CCRs with other industrial waste types, CCRs must be clearly implicated in the reported damage.

Sand and gravel pit, and/ or quarry means an excavation for th e commercial extraction of aggregate for use in construction projects. CCRs have historically been used to fill sand and gravel pits and quarries. CCRs are not know n to be used to fill metal mines.

Secondary Drinking Water Standards are non-enforceable federal gui delines regarding cosmetic effects (such as tooth or skin di scoloration) or aesthetic effects (such as taste, odor, or color) of drinking water.

Special Wastes means any of the following wastes that are managed under the modified subtitle C requirements: a. CCRs destined for disposal

Surface Water means all water naturally open to the atmo sphere (rivers, lakes, reservoirs, ponds, streams, impoundments, seas, estuaries, etc.).

Uniquely associated wastes means low-volume wastes other than those defined as CCRs that are related to the coal combustion process. Examples of uniquely associated wastes are precipitationDRAFT DO NOT CITE OR QUOTE 16 of 563 5/03/10 runoff from coal storage piles at the electric utilit y, waste coal or coal mill rejects that are not of sufficient quality to burn as a fuel, and wastes from cleaning boilers used to generate steam.

CCPs Coal Combustion Products CCRs Coal Combustion Residuals CFR Code of Federal Regulations CERCLA Comprehensive Environmental Re sponse, Compensation, and Liability Act EPA U.S. Environmental Protection Agency EPCRA Emergency Planning and Community Right-to-Know Act MCL Maximum Contaminant Level mg/L milligrams per liter NPDES National Pollutant Discharge Elimination System NRC National Response Center PDWS Primary Drinking Water Standard OSM Office of Surface Mining Reclamation a nd Enforcement, U.S. Department of the Interior RCRA Resource Conservation and Recovery Act (42 USCA 6901) RQ Reportable Quantity SDWS Secondary Dri nking Water Standard SMCRA Surface Mining Control and Reclamation Act
μ g/L micrograms per liter WQC Federal water quality criteriaDRAFT DO NOT CITE OR QUOTE 17 of 563 5/03/10 D. The contents of this notice ar e listed in the following outline:

I. Background. A. Why is EPA Proposing Two Options? 1. Basis of Why EPA is Proceedi ng with Today’s Co-Proposals. 2. Brief Description of Today’s Co-Proposals. 3. Summary of Estimated Regul atory Costs and Benefits. B. What is the Statutory Authority for this Action? C. Regulation of Wastes Under RCRA Subtitle C D. Regulation of Solid Wastes Under RCRA Subtitle D E. Summary of the 1993 and 2000 Regulatory Determinations. F. What Are CCRs? 1. Chemical Constituents in CCRs. 2. Recent EPA Research on Constituent Leaching from CCRs. G. Current Federal Regulations or Standards Applicable to the Placement of CCRs in Landfills and Surface Impoundments. II. New Information on the Placement of CCRs in Landfills and Surface Impoundments. A. New Developments since the May 2000 Regulatory Determination. B. CCR Risk Assessment. C. Damage Cases III. Overview and Summary of the Bevill Regu latory Determination and the Proposed Subtitle C and Subtitle D Regulatory Options A. Summary of Subtitle C proposalDRAFT DO NOT CITE OR QUOTE 18 of 563 5/03/10 B. Summary of Subtitle D proposal IV. Bevill Regulatory Determination Re lating to CCRs from Electric Utilities A. Basis for Reconsideration of May 2000 Regulatory Determination B. RCRA Section 8002(n) Study Factors. Environmental Benefits C. Preliminary Bevill Conclusions and Impact of Reconsideration D. EPA Is Not Reconsidering the Regulatory Determination Regarding Beneficial Use. 1. Why is EPA Not Proposing to Change the Determination that CCRs that Are Beneficially Used Do Not Warrant Federal Regulation?
2. What Constitutes Beneficial Use? 3. Disposal of CCRs in Sand and Gravel Pi ts and Large Scale Fill Operations is Not Considered a Beneficial Use. 4. Issues Associated with Unencapsulated Beneficial Uses. E. Placement of CCRs in Minefilling Operations F. EPA is Not Proposing to Revise the Be vill Determination for CCRs Generated by NonUtilities. V. Co-Proposed Listing of CCRs as a Speci al Waste Under RCRA Subtitle C and Special Requirements for Disposal of CCRs Generated by Electric Utilities. A. What is the Basis for Listing CCRs as a Special Waste? 1. Criteria for Listing CCRs as a Special Waste and Background on 2009 Risk
Assessment. B. Background on EPA’s 2009 Risk Assessment. 1. Human Health Risks.DRAFT DO NOT CITE OR QUOTE 19 of 563 5/03/10 2. Ecological Risks C. Consideration of Indi vidual Listing Criteria. 1. Toxicity – Factor (i) 2. Concentration of Constituents in Waste – Factor (ii) 3. Migration, Persistence, Degradation, and Bi oaccumulation—Factors ( iii), (iv), (v), and (vi) 4. Plausible Types of Mismanagement, Quanti ties of the Waste Generated, Nature and Severity of Effects from Mismanagemen t– Factors (vii), (viii) and (ix) 5. Action Taken by Other Governmental Agen cies or Regulatory Programs Based on the Health or Environmental Hazard Posed by th e Waste or Waste Constituent – Factor (x) 6. Other Factors – Factor (xi) VI. Summary of the Co-Proposed Subtitle C Regulations. A. Special Waste Listing B. Proposed Special Requirements for CCRs 1. Modification of Tech nical Standards Under 3004(x) i. Modification of CCR Landfills and Su rface Impoundments from the section 3004(o) Liner and Leak Detection Requirements. ii. Fugitive Dust Controls. iii. Special Requirements for Stab ility of CCR Surface Impoundments. iv. Wet-Handling of CCRs, Closure, and Interim Status for Surface Impoundments. v. Proposed Land Disposal Restrictions. 2. Proposed Treatment Standards for Wastewaters (Wet-Handled CCRs). 3. Effective Date of the LDR Prohibitions.DRAFT DO NOT CITE OR QUOTE 20 of 563 5/03/10 C. Applicability of Subtitle C Regulations D. CERCLA Designation and Reportable Quantities. 1. Reporting Requirements 3. Application of the CERCLA Mi xture Rule to Listed CCR. 4. Correction of Table of Maximum Observed Constituent Concentrations Identified by
EPA. E. Listing of CCR as Special Wastes to Address Perceived Stigma Issue VII. How would the Proposed Subti tle C Requirements be Implemented? A. Effective Dates B. What Are the Requirements with Which Facilities Must Comply? 1. Generators and Transporters. 2. Treatment, Storage, and Di sposal Facilities (TSDs) C. RCRA Section 3010 Notification. D. Permit Requirements 1. Facilities Newly Subject to RCRA Permit Requirements 2. Existing Interim Status Facilities 3. Permitted Facilities E. Requirements in 40 CFR parts 264 and 265. VIII. Impacts of a Subtitle C Rule on State Authorization. A. Applicability of the Ru le in Authorized States B. Effect on State Authorization IX. Summary of the Co-Proposal Regulati ng CCRs Under Subtitle D Regulations. A. Overview and General IssuesDRAFT DO NOT CITE OR QUOTE 21 of 563 5/03/10 1. Regulatory approach. 2. Notifications. B. Section-by-Section discussion of RCRA subtitle D criteria 1. Proposed modifications to Part 257, Subpart A. 2. General provisions. 3. Definitions. 4. Location Restrictions. 5. Design Requirements. 6. Operating requirements. 7. Ground water monitoring/Corrective action. 8. Closure and post-closure care. 9. Financial Assurance. 10. Off-site disposal. 11. Alternative RCRA subtitle D approaches. X. How would the Proposed Subtitle D Regulations be Implemented? A. Effective Dates B. Implementation and Enforcement of Subtitle D Requirements. XI. Impact of a Subtitle D Re gulation on State Programs XII. Impacts of the Proposed Regulatory Alternatives A. What are the Economic Impacts of the Proposed Regulatory Alternatives? B. Benefits Not Quantified in the RIA 1. Non-Quantified Plant and Wildlife Protection Benefits 2. Non-Quantified Surface Water Protection BenefitsDRAFT DO NOT CITE OR QUOTE 22 of 563 5/03/10 3. Non-Quantified Ambient Air Protection Benefits C. Comparison of Costs to Benefits for the Regulatory Alternatives D. What are the Potential Environmental a nd Public Health Impacts of the Proposed Regulatory Alternatives?

1. Environmental and Public Health Impacts Estimated in the RIA 2. Environmental and Public Health Impacts Not Estimated in the RIA XIII. Other Alternatives EPA Considered. XIV. Is the EPA Soliciting Co mments on Specific Issues? XV. Executive Orders and Laws Addressed in This Action. A. Executive Order 12866: Regul atory Planning and Review. B. Paperwork Reduction Act. C. Regulatory Flexibility Act. D. Unfunded Mandates Reform Act. E. Executive Order 13132: Federalism. F. Executive Order 13175: Cons ultation and Coordination with Indian Tribal Governments. G. Executive Order 13045: Protection of Child ren from Environmental Health & Safety Risks. H. Executive Order 13211: Acti ons that Significantly Affect Energy Supply, Distribution, or
Use. I. National Technology Transfer and Advancement Act. J. Executive Order 12898: Fede ral Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. APPENDIX to the Preamble: Documented Damages from CCR Man agement Practices.DRAFT DO NOT CITE OR QUOTE 23 of 563 5/03/10 I. Background.

A. Why is EPA Proposing Two Options?

1. Basis of Why EPA is Proceed ing with Today’s Co-Proposals.

EPA is revisiting its regulato ry determination for CCRs under the Bevill amendment. This decision is driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December, 2009. Deciding upon the appropriate course of action to address over 100 million tons per year of CCRs is an extremely impor tant step. In devel oping this proposal, EPA conducted considerable data gath ering and analysis. While the public was able to comment on significant portions of our anal yses in August 2007, as part of a Notice of Data Availability, there are differing views regarding the meaning of EPA’s information and what course of action EPA should take. In part, the differing view s are fueled by the complex data, analyses, legislation, implications of ava ilable options, possibl e unintended consequences, and a decision process, all of which pose cons iderations that could justify EPA selecting a RCRA subtitle C approach or selecting a RCRA subtitle D approach.

Deciding whether or not to maintain the Bevill exemption for CCRs, entails an evaluation of the eight RCRA Section 800 2(n) study factors:

• Source and volumes of CCRs generated per yearDRAFT DO NOT CITE OR QUOTE 24 of 563 5/03/10 • Present disposal and utilization practices

• Potential danger, if any, to human health and the environment from the disposal and reuse of CCRs

• Documented cases in which danger to human health or the environment from surface runoff or leachate has been proved

• Alternatives to current disposal methods

• The cost of such alternatives

• The impact of the alternatives on the us e of coal and other natural resources

• The current and potential utilization of CCRs

Ultimately, the approach selected will need to ensu re that catastrophic rele ases such as occurred at the Tennessee Valley Author ity’s (TVA’s) Kingston, Tennessee facility do not occur and that other types of damage cases associated with CCR surface impoundments and landfills are prevented. Thus, this process requires EPA to ba lance the eight factors, which ultimately rests on a policy judgment. This is further complicated in this case because th e facts identified under each of the individual factors are even subject to widely varying perspectives. For example, in considering the alternatives to current disposal methods, some claim that RCRA subtitle C would significantly lessen beneficial use while others see bene ficial use expanding as disposal becomes more costly; some see damage cases as substant ial, while others note ve ry few incidences of significant off-site contamination.

Given the inherently discretionary nature of the decision, the complex ities of the scientific analyses, and the controversy of the issue, EPA wants to ensure that the ultimate decision isDRAFT DO NOT CITE OR QUOTE 25 of 563 5/03/10 based on the best available data, and is taken with the fullest possible exte nt of public input. As discussed in section IV in great er detail, there are a number of issues on which additional or more recent information would be useful in allowi ng the Agency to reach a final decision. In the absence of this information, EPA has not yet re ached a conclusion as to how to strike the appropriate balance among these eight factors and so is pres enting two proposals for federal regulation of CCRs.

As EPA weighs the eight Bevill study factors to reach our ultimate decision, EPA will be guided by the following principles, which are reflected in the discussions throughout this preamble. The first is that EPA’s actions must ultimately be protective of human health and the environment. Second, any decision must be based on sound scie nce. Finally, in c onducting this rulemaking, EPA wants to ensure that our decision proce sses are transparent and encourage the greatest degree of public particip ation. Consequently, to further the public’s understandi ng and ability to comment on all the issues facing the Agency, with in this proposal, EPA identifies a series of scientific, economic, and materials management issues on which we are seeking comment from the public to strengthen our knowledge of the impact of EPA’s decision.

There are three key areas of analyses where EPA is seeking comment: the extent of existing damage cases, the extent of the risks posed by th e mismanagement of CCRs, and the adequacy of state programs to ensure proper management of CCRs (e.g., is groundwater monitoring required of CCR landfills and surface impoundments). Si nce the 2007 NODA, EPA received new reports from industry and environmental and citizen grou ps regarding damage cases. Industry provided information indicating that ma ny of EPA’s listed proven damage cases do not meet EPA’sDRAFT DO NOT CITE OR QUOTE 26 of 563 5/03/10 criteria for a damage cases to be proven. E nvironmental and citizen groups, on the other hand, reported that there are additional damage cases of which EPA is unaware. EPA’s analysis, as well as the additional information from industry and environmental and citizen groups, which is in the docket for this proposal, needs to undergo pub lic review, with the end result being a better understanding of the nature and number of damage cases. In addition, as discussed at length in sections II and IV, a number of technical questions have be en raised regarding EPA’s quantitative groundwater risk as sessment. The Agency would implement similar technical controls under RCRA subtitle C or D. Therefor e, a central issue is the adequacy of state programs. Under either regulatory approach, stat e programs will have key implementation roles. This is a very complex area to evaluate. For ex ample, as EPA reports th at 36% of the states do not have minimum liner requirements for CCR la ndfills, and 67% do not have liner requirements for CCR surface impoundments, we also observe that nearly all new CCR landfills and surface impoundments are constructed with liners. It should also be recognized that while states currently have considerable expertise in their state dam safety programs, those programs do not tend to be part of state solid waste or clean water act programs, and s o, oversight may not be adequately captured in EPA’s existing data. In several areas, there are these types of analytical tensions that warrant careful c onsideration by the public and EPA. This proposal requests states and others to provide further information on state programs, including the prevalence of groundwater monitoring at existing facilities (an area where our information is nearly 15 years old) and why state programs ma y address groundwater monitori ng and risks differently for surface impoundments located proximate to rivers.DRAFT DO NOT CITE OR QUOTE 27 of 563 5/03/10 The results of the risk analysis demonstrate significant risks from surface impoundments. A common industry practice, however, is to place surface impoundments right next to water bodies. While the Agency's population risk assessment an alysis accounted for adjacent water bodies, the draft risk assessment that presen ts individual risk estimates does not account for the presence of adjacent water bodies in the same manner that the population risk assessment did. EPA is requesting public comment on the exact locations of CCR waste ma nagement units so that the Agency can more fully account for water bodie s that may exist between a waste management unit and a drinking water well (and thus, could po tentially intercept a c ontaminated groundwater plume). EPA is also requesting comments on ho w the risk assessment should inform the final decision.

While the Agency believes the analyses conducte d are sound, today’s co-pr oposal of two options reflects our commitment to use the public process fully to ensure the best available scientific and regulatory impact analyses are considered in our decision. The final course of action will fully consider these legitimate and complex issues, an d will result in the selection of a regulatory structure that best addresses th e eight study factors identified in section 8002(n) of RCRA, and ensures protection of human health and the environment.

2. Brief Description of Today’s Co-Proposals.

a. Summary of Subtitle C proposalDRAFT DO NOT CITE OR QUOTE 28 of 563 5/03/10 In combination with its proposal to reverse the Bevill determin ation for CCRs destined for disposal, EPA is proposing to list as a special wa ste, to be regulated under the RCRA subtitle C regulations, CCRs from electric utilities and independent powe r producers when destined for disposal in a landfill or surface impoundment. Th ese CCRs would be regulated from the point of their generation to the point of their final dispositi on, including during and after closure of any disposal unit. This would include the ge nerator and transporter requirements and the requirements for facilities managing CCRs, such as siting, liners (with mo dification), run-on and run-off controls, groundwater monitoring, fugitive dust controls, financial assurance, corrective action, including facility-wide corrective action, closure of un its, and post-closure care (with certain modifications). In addition, facilities th at dispose of, treat, or, in many cases, store, CCRs also would be required to obtain permits for th e units in which such materials are disposed, treated, and stored. The rule woul d also regulate the disposal of CCRs in sand and gravel pits, quarries, and other large fill operations as a landfill.

To address the potential for catastrophic rel eases from surface impoundments, we also are proposing requirements for dam safety and stability for impoundments that, by the effective date of the final rule, have not closed consistent w ith the requirements. We are also proposing land disposal restrictions and treatment standards for CCRs, as well as a prohibition on the disposal of treated CCRs below the natural water table.

b. Summary of Subtitle D proposalDRAFT DO NOT CITE OR QUOTE 29 of 563 5/03/10 In combination with today’s proposal to leav e the Bevill determination in place, EPA is proposing to regulate CCRs disposed of in surface impoundments or landfills under RCRA subtitle D requirements which would establish nati onal criteria to ensure the safe disposal of CCRs in these units. The units would be subj ect to, among other things , location standards, composite liner requirements (new landfills and surface impoundments would require composite liners; existing surface impoundments without liners w ould have to retrofit within five years, or cease receiving CCRs and close); groundwater monitoring and co rrective action standards for releases from the unit; closure and post-closure care requirements; and requirements to address the stability of surface impoundments. We are also soliciting comments on requiring financial assurance. The rule would also regulate the disposal of CCRs in sand and gravel pits, quarries, and other large fill operations as a landfill. The rule would not regulate the generation, storage or treatment of CCRs prior to disposal. Because of the scope of subtitle D authority, the rule would not require permits, nor could EPA enforce the requirements. Inst ead, states or citizens could enforce the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under their indepe ndent state enforcement authority.

EPA is also considering a potenti al modification to the subtitle D option, called “D prime” in the following table. Under this option, existing su rface impoundments would not have to close or install composite liners but could continue to opera te for their useful life. In the “D prime” option, the other elements of the subtitle D option would remain the same.

3. Summary of Estimated Regul atory Costs and Benefits.DRAFT DO NOT CITE OR QUOTE 30 of 563 5/03/10 For the purposes of comparing the estimated re gulatory compliance costs to the monetized benefits for each regulatory option, the Regul atory Impact Analysis (RIA) computed two comparison indicators: net benefits (i.e., benef its minus costs), and be nefit/cost ratio (i.e., benefits divided by costs). Table 1 below provi des a summary of estimated regulatory costs and benefits for three regulatory options, based on th e 7% discount rate base case and the 50-year period-of-analysis applied in the RIA. Furthermor e, this benefit and cost summary table displays ranges of net benefit and benefit/cost results across three different scenarios concerning the potential impacts of each option on the future an nual beneficial use of CCRs under each option. The first scenario presents the potential impact scenario that assumes that the increased future annual cost of RCRA-regulated CCR disposal will induce coal-fired electri c utility plants to increase beneficial use of CCRs. The second scenario presents a potential market stigma effect under the subtitle C option which will induce a decr ease in future annual CCR beneficial use. The third scenario assumed that beneficial use of CCRs continues according to its recent trend line without any future change as a result of a ny of the regulatory options. The RIA estimates both the first and second scenario incrementally in relation to the third s cenario no change trend line. Table 1 shows the range of impacts and associated ranges of net benefits and benefit-cost ratios across these three beneficial use scenario s for each regulatory option. While each of these three scenario outcomes may be possible, EPA’ s experience with the RCRA program indicates that industrial generators of RCRA-regulated wastes are often able to increase recycling and materials recovery rates after a subtitle C regulation. Secti on XII in this preamble provides additional discussion of these estimates.DRAFT DO NOT CITE OR QUOTE 31 of 563 5/03/10 Table 1 Summary Table Comparison of Regulatory Benefits to Co sts - Ranging Over All Three Beneficial Use Scenarios ($Millions @2009$ Prices and @7% Discount Rate over 50-Year Future Period-of-Analysis 2012 to 2061) Subtitle C “Special Waste” Subtitle D Subtitle “D prime”
A. Present Values: 1. Regulatory Costs: $20,349 $8,095 $3,259 2. Regulatory Benefits: $87,221 to $102,191 $34,964 to $41,761 $14,111 to $17,501 3. Net Benefits (2 - 1) ($251,166) to $81,842 ($6,927) to $33,666 ($2,666)to $14,242 4. Benefit/Cost Ratio (2 / 1) (11.343) to 5.022 0.144 to 5.159 0.182 to 5.370 B. Average Annualized Equivalent Values:* 1. Regulatory Costs $1,474 $587 $236 2. Regulatory Benefits: $6,320 to $7,405 $2,533 to $3,026 $1,023 to $1,268 3. Net Benefits (2 - 1) ($18,199) to $5,930 ($502) to $2,439 ($193) to $1,032 4. Benefit/Cost Ratio (2 / 1) (11.347) to 5.022 0.145 to 5.159 0.182 to 5.370 * Note: Average annualized equivalent values calculated by multip lying 50-year present values by a 50-year 7% discount rate “capital recovery fact or” of 0.07246.

B. What is the Statutory Authority for this Action?

These regulations are being proposed under th e authority of secti ons 1008(a), 2002(a), 3001, 3004, 3005, and 4004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA ), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6907(a), 6912(a), 6921,6924, 6925 and 6944. These statutes, combined, are commonly referred to as “RCRA.”DRAFT DO NOT CITE OR QUOTE 32 of 563 5/03/10 RCRA section 1008(a) authorizes EPA to pub lish “suggested guidelines for solid waste management.” 42 U.S.C. 6907(a). Such guideli nes must provide a technical and economic description of the level of performance that can be achie ved by available solid waste management practices that provid e for protection of human health and the environment.

RCRA section 2002 grants EPA broad au thority to prescribe, in cons ultation with federal, state, and regional authorities, such regulations as are necessary to carry out the functions under federal solid waste disposal laws. (42 U.S.C. 6912(a)).

RCRA section 3001(b) requires EPA to list particul ar wastes that will be subject to the requirements established under subtitle C. (42 U.S.C. 6921(b)). The regulation listing such wastes must be based on the listing criteria esta blished pursuant to section 3001(a), and codified
at 40 CFR 261.11.

Section 3001(b)(3)(A) of RCRA established a temporary exemp tion for fly ash waste, bottom ash waste, slag waste, and flue gas emissi on control waste generated primarily from the combustion of coal or other fossil fuels, among others, and required the Agency to conduct a study of those wastes and, after public heari ngs and an opportunity for comment, determine whether these wastes should be regulated pursu ant to subtitle C requirements (42 U.S.C. 6921 (b)(3)(A)).

Section 3004 of RCRA generally re quires EPA to establish standards applicable to the treatment, storage, and disposal of hazardous waste to ensu re that human health and the environment areDRAFT DO NOT CITE OR QUOTE 33 of 563 5/03/10 protected 42 U.S.C. 6924. Secti ons 3004(c) and (d) prohibit fr ee liquids in hazardous waste landfills. Sections 3004(g) and (m) prohibit land disposal of hazardous wastes, unless, before disposal, those wastes meet treatment standards established by EPA that will “substantially diminish the toxicity of the waste or subs tantially reduce the like lihood of migration of hazardous constituents from the waste so that sh ort-term and long-term threats are minimized.” (42 U.S.C. 6924(c),(d), (g), and (m)).

RCRA section 3004(x) allows the Administrator to tailor certain specified requirements for particular categories of wastes, including those that are the subj ect of today’s proposal, namely “fly ash waste, bottom ash waste, and flue gas emission control wastes generated primarily from the combustion of coal or other fossil fuels” ( 42 U.S.C. 6924(x)). EPA is authorized to modify the requirements of sections 3004 (c), (d), (e), (f ), (g), (o), and (u), and section 3005(j), to take into account the special characteristics of the wastes, the pr actical difficulties associated with implementation of such requirements, and site-s pecific characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at the site. EPA may only make such modifications, provided the modifi ed requirements assure protection of human health and the environment. (42 U.S.C. 6924(x)).

RCRA section 3005 generally requires any facility that treats, stores, or disposes of wastes identified or listed under subtitle C, to have a permit. 42 U.S.C. 6925(a). This section also generally imposes requirements on facilities that become newly subject to the permitting requirements as a result of regulatory changes, and so can continue to operate for a period until they obtain a permit— i.e ., “interim status facilities.” 42 U.S.C. 6925(e),(i),(j). CongressDRAFT DO NOT CITE OR QUOTE 34 of 563 5/03/10 imposed special requirements on interim status surface impoundments in section 3005(j). In order to continue receiving wastes, interim st atus surface impoundments are generally required to retrofit the impoundment within 4 years, to install a double liner, with a leachate collection system, and groundwater monitoring. 42 U.S.C. 6925( j)(6). In addition, wastes disposed into interim status surface impoundments must meet the land disposal restrictions in EPA’s regulations, or the unit must be annua lly dredged. 42 U.S.C. 6925(j)(11).

RCRA Section 4004 generally requires EPA to prom ulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills (and not open dumps) so that there is no reasonable probability of adverse effects on health or the environment from disposal of solid wastes at such facilities.

C. Regulation of Wastes Under RCRA Subtitle C

Solid wastes may become subject to regulation under subt itle C of RCRA in one of two ways. A waste may be subject to regul ation if it exhibits certain hazardous properties, called “characteristics,” or if EPA has specifically li sted the waste as hazardous. See 42 U.S.C. 6921(a). EPA's regulations in the Code of Fede ral Regulations (40 CFR) define four hazardous waste characteristic properties : ignitability, corrosivity, reac tivity, or toxicity (See 40 CFR 261.21-261.24). All generators must determine whet her or not a waste exhibits any of these characteristics by testing the waste, or by usi ng knowledge of the proc ess that generated the waste (see §262.11(c)). While not required to samp le the waste, generators will be subject toDRAFT DO NOT CITE OR QUOTE 35 of 563 5/03/10 enforcement actions if found to be improperly mana ging wastes that exhibit one or more of the characteristics.

EPA may also conduct a more specific assessment of a waste or category of wastes and “list” them if they meet the criteria set out in 40 CFR 261.11. Under the thir d criterion, at 40 CFR 261.11(a)(3), a waste will be listed if it contains hazardous constituents identified in 40 CFR part 261, Appendix VIII, and if, after cons idering the factors noted in th is section of the regulations, we “conclude that the waste is capable of posi ng a substantial present or potential hazard to human health or the environment when improperly treated, stored, transporte d, or disposed of, or otherwise managed.” We place a chemical on the list of hazardous constituents on Appendix VIII only if scientific studies have shown a chem ical has toxic effects on humans or other life forms. When listing a waste, we also add the ha zardous constituents that serve as the basis for listing the waste to 40 CFR part 261, Appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contai n the various hazardous wastes that EPA has listed to date. Se ction 261.31 lists wastes generated fromnon-specific sources, known as “Fwastes,” that are usually gene rated by various industries or types of facilities, such as “wastewater treatment sludges from electropl ating operations” (see EPA Hazardous Waste No. F006). Section 261.32 lists wastes generated from specific industry sources, known as “Kwastes,” such as “Spent potliners from pr imary aluminum production” (see EPA Hazardous Waste No. K088). Section 261.33 c ontains lists of commercial chemical products and other materials, known as “P-wastes” or “U-wastes, ” that become hazardous wastes when they are discarded or intended to be discarded.DRAFT DO NOT CITE OR QUOTE 36 of 563 5/03/10 As discussed in greater detail later in this proposal, EPA is considering whether to codify a listing of CCRs that are disposed of in landfills or surface impoundments, in a new section of the regulations, as “Special Wastes.” EPA is considering creating this new category of wastes, in part, to reflect the fact that these wastes would be subject to modified regulatory requirements using the authority provided under section 3004(x) of RCRA (e.g., the modified CCR landfill and surface impoundment liner and le ak detection system requireme nts, the effective dates for the land disposal restrictions, and the su rface impoundment retrof it requirements).

If a waste exhibits a hazardous ch aracteristic or is listed under sub title C then it is subject to the requirements of RCRA subtitle C, and the im plementing regulations found in 40 CFR parts 260 through 268, parts 270 to 279, and part 124. These requirements apply to persons who generate, transport, treat, store or dis pose of such waste and establish rules governing every phase of the waste’s management from its generation to its fina l disposition and beyond. Facilities that treat, store or dispose of hazardous wastes, require a pe rmit, which incorporates all of the design and operating standards established by EPA rules, incl uding standards for piles, landfills, and surface impoundments. Under RCRA subtitle C requirem ents, land disposal of hazardous waste is prohibited unless the waste is first treated to meet the treatment standards (or meets the treatment standards as generated) established by EPA th at minimize threats to human health and the environment posed by the land disposal of the wast e, or unless the waste is disposed in a unit from which there will be no migra tion of hazardous constituents for as long as the waste remains hazardous. In addition, RCRA sub title C facilities are required to clean up any releases of hazardous waste or constituents from solid waste management units at the facility, as well as beyond the facility boundary, as necessary to prot ect human health and the environment. RCRADRAFT DO NOT CITE OR QUOTE 37 of 563 5/03/10 subtitle C also requires that permitted facilities demonstrate that they have adequate financial resources ( i.e ., financial assurance) for ob ligations, such as closure, post-closure care, necessary clean up, and any liability from facility operations.

The RCRA subtitle C requirements are generally implemented under state programs that EPA has authorized to operate in lieu of the federa l program, based upon a determination that the state program is no less stringent than the federal program. In a state that operates under an authorized program, any revisions made to EPA re quirements are generally effective as part of the federal RCRA program in that state only afte r the state adopts the re vised requirement, and EPA authorizes the state requirement. The ex ception applies with respect to requirements implementing statutory provisions added to subt itle C by the 1984 Hazardous and Solid Waste Amendments to RCRA; such requirements are imme diately effective in all states, and are enforced by EPA.

All RCRA hazardous wastes are also hazardous substances under the Comprehensive Environmental Response, Compen sation, and Liability Act (CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This applies to wastes listed in §§261.31 through 261.33, as well as any wastes that exhibits a RCRA h azardous characteristic. Table 302.4 at 40 CFR 302.4 lists the CERCLA hazardous substances along with their reportable quan tities (RQs). Anyone spilling or releasing a hazardous substance at or above its RQ must report the release to the National Response Center, as required in CERCLA Section 103. In addition, Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA) requires facilities to report the release of a CERCLA hazardous substance at or above its RQ to State and local authorities.DRAFT DO NOT CITE OR QUOTE 38 of 563 5/03/10 Today's rule proposes an approach for estimating whether released CCRs exceed an RQ. Wastes listed as special wastes will generally be subj ect to the same requirements under RCRA subtitle C and CERCLA as are hazardous wastes, although as discussed elsewhere in this preamble, EPA is proposing to revise certain requirements unde r the authority of section 3004(x) of RCRA to account for the large volumes and unique characteristics of these wastes.

D. Regulation of Solid Wastes Under RCRA Subtitle D

Solid wastes that are neither a listed and/or characteristic h azardous waste are subject to the requirements of RCRA subtitle D. Subtitle D of RCRA establishes a framework for Federal, State, and local government cooperation in co ntrolling the management of nonhazardous solid waste. The federal role in this arrangement is to establish th e overall regulatory direction, by providing minimum nationwide standards for protect ing human health and the environment, and to providing technical assistance to states for planning and developing th eir own environmentally sound waste management practices. The actual planning and direct implementation of solid waste programs under RCRA subtitle D, however, re mains a state and loca l function, and the act authorizes States to devise programs to deal with State-specific conditions and needs. That is, EPA has no role in the planning and direct im plementation of solid waste programs under RCRA subtitle D.
Under the authority of sections 1008(a)(3) a nd 4004(a) of subtitle D of RCRA, EPA first promulgated the Criteria for Cla ssification of Solid Waste Disposal Facilities and Practices (40 CFR part 257) on September 13, 1979. These subtit le D Criteria establ ish minimum national performance standards necessary to ensure that “no reasonable probability of adverse effects onDRAFT DO NOT CITE OR QUOTE 39 of 563 5/03/10 health or the environment” will result from solid waste disposal facilities or practices. Practices not complying with the criteria constitute “open dumping” for purposes of the Federal prohibition on open dumping in sec tion 4005(a). EPA does not have the authority to enforce the prohibition directly (except in situations involving the dispos al or handling of sludge from publicly-owned treatment works, where Federal enforcement of POTW sludge-handling facilities is authorized under the CWA). States and ci tizens may enforce the prohibition on open dumping using the authority under RCRA section 7002. EPA, however, may act only if the handling, storage, treatment, tran sportation, or disposal of such wa stes may present an imminent and substantial endangerment to health or th e environment (RCRA 7003). In addition, the prohibition may be enforced by States and other persons under section 7002 of RCRA.

In contrast to subtitle C, RCRA subtitle D requir ements relate only to the disposal of the solid waste, and EPA does not have the authority to establish requirements governing the generation, transportation, storage, or treatment of such wast es prior to disposal. Moreover, EPA would not have administrative enforcement authority to enforce any RCRA subtitle D criteria for CCR facilities, authority to require states to issue permits for them or oversee those permits, nor authority for EPA to determine whether any state permitting program for CCR facilities is adequate. Subtitle D of RCRA also provides less extensive authority to establish requirements relating to the clean up (o r corrective action) and financial assura nce at solid waste facilities.

EPA regulations affecting RCRA subtitle D f acilities are found at 40 CFR parts 240 through 247, and 255 through 258. The existing part 257 criteria include general enviro nmental performance standards addressing eight majo r topics: Floodplains (§ 257.3- 1), endangered species (§ 257.3-DRAFT DO NOT CITE OR QUOTE 40 of 563 5/03/10 2), surface water (§ 257.3-3), ground water (§ 2 57.3-4), land application (§ 257.35), disease (§ 257.3-6), air (§ 257.3-7), and safety (§ 257.3-8). EPA has also es tablished regulations for RCRA subtitle D landfills that accept conditionally exem pt small quantity generator hazardous wastes, and household hazardous wastes (i.e., “municipal solid waste”) at 40 CFR Part 258, but these are of limited relevance to CCRs, which fall into neither category of wastes.

E. Summary of the 1993 and 2000 Regulatory Determinations.

Section 3001(b)(3)(A)(i) of RCRA (known as th e Bevill exclusion or exemption) excluded certain large-volume wastes generated primarily fr om the combustion of coal or other fossil fuels from being regulated as hazardous waste under subtitle C of RCRA, pending completion of a Report to Congress required by Section 8002(n) of RCRA and a dete rmination by the EPA Administrator either to promulga te regulations under RCRA subtitle C or to determine that such regulations are unwarranted.

In 1988, EPA published a Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA, 1988). The report, however, did not address co-managed utility CCRs, other fossil fuel wastes that are gene rated by utilities, and wa stes from non-utility boilers burning any type of fossil fuel. Furthe r, because of other priorities, EPA did not complete its Regulatory Determination on fossil fuel combustion (FFC) wa stes at that time.

In 1991, a suit was filed against EPA for failure to complete a Regulatory Determination on FFC wastes (Gearhart v. Reilly Civil No. 91- 2345 (D.D.C.), and on June 30, 1992, the AgencyDRAFT DO NOT CITE OR QUOTE 41 of 563 5/03/10 entered into a Consent Decree th at established a schedule for EP A to complete the Regulatory Determinations for all FFC wastes. Specifically, FFC wastes were divided into two categories: (1) fly ash, bottom ash, boiler slag, and flue gas emission control waste from the combustion of coal by electric utilities and i ndependent commercial power pr oducers, and (2) all remaining wastes subject to RCRA Sections 3001(b)(3)(A)( i) and 8002(n) - that is, large volume coal combustion wastes generated at el ectric utility and i ndependent power produc ing facilities that are co-managed together with certain other co al combustion wastes; co al combustion wastes generated at non-utilities; coal combustion wastes generated at facilities with fluidized bed combustion technology; petroleum coke combusti on wastes; wastes from the combustion of mixtures of coal and other fuels (i.e., co-burning of coal with ot her fuels where coal is at least 50% of the total fuel); wastes from the combustion of oil; and wastes from the combustion of natural gas.

On August 9, 1993, EPA published its Regulatory Dete rmination for the first category of wastes (58 FR 42466, http://www.epa.gov/epawaste/nonh az/industrial/specia l/mineral/080993.pdf), concluding that regulation under subtitle C of RC RA for these wastes was not warranted. To make an appropriate determination for the second category, or “rem aining wastes,” EPA concluded that additional study was necessary. Under the court-ordered deadlines, the Agency was required to complete a Report to Congr ess by March 31, 1999, and issue a Regulatory Determination by October 1, 1999.

In keeping with its court-or dered schedule, and pursuant to the requirements of Section 3001(b)(3)(A)(i) and Section 8002 (n) of RCRA, EPA prepared a Report to Congress on theDRAFT DO NOT CITE OR QUOTE 42 of 563 5/03/10 remaining FFC wastes in March 1999 (http:// www.epa.gov/epaoswer/other/fossil/volume_2.pdf). The report addresses the eight study factors required by Section 8002( n) of RCRA for FFC wastes (see discussion in section IV. B).

On May 22, 2000, EPA published its Regulatory Dete rmination on wastes from the combustionof fossil fuels for the remaining wastes (65 FR 32214, http://www.epa.gov/fedrgstr/EPAWASTE/2000/May/Day-22/f11138.htm). In its Regulatory Determin ation, EPA concluded that the remaining wastes were la rgely identical to the high-vo lume monofilled wastes, which remained exempt based on the 1993 Regulatory Dete rmination. The high volume wastes simply dominate the waste characteristics even when co -managed with other wastes, and thus the May 2000 Regulatory Determination addressed not on ly the remaining wastes, but effectively reopened the decision on CCRs that went to monofills.

EPA concluded that these wastes could pose si gnificant risks if not properly managed, although the risk information was limited. EPA identifie d and discussed a number of documented proven damage cases, as well as cases indicating at least a potential for damage to human health and the environment, but did not rely on its quantitative groundwater risk assessment, as EPA concluded that it was not sufficiently reliable. Howeve r, EPA concluded that significant improvements were being made in waste management practices due to increasing state oversight, although gaps remained in the current regulatory regime. On th is basis, the Agency concluded to retain the Bevill exemption, and stated we would issue a re gulation under subtitle D of RCRA, establishing minimum national standards. Those subtitle D st andards have not yet been issued. (Today's proposal could result in the deve lopment of the subtitle D standards consistent with the MayDRAFT DO NOT CITE OR QUOTE 43 of 563 5/03/10 2000 Regulatory Determination, or w ith a revision of the determ ination, or the issuance of subtitle C standards under RCRA.)

EPA also explicitly stated in the May 2000 Regul atory Determination that the Agency would continue to review the issues, a nd would reconsider its decision th at subtitle C regulations were unwarranted based on a number of factors. EP A noted that its ongoing review would include (1) “the extent to which [the wast es] have caused damage to human health or the environment;” (2) the adequacy of existing regulation of the wastes ; (3) the results of an NAS report regarding the adverse human health effects of mercury; 4 and (4) “risk posed by managing coal combustion solid wastes if levels of mercur y or other hazardous constituents change due to any future Clean Air Act air pollution control requirements for coal burning utilities” and that these efforts could result in a subsequent revision to the Regulatory Determination. For a further discussion of the basis for the Agency’s determination, see section IV below.

F. What Are CCRs?

CCRs are residuals from the combustion of coal. For purposes of this proposal, CCRs are fly ash, bottom ash, boiler slag (all composed predomin antly of silica and alum inosilicates), and flue gas desulfurization materials (predominantly Ca-SOx compounds) that were generated from processes intended to generate power.

4 Toxicological Effects of Methylmercury, National Academy of Sciences, July 2000 (http://books.nap.edu/catalog.php?record_id=9899#toc). EPA has not taken any actions regarding the May 2000 Regulatory Determination as a result of the NAS report.DRAFT DO NOT CITE OR QUOTE 44 of 563 5/03/10 Fly ash is a product of burning finely ground coal in a boiler to produce el ectricity. Fly ash is removed from the plant exhaust gases primarily by electrostatic precipitators or baghouses and secondarily by wet scrubber systems. Physical ly, fly ash is a very fine, powdery material, composed mostly of silica. Nearly al l particles are spherical in shape.

Bottom ash is comprised of agglomerated coal ash pa rticles that are too large to be carried in the flue gas. Bottom ash is formed in pulverized coal furnaces and is collected by impinging on the furnace walls or falling through open grates to an ash hopper at the bottom of the furnace. Physically, bottom ash is coarse, with grain sizes spanning from fine sand to fine gravel, typically grey to black in color, and is quite angular with a porous surface structure.

Boiler slag is the molten bottom ash collected at th e base of slag tap and cyclone type furnaces that is quenched with water. When the molten sl ag comes in contact with the quenching water, it fractures, crystallizes, and forms pellets. This boiler slag material is made up of hard, black, angular particles that have a smooth, glassy appearance.

Flue Gas Desulfurization (FGD) material is produced through a pr ocess used to reduce sulfur dioxide (SO 2 ) emissions from the exhaust gas system of a coal-fired boiler. The physical nature of these materials varies from a wet sludge to a dry powdered material, depending on the process. The wet sludge generated from the wet scrubbing process using a lime-based reagent is predominantly calcium sulfite, while the wet slud ge generated from the wet scrubbing processDRAFT DO NOT CITE OR QUOTE 45 of 563 5/03/10 using a limestone-based reagent is predominantly cal cium sulfate. The dry powdered material from dry scrubbers that is captured in a baghouse consists of a mixture of sulfites and sulfates.

CCRs are managed in either wet or dry disposal systems. In wet systems, materials are generally sluiced via pipe to a surface impoundment. The mate rial can be generated wet, such as FGD, or generated dry and water added to fa cilitate transport (i.e. sluiced) through pipes. In dry systems, CCRs are transported in its dry fo rm to landfills for disposal.

1. Chemical Constituents in CCRs.

The chemical characteristics of CCRs depend on the type and source of coal, the combustion technology, and the pollution control technology employed. For the 1999 Report to Congress and the May 2000 Regulatory Determination, EPA developed an extensive database on the leaching potential of CCR constituents using th e toxicity characteristic leaching procedure (TCLP) from a number of sources. More re cent data on the compos ition of CCRs, including their leaching potential, have been collected and are discussed in the next sub-section. The CCR constituent database (available in the docket to this proposal) contains data on more than 40 constituents. Table 2 presents the median compos itions of trace element TCLP leachates of each of the main four types of large volume CCRs (fly ash, bottom ash, boiler slag, and FGD gypsum). (Additional information, including the range of TCLP values, is available in the docket or on-line in the documents identifie d in the footnotes to the following table.)DRAFT DO NOT CITE OR QUOTE 46 of 563 5/03/10 Table 2. TCLP Median Compositions of Coal-Fired Utility Large-Volume CCRs 5 (mg/l)

Constituent Fly Ash Bottom Ash Boiler Slag FGD
As 0.066 0.002 0.002 0.290
Ba 0.289 0.290 0.260 0.532
B 0.933 0.163 n/a --
Cd 0.012 0.005 0.0018 0.010
Cr VI 0.203 0.010 0.003 0.120
Cu n/a n/a 0.050 n/a
Pb 0.025 0.005 0.0025 0.120 Hg 0.0001 0.0001 0.0002 0.0001
Se 0.020 0.0013 0.0025 0.280 Ag 0.005 0.0050 0.0001 0.060
V 0.111 0.0050 0.010 --
Zn 0.285 0.015 0.075 --
n/a = data not available -- = too few data points to calculate statistics Source: Data from supporting documentation to the 1993 Regulatory Determination; values below the detection limit were treated as one-half the detection limit

5 Compiled from Tables 3-1, 3-3, 3-5 and 3-7, in: Technical Background Document for the Report to Congress on Remaining Wastes from Fossil Fuel Combusti on: Waste Characteristics, March 15, 1999 (http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ffc2_399.pdf)DRAFT DO NOT CITE OR QUOTE 47 of 563 5/03/10 The composition of FGD gypsum depends on the position within the air emissions control system where the SO 2 component is subject to scrubbing: if scrubbing ta kes place up stream of the removal of fly ash particulates, the FGD w ould actually comprise a mix of both components. Table 3 presents mean TCLP trace element compositions of FGD gypsum generated by a scrubbing operation that is located down stream from the particulate coll ection elements of the air emissions control system; it therefore represents an ‘end member’ FGD gypsum.

Table 3. FGD Gypsum TCLP Compositions (mg/l) from: (1) Two Ohio Power Plants* 6 (Mean Data); (2) 12 Samples of Commercial Wallboard Produced from Synthetic Gypsum** 7 (Median Data)

Constituent Cardinal Plant* Bruce Mansfield Plant* Synthetic Gypsum**
As <0.006 0.0075 0.00235
Ba 0.373 0.270 0.043
B 0.137 0.0255 n/a
Cd 0.00167 0.00055 0.00145
Cr 0.00587 0.00575 0.0047
Cu <0.001 <0.001 n/a

6 Compiled from: Table 3-5, in: An Evaluation of Flue Gas Desulfurization Gypsum for Abandoned Mine Land Reclamation, Rachael A. Pasini, Thes is, The Ohio State University, 2009.

7 Compiled from: Table 10, in: Fate of Mercury in Synthetic Gypsum Used for Wallboard Production, J. Sanderson et al., USG Corporation, Final Report prepared for NETL, June 2008.DRAFT DO NOT CITE OR QUOTE 48 of 563 5/03/10 Constituent Cardinal Plant* Bruce Mansfield Plant* Synthetic Gypsum**
Pb <0.003 <0.003 0.0006 Hg 1.8x10 -5 2.6x10 -6 <0.0003
Se 0.0123 <0.011 0.044
V <0.001 0.002 n/a
Zn 0.170 0.0560 n/a Ag n/a n/a <0.00005

n/a = data not available

The contaminants of most environmental concern in CCRs are antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, ni ckel, selenium, silver and thallium. Although these metals rarely exceed the RCRA hazardous wa ste toxicity characteri stic (TC), because of the mobility of metals and the large size of typical disposal units, metals (especially arsenic) have leached at levels of concern from unlin ed landfills and surface impoundments. In addition, it should also be noted that since the Agency announced its May 2000 Regulatory Determination, EPA has revised the maximum contaminant level (MCL) for arsenic, 8 without a corresponding revision of the TC. As a result, while arsenic levels are typically well below the TC, drinking water risks from contaminated groundwater due to releases from landfills and impoundments may still be high. Also, as discussed below, a considerable body of evidence has emerged indicating that the TCLP alone is not a good predictor of the m obility of metals in CCRs under a variety of different conditions. This issue is further discu ssed in the following subsection.

8 See http://www.epa.gov/safewat er/arsenic/regulations.html.DRAFT DO NOT CITE OR QUOTE 49 of 563 5/03/10 From Tables 2 and 3 above, it is evident that each of the main four types of CCRs, when subjected to a TCLP leach test, yields a differe nt amount of trace element constituents. EPA is soliciting public comments on whether, in light of these differences in the mobility of hazardous metals between the four major types of CCRs, re gulatory oversight should be equally applied to each of these CCR types when destined for disposal.

2. Recent EPA Research on Constituent Leaching from CCRs.

Changes to fly ash and other CCRs are expected to occur as a result of increased use and application of advanced air pollu tion control technologies in co al-fired power plants. These technologies include flue gas desu lfurization (FGD) systems for SO 2 control, selective catalytic reduction (SCR) systems for NO X control, and activated carbon injection systems for mercury control. These technologies are be ing installed or are expected to be installed in response to federal regulations, state regulations, legal consent decrees, and vol untary actions taken by industry to adopt more stringent air pollution c ontrols. Use of more advanced air pollution control technology reduces air emissi ons of metals and other pollutant s in the flue gas of a coalfired power plant by capturing and transferring the pollutants to the fly ash and other air pollution control residues. The impact of change s in air pollution control on the characteristics of CCRs and the leaching potential of metals is the focus of ongoi ng research by EPA’s Office of Research and Development (ORD). This resear ch is being conducted to identify any potential cross-media transfers of mercury and other me tals and to meet EPA’s commitment in theDRAFT DO NOT CITE OR QUOTE 50 of 563 5/03/10 Mercury Roadmap ( www.epa.gov/hg/roadmap.htm ) to report on the fate of mercury and other metals from implementation of multi-polluta nt control at coal-fired power plants.

Over the last few years, in cooperation with El ectric Power Research Institute (EPRI) and the utility industry, EPA obtained 73 di fferent CCRs from 31 coal-fired boilers spanning a range of coal types and air pollution contro l configurations. Samples of CC Rs were collected to evaluate differences in air pollution control, such as addition of post-combusti on NOx controls (i.e., selective catalytic redu ction), FGD scrubbers, and enhanced sorbents for mercury capture. A series of reports have been developed to documen t the results from the ORD research: The first report (Characterization of Merc ury-Enriched Coal Combustion Re siduals from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, February 2006; http://www.epa.gov/ORD/NRMRL/pubs/600r06008/ 600r06008.pdf) was developed to document changes in fly ash resulting from the addition of sorbents for enhanced mercury capture. The second report (Characterization of Coal Combustion Residuals fr om Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf) was developed to evaluate residues from the expanded use of wet scrubbers. The th ird report (Characteriza tion of Coal Combustion Residues from Electric Utilities - Leachi ng and Characterization Data, EPA-600/R-09/151, December 2009, http://www.epa.gov/nrmrl/pubs/600r09151/600r09151.html) updates the data in the earlier reports and provides data on an additi onal 40 samples to cover the range of coal types and air pollution control configurat ions, including some not covered in the two previo us reports.DRAFT DO NOT CITE OR QUOTE 51 of 563 5/03/10 Data from these studies is being used to identif y potential trends in th e composition and leaching behavior of CCRs resulting from changes in ai r pollution controls. Summary data on the higher volume CCRs is provided for 34 fly ashes (Table 4) and 20 FGD gypsum samples (Table 5). The report provides analysis of other types of CCRs (i.e., non-gypsum scrubber residues (primarily scrubber sludge c ontaining calcium sulfite), blended CCRs (non-gypsum scrubber residues, fly ash, and lime), and wastewater treatmen t filter cake). For each of the metals that are reported (Sb, As, Ba, B, Cd Cr, Co, Hg, Pb, Mo, Se, and Tl) from the leaching test results, “box and whisker” plots have been developed co mparing the different materials and providing comparison to field leachate data.

The purpose of this research was to try to understand how power plant air pollution control residues, and their leaching poten tial, are likely to change wi th the increased use of multipollutant and mercury controls, anticipated in response to new Clean Air Act regulations. An initial focus was to identify a ppropriate leach testing methods to assess leaching potential under known or expected CCR management conditions (b eneficial use or dis posal). The EPA’s Science Advisory Board and the National Academy of Sciences have in the past raised concerns over the use of single-point pH tests that do not reflect the ra nge of actual conditions under which wastes are plausibly managed. 9 Because metal leaching rates change with changing environmental conditions (especially pH), singl e point tests may not be the most accurate predictor of potential environm ental release of mercury or ot her metals because they do not provide estimates of leaching under some disposal or reuse conditions that can plausibly occur.

9 National Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, D.C., 2006.DRAFT DO NOT CITE OR QUOTE 52 of 563 5/03/10 In response to these concerns, a review of av ailable leaching test methods was conducted. A leaching test method 10 based on research conducted at Vanderbilt University in the United States and the Energy Research Center of the Netherland s, among others, was selected to address some of these concerns.

While EPA/ORD’s research relied on the Va nderbilt method, similar methods (i.e, tests evaluating leaching at different plausible disposal pH values) have been used to evaluate the leaching behavior and support hazardous wast e listings of other materials as well. 11 Because of their general utility, the research methods have b een drafted into the appropriate format and are being evaluated for inclusion in EPA’s wa ste analytical methods guidance, SW-846 12 to facilitate

10 Kosson, D.S.; Van Der Sloot, H.A.; Sanchez, F.; Garrabrants, A.C., An Integrated Framework for Evaluating Leaching in Waste Management and Utiliz ation of Secondary Materials. Envi ronmental Engineering Science 2002, 19, 159-204.

11 See 65 FR 67100 (November 8, 2000) for a discussion of EPA’s use of multi-pH leach testing in support of listing a mercury-bearing sludge from VCM-A production, and EPA/600/R-02/019, September 2001, Stabilization and Testing of Mercury Containing Wastes: Borden Catalyst.

12 Five different methods have been developed for use depending upon the information needed and the waste form.
1. Draft Method 1313 – Liquid-Solid Partitioning as a F unction of Eluate pH using a Parallel Batch Extraction
Test 2. Draft Method 1314 – Liquid-Solid Partitioning as a Function of Liquid-Solid Ratio Using an Up-flow Column Test
3. Draft Method 1315 - Mass Transfer in Monolithic or Compacted Granular Materials Using a Semi-dynamic Tank Leach Test
4. Draft Method 1316 - Liquid-Solid Partitioning as a Function of Liquid-Solid Ratio Using a Parallel Batch
TestDRAFT DO NOT CITE OR QUOTE 53 of 563 5/03/10 their routine use for evaluating ot her wastes or reuse materials (http://www.epa.gov/osw/hazard/testmethods/sw846/index.htm).

For the ORD research, equilibrium batch test methods that identify changes in leaching at different pH and liquid/solid ratio values were us ed to evaluate CCRs resulting from different air pollution controls at coal-fired power plants. This allowed eval uation of leaching potential over a range of field conditions under which CCRs ar e anticipated to be managed during either

5. Draft Method 1317 - Concise Test for Dete rmining Consistency in Leaching Behavior The test methods were developed to identify differences in the constituent leaching rate resulting from the form of the tested material, as well as the effect s of pH and the liquid/solid ratio. Fine grained materials (e.g., particle sizes of 2 mm or less) will have greater cont act with leaching solutions (in a lab test ) or rainfall (in the environment) than will solid materials such as concrete or CCRs that are pozzolanic when exposed to water. In applying these methods to CCRs or other materials, batch tests that are designed to reach equilibrium are used with fine-grained or particlesize reduced materials. For solid ma terials, the tests were designed to evaluate constituent leaching from the exposed surface (leaching of co nstituents that are either at the surface, or that have migrated over time to the surface), can be used. Testing at equilibrium provides an up per bound estimate of const ituent leaching at each set of conditions tested. In some instances, these results may represent the real situation, since when rainfall percolation through a material in the environment is slow, the constituent concentration in the water passing through the materials may reach, or nearly reach equilibrium. Testing of solid (or “monolithic”) ma terials evaluates constituent leaching from materials of low perm eability for which most rainfall flows around the material rather than percolating through it. This results in less contact betw een the rainfall and the material, and so typically, a lower rate of constituent leaching. For mono lithic materials, both th e equilibrium and monolith tests are conducted to understand the likely initial rates of leaching from the monolith (while it re mains solid), and the upper bound on likely leaching, when the mono lith degrades over time, exposing more su rface area to percolating rainwater, and typically, higher constituent leaching rates. It may also be possible to avoid the cost of testing solid, monolithic materials, if the material leaches at low constituent concentrations under the e quilibrium testing conditions.DRAFT DO NOT CITE OR QUOTE 54 of 563 5/03/10 disposal or beneficial use applications. Landfill field leachate data from EPA 13 and EPRI 14
studies were used to establish th e range of pH conditions expected to be found in actual disposal. From this data set, and excluding the extreme values (below 5 th percentile and above 95 th percentile), a pH range of 5.4 and 12.4 was determined to repr esent the range of plausible management conditions (with regard to pH) for CCRs. This means that approximately 5% of the values had a pH below 5.4 and approximately 5% of the values had a pH greater than 12.4. However, it is important to note that 9 of the 34 fly ash samples generated a pH in deionized water (i.e., the pH generated by the tested material itself) below pH 5.4. Th erefore, these results might understate CCR leaching potential if actual fi eld conditions extend beyond the pH range of 5.4 and 12.4.

In Tables 4 and 5, the total meta ls content of the fly ash and FGD gypsum samples evaluated is provided along with the leach test re sults. Reference indicators (i.e., MCL, 15 TC, 16 and
DWEL 17 ) are also provided to provide some context in understanding the leach results. It is

13 U.S. EPA (2000) Characterization and evaluation of landfill leachate, Draft Report. 68-W6-0068 , Sept 2000.

14 EPRI (2006) Characterization of Field Leachates at Coal Combustion Product Management Sites: Arsenic, Selenium, Chromium, and Mercury Speciation, EPRI Report Number 1012578. EPRI, Palo Alto, CA and U.S. Department of Energy, Pittsburgh, PA.

15 MCL is the maximum concentration limit for contaminants in drinking water.

16 TC is the toxicity characteristic and is a threshold for hazardous waste determinations.

17 DWEL is the drinking water equivalent level to be protective for non-carcinogenic endpoints of toxicity over a lifetime of exposure. DWEL was developed for chemical s that have a significant carcinogenic potential and provides the risk manager with evaluation on non-cancer endpoints, but infers that carcinogenicity should be considered the toxic effect of greatest concern (http://www.epa.gov/safewater/pubs/gloss2.html#D).DRAFT DO NOT CITE OR QUOTE 55 of 563 5/03/10 critical to bear in mind that the leach test resu lts represent a distribution of potential constituent release from the material as disposed or used on the land. The data presented do not include any attempt to estimate the amount of constituent that may reach an aquifer or drinking water well. Leachate leaving a landfill is i nvariably diluted in ground water to some degree when it reaches the water table, or constituent concentrations are attenuated by sorption and other chemical reactions in groundwater and sedi ment. Also, groundwater pH may be different from the pH at the site of contaminant release, and so the solubility and mobility of leached contaminants may change when they reach groundwater. None of these dilution or at tenuation processes is incorporated into the leaching va lues presented. That is, no d ilution and attenuation factor, or DAF, 18 has been applied to these results. Thus , comparisons with regulatory health values, particularly drinking water valu es, must be done with caution. Groundwater transport and fate modeling would be needed to genera te an assessment of the likely risk that may result from the CCRs represented by these data.

In reviewing the data and keeping these caveats in mind, conclusions to date from the research include:

(1) Review of the fly ash and FGD gypsum data (Tables 4 and 5) show a range of total constituent concentration values that vary over a much broader ra nge than do the leach data. This much greater range of leaching values only partially illustrates what more detailed review of the data shows: that for these CCRs, the rate of constituent release to

18 For example, EPA used a generic DAF values of 100 in th e Toxicity Characteristic final regulation. (See: 55 FR 11827, March 29, 1990)DRAFT DO NOT CITE OR QUOTE 56 of 563 5/03/10 the environment is affected by leaching conditi ons (in some cases dramatically so), and that leaching evaluation under a single set of conditions may, to the degree that single point leach tests fail to consider actual management conditions, lead to inaccurate conclusions about expected leaching in the field. (2) Comparison of the ranges of totals values and leachate data from the complete data set supports earlier conclusions 19,20,21 that the rate of constituen t leaching cannot be reliably estimated based on total consti tuent concentration alone. (3) From the more complete data in Report 3, dis tinctive patterns in leaching behavior have been identified over the range of pH values that would pl ausibly be encountered for CCR disposal, depending on the type of material sampled and the element. This reinforces the above conclusions based on the summary data. (4) Based on the data (summarized in Table 4), on the leach results from evaluation of 34 fly ashes across the plausible mana gement pH range of 5.4 to 12.4,

o The leach results at the upper end of th e leachate concentration range exceed the TC values for As, Ba, Cr, and Se (indicat ed by the shading in the table). (5) Based on the data (summarized in Table 5), on the leach results from evaluation of 20 FGD gypsums across the plausible management pH range of 5.4 to 12.4,

19 Senior, C; Thorneloe, S.; Khan, B.; Goss, D. Fate of Mercury Collected from Air Pollution Control Devices; EM, July 2009, 15-21.

20 U.S. EPA, Characterization of Mercury-Enriched Coal Combustion Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, Feb. 2006; http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf

21 U.S. EPA, Characterization of Coal Combustion Resi duals from Electric Utilities Using Wet Scrubbers for MultiPollutant Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdfDRAFT DO NOT CITE OR QUOTE 57 of 563 5/03/10 o The leach results at the upper end of th e leachate concentration ranges exceed the TC value for Se. (6) The variability in total content and the leach ing of constituents within a material type (e.g., fly ash, gypsum) is such that, while leaching of many samples exceeds one or more of the available health indicat ors, many of the other samples within the material type may be lower than the available regulatory or health indicators. Additional or more refined assessment of the dataset may allow some distinctions regarding release potential to be made among particular sources of some CCRs, which may be particularly useful in evaluating CCRs in reuse applications.

EPA anticipates development of a fourth report that presents such addi tional analysis of the leaching data to provide more insight into const ituent release potential for a wider range of CCR management scenarios, including beneficial use applications. This will include calculating potential release rates over a specified time for a range of management scenarios, including use in engineering and commercial applications using probabilistic assessm ent modeling (Sanchez and Kosson, 2005). 22 This report will be made publicly available when completed.

Finally, the Agency recognizes that this research has generated a substantial amount of data, and believes this data set can be us eful as a reference for assessi ng additional CCR samples in the

22 Sanchez, F., and D. S. Kosson, 2005. Probabilistic approa ch for estimating the release of contaminants under field management scenarios. Waste Management 25(5), 643-472 (2005).DRAFT DO NOT CITE OR QUOTE 58 of 563 5/03/10 future. The docket for today’s rule therefore includes the full dataset, in the form of a database to provide easier access to EPA’s updated leach data. 23

Table 4. Preliminary Leach Results for 5.4<pH < 12.4 and at “own pH” from Evaluation of Thirty-Four Fly Ashes.

Hg Sb As Ba B Cd Cr Co Pb Mo Se TI
Total in Material (mg/kg) 0.01 – 1.5 3 - 14 17 - 510 590 – 7,000 NA 0.3 –
1.8 66 - 210 16 -
66 24 -
120 6.9 - 77 1.1 -
210 0.72
- 13

Leach results (ug/L) <0.01- 0.50 <0.3 – 11,000 0.32 – 18,000 50 – 670,000 210 – 270,000 <0.1 -
320 <0.3 – 7,300 <0.3- 500 <0.2 - 35 <0.5 – 130,000 5.7 – 29,000 <0.3 - 790

TC (ug/L) 200 - 5,000 100,000- 1,000 5,000 - 5,000 - 1,000 -
MCL (ug/L) 2 6 10 2,000 7,000
DWEL 5 100 - 15 200
DWEL 50 2

Note: The dark shading is used to indicate wh ere there could be a potential concern for a metal when comparing the leach results to the MCL, DW EL, or concentration level used to determine

23 The database, called “Leach XS Lite” can be used to estimate the leaching potential of CCRs under any specified set of pH or infiltration conditions that may occur in the fi eld. While the database is presented as a “Beta” version, and may be further developed, the data presented in the data base are final data, from the three EPA research reports cited above.DRAFT DO NOT CITE OR QUOTE 59 of 563 5/03/10 the TC. Note that MCL and DWEL values are inte nded to represent concen trations at a well and the point of exposure; leachat e dilution and attenuation proc esses that would occur in groundwater before leachate reaches a well are not accounted for, and so MCL and DWEL values cannot be directly compared with leachate values.

Table 5. Preliminary Leach Results for 5.4<pH < 12.4 and at “own pH” from Evaluation of Twenty FGD Gypsums.

Hg Sb As Ba B Cd Cr Co Pb Mo Se TI
Total in Material (mg/kg) 0.01 –
3.1 0.14

– 8.2 0.95
- 10 2.4 - 67 NA 0.11 –
0.61 1.2 –
20 0.77
– 4.4 0.51
- 12 1.1 -
12 2.3 - 46 0.24 –
2.3

Leach results (ug/L) <0.01-
0.66 <0.3

- 330 0.32

– 1,200 30 - 560 12 – 270,000 <0.2 -
370 <0.3
– 240 <0.2

– 1,100 <0.2
- 12 0.36 – 1,900 3.6 – 16,000 <0.3 – 1,100

TC (ug/L) 200

- 5,000 100,000

- 1,000 5,000

- 5,000

- 1,000

- MCL (ug/L) 2 6 10 2,000 7,000
DWEL 5 100 - 15 200
DWEL 50 2

Note: The dark shading is used to indicate wh ere there could be a potential concern for a metal when comparing the leach results to the MCL, DW EL, or concentration level used to determine the TC. Note that MCL and DWEL values are inte nded to represent concen trations at a well and the point of exposure; leachat e dilution and attenuation proc esses that would occur inDRAFT DO NOT CITE OR QUOTE 60 of 563 5/03/10 groundwater before leachate reaches a well are not accounted for, and so MCL and DWEL values cannot be directly compared with leachate values.

G. Current Federal Regulations or Standard s Applicable to the Placement of CCRs in Landfills and Surface Impoundments.

CCR disposal operations are typically regulated by state solid waste management programs, although in some instances, surface impoundment s are regulated under the states water programs. However, there are limited regul ations of CCRs at the federal level.

The discharge of pollutants from CCR management units to waters of the United States are regulated under the National Pollu tant Discharge Elimination System (NPDES) at 40 CFR Part 122, authorized by the Clean Water Act (CWA). NPDES permits generally specify an acceptable level of a pollutant or pollutant paramete r in a discharge. NPDES permits ensure that a state's mandatory standards for clean water and the federal minimums are being met. A number of the damage cases discussed in the preamble also involved surface water contamination, which were violations of the NPDES permit requirements.

II. New Information on the Placement of CCRs in Landfills and Surface Impoundments.

A. New Developments since the May 2000 Regulatory Determination.DRAFT DO NOT CITE OR QUOTE 61 of 563 5/03/10 Since publication of the May 2000 Regulatory Dete rmination, new information and data have become available, including additional damage cases, risk modeling, updated information on current management practices and state regula tions associated with the disposal of CCRs, petitions from environmental a nd citizens groups for EPA to deve lop rules for the management of CCRs, an industry voluntary agreement on how they would manage CCRs, and a proposal from environmental and citizens groups for a CCR rule. Much of this new information was made available to the public in August 2007 thro ugh a Notice of Data Availability (NODA) at 72 FR 49714 (http://www.epa.gov/fedrgstr/EPA -WASTE/2007/August/Day-29/f17138.pdf). EPA has received extensive comments from envir onmental groups, industry, states and others in response to the NODA and as we have moved toward rulemaking. All of the comments and subsequent information we have received are in cluded in the docket to this proposal. The new information on risks and the damage cases are di scussed briefly below and in more detail in subsequent sections of this proposed rule; a more detailed discussion of this new information is discussed in other sect ions of the preamble.

At the time of the May 2000 Regulatory Determin ation, the Agency was aware of 14 cases of proven damages 24 and 36 cases of potential damages result ing from the disposal of CCRs. The Agency has since learned of an additional 13 ca ses of proven damages and 4 cases of potential damages, including a catastrophic release of CCR s from a disposal unit at the Tennessee Valley Authority (TVA) Kingston facility in Harriman, Tennessee in December 2008. In total, EPA has

24 As discussed later in the preamble, 11 of these documented cases of damage were to human health and the environment, while four of these cases were cases of ecol ogical damage, one of which has now been reclassified as a potential damage case.DRAFT DO NOT CITE OR QUOTE 62 of 563 5/03/10 documented 27 cases of proven damages and 40 cas es of potential damages resulting from the disposal of CCRs. Proven damage cases have been documented in 12 states, and potential damage cases - in 17 states. See section II. C. and the Appendix to this proposal for more detailed discussions of EPA’s CCR damage cases.

As part of the process for making the Ma y 2000 Regulatory Determination for CCRs, EPA prepared a draft quantitativ e risk assessment. However, becaus e of time constraints, the Agency was unable to address public comments on the dr aft risk assessment in time for the Regulatory Determination. Between 2000 and 2006, EPA addressed the public comments and updated the quantitative risk assessment for the management of CCR in landfills and surface impoundments. The revised risk assessment was made availa ble for public comment in the August 2007 draft report titled “Human and Ecological Risk A ssessment of Coal Combustion Wastes.”

In the May 2000 Regulatory Determination, the Agen cy concluded that the utility industry had made significant improvements in its waste management practices for new landfills and surface impoundments since the practices re flected in the 1999 Report to C ongress, and that most state regulatory programs had similarly improved. To verify its conclusion, in 2005, the U.S. Department of Energy (DOE) and EPA conducte d a joint study to collect more recent information on the management practices for CCRs by the electric power industry, and state programs in 11 states. The results of the st udy were published in the report titled “Coal Combustion Waste Management at Landf ills and Surface Impoundments, 1994-2004.” Additionally, we are aware of at least one stat e (Maryland) that has recently amended its regulatory requirements for th e management of CCRs.DRAFT DO NOT CITE OR QUOTE 63 of 563 5/03/10 In February 2004, 125 environmental and citizens groups petitioned the EPA Administrator for a rulemaking prohibiting the disposal of coal power plant wastes into groundwater and surface water until such time as EPA promulgates federally enforceable regulations pursuant to RCRA. A copy of the petition is available at http://www.regulations.gov/fdmspublic/c omponent/main?/main=DocumentDetail&o=09000064 801cf8d1.

In October 2006, the utility industry through thei r trade association, the Utility Solid Waste Activities Group (USWAG) submitted to EPA a “Utility Industry Action Plan for the Management of Coal Combustion Products.” The plan outlines th e utility industry’s commitment to adopt groundwater performa nce standards and monitoring, conduct risk assessments prior to placement of CCRs in sand and gravel pits, and to consider dry-handling prior to constructing new disposal units.

In January 2007, environmental and citizens groups submitted to EPA a “Proposal for the Federal Regulation of Coal Combustion Waste. ” The proposal provides a framework for comprehensive regulation under subtitle D of RC RA for waste disposed of in landfills and surface impoundments generated by coal-fired power plants. Then in July 2009, environmental and citizens groups filed a sec ond petition requesting that the EPA Administrator promulgate regulations that designate CCRs as hazardous waste under subtitle C of RCRA. 25 In support of

25 This rulemaking petition was filed by: Earthjustice; the Sierra Club; the Environmental Integrity Project; the Natural Resources Defense Council; the Southern Envir onmental Law Center; and Kentucky Resources Council.DRAFT DO NOT CITE OR QUOTE 64 of 563 5/03/10 their petition, the environmental groups cited “numerous reports and data produced by the Agency since EPA’s final Regulatory Determin ation ...which quantify the waste’s toxicity, threat to human health and the environment, inadequate state regulatory programs, and the damage caused by mismanagement.” A copy of the petition is available in the docket to this proposal. The Agency has, as yet, not made a deci sion as to whether to li ft the Bevill exemption, and, while it has determined that federal regul ation is appropriate, it has not made a determination as to whether regulations should be promulgated under subtitles C or D of RCRA. Consequently, EPA is deferring its response to th e petitioner. However, the preamble discusses the issues raised in these peti tions at length. In addition, the Agency is deferring its proposed response to the petitioners’ request regarding the placement of CCRs in minefills as the Agency will work with OSM to address the management of CCRs in minefills in a separate rulemaking action. (See discussion in other parts of the preamble for the Ag ency’s basis for its decisions.)

In August 2007, EPA published a NODA (72 FR 49714, http://www.epa.gov/fedrgstr/EPAWASTE/2007/August/Day-29/f17138.htm) which made public, and sought comment on, the new information we received since the May 2000 Re gulatory Determination through 2007, except for the July 2009 petition entitled, Petition for Rulemaking Pursuant to Section 7004(a) of the Resource Conservation and Recovery Act Concerni ng the Regulation of Coal Combustion Waste and the Basis for Reconsideration of the 2000 Regulatory Determination Concerning Wastes from the Combustion of Fossil Fuels . The new information included the joint DOE and EPA report entitled: Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994–2004 ; the draft risk assessment; and EPA’s dama ge case assessment. EPA also included in the docket to the NODA the February 2004 Petition for Rulemaking submitted by a number ofDRAFT DO NOT CITE OR QUOTE 65 of 563 5/03/10 environmental and citizens’ groups to prohibit the placement or disposal of CCRs into ground water and surface water; and two suggested ap proaches for managing CCRs in landfills and surface impoundments. One approach is the Volunt ary Action Plan that was formulated by the electric utility industry. Th e second approach was the January 2007 framework prepared by a number of environmental and citizens’ groups proposing federal regulati on under subtitle D of RCRA for CCRs generated by U.S. coal-fired po wer plants and disposed of in landfills and surface impoundments. The Agency received a total of 396 comments on the NODA from 375 citizens and citizen and environmental groups , 16 industry groups, and 5 state and local government organizations. In general, citizen s, citizens groups, and environmental groups commented that state regulations are inadequa te and called on EPA to develop enforceable regulations for the disposal of CCRs under the hazardous waste provisions of RCRA. Industry groups, on the other hand, stated that the signif icant recent improvement in industry management and state regulatory oversight of CCR disposal demonstrates that the conditions that once led EPA to determine that federal subtitle D re gulations were warrant ed no longer exist and therefore, further development of subtitle D regulations is no longer necessary. In September 2008, the Environmental Council of the States (ECO S) issued a resolution that states already have regulations in place that apply to CCRs, an d a federal regulation is not necessary. The 2008 ECOS resolution was revised in March 2010 and calls upon EPA to conclude that additional federal CCR regulations would be duplicative of most state programs, are unnecessary, and should not be adopted, but if adopted must be developed under RCRA subtitle D rather than RCRA subtitle C (see http://www.ecos.org/files/4018_file_Resol ution_08_14_2010_version.doc). Comments on theDRAFT DO NOT CITE OR QUOTE 66 of 563 5/03/10 NODA are available in the docket to the NODA at www.regulations.gov , docket number EPAHQ-RCRA-2006-0796.

Finally, in July and August of 2008, EPA conduc ted a peer review of the 2007 draft risk assessment “Human and Ecological Risk Assessment of Coal Co mbustion Wastes.” The peer review was conducted by a team of five expe rts in groundwater modeling, environmental fate and transport modeling, and human health and ecol ogical risk assessment. EPA has revised its risk assessment based on the peer review comments . Results of the peer review and the revised risk assessment are included in the docket to this proposal. Also, see sec tion II. B. below and the document titled “What Are the Environmental and H ealth Effects Associated with Disposing of CCRs in Landfills and Surface Impoundments?” availa ble from the docket to this notice for more detailed discussions of the risk assessment.

In summary, since the May 2000 Regulatory Dete rmination, the Agency has (1) documented an additional 17 cases of damage from the dispos al of CCRs (13 proven and 3 potential); (2) gathered additional information on industry practic es; (3) revised its risk assessment, based on comments received on the 1999 Report to Congress, conducted a peer review of the revised risk assessment, and further revised its risk assessment based on peer review comments and comments received on the August 2007 NODA; (4) received a voluntary action plan from the utility industry; (5) received two petitions for rulemaking fr om environmental and citizens groups; and (6) received a proposal for regulating the management of CCRs in landfills and surface impoundments from environmental and citizen s groups. EPA has considered all of this information in making the decisions on the proposals in this notice.DRAFT DO NOT CITE OR QUOTE 67 of 563 5/03/10 B. CCR Risk Assessment.

In making the May 2000 Regulatory Determination for CCRs, EPA prepared a draft quantitative risk assessment based on groundwater modeling. However, commenters from all sides raised fundamental scientific questions with the study, and raised issues that went beyond groundwater modeling capability at the time. EPA was unable to address these issues in the available time, and therefore did not rely on the draft risk asse ssment as part of its basis in making its May 2000 Regulatory Determination; rather we relied on the damage cases identified, as well as other information. In this regard, it is worth noting that EPA did not conclude that the available information regarding the extent or nature of th e risks were equivocal. Rather, EPA noted that we had not definitively assessed the ground water risk s, due to the criticisms of our draft risk assessment, but still concluded that there were "risks from arsenic that we cannot dismiss." Largely what drove the risks in the original risk assessment were the old units that lacked liners and ground water monitoring (for landfills, only 57% of the units had liners and 85% of the units had ground water monitoring, while for surface im poundments, only 26% of the units had liners and only 38% of the units had ground water monitoring).

Between 2000 and 2006, EPA addressed public co mments and updated the quantitative risk assessment for the management of CCRs in la ndfills and surface impoundments. The purpose of the risk assessment is to identify CCR constituents, waste types, liner types, receptors, and exposure pathways with potential risks and to provide information that EPA can use as we continue to evaluate the risks posed by CCRs disposed of in la ndfills and surface impoundments.DRAFT DO NOT CITE OR QUOTE 68 of 563 5/03/10 The risk assessment was designed to develop nati onal human and ecological risk estimates that are representative of onsite CCR management setti ngs throughout the United States. A revised draft risk assessment was made available to th e public through the Augus t 2007 NODA (which is discussed in other sect ions of the preamble) and is available at http://www.regulations.gov/fdmspublic/c omponent/main?main=DocumentDetail&o=090000648 027b9cc.

EPA submitted the revised draft risk assessment report, together with public comments on the report in response to the 2007 NODA, to a peer review panel. EPA completed the risk assessment, taking into account peer review comments, in a final report titled “Human and Ecological Risk Assessment of Coal Combustion Wastes,” (Septe mber 2009). The report, peer review comments, and EPA’s response to the pe er review comments are available in the docket for this proposal.

For purposes of this rulemaking, EPA defined the ta rget level of protecti on for human health to be an incremental lifetime cancer risk of no greater than one in 100,000 (10 -5 ) for carcinogenic chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals. The hazard quotient is the ratio of an individual’s chronic daily dose of a constituent to the reference dose for that constituent, where the reference dos e is an estimate of the daily dose that is likely to be without appreciable risk of deleterious effects over a lifetime. These ar e the target levels that EPA typically uses in its listing d ecisions. (See, for example, th e final rule for Nonwastewaters From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorants (70 FR 9144) at http://www.epa.gov/wastes/laws-regs /state/revision/ frs/fr206.pdf.)DRAFT DO NOT CITE OR QUOTE 69 of 563 5/03/10 The results of this risk assessment provide furthe r confirmation of the high risks presented in the mismanagement of CCRs disposed in landfills and surface impoundments. The assessment does confirm that there are methods to manage CCRs safely, although it calls into question the reliability of clay liners, especially in surface impoundments, and it points to very high potential risks from unlined surface impoundments.

Specifically, the revised draft CCR risk assessment presents results at a typical exposure (50th percentile), as well as a high- end exposure (90th percentile) risk based on a probabilistic analysis. The revised draft CCR risk assessment re sults at the 90th percen tile suggest that the management of CCRs in unlined or clay-lined waste management units (WMUs) result in risks greater than the ri sk criteria of 10 -5 for excess cancer risk to humans or an HQ greater than 1 for noncancer effects to both human and ecological receptors which are th e criteria generally used in EPA’s listing determination procedure. 26 While still above the criter ia, clay-lined units tended to have lower risks than unlined units. However, it was the composite-lined units that effectively reduced risks from all pathways and constituents below the risk criteria. More specifically:

o For humans exposed via the groundwater-to-dr inking-water pathway, estimated risks from clay-lined landfills that dispose of CCRs or CCRs co-managed with coal refuse are lower

26 EPA’s hazardous waste listing determination policy is desc ribed in the notice of proposed rulemaking for wastesfrom the dye and pigment industries at 59 FR 66075 - 66077 available at http://www.epa.gov/fedrgstr/EPAWASTE/1994/December/Day-22/p r-98.html and in the fina l rule for Nonwastewaters From Productions of Dyes, Pigments, and Food, Drug, and Cosmetic Colorant s (70 FR 9144) at http://www.epa.gov/wastes/lawsregs/state/revision/frs/fr206.pdf..DRAFT DO NOT CITE OR QUOTE 70 of 563 5/03/10 than those for unlined landfills. However, the 90th percentile risk estimates, for arsenic that leaks from clay-lined landf ills are still above the risk criteria - as high as 1 in 5,000 individual lifetime excess cancer risk. 27 When landfills are unlined, estimated risks above the criteria occur for antimony a nd molybdenum, as well as arse nic (as high as 1 in 2,000 individual lifetime excess cancer risk). In a ddition to arsenic, clay-lined fluidized bed combustion (FBC) landfills also presented estimat ed 90th percentile risks above the criteria for antimony. However, unlined FBC landfills differed in that they were estimated to exceed the risk criteria only for arsenic. 28 At the 50th percentile, onl y trivalent arsenic from CCRs codisposed with coal refuse was estimated to ex ceed the risk criteria w ith cancer risks of 1 in 50,000.

o Arsenic and cobalt were the constituents w ith the highest estimated risks for surface impoundments. Clay-lined surface impoundments we re estimated to present 90th percentile risks above the criteria for arsenic, boron, cadmium, cobalt, molybdenum, and nitrate. The 90th percentile clay-lined impoundment estimat ed risks and hazard quotients (HQs) were as follows: for arsenic, the estimated risk was as high as 1 in 140; cobalt's estimated HQ as high as 200, while the estimated HQs for boron, cadmi um, molybdenum and nitrate ranged from 2 to 20. The 90th percentile unlined surface im poundment estimates were above the criteria for constituents that include arsenic, lead, c obalt and selenium: estimated arsenic cancer risks are as high as 1 in 50, and non-cancer effects es timates for cobalt ranged from an estimated

27 Excess cancer risk means risk in addition to pre- existing, “background” risk from other exposures.

28 Unlined FBC landfills showed less risk as modeled; no te that the number of FBC landfills modeled was very small (seven).DRAFT DO NOT CITE OR QUOTE 71 of 563 5/03/10 HQ of 0.9 to 500 depending on whether CCRs were co-managed with coal refuse. At the 50th percentile, the only surface impoundment results estimated to exceed the risk criteria were arsenic and cobalt: unlined impoundments had estimated arse nic cancer risks as high as 6 in 10,000, while clay-lined impoundments had estim ated arsenic cancer risks as high as 1 in 5,000. The 50th percentile noncancer HQs due to cobalt in drinking water were estimated to be as high as 20 and 6 for unlined a nd clay-lined surface impoundments, respectively.

o Composite liners, as modeled in this asse ssment, effectively reduce risks from all constituents to below the risk criteria for bot h landfills and surface impoundments at the 90th and 50th percentiles.

o The model generally predicts that groundwater risks will occur centuries later for landfills than for surface impoundments. For the ground water-to-drinking water pathway for unlined landfills, arrival times of the peak concentratio ns at a receptor well peaked in the hundreds or thousands of years, while unlined surface impoundme nt risks typically peak ed within the first 100 years. Clay liners resulted in later arrival of peak risks, nearly always in the thousands of years for landfills but stil l in the first few hundred years for surface impoundments. Finally, while composite liners often resulted in a failure of the plume to reach groundwater wells, composite-lined landfills with plumes th at were estimated to reach groundwater wells eventually had peak arsenic- in-groundwater concentrations at approximately 10,000 years, while composite-lined surface impoundments' pl umes peaked in the thousands of years.

o For humans exposed via the groundwater-to-surf ace-water (fish consumption) pathway, unlined and clay-lined surface impoundments were estimated to pose risks above the criteriaDRAFT DO NOT CITE OR QUOTE 72 of 563 5/03/10 at the 90th percentile. For CCRs mana ged alone in surface impoundments, these exceedances came from selenium (estimated HQs of 3 and 2 for unlined and clay-lined units, respectively). For CCRs co-managed with coal refuse, these exceedences came from arsenic (3 in 100,000 and 2 in 100,000 estimated excess can cer risks for unlined and clay-lined units, respectively). All 50th percen tile surface impoundment risks are estimated to be below the risk criteria. No constituents pose estimate d risks above the risk criteria for landfills (including FBC landfills) at the 90th or 50th percentile.

o EPA also conducted a separate draft fugitive dus t screening assessment which indicates that, without fugitive dust controls, there could be exceedances of the National Ambient Air Quality Standards for fine particulate matter in the air at residences near CCR landfills. 29
The 1998 risk assessment 30 also showed risks from inhalation of chromium in fugitive dust but at levels below the criteria. 31

29 EPA’s decision to address fugitive dust was based on a peer review comment to the draft Risk Assessment, stakeholder NODA comments, photographic documentation of fugitive dust associated with the hauling and disposal of CCRs, Agency efforts to control fugitive dust emissions from the TVA Kingston spill (see e.g., http://www.epakingstontva.com/EPA%20Air%20Aud its%20and%20Reviews/Kingston%20Fly%20Ash%20- %20EPA%20Audit.pdf), and OSHA’s requirement for MSDS sheets for coal ash.

30 Non-Groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2): Draft Final Report (http://www.epa.gov/osw/ nonhaz/industrial/specia l/fossil/ngwrsk1.pdf).

31 All chromium present in the particulate matter was assumed to be in the more toxic, hexavalent form.DRAFT DO NOT CITE OR QUOTE 73 of 563 5/03/10 EPA recognizes that there are signi ficant uncertainties in national ri sk assessments of this nature, although it did attempt to address potential uncertainties through Monte Carlo and sensitivity analyses. Uncertainties discussed in the revised risk assessment include:

• The locations and characteristics of currently operating facilities;

• The failure to account for direct discharges to surface water;

• Changing conditions over th e 10,000-year period modeled;

• Shifting populations a nd ecological receptors;

• Additive risks from multiple constituents or multiple pathways;

• Clean closure of surface impoundments;

• The speciation and bioavailability of constituents;

• The effect of compacting CCRs before disposal;

• The assumption that all disposal units are above the water table;

• Full mixing of the groundwater plume;

• The choice of iron sorbent in the soil;

• The appropriateness of the leachate data used and the treatment of nondetects;

• The distance to receptor we lls and surface water bodies; and

• The potential conservativeness of human health benchmarks.

The Agency, however, does solicit comment on seve ral specific aspects of the underlying risk assessment. In particular, EPA requests commen t on whether clay liners designed to meet a
1x10 -7 cm/sec hydraulic conductiv ity might perform differently in practice than modeled in the risk assessment. Thus, EPA solicits specific da ta on the hydraulic conduct ivity of clay liners associated with CCR disposal units. In addition to the effectiveness of various liner systems, theDRAFT DO NOT CITE OR QUOTE 74 of 563 5/03/10 hydraulic conductivity of coal ash can be reduced with the appropriate addition of moisture followed by compaction to attain 95% of the standard Proctor maximum dry density value. 32 This concept, it has been reporte d, could potentially be taken furt her with the use of compaction coupled with the addition of organosilanes. Acco rding to recent studie s, organosilanes could take the hydraulic conductivity to zero. 33 EPA solicits comments on the effectiveness of such additives, including any analysis that would reflect long-term performance, as well as the appropriateness of a performance standard that would allow such control measures in lieu of composite liners. EPA has also observed that surface impoundments are often placed right next to surface water bodies which may pres ent complex subsurface environments not considered by the groundwater model, and therefore EPA seeks data on the distance of surface impoundments to water bodies, site specific groundwater risk analysis which accounts for the presence of a nearby surface water body, and gr oundwater monitoring data associated with such sites.

In characterizing CCRs and utilizing such data fo r the risk analysis, EPA gathered a variety of data over a long period of time. As a general ma tter, EPA finds these data to be an accurate characterization, and that the values are in line with recent studies EPA has conducted to

32 The standard and modified Proctor compaction tests (ASTM D 698 and D 1557 respectively) are used to determine the maximum achievable density of soils and aggregates by compacting the soil or aggregate in a standardized mould at a standardized compactive force. The maximum dry density value (or maximum achievable dry density value) is determined by dividing the mass of the compacted material (weight divided by the gravitational force) by the volume of the compacted material.

33 “Organo-silane Chemistry: A Water Repellant Technology for Coal Ash and Soils,” John L. Daniels, Mimi S. Hourani, and Larry S. Harper, 2009 World of Coal Ash Conference. Available at ht tp://www.flyash.info/2009/025- daniels2009.pdf and in the docket to this proposal.DRAFT DO NOT CITE OR QUOTE 75 of 563 5/03/10 characterize new air pollution controls. However, with respect to a few of the highest surface impoundment porewater concentrations (for arsenic in particular), questi ons have been raised regarding the representativeness of these individual data points. In one case, a facility with the highest arsenic pore wate r concentration (86.0 mg/L ) involved values that were measured in a section of a surface impoundment where coal refuse (defined as coal waste from coal handling, crushing, and sizing operations) was disposed of at the water surface. Pore water samples taken in the coal ash sediment beneath the coal refuse involved concentrations of arsenic as low as 0.003 mg/L. Thus, there is the question of whethe r those pore water samples measured in the coal refuse represent what leaches out of the bottom of the surface impoundment.

The next highest arsenic values (an average of 5.37 mg/L over 4 samples with the highest concentration being 15.5 mg/L) cam e from site CASJ (known as SJA in the EPRI report). The concern is that arsenic in the por e water was orders of magnitude higher than in the pond water. That type of change doesn't appear to occur for other constituents in these samples or for arsenic in samples from other surface impoundments. EPA recently attempted to obtain further information that could assist us to better charac terize these specific data, but the data are old, the impoundment is no longer in operation, and th ere are apparently no additional records upon which to draw conclusions.

Additional high concentration values , especially for lead, are asso ciated with ash data provided by Freeman United Mining, which acquired ash for a minefilling project. None of this ash data is associated with electric utilities, but rather with other coal combusters such as John Deere, American Cyanamid, and Washington University in St. Louis, Missouri. The Agency isDRAFT DO NOT CITE OR QUOTE 76 of 563 5/03/10 uncertain whether the high lead levels are associ ated with lead levels in the source coal, the operations at these facilities, or whether other wastes were mixed with the CCRs.

While these concerns are associated with a sma ll fraction of the data, these data reflect the highest concentrations, and thus can be important considerations in the risk analysis. Based on the above concerns, EPA solicits co mment on several questions.

• For the highest concentrations in EPA's data base, such as the examples mentioned above, are there values that do not appropriately represent leaching to groundwater, and if so, why not?

• Are there any additional data that are repr esentative of CCR constituents in surface impoundment or landfill leachate (from literature , state files, industry or other sources) that EPA has not identified?

• EPA understands that the disposal practices associated with coal refuse in surface impoundments may have improved based on th e development of an industry guide. 34 EPA solicits information on the degree to whic h coal refuse management practices have changed since the issuance of the guide and the impacts of those changes (e.g., have concentrations of arsenic been reduced in leac h samples that have been taken at facilities operating in concert with the industry guide).

• For CCR surface impoundments, are there any exam ples of pore water concentrations for arsenic increasing orders of magnit ude over pond water concentrations?

34 Guidance for Comanagement of Mill Rejects at Coal-Fired Power Plants, Electric Power Research Institute, 1999. Available in the docket to this proposal.DRAFT DO NOT CITE OR QUOTE 77 of 563 5/03/10 For more detailed discussions of the CCR risk assessment, see the document titled: “What Are the Environmental and Health Effects Associated with Disposing of CCRs in Landfills and Surface Impoundments?” and the report titled “Hum an and Ecological Risk Assessment of Coal Combustion Wastes” which are included in the docket to this notice.

C. Damage Cases

Under the Bevill Amendment for the “special wa ste” categories of RCRA, EPA was statutorily required to examine “documented cases in whic h danger to human health or the environment from surface runoff or leachate has been proved” from the disposal of coal combustion wastes (RCRA Section 8002(n)). The criteria used to determine whether danger to human health and the environment has been proven are descri bed in detail in the May 2000 Regulatory Determination at 65 FR 32224. 35

At the time of the May 2000 Regulatory De termination, the Agen cy was aware of 11 documented cases of proven damage to ground wa ter and 36 cases of poten tial damage to human health and the environment from the improper management of CCRs in landfills and surface impoundments. Additionally, the Agency determin ed that another four cases were documented cases of ecological damages. 36 However, for the May 2000 Regulatory Determination, EPA did not consider these ecological damage cases beca use all involved some form of discharge from waste management units to nearby lakes or creeks that would be subject to the Clean Water Act

35 For definition of “proven damage case,” see section C in the Supplementary Information section.

36 Ecological damages are damages to mammals, amphibians, fish, benthic layer organisms and plants.DRAFT DO NOT CITE OR QUOTE 78 of 563 5/03/10 regulations. Moreover, EPA conc luded that the threats in those cases were not substantial enough to cause large scale, system level ecologi cal disruptions. On re view, EPA has concluded that the ecological damage cases are appropriate for consideration beca use, while they might involve CWA violations, they ne vertheless reflect damages from CCR disposal that might be handled under RCRA controls. And, while they may or may not have involved “systems-level” disruption, they were significant enough to lead to state response actions, e.g., fish advisories. EPA now believes that ecological damages wa rranting state envir onmental response are generally appropriate for inclusion as damage cases, and to fail to include them would lead to an undercounting of real and recognized damages. Accordingly, at the time of the May 2000 Regulatory Determination, in total, 15 cases of proven damages had occurred. Subsequently, one of the 15 proven damage cases has been reclassi fied as a potential damage case, resulting in a total of 14 proven cases of damage, as of the May 2000 Regulatory Determination.

Since the May 2000 Regulatory Determination, a dditional damage cases, including ecological damage cases, have occurred, and were discu ssed in the August 2007 NODA. Specifically, EPA has gathered or received information on 135 alle ged damage cases. Six of the alleged damage cases have been excluded from this analysis because they involved minefills, a management method which is outside the scope of this proposal, while sixty-two of the damage cases have not been further assessed because there was little or no information supporting the concerns identified. Of the remaining 67 damage cases evaluated, EPA determined that 24 were proven cases of damage (which includes the 14 prove n damage cases from the May 2000 Regulatory Determination); of the 24 damage cases, eight were determined to be proven damages to surface water and sixteen were determined to be proven damages to ground water, with four of the casesDRAFT DO NOT CITE OR QUOTE 79 of 563 5/03/10 to groundwater being from unlined landfills, fi ve coming from unlined surface impoundments, one was from a surface impoundment where it was unclear whether it was lined, and the remaining six cases coming from unlined sand and gr avel pits. Another 43 cases (which includes the 36 potential damage cases from the May 2000 Re gulatory Determination) were determined to be potential damages to groundwater or surface wa ter; however, four of the potential damage cases were attributable to oil combustion wastes and thus are out side the scope of this proposal; therefore, resulting in 39 CCR pot ential damage cases. The remaining 10 alleged damage cases were not considered to be prove n or potential damage cases due to a lack of evidence that damages were uniquely associated with CCRs; ther efore, they were not considered to be CCR damage cases.

Finally, within the last couple of years, EPA has learned of an additional five cases of claimed damage. Two of the cases involve the structur al failure of the surface impoundment; i.e., dam safety and structural integrity issues, a pathway which EPA did not consider at the time of the May 2000 Regulatory Determination. These cases are (1) a 0.5 million cubic yard release of water and fly ash to the Delaware River at the Martin’s Creek Power Plant in Pennsylvania in 2005, leading to a response action costing $37 milli on, and (2) the catastrophic failure of a dike at TVA’s Kingston, Tennessee facility, leading to the release of 5.4 million cubic yards of fly ash sludge over an approximately 300 acre area and into a branch of the Emory River, followed by a massive cleanup operation overseen by EPA and the state of Tennessee. EPA classifies these as proven damage cases. Another cas e involved the failure of a disc harge pipe at the TVA Widows Creek plant in Stevenson, Alabama, resulting in a 6.1 million gallon re lease from an FGD pond, leading to $9.2 million in cleanup costs. EPA did not classify this as a damage case, becauseDRAFT DO NOT CITE OR QUOTE 80 of 563 5/03/10 samples at relevant points of pot ential exposure did not exceed appl icable standards. Two other cases involved the placement of coal ash in large scale fill opera tions. The first case, the BBBS Sand and Gravel Quarries in Gambrills, Maryland , 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 re sidential drinking wells near the site include heavy metals and sulfates at or above groundwater quality standards, and th e state of Maryland is overseeing remediation. The second case is the Batt lefield Golf Course in Chesapeake, Virginia where 1.5 million yards of fly ash were used as fill and for contouring of a golf course. Groundwater contamination above drinking water le vels has been found at the edges and corners of the golf course, but not in residential wells . An EPA study in April 2010 established that residential wells near the site were not imp acted by the fly ash and, therefore, EPA does not consider this site a proven damage case. Howe ver, due to the onsite groundwater contamination, EPA considers this site to be a potential damage case. Thus, the Agency has classified three of the five new cases as proven damage cases, one as a potential damage case, and the other as not being a damage case (i.e., not meeting the criteria to be considered either a proven or potential damage case). This brings the total number of proven damage cas es to 27 and 40 potential cases of damage from the mismanagement of CCRs being disposed.

The Martins Creek and TVA Kingston fly ash im poundment failures underscore the need for surface impoundment integrity requirements. In the case of the Martins Creek failure, 0.5 million cubic yards of fly ash slurry was released into the Delaware River when a dike failed. Fortunately, there are no homes in the path of the release and all the damage was confined to power plant property and the Delaware River. On the other hand, the 5.4 million cubic yards ofDRAFT DO NOT CITE OR QUOTE 81 of 563 5/03/10 fly ash sludge released as a result of the T VA Kingston impoundment failure covered an area of approximately 300 acres, flowed into a branch of the Emory River, disrupted power, ruptured a gas line, knocked one home off its foundation an d damaged others. Fortunately, there were no injuries.

While much of our risk modeling deals with ground water contaminatio n, based on historical facts, EPA recognizes that failures of large CCR impoundment s can lead to catastrophic environmental releases and large cl eanup costs. It is critical to understand as well, however, that the structural integrity requirements and the re quirements for conversi on or retrofitting of existing or new impoundments are de signed to avoid such releases and that the benefits of avoiding such catastrophic failures are very significant. As disc ussed in more detail in Section XII of today's proposal and as fully explained in our Regulatory Impact Analysis (RIA), EPA estimated the benefits of a voiding the future cleanup costs of or impoundment failures. Depending on the regulatory option chosen, the annualized benefits range from $29 million to $1,212 million per year, and the net present valu e of these ranges from $405 million to $16,732 million. In addition, the RIA did not quantify or monetize several othe r additional benefits consisting of future avoided social costs a ssociated with ecological and socio-economic damages. These include avoided damages to natural resources, damages to property and physical infrastructure, avoided litigation costs associated with such events, and reduction of toxic chemical- contaminated effluent discha rges from impoundments to surface waters

In December 2009, EPA received a new report fro m EPRI challenging our conclusions on many of the proven damage cases often noting that th ere was not significant off-site contamination.DRAFT DO NOT CITE OR QUOTE 82 of 563 5/03/10 The report, “Evaluation of Co al Combustion Product Damage Cases (Volumes 1 and 2), Draft Report, November 2009,” is available in the dock et to this proposal. EPA solicits comments on EPRI's report and welcomes additional data re garding the proven damage cases identified by EPA, especially the degree to whic h there was off-site contamination.

EPA notes that several stakehol ders have very recently identif ied additional claimed damage cases, and the agency has not had the time to review them closely. 37 Similarly, other stakeholders have recently provided valuable information on CCR risks, costs of different possible options, and characterizatio n data, which EPA has also not had time to review in detail or to respond to. Generally, th ese reports include information that is relevant to today’s proposal. EPA will review this information caref ully as we proceed to a final rule, and we encourage commenters on the proposal to consider this material, which EPA has placed in the rulemaking docket, as they prepare comments.

For a more detailed discussion of the damage cas es, see the Appendix to this notice, the table “Summary of Proven Cases with Damages to Gr oundwater and to Surface Water” at the end of the Appendix, and the document “Coal Combustion Wastes Damage Case Assessments” available at www.regulations.gov/fdmspublic/c omponent/main?main=DocumentDetail&d=EPAHQ-RCRA-2006-0796-0015.

37 On February 24, the Environmental Integrity Project an d EarthJustice issued a report on 31 'new' alleged CCRs damage cases which is available at: http://www.environ mentalintegrity.org/news_reports/documents/OutofControlMountingDamagesFromCoal AshWasteSites.pdf.DRAFT DO NOT CITE OR QUOTE 83 of 563 5/03/10 III. Overview and Summary of the Bevill Regu latory Determination and the Proposed Subtitle C and Subtitle D Regulatory Options

In today’s notice, EPA is reevaluating its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs generated at electr ic utilities and indepe ndent power producers. In the May 2000 determination, EPA concluded that disposal of CCRs did not warrant regulation under RCRA subtitle C as a hazardous waste, but did warrant federal regulation as a solid waste under subtitle D of RCRA. However, EPA never issued federal regulatio ns under subtitle D of RCRA for CCRs. (As noted previously, today's proposal could result in the development of subtitle D standards consistent with the May 2000 Regulatory Determination, or with a revision of the determination, or the issuance of s ubtitle C standards under RCRA.) Today, EPA is reconsidering this determination, and is solici ting comments on two altern ative options: (1) to reverse the Bevill determination (with respect to disposal of CCRs in surface impoundments and landfills), and regulate such CCRs as special wast es under RCRA subtitle C, and (2) to leave the Bevill determination in place and regulate CCRs going to disposal under federal RCRA subtitle D standards. Today’s co-proposal provi des regulatory text for both options.

In determining whether or not to exclude a Bevi ll waste from regulation under RCRA subtitle C, EPA must evaluate and weigh eight factors. In section IV. B. of this preamble, EPA discusses CCRs from electric utilities in lig ht of these factors, and we hi ghlight the considerations that might lead us to reversing the August 1993 and May 2000 Regulatory Determinations (and therefore regulate CCR disposal und er RCRA subtitle C), or to l eave the determin ation in place (and regulate CCR disposal under RCRA subtitle D).DRAFT DO NOT CITE OR QUOTE 84 of 563 5/03/10 At the same time, EPA continues to believe th e Bevill exclusion should remain in place for CCRs going to certain beneficial uses, because of the important benefits to the environment and the economy from these uses, and because the mana gement scenarios for these products are very different from the risk case being consider ed for CCR disposal in surface impoundments and landfills. EPA makes it clear that CCRs in sand and gravel pits, quarrie s, and other large fill operations is not beneficial use, but disposal. As such, it would be regulated under whichever option is finalized. EPA solicits comments, how ever, on whether unencapsulated uses of CCRs warrant tighter federal control.

A. Summary of Subtitle C proposal

In combination with its proposal to reverse the Bevill determin ation for CCRs destined for disposal, EPA is proposing to list as a speci al waste, CCRs from electric utilities and independent power producers when destined for disposal in a landfill or surface impoundment. These CCRs would be regulated under the RCRA s ubtitle C rules (as proposed to be amended here) from the point of their generation to the po int of their final dispos ition, which includes both during and after closure of any disposal unit. In addition, EPA is proposing that all existing units that have not closed in accordance with the crite ria outlined in this proposa l, by the effective date of the final rule, would be subject to all of the requirements of subtitle C, including the permitting requirements at 40 CFR parts 124 and 270. As such, persons who generate, transport and treat, store or dispose of CCRs would be s ubject to the existing crad le-to grave subtitle C waste management requirements at 40 CFR part s 260 through 268, parts 270 to 279, and part 124DRAFT DO NOT CITE OR QUOTE 85 of 563 5/03/10 including the generator and transporter requirements and the requirements for facilities managing CCRs, such as siting, liners (w ith modification), run-on and run-off controls, groundwater monitoring, fugitive dust controls, financial assura nce, corrective action, including facility-wide corrective action, closure of units, and post-clos ure care (with certain modifications). In addition, facilities that dispose of , treat, or, in many cases, store, CCRs also would be required to obtain permits for the units in which such materi als are disposed, treated, and stored. EPA is also considering and seeking comment on a modifi cation, which would not re quire the closure or installation of composite lin ers in existing surface impound ments; rather, these surface impoundments could continue to oper ate for the remainder of their useful life. The rule would also regulate the disposal of CCRs in sand and gravel pits, quarries, and other large fill operations as a landfill.

To address the potential for catastrophic rel eases from surface impoundments, we also are proposing requirements for dam safety and stability for impoundments that, by the effective date of the final rule, have not closed consistent with the requirements. Finally, we are proposing land disposal restrictions and treatment stan dards for CCRs, as well as a prohibition on the disposal of treated CCRs below the natural water table.

B. Summary of Subtitle D proposal

In combination with its proposal to leave the Bevill determinati on in place, EPA is proposing to regulate CCRs disposed of in surface impound ments or landfills under the RCRA subtitle D requirements, which would establish national criter ia to ensure the safe disposal of CCRs inDRAFT DO NOT CITE OR QUOTE 86 of 563 5/03/10 these units. The units would be subject to, am ong other things, locati on standards, composite liner requirements (new landfills and surface impoundments would require composite liners; existing surface impoundments without liners would have to retrofit within five years, or cease receiving CCRs and close); groundwater monitori ng and corrective action fo r releases from the unit standards; closure and post-closure care requirements; and requirements to address the stability of surface impoundments. We solicit comments on requiring financial assurance and on how the requirements apply to surface impoundments that continue to receive CCRs after the effective date of the rule; specifically, EPA is requesting comment on an alternative under which existing surface impoundments would be allowed to continue to operate without requiring the facility to retrofit the unit to in stall a composite liner. The rule would also regulate the disposal of CCRs in sand and gravel pits, quarries, and othe r large fill operations as a landfill. The rule would not regulate the generation, st orage or treatment of CCRs pr ior to disposal. Because of the scope of subtitle D authorit y, the rule would not require pe rmits, nor could EPA enforce the requirements. Instead, states or citizens coul d enforce the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under th eir independent state enforcement authority.

EPA is also considering, and is seeking comment on, a potential modification to the subtitle D option, called “D prime.” Under the “D pr ime” option, existing surface impoundments would not have to close or install compos ite liners but could continue to ope rate for their useful life. In the “D prime” option, the other elements of the subtitle D option would remain the same.

IV. Bevill Regulatory Determination Rela ting to CCRs from Electric UtilitiesDRAFT DO NOT CITE OR QUOTE 87 of 563 5/03/10 As discussed in the preceding sections, EP A originally conditioned its May 2000 Regulatory Determination on continued review of, among other factors, “the extent to which [the wastes] have caused damage to human health or the environment; and the adequacy of existing regulation of the wastes.” (See 65 FR 32218.) Re view of the information developed over the past ten years has confirmed EPA’ s original risk concerns, and has raised significant questions regarding the accuracy of the Agency’s predic tions regarding anticipated improvements in management and state regulatory oversight of these wastes. Consequently, the Agency has determined that reconsideration of its May 2000 Regulatory Determin ation is appropriate, and is revaluating whether regulation of CCRs under RCRA subtitle C is necessary in light of the most recent information. The scientific analyses, however, are complex and present legitimate questions for comment and further consideration. Thus, while EPA has concluded that federal regulation of this material is necessary, the Agency has yet not reached a conclusion as to whether the Bevill determination should be revised, or whether regulation under RCRA subtitle C or D is appropriate, but is soliciting comments on the two opti ons described in the previous section.

As stated earlier, EPA’s application of its di scretion in weighing the eight Bevill factors--and consequently our ultimate decision--will be guided by the following principles. The first is that EPA’s actions must be protectiv e of human health and the envi ronment. Second, any decision must be based on sound science. Finally, in cond ucting this rulemaking, EPA will ensure that its decision processes are transparen t, and encourage the greatest de gree of public participation. Consequently, to further the public’s understandi ng and ability to comment on the issues facingDRAFT DO NOT CITE OR QUOTE 88 of 563 5/03/10 the Agency, EPA provides an extensive discussion of the technical issues associated with the available information, as well as the policy consid erations and the key fact ors that will weigh in the Agency’s ultimate decision.

A. Basis for Reconsideration of May 2000 Regulatory Determination

EPA decided in May 2000 that regulation under RCR A subtitle C was not warranted in light of the trends in present disposal a nd utilization practices, the current and potential util ization of the wastes, and the concerns expressed against dup lication of efforts by other federal and state agencies. In addition, EPA noted that the util ity industry has made significant improvements in its waste management practices with respect to new management units over recent years, and most state regulatory programs are similarly im proving. In particular, EPA noted that, of the new units constructed between 1985 and 1995, 60% of the new surface impoundments were lined and 65% had groundwater monitoring. Furthe r, the risk information available was limited, although we also noted that we expected that the limited number of dama ge cases identified in the Regulatory Determination was an underestimate. However, EPA did not conclude that the available information regarding th e extent or nature of the risks were equivocal. However, the Agency noted that “...we identified a potenti al for risks from arsenic that we cannot dismiss....” 38 EPA further noted that “[i]n the abse nce of a more complete groundwater risk assessment, we are unable at this time to draw qu antitative conclusions re garding the risks due to arsenic or other contaminants posed by improper waste management.” Existing older units that lacked liners and groundwater monitoring (for su rface impoundments, only 26% of all units had

38 See 65 FR 32216 at http://www.epa.gov/epaw aste/nonhaz/industrial/sp ecial/fossil/ff2f-fr.pdfDRAFT DO NOT CITE OR QUOTE 89 of 563 5/03/10 liners and only 38% of all units had groundwater m onitoring) were the majo r risk drivers in the study.

As discussed in greater detail in section II. B, EPA has revise d the draft quantitative risk assessment made available when it solicited pub lic comment on the 1999 Report to Congress to account for the concerns raised by the public during the public comment period. The results of these risk analyses show that certain manageme nt practices--the disposal of both wet and dry CCRs in unlined waste management units, but part icularly in unlined surface impoundments, and the prevalence of wet handling, can pose significant risk s to human health and the environment from releases of CCR toxic constituents to gr ound water and surface water. The Agency has estimated that there are approximately 300 CCR landfills and 584 CCR surface impoundments or similar management units in use at roughly 495 coal-f ired power plants. (Data also indicate that a small number of utilities dispose of CCRs off- site, typically near the generating utility.) Many of these units – particularly surface impound ments--lack liners and groundwater monitoring systems. EPA’s revised CCR risk assessment 39 estimated the cancer risk from arsenic 40 that leaches into groundwater from CCRs managed in units without composite liners to exceed

39 “Human and Ecological Risk Assessment of Coal Combustion Wastes,” (September 2009).

40 The risk estimates for arsenic presente d in the revised risk assessment are ba sed on the existing cancer slope factor of 1.5 mg/kg/d -1 in EPA’s Integrated Risk Information System (IR IS). However, EPA is currently evaluating the arsenic cancer slope factor and it is likely to increase. In addition, the National Resources Council (NRC) of the National Academy of Sciences (NAS) made new recommendations regarding new toxicity information in the NRC document, “Arsenic in Drinking Water, 2001 Up date.” Using this NRC data analysis, EPA calculated a new cancer slop e factor of 26 mg/kg/d -1 which would increase the individual risk estimates by about 17 times.DRAFT DO NOT CITE OR QUOTE 90 of 563 5/03/10 EPA’s typical risk thresholds of 10 -4 to 10 -6 . For example, depending on various assumptions about disposal practices (e.g., whether CCRs are co-disposed with coal refuse), groundwater interception and arsenic speciation, the 90 th percentile risks from unlined surface impoundments ranged from 2x10 -2 to 1x10 -4 . The risks from clay-lined surface impoundments ranged from
7x10 -3 to 4x10 -5 . Similarly, estimated risks from unlined landfills ranged between 5x10 -4 to 3x10 -6 , and from 2x10 -4 to 5x10 -9 for clay-lined landfills. EPA’s risk assessment also estimated HQs above 1 for other metals, including selenium and lead in unlined and clay-lined units. EPA also notes in this regard that recent research indicates that traditional leach procedures (e.g., TCLP and SPLP) may underestimate the actual leach rates of toxic constituents from CCRs under different field conditions.

Recent events also have demonstrated that, if not properly controlled, these wastes have caused greater damage to human health and the environm ent than EPA originally estimated in its risk assessments. On December 22, 2008, a failure of the northeastern dike used to contain fly ash occurred at the dewatering area of the TVA’s Kingston Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4 million cubic ya rds of fly ash sludge was released over an approximately 300 acre area. The ash slide disr upted power, ruptured a gas line, knocked one home off its foundation and damage d others. A root-cause analys is report developed for TVA, accessible at http://www.tva.gov/king ston/rca/index.htm, established that the dike failed because it was expanded by successive vertical additions, to a point where a thin, weak layer of fly ash (‘slime’) on which it had been founded, failed by s liding. The direct co sts to clean up theDRAFT DO NOT CITE OR QUOTE 91 of 563 5/03/10 damage from the TVA Kingston inci dent are well into the billions, and is currently estimated to exceed $1.2 billion. 41

.

Although the TVA spill was the largest, it was not the only damage case to involve impoundment stability. A smaller, but still significant incident occurred in August 2005, when a gate in a dam confining a 40-acre CCR surface impoundment in eastern Pennsylvania failed. The dam failure, a violation of the facility’s stat e-issued solid waste dis posal permit and Section 402 of the Clean Water Act, resulted in the disc harge of 0.5 million cubic yards of coal-ash and contaminated water into the Oughoughton Cr eek and the Delaware River.

Moreover, documented cases of the type of damage that EPA originally identified to result from improper management of CCR have continued to occur, leading EPA to question whether the risks that EPA originally identified have been sufficiently mitigated since our May 2000 Regulatory Determination. As discussed in more detail below, and in mate rials contained in the docket, there is a growing record of proven dama ge cases to groundwater and surface water, as

41 $3.0 billion is EPA’s “social cost” estimate assigned in the April 2010 RIA to the December 2008 TVA Kingston, TN impoundment release event. Social cost represents the opportunity cost s incurred by society, not just the monetary costs for cleanup. OMB's 2003 "Circular A-4: Regulatory Analysis" (page 18) instructs Federal agencies to estimate "opportunity costs" for purpose of valuing be nefits and costs in RIAs. This $3.0 billion social cost estimate is larger than TVA’s $933 million to $1.2 billio n cleanup cost estimate (i.e., TVA’s estimate as of 03 Feb 2010), because EPA’s soci al cost estimate consists of three other social cost elements in addition to TVA’s cleanup cost estimate: (a) TVA cleanup cost, (b) response, oversight and ancillary costs associated with local, state, and other Federal agencies, (c) ecological damages, and (d) local (community) socio-economic damages. Appendix Q to the April 2010 RIA provides EPA's do cumentation and calculation of these four cost elements, which total $3.0
billion in social cost.DRAFT DO NOT CITE OR QUOTE 92 of 563 5/03/10 well as a large number of potential dama ge cases. Since the May 2000 Regulatory Determination, EPA has documented an addition al 13 proven damage cases and 4 potential damage cases.

Further, recently collected information re garding the existing st ate regulatory programs 42 calls into question whether those programs, in the absence of national minimum standards, have sufficiently improved to address the gaps that EPA had identified in its May 2000 Regulatory Determination such that EPA can continue to conc lude that in the absence of federal oversight, the management of these wastes will be adequate to protect human health and the environment. Many state regulatory programs for the manageme nt of CCRs, including requirements for liners and groundwater monitoring, are lacking, and wh ile industry practices may be improving, EPA continues to see cases of ina ppropriate management or cases in which key protections ( e.g ., groundwater monitoring at existing units) are ab sent. Although the joint DOE and EPA study entitled, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994– 2004, indicates that most new units appear to be be tter designed, in that they are lined and have installed groundwater monitoring systems, and therefore the to tal percentages of unprotected units have decreased, it appears that a larg e amount of waste is still being disposed into units that lack the necessary protections of liners, a nd groundwater monitoring. Furthermore, while corrective action has generally been taken at the proven dama ge cases, the RCRA regulatory program is designed to prevent contamination in the first place, if at all practicable, rather than

42 ASTSWMO Survey Conducted Feb. – Mar. 2009 (Excel spreadsheet) available in the docket for this proposal.DRAFT DO NOT CITE OR QUOTE 93 of 563 5/03/10 one in which contamination is simply remedied after discovery. 43 This information also highlights that EPA still lacks details regard ing the manner and degree to which states are regulating the management of this material. Al l of these factors emphasize the need for prompt federal rulemaking and have led EPA to rec onsider its May 2000 Regul atory Determination.

In sum, as a result of the significant ne w information accumulated on two of the four considerations specifically id entified in the May 2000 Regulat ory Determination (65 FR 32218), the Agency has determined that reevaluation of its original conclusions in light of all of the RCRA Section 8002(n) study factors is necessary. Based on its consideration of these statutory factors, EPA has not yet reach ed a decision on whether to re vise the Bevill Regulatory Determination. Rather, EPA has summarized the in formation available for each of the factors, and identifies those considerations on which EPA believes that critical information is lacking. Accordingly, EPA is soliciting further info rmation and public input on each of these considerations that will factor into the Agency’s determination as to whether regulation under RCRA subtitle C or D is warranted.

As stated previously and as fully explained in Section XII of today's proposal and in our Regulatory Impact Analysis, our proposed re quirements for surface impoundment structural

43 As noted in Appendix I on Damage Cases, of the 16 proven cases of damages to groundwater, the Agency has been able to confirm that corrective actions have been completed in seven cases and are ongoing in the remaining nine cases. Corrective action measures at these CCR management units vary depending on site specific circumstances and include formal closure of the unit, capping, re-grading of ash and the installation of liners over the ash, groundwater treatment, ground-water monitoring, in stallation of a barrier wall, and combinations of these

measures.DRAFT DO NOT CITE OR QUOTE 94 of 563 5/03/10 stability and conversion or retrofitting of units, w ill have substantial benefits in avoided future clean up costs.

B. RCRA Section 8002(n) Study Factors.

Section 8002(n) of RCRA requires the Administrator to conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other by-product materials generated primarily from the combustion of coal or other fossil fuels. The study was to include an analysis of the eight factors required under section 8002(n) of RCRA. EPA addressed thes e study factors in the 1988 and 1999 Reports to Congress. The findings of these two Reports to Congress were the basis for our decisions in the August 1993 and the May 2000 Regulatory Determinati ons to maintain the Bevill exemption for CCRs. In considering whether to retain or to reverse the August 1993 and May 2000 Regulatory Determinations regarding the Bevill exempti on of CCRs destined for disposal, we have reexamined the RCRA section 8002(n) study factors against the data on which we made the May 2000 Regulatory Determination, as well as the mo st recent data we have available.

1. Source and volumes of CCR generated per year: In the mid-1990s, according to various sources, between 62 and 71 million tons of CCRs were generated by coal-fired electric power plants. 44 In comparison, much larger volumes are being generated now (primarily due to the

44 Cited in “Technical Background Document for the Report to Congress on Remaining Wastes from Fossil Fuel Combustion: Industry Statistics and Waste Management Practices,” March 1999.DRAFT DO NOT CITE OR QUOTE 95 of 563 5/03/10 increase in coal-fired power plants), with 136 million tons of CCRs generated by coal-fired electric power plants in 2008. 45

2. Present disposal and utilization practices: In 2008, 34% (46 million tons) of CCRs were landfilled, 22% (29.4 million tons) were disposed into surface impoundments, 46 nearly 37% (50.1 million tons) were beneficially used (exc luding minefill operations), and nearly 8% (10.5 million tons) were placed in mines. This compares to approximately 23% (26.2 million tons) landfilled, 46% (53.2 million tons) disposed of into surface impoundments, 23% beneficially used (excluding minefill operations), and 8% (9 million tons) placed in mines in 1995. Thus, while the overall volume of CCRs going to dis posal in surface impoundments and landfills has remained relatively constant, the total volume going to surface impoundments has decreased, and the total volume going to landfills has increased.

The Agency has estimated that there are approximately 300 CCR landfills and 584 CCR surface impoundments or similar management units in use at roughly 495 coal-fired power plants. The age of the disposal units varies considerab ly. For example, while there are new surface impoundments, 75% are greater than 25 years old, with 10% being greater than 50 years old. Similarly, information from an EPRI survey us ed in the 1999 Report to Congress indicates that the average planned life expectancy of a landf ill is approximately 31 years, with about 12% having planned life expectancy over 50 years (with one planning for over 100 years). Many of

45 ACAA (American Coal Ash Association). 2009. 2008 Coal Combustion Product (CCP) Production & Use Survey Report . http://acaa.affiniscape.com/associations/8003/ files/2008_ACAA_CCP_Surve y_Report_FINA L_100509.

46 Estimated from the 2009 ACAA survey and Energy Information Administration 2005 F767 Power Plant database.DRAFT DO NOT CITE OR QUOTE 96 of 563 5/03/10 these units – particularly surface impoundment s, lack liners and ground water monitoring systems. EPA has estimated that in 2004, 31% of the CCR landfills and 62% of the CCR surface impoundments lacked liners, and 10% of the CCR landfills and 58% of the CCR surface impoundments lacked groundwater monitoring. 47 In the mid-1990s, there were approximately 275 CCR landfills and 286 CCR surface impoundments in use. 48 EPA does not believe the increased number of surface impoundments identified in today’s rule reflects an actual change of practice, but rather more stringen t definitions, as well as possibly, th e greater availability of more accurate information. For example, much of the increase in surface impoundments likely results from counting units that receive wastewater that has been in contact with even small amounts of coal ash, and thus includes many units which we re not included in EPA’s mid-1990 estimates.

a. Existing State Regulatory Oversight. The results of the joint DOE and EPA study entitled, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994–2004 indicates that of the states evaluated in this report, state regulations have generally improved since 2000. In addition, it would ap pear that the industr y itself is changing and improving its management practices. For example, all new surface impoundments and nearly all new landfills (97%) identified in the survey that were c onstructed between 1994 and 2004 were constructed with liners. Regarding the prevalence of groundwater monitoring at new units, the joint DOE/EPA study suggests that nearly all ne w landfills (98%) and most new surface impoundments (81%) constructed between 1994 and 2004 were constructed with groundwater

47 Estimated from the 1995 data reported in the May 2000 Regulatory Determination and the data for new units from 1994 to 2004 reported in the 2006 DOE/EPA report “ Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994–2004 .”

48 Technical Background Document, Ibid.DRAFT DO NOT CITE OR QUOTE 97 of 563 5/03/10 monitoring systems. Moreover, the frequency of dry handling in landfil ls appears to have increased; approximately two-thirds of the new units are landfills, while the remaining one-third are surface impoundments. The number of new units from 1994 to 2004 was 56. Assuming that replacement continued at a rate of 5.6 per year since 2004, we would have an additional 34 new units, but it would still be decades at this rate to replace the large collection of older units.

The DOE/EPA study also identifies significant gaps that remain under existing state regulation. For example, only 19% (3 out of 19) of the su rveyed surface impoundment unit permits included requirements addressing ground-wate r protection standards (i.e., cont aminant concentrations that cannot be exceeded) or closure/post-closure care, and only 12% (2 out of 12) of surveyed units were required to obtain bonding or financial a ssurance. The EPA/DOE report also concluded that approximately 30 percent of the net dis posable CCRs generated is potentially entirely exempt from the state solid waste permitting requirements 49 (EPA/DOE Report at pages 45-46). For example, Alabama does not currently regul ate CCR disposal under any state waste authority and does not currently have a dam safety program (although the state has an initiative to develop one). Texas (the largest coal ash producer) does not require pe rmits for waste managed on-site. 50 Tennessee currently does not regulate surface impoundments under its waste authority, but is now reconsidering this, in light of the TVA spill. Finally, a number of states only regulate

49 38.7 million tons of out of 129 million tons generated CCRs (Based on DOE/EIA 2004 data)

50 In Texas, on-site means the same or geographically contiguous property which may be divided by public or private rights-of-way, provided the en trance and exit between the properties is at a cross-roads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous pr operties owned by the same person but connected by a right-of-way which he controls and to which the public does not have access, is also considered on-site propert y. (Title 30 TAC 335.1)DRAFT DO NOT CITE OR QUOTE 98 of 563 5/03/10 surface impoundments under Clean Water Act authori ties, and consequently primarily address the risks from effluent discharg es to navigable waters, but do not require liners or groundwater monitoring.

The Agency recognizes that these statistics may be difficult to interpret du e to the limitations of the study. The study focused on only eleven stat es, which account for approximately half the CCRs generated in the U.S., and it may not addre ss all of the existing re gulatory requirements that states may or could impose through other author ities to control these un its. As one example, the DOE/EPA report notes that four of the six stat es that do not require solid waste permits rely on other state authorities to regula te these units: “In Florida, if CC Ws are disposed in an on-site landfill at a coal-fired electric generating plant authorized under the Florida Power Plant Siting Act (PPSA), no separate permits, including solid waste construction and operation permits, are required. Instead, the entire facility is covere d under the PPSA certification, which will contain the same substantive requirements as would othe rwise have been imposed by other permits.” (EPA/DOE Report at page 46). The DOE/EPA report identified whether states tightened, relaxed, or were neutral with re gard to program changes. Fr om the time of the 1999 Report to Congress to 2005, most all programs were neutra l, with a couple of programs tightening requirements and none relaxing requirements. Go ing back to the period of the 1988 Report to Congress to 2005, two states (Alabama, and Florida) are reported to have relaxed portions of their standards, while not tighteni ng any other portions of their program. Part of the difficulty in interpreting this information stems from the fact that the survey responses contained little or no details of the state requirements; rather, the responses merely indicated (by checking a box) whether states imposed some sort of requirement relating to the issue. Consequently, the AgencyDRAFT DO NOT CITE OR QUOTE 99 of 563 5/03/10 lacks detailed information on the content of the requirements, and whether, for example, performance based requirements or other state pr ograms are used to address the risks from these units. EPA also received detailed comments on th is report authored by several environmental groups, who criticized several of the general conclusions. These comments are included in the rule docket (see c omment attachment submitted by Marty Rustan on behalf of Lisa Evans, Attorney, Earthjustice; EPA-HQ-RCRA-2006-0796-0446.5)

.

A more recent survey conducted by the Associ ation of State and Territorial Solid Waste Management Officials (ASTSWMO) seems to support the view that the states still have not yet adequately implemented regulatory programs over CCR management units, although like the DOE/EPA study, it lacks details on th e substance of the state requirements. According to a 2009 ASTSWMO survey of states with coal ash generation 51 (available in the dock et), of the 42 states with coal fired utilities, at least 36 have pe rmit programs for landfills used to manage CCRs, and of the 36 states that have CCR surface impoundments, 25 have permit programs. Permitting is particularly important to provi de oversight and to approve im plementation plans such as the placement of groundwater monitoring wells. Without a state permit program, regulatory flexibility is limited, and certification by an inde pendent registered professional engineers is necessary. With regard to liner requirements, 36% (15 of the 42 states that responded to this question) do not have minimum 52 liner requirements for CCR landfills, while 67% (24 of the 36

51 ASTSWMO Survey Conducted Feb. – Mar. 2009 (Excel spreadsheet).

52 For both landfills and surface impoundments, most of the st ates that responded to questions addressing their liner and groundwater monitoring program provisions had less stringent requirements, e.g., allowing variance, exemption, or a case-by-case evaluation. In the absence of state-speci fic information, we are unable to translate these statistics into a concrete number of affected waste units.DRAFT DO NOT CITE OR QUOTE 100 of 563 5/03/10 states that responded to this question) do not have CCR liner requirements for surface impoundments. Similarly, 19% (8 of the 42 states that responded to this question) do not have minimum groundwater monitoring requirements for landfills and 61% (22 of the 36 states that responded to this question) do not have groundwater monitoring requirements for surface impoundments. 53 These findings are particularly si gnificant as groundwater monitoring for these kinds of units is a minimum for any credible regulatory regime. The 2009 ASTSWMO survey also indicates that only 36 percent of the st ates regulate the structural stability of surface impoundments, and only 31 percent of the states require financial assurance for surface impoundments. Because structural stability of surface impoundments is largely regulated by state dam safety programs which are separate from state solid waste pr ograms, EPA recognizes that information from the dam safety programs would be a much more meaningful measure of state regulation of the structural stability of su rface impoundments, and solicits such information.

Thus, while the states seem to be regulating la ndfills to a greater extent, given the significant risks associated with surface im poundments, these results suggest that there continue to be significant gaps in state regulat ory programs for the disposal of CCRs. (See Letter from ASTSWMO to Matt Hale dated April 1, 2009, a c opy of which is in the docket to today's proposed rule for complete results of the survey.)

EPA is also aware of some additional inform ation from ASTSWMO. There are 15 states (Colorado, Florida, Indiana, Iowa, Kansas, Kentucky, Maryland, Minnesota, Mississippi, Montana, New York, North Carolina, Ohio, Pennsyl vania, and Virginia) that were considering

53 Additionally, the July 2009 Petition pointed out deficiencies in state regulatory programs.DRAFT DO NOT CITE OR QUOTE 101 of 563 5/03/10 changes to their CCR regulations at the time of the ASTSWMO survey (February 2009). In late November 2009, ASTSWMO also identified 15 stat es (Arizona, Delaware, Georgia, Idaho, Iowa, Kansas, Louisiana, Mary land, Mississippi, North Dakota, South Carolina, Tennessee, Washington, Wisconsin, and West Virginia) that had revised their CCR requirements since 2000. Finally, ASTSWMO identified 8 states (Georgia , Illinois, Indiana, Iowa, Montana, Ohio, Pennsylvania, and South Carolina) which are requiring groundwater monitoring at existing facilities that previously did not have groundwater monitoring.

Several issues complicate this assessment, howev er. As noted previously, EPA lacks any real details regarding how states, in practice, oversee the management of these materials when treated as wastes. For example, some states may use performance based standards or implement requirements to control CCR landfills and surf ace impoundments under other state programs. Also, most of the new data primarily focuses on the requirements applicable to new management units, which represent approximately 10% of th e disposal units. EPA has little, if any information, that describes the extent to wh ich states and utilities have implemented requirements—such as groundwater monitoring, for existing units, for the many landfills and surface impoundments that receive CCRs. The informati on currently in the reco rd with respect to existing units is fifteen years old. EPA expects th at it would be unlikely that states would have required existing units to install liners, states would have been more likely to have imposed groundwater monitoring for such units over the last 15 years. Fina lly, as discussed in the next section, the fact that many of the surface impoundments are located adjacent to water bodies - which is not accounted for in EPA’s groundwater ri sk assessment - may a ffect our assessment of the extent of the liner and groundwater monito ring requirements that would be necessary.DRAFT DO NOT CITE OR QUOTE 102 of 563 5/03/10 Therefore, EPA solicits detailed comments specifi cally on the current management practices of state programs, not only under state waste authoriti es, but under other authorities as well. The adequacy of state regulation is one of the key i ssues before the Agency, as it will address some of the more significant questions remaining rega rding the extent of the risks presented by the disposal of CCRs. Accordingly, the Agency specifically solicits information, whether from state regulatory authorities or from members of the public, regardi ng details on the entire state regulatory structure, including the specific requirements that states have in place to regulate CCRs, and to provide oversight of these units. EPA would also welcome more detailed information regarding the states’ historic pract ice in implementing its existing requirements, including for example, the states’ record of en forcement and its practice in providing for public participation in the development and implementation of any existing permitting requirements. EPA is particularly interested in information on the extent to which states have implemented requirements applicable to the olde r, existing units, which represent the majority of the units into which CCRs are currently disposed (approximately 90%). EPA also requests information on the extent to which EPA’s current information ade quately reflects changes in industry practices, adopted independent of state requirements.

b. Beneficial Use In the May 2000 Regulatory Determination, EPA stated: “The Agency has concluded that no additional regula tions are warranted for coal combustion wastes that are used beneficially (other than for minefilling) and fo r oil and gas combustion wastes. We do not wish to place any unnecessary ba rriers on the beneficial use of foss il fuel combustion wastes so that they can be used in applications that conserve natural resources and reduce disposal costs.” (65 FR 32214) (See separate discussion regarding minefilling in secti on IV. E of this preamble.)DRAFT DO NOT CITE OR QUOTE 103 of 563 5/03/10 EPA identified specific beneficial uses as cove red by the May 2000 determination. In particular, EPA stated that: “Beneficial purposes includ e waste stabilization, be neficial construction applications ( e.g., cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, insu lation, roofing materials), ag ricultural applications ( e.g., as a substitute for lime) and other app lications (absorbents, filter medi a, paints, plasti cs and metals manufacture, snow and ice contro l, waste stabilization).” (S ee 65 FR 32229) These beneficial uses are described in more de tail in EPA’s Report to Congress on Wastes from the Combustion of Fossil Fuels in March 1999 (see Volume 2, Section 3.3.5).

Since EPA’s Regulatory Determination in May 2000, there has been a significant increase in the use of CCRs and the development of establishe d commercial sectors that utilize and depend on the beneficial use of CCRs. Additional uses have been identified; for example, the use of CCRs as ingredients in specific products, such as re sin-bound products or mineral filler in asphalt. New applications of CCRs have been develope d, which may hold great green house gas (GHG) benefits (for example, fly ash bricks and a pr ocess to use CO2 emissions to produce cement). Further, EPA expects that uses could shif t in the future because the composition and characteristics of CCRs are likely to change due to the addition of new air pollution controls at coal-fired utilities. (S ee section IV. D. below for a more de tailed discussion on the beneficial use of CCRs.)

3. Potential danger, if any, to human health and th e environment from the disposal and reuse of
CCRs:DRAFT DO NOT CITE OR QUOTE 104 of 563 5/03/10 a. From Disposal. The contaminants of concern in CCRs include antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nick el, selenium, silver and thallium. Potential human exposure pathways for these contaminants from the disposal of CCRs are ground water ingestion, inhalation, and the consumption of fish exposed to contaminants. Ecological impacts include surface water contamination, contaminat ion of wetlands, and aquatic life exposure to contaminants of concern. As discussed in sec tion II. B, V., and the Regulatory Impact Analysis, the risks modeled for the 2009 risk assessment often exceeded EPA’s typical regulatory levels of concern. With very few exceptions, the risk s modeled for the 2009 risk assessment correspond with ground water exceedances of constituents observed in EPA’s damage case assessments (e.g., arsenic, boron, cadmium, lead, molybdenum, and selenium were modeled and found to exceed the risk criteria in at least some instan ces, and were also found in at least some of the damage cases). Additionally, as discussed in sect ion I.F.2, the potential exists for the chemical characteristics of certain CCRs (e.g., fly ash a nd FGD) to increase, which could result in increases in releases from manage ment units, particularly if such wastes are placed in old unlined units, as a result of the incr eased use and application of advanced air pollution control technologies in coal-fired power plants. Furt her details on the results of EPA’s quantitative groundwater risk assessment, and the technical i ssues that remain to be addressed, and on the unquantified human and ecological risks can be f ound in section II and in the Regulatory Impact Analysis for today’s proposal.

EPA also conducted a population risk assessmen t for the groundwater-arsenic pathway, as a complement to the individual risk analysis. While the RCRA program necessarily focuses on individual risks, and individual ri sks have been the basis of prev ious Bevill and hazardous wasteDRAFT DO NOT CITE OR QUOTE 105 of 563 5/03/10 determinations, the population risk estimate provides perspective, and was used to develop the Agency’s cost benefit analyses of different regulatory approaches (discussed in section XII. A of this preamble). In this analysis, EPA calculated a best estimate that current risks from arsenic via the groundwater used as drinking water pa thway are 2,509 total excess cancers, over a 75 year period. 54 (A 75 year period was used in this anal ysis to capture peak risk while the RIA generally covers 50 years.) These estimates are based on a cancer slope f actor which represents the most recent science derived from a 2001 National Resources Counc il review of arsenic toxicity. It should be noted that the analysis did not include risks from other pathways or constituents, as explained in section 5A of th e Regulatory Impact Analysis for this proposal.

Of the approximately 584 surface impoundments currently operating in the United States, a certain percentage of these have a great potential for loss of human life and environmental damage in the event of catastr ophic failure. Based on the information collected from EPA’s recent CERCLA 104(e) information request lette rs 109 impoundments have either a high or significant hazard potential rating , 55 thirteen of which were not designed by a professional engineer. Of the total universe of surface impoundments , approximately 186 of these units were not designed by a professional engineer. Surf ace impoundments are generally designed to last the typical operating life of coal-fired boile rs, on the order of 40 years. However, many

54 Chapter 5, Page 121 of the Regulatory Impact Analysis for this proposal.

55 429 of these impoundments currently have no rating. Thus, the Agency expects the number of surface impoundments with a high or significant hazard rating may increase as additional impoundments are assigned ratings. See the definitions in the Summary section of this notice for the definitions of high and significant hazard potential.DRAFT DO NOT CITE OR QUOTE 106 of 563 5/03/10 impoundments are aging: 56 units are older than 50 years, 96 are older than 40 years, and 340 are between 26 and 40 years old. In recent years, problems have continued to arise from these units, which appear to be related to the aging in frastructure, and the fact that many units may be nearing the end of their useful liv es. For example, as a result of the administrative consent order issued after the December 2008 spil l, TVA conducted testing which showed that another dike at TVA’s Kingston, Tennessee plant had significant safety deficiencies . Further, in response to EPA’s CERCLA 104(e) information request letter, a tota l of 35 units at 25 facilities reported historical releases. These range from minor spil ls to a spill of 0.5 million cubic yards of water and fly ash. Additional details regarding these releases can be found in the docket for this rulemaking. EPA continues its assessments of CCR surface impoundments. The most recent information on these can be found on EPA’s internet site at http://www.epa.gov/epawaste/nonhaz/industrial/sp ecial/fossil/surveys2/i ndex.htm#surveyresults.

b. From Beneficial Use . The risks associated with the dis posal of CCRs stem from the specific nature of that activity and the sp ecific risks it involves; that is, the disposal of CCRs in (often unlined) landfills or surface impoundments, with hundreds of 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 gr oundwater than do landfills. The beneficial uses identified as excluded under the Bevill amendment for the most part present a significan tly different picture, and a significantly different risk profile.DRAFT DO NOT CITE OR QUOTE 107 of 563 5/03/10 In 1999 EPA conducted a risk assessment of certain agricultural uses of CCRs, 56 since the use of CCRs in this manner was considered the most likel y to raise concerns from a human health and environmental point of view. EPA’s risk assessm ent estimated the risks associated with such uses to be within the range of 1x10 -6 . The results of the risk assessment, as well as EPA’s belief that the use of CCRs in agricultural settings was the most likely use to rais e concerns, resulted in EPA concluding that none of the identified benefi cial uses warranted federal regulation, because “we were not able to identify damage cases associ ated with these types of beneficial uses, nor do we now believe that these uses of coal combus tion wastes present a significant risk to human health or the environment.” (65 FR 32230, May 22, 2000.) EPA also cited the importance of beneficially using secondary materi als and of resource conservation, as an alternative to disposal.

To date, EPA has still seen no evidence of damages from the beneficial uses of CCRs that EPA identified in its original Regulatory Determination . For example, there is wide acceptance of the use of CCRs in encapsulated uses, such as wallb oard, concrete, and bric ks because the CCRs are bound into products. The Agency believes that su ch beneficial uses of CCRs offer significant environmental benefits.

As we discuss in other sections of this preambl e, there are situations where large quantities of CCRs have been used indiscriminately as unen capsulated, general fill. The Agency does not consider this a beneficial use under today’s prop osal, but rather considers it waste management.

56 1998 Draft Final Report; Non-groundwater Pathways, Huma n Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2) and its appendices (A through J); available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htmDRAFT DO NOT CITE OR QUOTE 108 of 563 5/03/10 Environmental Benefits

The beneficial use of CCRs offers significant environmental benefits, including greenhouse gas (GHG) reduction, energy conservation, reduction in land disposal (i.e., a voidance of potential CCR disposal impacts), and reduction in the need to mine and process virgin materials and the associated environmental impacts. Specifically:

Greenhouse Gas and Energy Benefits. The beneficial use of CCRs reduces energy consumption and GHG emissions in a number of ways. One of the most widely recognized beneficial applications of CCRs is the use of coal fly ash as a substitute for Portland cement in the manufacture of concrete. Reducing the amount of cement produced by beneficially using fly ash as a substitute for cement leads to large suppl y chain-wide reductions in energy use and GHG emissions. 57 For example, fly ash typically replaces be tween 15 and 30 percent of the cement in concrete, although the percentages can and have been are higher. However, assuming a 15 to 30 percent fly ash to cement replacement rate, and considering the approximate amount of cement that is produced each year, would result in a reduction of GHG emissions by approximately 12.5 to 25 million tons of CO 2 equivalent and a reduction in oil consumption by 26.8 to 53.6 million barrels of oil. 58 This estimate is likely to underestimate the total benefits that can be achieved.

57 Waste and Materials-Flow Benchmark Sector Report: Be neficial Use of Secondary Materials – Coal Combustion Products, February 12, 2008.

58 Avoided GHG and energy saving estimates based on en ergy and environmental benefits estimates in the EPA report entitled, “Study on Increasing the Usage of Reco vered Mineral Components in Federally Funded ProjectsDRAFT DO NOT CITE OR QUOTE 109 of 563 5/03/10 As an added benefit, the use of fly ash genera lly makes concrete stronger and more durable. This results in a longer lasting material, there by marginally reducing the need for future cement manufacturing and corresponding avoi ded emissions and energy use.

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 aggr egate, such as stone and gravel for uses in concrete and road bed. Using virgin material s for these applications requires mining and processing them, which can impair wildlife habita ts and disturb otherwis e undeveloped land. It is beneficial to use secondary materials - prov ided it is done in an e nvironmentally sound manner - that would otherwise be disposed of, rather th an to mine and process virgin materials, while simultaneously reducing waste and environmenta l footprints. Reduci ng mining, processing and transport of virgin materials also conserves energy, avoids GHG emissions, and reduces impacts on communities.

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 75 million tons of CCRs in landfills a nd surface impoundments in 2008, which is equivalent to the space required of 26,240 quarter-acre home sites under 8 feet of CCRs.

Involving Procurement of Cement or Concrete” available at http://www.epa.gov/osw/conserve/tools/epg/pdf/rtc/report4-08.pdfDRAFT DO NOT CITE OR QUOTE 110 of 563 5/03/10 While the Agency recognizes the need for regula tions for the management of CCRs in landfills and surface impoundments, we strongly suppor t the beneficial use of CCRs in an environmentally sound manner because of the signifi cant environmental benefits that accrue both locally and globally. As discussed below in section XII. A, the curr ent beneficial use of CCRs as a replacement for industrial raw materials (e.g., por tland cement, virgin stone aggregate, lime, gypsum) provides substantial a nnual life cycle environmental be nefits for these industrial applications. Specifically, beneficially using CCRs as a substitute for industrial raw materials contributes (a) $4.89 billion per year in energy savings, (b) $0 .081 billion per year in water savings, (c) $0.239 billion per year in GHG 59 (i.e., carbon dioxide and methane) emissions reduction, and (d) $17.8 billion per year in othe r air pollution reduction. In addition, these applications also result in annual material and disposal cost savings of approximately $2.93

59 The RIA monetizes the annual tonnage of greenhouse gas effects associated with the CCR beneficial use lifecycle analysis, based on the 2009 interim social cost of carbon (i.e., interim SCC) of Table III.H.6-3, page 29617 of the joint EPA and DOT-NHTSA “Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Av erage Fuel Economy Standards,” Federal Register , Volume 74, No. 186, 28 Sept 2009. The value applied in the RIA is the $19.50 per ton median value from the $5 to $56 per ton range displayed in the 2007 column in that source. Furthermore, the RIA updated the 2007$ median value from 2007 to 2009 dollars using
the NASA Gross Domestic Product Deflator Inflation Calcul ator at http://cost.jsc.nasa. gov/inflateGDP.html. EPA is aware that final SCC values were published on March 9, 2010 in conjunction with a Department of Energy final rule. EPA intends to use the final SCC values for the CCR final rule RIA. The final SCC values are published in the Department of Energy, Energy Efficiency & Renewable Energy Building Technologies Program, "Small Electric Motors Final Rule Technical Support Document: Chapter 16 - Regulatory Impact Analysis", March 9, 2010 at http://www1.eere.energy.gov/buildings/appliance_st andards/commercial/sem_finalrule_tsd.html).DRAFT DO NOT CITE OR QUOTE 111 of 563 5/03/10 billion. All together, the beneficial use of CCRs provides $25.9 billion in annual national
economic and environmental bene fits (relative to 2005 tonnage). 60

However, as discussed in the ne xt section, there are cases wher e large quantities of CCRs have been “used” indiscriminately as unencapsulate d “fill,” e.g., to fill sand and gravel pits or quarries, or as general fill (e.g., Pines, Indiana an d the Battlefield Golf Course in Chesapeake, Virginia 61 ). Although EPA does not consider these prac tices to be legitima te beneficial uses, others classify them as such. In any case, EPA has concluded that these practices raise significant environmental concerns.

4. Documented cases in which danger to human health or the environment fr om surface runoff or leachate has been proved: As described previously, EPA has identified 27 proven damage cases: 17 cases of damage to groundwater, and te n cases of damage to surface water, seven of which are ecological damage cases. Sixteen of the 17 proven damage cases to groundwater involved disposal in unlined units – for the one additional unit, it is unknown whether there was a liner. We have also identified 40 potential da mage cases to ground water and surface water. These numbers compare to 14 proven damage cases and 36 potential cases of damage when the Agency announced its Regulatory Determination in May 2000. The Agency believes that these numbers likely underestimate the number of proven and potential damage cases and that it is likely that additional cases of damage would be found if a more comprehensive evaluation was

60 These benefits estimates are further discussed in Chapter 5C of the RIA which is available in the docket for this proposal.

61 These instances are associated with 7 proven damage cases and 1 potential damage case.DRAFT DO NOT CITE OR QUOTE 112 of 563 5/03/10 conducted, particularly since much of this wast e has been (and continues to be) managed in unlined disposal units.

Several of the new damage cases involve activit ies that differ from prior damage cases, which were focused on groundwater contamination fr om landfills and surface impoundments. These new cases present additional risk concerns that EPA did not evaluate in the May 2000 Regulatory Determination. Specifically, some of the recent proven damage cases involved the catastrophic release due to the structural failure of CCR surface impoundments, such as the dam failures that occurred in Martins Creek, Pennsylvania and Kingston, Tennessee.

In addition, a number of proven damage cases in volve the large-scale placement, akin to disposal, of CCRs, under the guise of “beneficia l use.” The “beneficial use” in these cases involved the filling of old, unlined quarries or gr avel pits, or the regrad ing of landscape with large quantities of CCRs. For example, the 216-ac re Battlefield Golf Course was contoured with 1.5 million yards of fly ash to develop the golf course. In late 2008, ground water and surface water sampling was conducted. There were exceed ances of primary drinking water standards in on-site groundwater for contaminants typically found in fly ash. In addition, there were exceedances of secondary drinking water standards in both on-site and off-site groundwater (in nine residential wells); however, the natural levels of both manganese and iron in the area’s shallow aquifer are very high (0.14 mg/L to 0.24. mg/L and 5.0 mg/L to 13.0 mg/L, respectively), and, thus, it could not be ruled ou t that the elevated le vels of manganese and iron are a result of the natural background levels of these two c ontaminants. Surface water samples showed elevated levels of aluminum, chromium, iron, le ad, manganese, and thalli um in one or more on-DRAFT DO NOT CITE OR QUOTE 113 of 563 5/03/10 site samples. The lone off-site surface water sample had elevated levels of aluminum, iron, and manganese. In April 2010 EPA issues a Final Site Inspection Report 62 which concluded that (i) metals contaminants were below MCLs and Sa fe Drinking Water Act action levels in all residential wells that EPA tested; (2) the residential well data indicate that metals are not migrating from the fly ash to residential wells ; and (iii) there are no adverse health effects expected from human exposure to surface water or sediments on the Battlefield Golf Course site as the metal concentrations were below the ATSDR standards for drinking water and soil. Additionally, the sediments samples in the ponds were below EPA Biological Technical Assistance Group screening levels and are not expected to pose a threat to ecological receptors. Similarly, beginning in 1995, the BBBS sand and grav el quarries in Gambrills, Maryland used fly ash and bottom ash from two Maryland power pl ants to fill excavated portions of two sand and gravel quarries. Ground water samples co llected in 2006 and 2007 from residential drinking water wells near the site indicated that, in certain locations, contaminants, including heavy metals and sulfates, were present at or above gr ound water quality standards. Private wells in 83 homes and businesses in areas around the disposal site were test ed. MCLs were exceeded in 34 wells [arsenic (1), beryllium (1), cadmium (6), lead (20), 63 and thallium (6)]. SMCLs were exceeded in 63 wells [aluminum (44) , manganese (14), and sulfate (5)]. The state concluded that leachate from the placement of CCRs at the site re sulted in the discharge of pollutants to waters of the state.

62 http://www.epa.gov/reg3hwmd/CurrentIssues/finalrbattlefield_golf_club_site/redacted_DTN_0978_Final_Battlefield_SI_Report.pdf

63 It is uncertain whether lead exceedances were due to CCRs or lead in the plumbing and water holding tanks.DRAFT DO NOT CITE OR QUOTE 114 of 563 5/03/10 Further details on these additional damage cases ar e provided in section II. C (above), and in the Appendix to this notice.

As mentioned in section II. C., during the de velopment of this proposal, EPA received new reports from industry and citizen groups regarding damage cases . Industry provided information that, they suggested, shows that many of EPA’ s listed proven damage cases do not meet EPA’s criteria for a damage case to be proven. On the other hand, citizen groups recently identified additional alleged damage cases. The Agency ha s not yet had an opportunity to evaluate this additional information. EPA’s analysis, as well as the additional information from industry and citizen groups, all of which is av ailable in the docket to this proposed rule, would benefit from public input and further review, in the interest of reaching a more comp lete understanding of the nature and number of damage cases. EPA enc ourages commenters to consider all of these analyses in developing their comments.

5. Alternatives to current disposal methods: There are no meaningful di sposal alternatives other than land disposal. Improved disposal mana gement practices are practical (e.g., liners, groundwater monitoring, dust contro l), although EPA has not identifi ed meaningful or practical treatment options prior to disposal, other than dewatering. (There are, however, available technologies, or technologies under developmen t, to process CCRs now likely destined for disposal so that they can effectiv ely be converted to appropriate be neficial uses.) The beneficial use of these materials as products continues to be an important altern ative to disposal.DRAFT DO NOT CITE OR QUOTE 115 of 563 5/03/10 6. The cost of such alternative disposal methods: The Agency has estimated the nationwide costs to the electric utility indus try (or to electric rate payers) fo r each alternative considered for this proposal. These estimates are discussed in the regulatory im pact analysis presented within section XII. A of this preamble.

7. The impact of the alternative di sposal methods on the use of c oal and other natural resources: The alternative disposal methods mentioned above are not expected to impact the use of coal or other natural resources. However, we would not e that some surface impoundments at coal-fired utilities are also used as wastewater treatment systems for other non-CCR wastewaters. Therefore, if facilities switch from wet to dr y handling of CCRs, construction of alternative wastewater treatment systems could become necessary for other non-CCR wastewaters, especially if they involved acidic wastes that are currently neutralized by the coal ash. (Note that the issue of beneficial uses of CCRs is discussed below; if the effect of a subtitle C approach is to increase beneficial uses, it could lead to a decrease in the use of virgin materials like ingredients in cement making, aggregate, mined gypsum , etc. On the other hand, if the effect of that approach were to decrease beneficial uses, as some commenters sugge sted, it would have the opposite effect on the use of natural resources.)

8. The current and potential utilization of CCRs: In 2008, nearly 37% (50.1 million tons) of CCRs were beneficially used (excluding minef ill operations) and nearly 8% (10.5 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 Regulator y Determination, and represents a significant increase.)DRAFT DO NOT CITE OR QUOTE 116 of 563 5/03/10 Parties have commented that any regulati on of CCRs under RCRA subtitle C will impose a crippling stigma on their beneficial use, and eliminate or significan tly curtail these uses, even if EPA were to regulate only CCRs destined for disp osal, without modifying the regulatory status of beneficial reuse. On the other hand, other pa rties have commented that increasing the cost of disposal of CCRs through regulation under subtitle C will actually increase their usage in nonregulated beneficial uses, simply as a result of the economics of supply and demand. States, at the same time, have commented that, by operation of state law, the benefi cial use of CCRs would be prohibited under the states beneficial use programs, if EPA designated CCRs as hazardous waste when disposed of in landfills or surf ace impoundments. At the time of the May 2000 Regulatory Determination, commenters had raised this similar concern, and without agreeing that regulation under RCRA subtitle C would necessa rily affect the beneficial reuse of this material, EPA nevertheless strongl y expressed concern that bene ficial use not be adversely affected.

EPA is interested in additional information suppor ting the claims that “stigma” will drive people away from the use of valuable products, or that states will prohibit the reuse of CCRs under their beneficial use programs if EPA regulates any aspect of CCR management under subtitle C. Specifically, the Agency requests that comment ers provide analyses and other data and information that demonstrate this to be the case . To date, we have received statements and declarations that regulation under subtitle C will have devastating effects on beneficial uses of CCRs. In addition, for those commenters who su ggest that regulating CCRs under subtitle C of RCRA would raise liability issues, EPA requests that commenters describe the types of liabilityDRAFT DO NOT CITE OR QUOTE 117 of 563 5/03/10 and the basis, data, and information on which these claims are based. The issue of beneficial use and stigma are more fully discussed in section VI , where we discuss the alternative of regulating CCRs under subtitle C of RCRA. EPA would also be interested in suggestions on methods by which the Agency could reduce any stigmatic impact that might indirectly arise as a result of regulation of CCRs destined for disposal as a “special” waste under RCRA subtitle C.

C. Preliminary Bevill Conclusions and Impact of Reconsideration

The Agency is proposing two different approaches to regulating CCRs: regulation as a “special” waste listed under RCRA subtitle C if EPA decides to lift the Bevill exem ption with respect to disposal; and regulation as a solid waste under RCRA subtitle D, if the Bevill exemption is retained for disposal. Under both of these ap proaches, requirements for liners and ground water monitoring would be established, although there are di fferences with respect to the other types of requirements that can be promulgated by EPA u nder RCRA subtitle C and D. In addition, as discussed in greater detail belo w, one of the primary differences between the various approaches relates to the degree and extent of federal oversight, as this varies considerably between the alternatives. As noted previously, EPA has not yet reached a decision on whether to regulate
CCRs under RCRA subtitle D or C , but continues to evaluate each of these options in light of the 8002(n) factors.

In determining the level of regulation appropriate for the management of CCRs, several considerations weigh heavily with the Agency; information on these issues will therefore be important for commenters to consider as they pr epare their comments. On e particularly criticalDRAFT DO NOT CITE OR QUOTE 118 of 563 5/03/10 question relates to the extent of the risks posed by the current management of this material, along with the corresponding degree of Federal oversi ght and control necessary to protect human health and the environment. As discussed in the preceding sections, since EPA’s Regulatory Determination in May 2000, new information has called into question EPA’ s original assessment of the risks posed by the current management of CCRs that are disposed of. In summary, this includes (1) the results of EPA’s 2009 risk assessment, which indi cates that certain management practices—particularly units without composite liners and the prevalen ce of wet handling can pose significant risks; (2) th e growing record of proven da mage cases to ground water and surface water, as well as a large number of potential damage cases; (3) recent events, which have demonstrated that these wastes have cause d greater damage to human health and the environment than originally estimated (i.e., ca tastrophic environmental impacts from surface impoundment breaches, and damage resulting from “sham beneficial uses”); and (4) questions regarding the adequacy of stat e regulatory programs for the management of CCRs, as many states appear to lack key protective requireme nts for liners and groundwater monitoring and a permitting program to ensure that such provisi ons are being properly implemented, even though overall industry practices appear to be improving. All of these considerations illustrate that in many cases CCRs have not been properly managed . The question is whether federal regulation is more appropriate under subtit le C or subtitle D of RCRA.

Several significant uncertainties remain with respect to all of the identified considerations. For example, as discussed previously, the data a nd analyses associated with this proposal are complex, and several uncertainties remain in EP A’s quantitative risk analysis. One of these uncertainties is the evolving character/composition of CCRs due to electric utility upgrades andDRAFT DO NOT CITE OR QUOTE 119 of 563 5/03/10 retrofits needed to comply with the emerging CAA requirements, which could present new or otherwise unforeseen contaminant issues (e.g., hexavalent chromium from post-NO X controls). Other uncertainties relate to the extent to wh ich some sampled data with high concentrations used in the risk assessment accurately reflect coal ash leaching from landfills or surface impoundments, and the extent to which releas es from surface impoundments located in close proximity to water bodies intercep t drinking water wells. For exam ple, as explained earlier in the preamble, some data reflected pore wate r taken in the upper section of a surface impoundment where coal refuse was placed. Th ere were acid generating conditions and high concentrations of arsenic, but the data demonstr ated that the underlying coal ash neutralized the acid conditions and greatly reduced the arse nic which leached from the bottom of the impoundment. There are also technical issu es associated with releases from surface impoundments located in close proximity to water bodies which intercept drinking water wells. For example, surface impoundments are commonly plac ed next to rivers, which can intercept the leachate plume and prevent contamination of drinki ng water wells on the other side of the river. Also, in such circumstances the direction of gr oundwater flow on both sides of the river may be towards the river; thus, the drinking water well on the opposite side of a river may not be impacted.

As mentioned previously, EPA has received additional reports on damage cases, one from industry and one from citizen groups. Closer anal yses of these reports could have the potential to significantly affect the Agency’s conclusions.DRAFT DO NOT CITE OR QUOTE 120 of 563 5/03/10 An equally significant component of the overall picture, if not more so, relates to how effectively state regulatory programs address the risks a ssociated with improper management of this material. As discussed earlier in this preamble, the continued damage cases and the reports on state regulatory programs call into question wh ether the trend in improving state regulatory regimes that EPA identified in May 2000 has materialized to th e degree anticipated in the Regulatory Determination. Although recent information indicates that significant gaps remain, EPA continues to lack substantial details regard ing the full extent of st ate regulatory authority over these materials, and the manner in which states have in practice, implemented this oversight. Nevertheless, based on the informati on made available on state programs, the Agency is reticent to esta blish a regulatory program without any federal oversight. Thus, EPA seeks additional details on regulation of CCRs by states to ensure that EPA’s understanding of state programs is as complete as possible. While EP A recognizes that the extent of regulation of CCRs varies between states, EPA is not yet pr epared to draw overall conclusions on the adequacy of state programs, as a general matter. EPA is, therefore, requesti ng that commenters, and particularly state regulatory authorities, prov ide detailed information regarding the extent of available state regulatory authorities, a nd the manner in which these have been, and are currently implemented. In this regard, EPA notes that “survey” type information that does not provide these details is unlikely to be able to resolve the concerns arising from the recent information developed since the May 2000 Regulatory Determ ination. EPA is also soliciting comments on the extent to which the information currently av ailable to the Agency reflects current industry practices at both older and new un its. For example, EPA would be particularly interested in information that indicates how many facilities currently have gr oundwater monitoring systems in place, how those systems are designed and monitore d, and what, if anything, they have detected.DRAFT DO NOT CITE OR QUOTE 121 of 563 5/03/10 EPA has identified several issues that will be re levant as it continues to evaluate the overall adequacy of state regulatory programs. Sp ecifically, EPA intends to consider how state regulatory programs have, in practice, evaluate d and imposed requirements to address: (1) leachate collection; (2) groundwater monitori ng; (3) whether a unit must be lined, and the type of liner needed; (4) the effectiveness of existing management units as opposed to new management units; (5) whether the state requires r outine analysis of CCRs; (6) whether financial responsibility requirements are in place for the ma nagement of CCRs; (7) the extent of permit requirements, including under what authorities th ese disposal units are permitted, the types of controls that are included in permits, and the extent of oversight pr ovided by the states, (8) whether state programs include criteria for siti ng new units; (9) the exte nt of requirements for corrective action, post-closure monitoring and main tenance; (10) the stat e’s pattern of active enforcement and public involvement; and (11) whet her or not these facili ties have insurance against catastr ophic failures
.

Directly related to th e level of risk presented by improper management of CCRs, EPA is also weighing the differing levels of Federal oversight and control, and the practical implementation challenges, associated with the le vel and type of regulation under RCRA subtitles C and D. In the interest of furtheri ng the public understandin g of this topic, EPA presents an extensive discussion of the differences and concerns raised between regulation under subtitles C and D of RCRA, including a comparison of the adva ntages and disadvantages of each.DRAFT DO NOT CITE OR QUOTE 122 of 563 5/03/10 The subtitle C approach proposed today would provide full nationa l cradle-to-grave control over CCRs destined for disposal, consistently mana ged under federally enforceable standards and through federal permits, or permits issued by the states that EPA ha s authorized to regulate CCRs in lieu of EPA. Permits can be a particular ly important mechanism, because they allow the regulatory Agency to scrutinize the design of disp osal units and the management practices of the permit applicant. They also allo w the regulator to tailor the perm it conditions to the facility site conditions, including the ability to impose additional specific c onditions where it deems current or proposed facility practices to be inadequate to protect human health or the environment, pursuant to the omnibus authority in RCRA s ection 3005(c). Additiona lly, permitting processes provide the public and the local co mmunity the opportunity to partic ipate in regulatory decisions. The combined requirements under subtitle C woul d effectively phase-out all wet handling of CCRs and prohibit the disposal of CCRs in su rface impoundments. Moreover, the subtitle C approach is the only approach that allows direct federal enforcement of the rule’s requirements. The many damage cases, including more recent da mage cases, suggest the value of control and oversight at the federal level.

At the same time, EPA acknowledges concerns with a subtitle C approach on the part of states, the utilities, and users of CCR-de rived products. The states have expressed concern that any federal approach, including a subtitle D approac h, has the potential to cause disruption to the states’ implementation of CCR regul atory programs under their own authority. For example, the state of Maryland has recently upgraded its disp osal standards for CCRs under its state solid waste authority, and the new stat e regulations addre ss the major points in today’s proposal (except the stability requirement for impound ments and the prohibition against surfaceDRAFT DO NOT CITE OR QUOTE 123 of 563 5/03/10 impoundments). The state has expressed concern about having to revise its regulations again, and re-permit disposal units under subtitle C of RCRA. A subtitle D approach, as described in today’s proposal, would elimin ate or significantly reduce thes e concerns. EPA acknowledges these concerns, and certainly does not wish to force the states to go through unnecessary process steps. EPA nevertheless solicits comment on this issue, including more specifics on the potential for procedural difficulties for state programs, and measures that EPA might adopt to try to mitigate these effects.

Two additional substantive concerns with regulati on of CCRs under subtitle C have been raised by commenters: the effect of listing CCRs as hazardous waste under RCRA on beneficial uses, and the availability of existing subtitle C la ndfill capacity to manage CCRs. As explained previously, EPA shares the concer n that beneficial uses not be inadvertently adversely affected by the regulation of CCRs destined for disposal. EP A continues to believe th at certain beneficial use, when performed properly, is the environmenta lly preferable destination for these materials and, therefore, wants to address any potential s tigma that might arise from designating CCRs as hazardous wastes. Thus, EPA is seeking data an d information, including detailed analyses, of why the subtitle C regulation outlined in today’ s proposal will have th e impact that some commenters have identified. As explained at length in section VI of this preamble, EPA believes it can generally address the concerns that have be en raised regarding the effect of subtitle C regulation on legitimate beneficial uses in today’s proposal through several of the actions outlined in today’s proposal. The most important of these is that EPA is not proposing to revise its May 2000 Regulatory Determination that benefi cial uses retain the Bevill exemption and do not warrant federal regulation. Nevertheless, EPA agrees that “stigma” is an importantDRAFT DO NOT CITE OR QUOTE 124 of 563 5/03/10 consideration in the Agency’s decision, and soli cits information and data that will help the Agency quantify the potential eff ects of any stigma arising from association with CCR disposal regulated under subtitle C.

On the question of hazardous waste disposal capac ity, EPA believes that management patterns of CCRs will continue: that landfills and su rface impoundments currently receiving CCRs will obtain interim status and convert to RCRA subtitle C status, and th at the proposal will not shift disposal patterns in a way that substantially increases the disposal of CCRs off-site from generating utilities to commercial hazardous waste landfills . Therefore, EPA’s regulatory analysis assumes disposal patterns will remain generally the same. As commenters have pointed out, CCRs do, in theory, have the potential to ove rwhelm the current hazardous waste capacity in the United States. EPA’s Biennial Report indi cates that approximately two million tons of hazardous waste are disposed of annually in h azardous waste landfills, and EPA estimates that the current total national commercial hazardous wa ste landfill disposal ca pacity is between 23.5 and 30.3 million tons, while the annual amount of CCRs currently going to land disposal is 46 million tons (with an additional 29.4 m illion tons going to surface impoundments). 64 These figures illustrate the very la rge volume of CCR material i nvolved, and how it could overwhelm existing subtitle C disposal capacity. While a DOE survey reports that 70% of disposal involves “company on-site” disposal units and 30% involves “off-site” disposal unit s, DOE indicated that off-site disposal capacity can be company owned or commercial disposal units. In communications with USWAG, they indicated, in some cases smaller facilities may send ash to a

64 These figures reflect the total curre nt capacity, not annual capacity. The an nual capacity is significantly less: modifications to annual capacity would require modifications to existing permits.DRAFT DO NOT CITE OR QUOTE 125 of 563 5/03/10 commercial operation, but believed th at is in no way representative of the industry as a whole. In some cases, the disposal facility may be ope rated by a contractor for the utility, and the landfill is a captive facility that does not receive other industrial wa stes. At the same time, EPA points out that, to the extent that new capacity is needed, the implementation of today’s rule, if the subtitle C alternative is selected, will take place over a number of years, providing time for industry and state permitting authorities to address th e issue. However, this is an issue on which EPA would find further information to be helpful. Therefore, EPA solicits detailed information on this topic, to aid in further quantifying the extent to which existing capacity may be insufficient. For example, EPA is interested in detailed information on the volume of CCRs now going off-site for disposal; the na ture of off-site disposal s ites (e.g., commercial subtitle D landfills versus dedicated CCR landfills owned by the utility); and the amount of available land on utility sites for added disposal capacity.

Finally, the states have expressed concern th at the RCRA subtitle C requirements will be considerably more expensive for them to impl ement than a RCRA subtitle D regulation, without providing commensurate benefits. For example, th e states have reported that regulation under
RCRA subtitle C, versus subtitle D, would cost them an additional $17 million per year to implement. EPA acknowledges the concern that th e RCRA subtitle C requirements can be costly to implement, and could put more pressure on di minishing state budgets. However, were states to utilize the subtitle D requirements of t oday’s proposal, the cost of implementing a RCRA subtitle D program will also be expensive. T hus, EPA is aware of the pressures on state budgets and will consider potential impacts when making a final determination for this rulemaking. Nevertheless, in the event that EPA determines that RCRA subtitle C regulation is warranted, itDRAFT DO NOT CITE OR QUOTE 126 of 563 5/03/10 will be because EPA has determined that there ar e serious environmental and human health risks that can only be remedied by regul ation under subtitle C. Further, under the subtitle C scenario, we believe that most states should be able to address any shortfalls through hazardous waste generator or disposal fees. EPA specifically solicits comments from states as to the extent to which such fees would be able to offset th e costs of administeri ng permit, inspection, and enforcement programs.

EPA notes that its estimates of costs of comp liance with the subtitle C requirements have increased since its estimates in the 1999 Report to Congress; as explained la ter in this preamble, EPA believes these costs are commensurate with the benefits to be derived from the controls, and that the costs of regulation under RCRA subtitle D are substantial as well. For example, one of the major potential costs under eith er the subtitle C or subtitle D option is associated with the required closure of all existi ng surface impoundments that do not meet the rule’s technical requirements, which EPA is proposing under both th e subtitle C and subtitle D co-proposals. Further, the technical unit desi gn and groundwater monitoring requirements that will effectively protect human health and the envi ronment under either option are qui te similar. Finally, EPA is proposing to modify certain aspects of the RCRA subtitle C framework to address some of the practical implementation challenges associated w ith applying the existing regulatory framework to these wastes. However, commenters have su ggested that EPA has underestimated the costs of compliance under the subtitle C requirements upstream of surface impoundments and landfills (e.g., for storage). Commenters, however, have not provided specific cost estimates associated with storage of CCRs. EPA specifically solic its substantiating detail from commenters.DRAFT DO NOT CITE OR QUOTE 127 of 563 5/03/10 One disadvantage of a RCRA subtitle C approach, compared to a RCRA subtitle D approach, is that the subtitle C approach, in most states, will not go into effect as quickly as subtitle D. That is, the subtitle C regulations require an administ rative process before they become effective and federally enforceable (except in the two states that are not authorized to manage the RCRA program). The RCRA hazardous waste implementati on and authorization process is described in detail in sections VII and VIII of this preambl e. But to summarize, federal regulations under subtitle C would not go into effect and become federally enforceable until RCRA-authorized

states 65 have adopted the requirements under their ow n state laws, and EPA has authorized the state revisions. Under the RCRA subtitle C re gulations, when EPA promulgates more stringent regulations, states are required to adopt those rules within on e year, if they can do so by regulation, and two years if required by legisl ative action. If a st ate does not adopt new regulations promptly, EPA’s only recourse is to withdraw the entire state hazardous waste program. If EPA determines that a subtitle C rule is warranted, the Agency will place a high priority on ensuring that states promptly pick up the new rules and become authorized, and EPA will work aggressively toward this end. Th ree decades of history in the RCRA program, however, suggest that this proce ss will take two to five years (i f not longer) for rules to become federally enforceable. 66

At the same time, EPA believes there may be benefits in a RCRA subtitle D approach that establishes specific self-implementing requirement s that utilities and others managing regulated

65 Currently, all but two states are au thorized for the base RCRA program.

66 In addition, existing facilities would generally operate under self-implementing interim status provisions until the state issued a RCRA permit, which is a several year proces s, although presumably the facility might remain under state solid waste permits, depending on state law.DRAFT DO NOT CITE OR QUOTE 128 of 563 5/03/10 CCRs would have to comply with, even in th e absence of permitting or direct regulatory oversight. EPA recognizes that many of the states have regulato ry programs in place , albeit with varying requirements, for the disposal of CCRs, a nd that industry practices have been improving. The RCRA subtitle D approach would compleme nt existing state prog rams and practices by filling in gaps, and set forth criteria for dis posing of CCRs to meet the national minimum standards that are designed to address key risks id entified in damage cases and the risk assessment – including the risk of surface impound ment failure, which has been identified as a concern appropriate for control .

The co-proposed RCRA subtitle D option is less costly than the co-proposed RCRA subtitle C option, according to EPA’s Regulatory Impact Asse ssment. The main differences in the costs are based on the assumption that there will be less compliance, or slower compliance, under a RCRA subtitle D option. In addition, the indus try and state commenters suggested that a RCRA subtitle D approach would eliminate two of thei r concerns: (1) that a RCRA subtitle C approach would inappropriately stigmatize uses of CCRs that provide signifi cant environmental or economic benefits, or that (acc ording to those commenters) hold significant potential promise, and (2) that the volume of CCR wastes generate d – particularly if requirements of a RCRA subtitle C regulation led to more off-site dispos al – would overwhelm existing subtitle C capacity based on the large volumes of CCRs that are genera ted and would need to be disposed of. It would also reduce or eliminate expressed industr y concerns about the ef fect of RCRA subtitle C requirements on plant operations, and state concerns related to the burden of the RCRA subtitle C permitting process. Related to the capacity issu e, these same commenters have also suggested that, under the RCRA subtitle C regulations, future cleanup of poorly sited or leaking disposalDRAFT DO NOT CITE OR QUOTE 129 of 563 5/03/10 sites (including historical or legacy sites) would be consid erably more expensive, especially where off-site disposal was chosen as the option. (EPA’s RIA does not quantify this last issue, but the RIA does discuss two recent cases as ex amples; EPA solicits more detailed comment on this issue, preferably with specific examples.) As stated earlier, EPA does not have sufficient information to conclude that regulation unde r RCRA subtitle C will stigmatize CCRs destined for beneficial use, for the reasons discussed el sewhere in today’s preamble, and the Agency does not at this point have reason to assume that us e of off-site commercial disposal of CCRs will increase significantly.

EPA also notes that many of the requirements di scussed above would go into effect more quickly under RCRA subtitle D. Under subtitle D of RCRA, EPA would set a specific nationwide compliance date and industry would be subject to the requirements on that date, although as discussed elsewhere in today’s pr eamble, EPA’s ability to enfor ce those requirements is limited. (Of course, certain requirements, such as clos ure of existing surface impoundments, would have a delayed compliance date set to reflect practical compliance realit ies, but other requirements, for example, groundwater monitoring or the re quirement that new surface impoundments be constructed with composite liners could be imposed substantially sooner than under a RCRA subtitle C rule.) The possible exception would be if EPA decided to establish financial assurance requirements through a regulatory process curren tly underway that would establish financial assurance requirements for several industries pur suant to CERCLA 108(b), including the Electric Power Generation, Transmission a nd Distribution Industry. For a more detailed discussion of these issues see section IX.DRAFT DO NOT CITE OR QUOTE 130 of 563 5/03/10 However, there are also disadvantages to any approach under RCRA subtitle D. Subtitle D provides no Federal oversight of st ate programs as it relates to CCRs . It establishes a framework for Federal, state, and local government c ooperation in controlling the management of nonhazardous solid waste. The Federal role in this arrangement is to establish the overall regulatory direction, by providing minimum nationwide standards for protecting human health and the environment, and to provide technical assistance to states for planning and developing their own environmentally sound waste manageme nt practices. The co-proposed subtitle D alternative in this proposal w ould establish national minimum standards specifically for CCRs for the first time. The actual planning and di rect implementation of solid waste programs under RCRA subtitle D, however, remain state and local functions, and the act authorizes states to devise programs to deal with st ate-specific conditions and needs.

In further contrast to subtitle C, RCRA subtitle D requirements would regulate only the disposal of solid waste, and EPA does not have the au thority to establish re quirements governing the transportation, storage, or treatment of such wa stes prior to disposal. Under RCRA sections 4004 and 4005(a), EPA cannot require that facilities obtain a permit for these units. EPA also does not have the authority to determine whethe r any state permitting program for CCR facilities is adequate. This complicates the Agency’s abilit y to develop regulations that can be effectively implemented and tailored to individual site conditions. Moreover, EPA does not have the authority to enforce the regulations, although, th e “open dumping” prohibition may be enforced by states and citizens unde r section 7002 of RCRA.

D. EPA Is Not Reconsidering the Regulatory Determination Regarding Beneficial Use.DRAFT DO NOT CITE OR QUOTE 131 of 563 5/03/10 As noted previously, in the May 2000 Regulator y Determination, EPA concluded that federal regulation was not warranted for th e beneficial uses identified in the notice, because: “(a) We have not identified any other benefi cial uses that are likely to pr esent significant risks to human health or the environment; and (b) no documented cases of damage to human health or the environment have been identified. Additiona lly, we do not want to place any unnecessary barriers on the beneficial uses of coal combustion wastes so they can be used in applications that conserve natural resources and re duce disposal costs.” (See 65 FR 32221) EPA did not conduct specific risk assessments for the beneficial use of these materials, except as noted below and elsewhere in this preamble . Instead, it generally described the uses and benefits of CCRs, and cited the importance of beneficially using second ary materials and of resource conservation, as an alternative to disposal. However, EPA di d conduct a detailed risk assessment of certain agricultural uses of CCRs, 67 since the use of CCRs in this manner is most likely to raise concerns from an environmental point of view. Overall, EPA concluded at the time that the identified uses of CCRs provided significant be nefits (environmental and economi c), that we did not want to impose an unnecessary stigma on these uses and th erefore, we did not se e a justification for regulating these uses at the federal level.

Since EPA’s Regulatory Determination in May 2000, theAgency has gathered additional information. In addition to the evolving charac ter/composition of CCRs due to electric utility

67 Draft Final Report; Non-groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2) and its appendices (A through J); available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htmDRAFT DO NOT CITE OR QUOTE 132 of 563 5/03/10 upgrades and retrofits needed to comply with the emerging CAA requirements, which could present new or otherwise unforeseen contaminant issues (e.g., hexavalent chromium from postNO X controls), changes include: (1) a signifi cant increase in the use of CCRs, and the development of established commercial sectors that utilize and depend on the beneficial use of CCRs, (2) the recognition that the beneficial use of CCRs (and, in particular, specific beneficial uses of CCRs, such as using fly ash as a s ubstitute for portland cem ent in the production of concrete) provide significant environmental benefits, including the reduction of GHG emissions, (3) the development of new applications of CCRs, which may hold even greater GHG benefits (for example, fly ash bricks and a process to use CO2 emissions to produce cement), (4) new research by EPA and others indicating that th e standard leach test s-- e.g., the Toxicity Characteristic Leaching Procedure (TCLP) that ha ve generally been used may not accurately represent the performan ce of varying types of CCRs under va riable field conditions, (5) new studies and research by academia and federal ag encies on the use of CCRs, including studies on the performance of CCR-derived materi als in concrete, road construction, 68 and agriculture, 69 and studies of the risks that may or may not be associated with the different uses of CCRs, including uses of unencapsulated CCRs, and (6) th e continuing development of state “beneficial use” regulatory programs under st ate solid waste authorities.

Some of these changes confirm or strengthe n EPA’s Regulatory Determination in May 2000 (e.g., the growth and maturation of state benefi cial use programs and the growing recognition that the beneficial use of CCRs is a critical component in stra tegies to reduce GHG emissions);

68 See http://www.epa.gov/osw/par tnerships/c2p2/cases/index.htm

69 See http://www.epa.gov/osw/partn erships/c2p2/pubs/fgd-fs.pdfDRAFT DO NOT CITE OR QUOTE 133 of 563 5/03/10 other developments raise critical questions re garding this determina tion (e.g., the potentially changing composition of CCRs as a result of impr oved air pollution control and the new science on metals leaching). EPA solicits information and data on these deve lopments and how the beneficial use of CCRs will be affected (e.g., increased use of fly ash in cement and concrete).

However, on balance, after considering all of thes e issues and the information available to us at this time, EPA believes that the most appropriate approach toward beneficial use is to leave the May 2000 Regulatory Determination in place, as the Agency, other federal agencies, academia, and society more broadly investigate these critical questions and clarify the appropriate beneficial use of these materials . This section provides EPA’s basis for leaving the Bevill exemption in place for these beneficial uses, al though as discussed throughout this section, EPA is also soliciting comment on unencapsulated uses of CCRs and whether they should continue to be exempted as a beneficial use under the Bevill exemption.

EPA is proposing this approach in recognition th at some uses of CCRs, such as encapsulated uses in concrete, and use as an ingredient in the manufacture of wallboar d, provide benefits and raise minimal health or environmental concerns. That is, from information available to date, EPA believes that encapsulated uses of CCR, as is common in many consumer products, does not merit regulation. On the other hand, unencapsu lated uses have raised concerns and merit closer attention. For example, the placement of unencapsulated CCRs on the land, such as in road embankments or in agricu ltural uses, presents a set of issues, which may pose similar concerns as those that are cau sing the Agency to propose to re gulate CCRs destined for disposal . Still, the amounts and, in some cases, the manne r in which they are used—i.e., subject toDRAFT DO NOT CITE OR QUOTE 134 of 563 5/03/10 engineering specifications and material requiremen ts rather than landfilling techniques-are very different from land disposal. EPA also notes that stakeholde rs, such as Earthjustice have petitioned EPA to ban particular uses of CCR; for example, the placement of CCRs in direct contact with water bodies.

Due to such issues as the changing characteristics of CCRs, as a result of more widespread use of air pollution control technologies and the new in formation becoming available on the leaching of metals from CCRs, we are considering approaches such as, better defining beneficial use or developing detailed guidance on th e beneficial use of CCRs to s upplement the regulations. The Agency solicits information and data on these and other approaches that EPA could take in identifying when uses of CCRs constitute a “beneficial use,” and consequently will remain exempt.

Other alternative approaches – for example, to regulate the beneficial use of CCRs under the regulations that apply to “use constituting disposal,” to prohib it unencapsulated uses outright, including CCRs used in direct contact with water matrices, including the seasonal high groundwater table, or to require front-end CCR and site characteri zation through the use of leach tests adapted for specific uses of CCR, prior to CCR management decisions - could address concerns that have been expressed over the la nd placement of CCRs. However, EPA is trying to balance concerns that proposing one or more of these alternativ es might have the effect of stifling economic activities and innovation in areas that have potential for environmental benefits, while also providing adequate protec tion of human health and the environment.DRAFT DO NOT CITE OR QUOTE 135 of 563 5/03/10 At the same time, EPA recognizes that seven pr oven damage cases invo lving the large-scale placement, akin to disposal, of CCRs has occurr ed under the guise of “beneficial use” -- the “beneficial” use being the filling up of old quarries or gravel pits, or the regrading 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 does not cons ider this type of use to be covered by the exclusion. Therefore, today’s proposed rule ex plicitly removes these t ypes of uses from the category of beneficial use, such that they woul d be subject to the management standards that EPA finally promulgates. EPA also seeks info rmation and data on whether it should take a similar approach in today’s proposal to unencapsu lated uses of CCRs, such as the placement of unencapsulated CCRs on the land—e.g., agricultural uses. Alternatively, EPA is also soliciting comment on whether the Agency should promulgate standards allowing such uses, on a sitespecific basis, based on a site specific risk asse ssment, taking into consid eration, inter alia, the CCRs character and composition, their leaching pot ential under the range of conditions under which CCRs will be managed, and the context in which the CCRs will be applied, such as location, volume, rate of applic ation, and proximity to water.

Before getting into a detailed discussion of the materials in question, EPA would reiterate that CCRs, when beneficially used will conserve re sources, provide improved material properties, reduce GHG emissions, lessen the need for wast e disposal units, and provide significant domestic economic benefits (as noted above in s ection XII). At the same time, EPA recognizes that there are important issues and uncertainties associated with specific uses of specific CCRs, that there has been considerable recent a nd ongoing research on these uses, and that the composition of CCRs are likely changing as a resu lt of more aggressive air pollution controls.DRAFT DO NOT CITE OR QUOTE 136 of 563 5/03/10 EPA is particularly concerned that we avoid th e possibility of cross- media transfers stemming from CAA regulations requiring the removal of hazardous air pollutants (e.g., arsenic, mercury, selenium) from utility stacks being released back into the soil and groundwater media through inappropriate “beneficial” uses.

EPA has received numerous comments on specific uses of CCRs, and we have been working with states to help them develop effective benefi cial use programs (which apply to a wide range of secondary materials, not just CCRs). EP A, other federal agencies, and academia have conducted research on specific uses, and have pr ovided guidance and best management practices on using CCRs in an environmentally sound manner in a range of applica tions. For example, EPA, working with the Federal Highway Admi nistration (FHWA), DOE, the American Coal Ash Association (ACAA), and USWAG issued guida nce in April 2005 on th e appropriate use of coal ash in highway construction. EPA understand s that the composition of CCRs, the nature of different CCR uses, and the specific environmen t in which CCRs are used, can affect the effectiveness and the environmenta lly sound use of particular projec ts. In today’s proposal, EPA is suggesting that an ap propriate balance can be met by (1) determining that the placement of CCRs in sand and gravel pits, as well as the use of large volumes of CCRs in restructuring landscapes to constitute disposal, rather than the beneficial use of CCRs, and at the same time (2) leaving in place its determination that the benefi cial uses of CCRs – e.g., those identified in the May 2000 Regulatory Determination as clarified in th is notice -- should not be prohibited from continuing. As described later in this sect ion of today’s notice, EPA solicits comment on whether an alternative approach is appropriate, particularly fo r unencapsulated uses of CCRs on the land.DRAFT DO NOT CITE OR QUOTE 137 of 563 5/03/10 1. Why is EPA Not Proposing to Change the Dete rmination that CCRs that Are Beneficially Used Do Not Warrant Federal Regulation?

As an initial matter, we would note that for some of the beneficial uses, CCRs are a raw material used as an ingredient in a manufacturi ng process that have never been “discarded , 70 ” and thus, would not be solid wastes under the existing haza rdous waste rules. For example, synthetic gypsum is a product of the FGD process at coal-fi red power plants. In this case, the utility designs and operates its air pollu tion control devices to produ ce an optimal product, including the oxidation of the FGD to produce synthetic gypsum. In this ex ample, after its production, the utility treats FGD as a valuable input into a production process, i.e., as a product, rather than as something that is intended to be discarded. Wa llboard plants are sited in close proximity to power plants for access to raw material, with a considerable investment involved. Thus, FGD gypsum used for wallboard manufacture is a produc t rather than a waste or discarded material. This use and similar uses of CCRs that meet product specifications w ould not be affected by today’s proposed rule in any case, regardless of the option taken.

With that said, today’s proposed action would leave in place EPA’s May 2000 Regulatory Determination that beneficially used CCRs do no t warrant federal regulation under subtitle C or D of RCRA. As EPA stated in the May 2000 Regulatory Determination, “In the [Report to Congress], we were not able to identify damage cases as sociated with these types of beneficial

70 In order for EPA to regulate a material under RCRA, the material must be a solid waste, which the statute defines as materials that have been discarded. See Section 1004(27) of RCRA for definition of solid waste.DRAFT DO NOT CITE OR QUOTE 138 of 563 5/03/10 uses, nor do we now believe that these uses of coal combustion wastes present a significant risk to human health and the environment. While so me commenters disagreed with our findings, no data or other support for the commenters’ pos ition 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 wa stes listed above pose risk s of concern.” (See 65 FR 32230.) Since that time, EP A is not aware of data or othe r information to indicate that existing efforts of states, EP A and other federal agencies are not adequate to address environmental issues associated w ith the beneficial uses of CCRs, that were originally identified in the Regulatory Determination. Therefore, at th is time, EPA is not proposing to reverse that determination. Specifically: (1) EPA believes toda y’s proposal will ensure that inappropriate beneficial use situations, like the Gambrills , MD site, will be regulated as disposal ; (2) many states are developing effective be neficial use programs which, in many cases, allow the use of CCRs as long as they are demonstrated to be non-hazardous materials, and (3) EPA does not wish to inhibit or eliminate th e significant and meas urable environmental and economic benefits derived from the use of this valuable material without a demonstration of an environmental or health threat.

EPA also wants to make clear that wastes th at consist of or cont ain these Bevill-exempt beneficially used materials, including demo lition debris from beneficially used CCRs in wallboard or concrete that were generated beca use the products have reached the end of their useful lives—would also not be listed as a specia l waste subject to subtitle C of RCRA, from the point of their generation to their ultimate disposal.DRAFT DO NOT CITE OR QUOTE 139 of 563 5/03/10 In summary, EPA continues to believe that the beneficial use of CCRs, when performed properly and in an environmentally sound manner, is th e environmentally preferable outcome for CCRs and, therefore, is concerned about regulatory deci sions that would limit beneficial uses, including research on beneficial uses. T hus, EPA is not proposing to modify the existing Bevill exemption for CCRs (sometimes referred to as CCPs when bene ficially used), and instead is proposing to leave the current determination in place. However, EPA recognizes that there is a disparity in the quality of state programs dealing with benefi cial uses, uncertainty relative to the future characteristics of CCRs and, theref ore, uncertainty concerning the risks associated with some beneficial uses. At the same time, EPA recogni zes the potential environmental benefits with regard to the uses of CCRs. For these reasons , EPA is requesting information and data on the appropriate means of characterizi ng beneficial uses that are both protective of human health and the environment and provide benefits. EPA is also requesting information and data demonstrating where the federal and state progr ams are or have been inadequate in being environmentally protective and, conversely, wher e states have, or are developing, increasingly effective beneficial use programs.

As previously discussed, and discussed in secti on VI, some stakeholders have commented that EPA should not regulate CCRs when disposed of in landfills or surface impoundments as a hazardous waste, because such an approach w ould stigmatize the beneficial use of CCRs, and these uses would disappear. Although it remain s unclear whether any stigmatic effect from regulating CCRs destined for disposal as hazard ous waste would decrease the beneficial use of CCRs, and irrespective of whether EPA ultimatel y concludes to promulgate regulations under RCRA subtitles C or D, EPA is convinced that regulating the benefici al use of CCRs underDRAFT DO NOT CITE OR QUOTE 140 of 563 5/03/10 RCRA subtitle C as hazardous waste would be unnecessary, in light of the potential risks associated with these uses . For example, use of fly ash as a replacement for Portland cement is one of the most environmentally beneficial uses of CCRs (as discusse d below), yet regulating this beneficial use under RCRA subtitle C requirem ents would substantially increase the cost and regulatory difficulties of using this material, without providing any corresponding risk reduction. Regulating the use of coal ash as a cement i ngredient under RCRA subtitle C would subject the coal ash to full hazardous waste requirements up to the point that it is made into concrete, including requirements for generators, manifesting for transportation, and permits for storage. In addition, ready-mix operators would be subject to the land disposal re strictions and other requirements, as use of the concrete would const itute disposal if placed on the land. EPA instead is proposing an approach that would allow benefici al uses to continue, un der state controls, EPA guidance, and current industrial standards and pr actices. Where specific problems are identified, EPA believes they can be safely addressed, but we do not believe that an approach that eliminates a wide range of uses that would add considerably to the costs of the rule, and that would disrupt and potentially close ongoing busine sses legitimately using CCRs is justified, on the strength of the ex isting evidence.

EPA’s May 2000 Regulatory Determination not to regulate various beneficial uses under the hazardous waste requirements, and today’s proposal to leave that determination in place, does not conflict with EPA’s view that certain beneficial uses, e.g. , use in road construction or agriculture, should be conducted wi th care, according to appropriate management practices, and with appropriate characterization of the materi al and the site where the materials would be placed. In this respect, CCRs are similar to othe r materials used in this manner – including rawDRAFT DO NOT CITE OR QUOTE 141 of 563 5/03/10 materials derived from quarried aggregates, seco ndary materials from othe r industrial processes, and materials derived from natural ores. Rather , EPA concludes that, ba sed on our knowledge of how CCRs are used, that potential risks of these uses do not wa rrant federal regulation, but can be addressed, if necessary, in othe r ways, as discussed previously, such as the State of Wisconsin has an extensive beneficial use program that supports the use of CCRs in a variety of circumstances, including in road base construc tion and agriculture uses, provided certain criteria are met. Similarly, EPA is working with the U.S. Department of Agriculture to develop guidance on the use of FGD gypsum in agriculture.

2. What Constitutes Beneficial Use?

As discussed previously, EPA is not proposing to change the regulatory status of those CCRs that are beneficially used. However, because EPA is proposing to draw a distinction between CCRs that are destined for disposal and those th at are beneficially used, we believe it is necessary and appropriate to distinguish betw een beneficial use and operations that would constitute disposal operations – su ch as large volumes of CCRs th at are used in sand and gravel pits or for restructuring the landscape. EPA believ es the following criteria can be used to define legitimate beneficial uses appropriately, and ar e consistent with EPA’ s approach in the May 2000 Regulatory Determination, alth ough such criteria were not spec ifically identified at that time:

o The material used must provide a functional benefit. For example, CCRs in concrete increase the durability of concrete – and are more effective in combating degradationDRAFT DO NOT CITE OR QUOTE 142 of 563 5/03/10 from salt water; synthetic gypsum serves ex actly the same function in wallboard as gypsum from ore, and meets all commercia l specifications; CCRs as a soil amendment adjusts the pH of soil to promote plant growth.

o The material substitutes for the use of a virg in material, conserving natural resources that would otherwise need to be obtained through pr actices, such as extraction. For example, the use of FGD gypsum in the manufacture of wallboard (drywall) de creases the need to mine natural gypsum, thereby conserving the na tural resource and conserving energy that otherwise would be needed to mine natural gyps um; the use of fly ash in lieu of portland cement reduces the need for cement. CCRs us ed in road bed replace quarried aggregate or other industrial materials. These CCRs substitute for another ingredient in an industrial or commercial product.

o Where relevant product specifications or regula tory standards are available, the materials meet those specifications, and where such sp ecifications or standards have not been established, they are not being used in exce ss quantities. Typically, when CCRs are used as a commercial product, the amount of CCRs used is controlled by product specifications, or the demands of the user. Fl y ash used as a stabili zed base course in highway construction is part of many engine ering considerations, such as the ASTM C 593 test for compaction, the ASTM D 560 fr eezing and thawing test, and a seven day compressive strength above 2760 (400 psi). If excessive volumes of CCRs are used— i.e., greater than were necessary for a sp ecific project,--that could be grounds for a determination that the use was subj ect to regulations for disposal.

o In the case of agricultural uses, CCRs would be expected to meet appropriate standards, constituent levels, prescribed total loads, application rates, etc. EPA has developedDRAFT DO NOT CITE OR QUOTE 143 of 563 5/03/10 specific standards governing agricultural applicat ion of biosolids. While the management scenarios differ between biosludge applica tion and the use of CCRs as soil amendments, EPA would consider application of CCRs for agriculture uses not to be a legitimate beneficial use if they occurred at constituent levels or loading rates greater than EPA’s biosolids regulations allow. 71 EPA also recognizes that th e characteristics of CCRs are such that total concentrations of metals, as biosolids are assessed, may not be the most appropriate standard, as CCRs have been shown to leach metals with significant variability.

EPA is proposing that these criteria be included in the regulations as part of the definition of beneficial use. EPA requests comment on these cr iteria, as well as suggestions for other criteria that may need to be included to ensure that le gitimate beneficial uses can be identified and enforcement action can be taken against inappropriate uses.

Each of the uses identified in the May 2000 Regulatory Determination, CCRs can and have been utilized in a manner that is be neficial. The discussion that fo llows provides a brief summary of how certain of the beneficial uses meet the vari ous criteria. EPA solicits comment on the need to provide a formal listing of all beneficial uses . To this end, EPA solicits comment on whether additional uses of CCRs have been establis hed since the May 2000 Regulatory Determination that have not been discussed elsewhere in today’ s preamble should be regarded as beneficial . Of particular concern in this regard are reports that CCRs are being used in producing counter tops, bowling balls, and in the production of make up. The Agency solicits comment on whether use of CCRs in consumer products of this kind ca n be safely undertaken. The Agency further

71 See 40 CFR part 503DRAFT DO NOT CITE OR QUOTE 144 of 563 5/03/10 solicits comment any new uses of CCR, as well as the information and data that supports that it is beneficially used in an environmentally sound manner. The concern with such an alternative is that new and innovative uses that are not on the list would be subject to disposal regulations, until EPA revised its rule.

In the uses where the CCR is encapsulated in th e product, such as cement, concrete, brick and concrete products, wallboard, a nd roofing materials – the CCRs provide a functional benefit - that is, the CCRs provide a cementitious or struct ural function, the CCRs substitute for cement, gypsum, and aggregate and thus save resources that would otherwise need to be mined and processed, and the CCRs are subject to product specifications, such as ASTM standards. Some of the uses, such as CCRs in paints and plas tics not only provide benefits, but EPA generally does not consider materials used in these ways to be waste - that is, they ha ve not been discarded. Use of CCRs in highway projects is a significan t practice covering road bed and embankments. CCRs used according to FHA/DOT standards provide an important function in road building, replacing material th at would otherwise need to be obtained, such as aggregate or clay. In many cases, the CCRs can lead to better road performan ce. For snow and ice c ontrols, the beneficial use is limited to boiler slag and bottom ash, whic h replaces fine aggregat e that would otherwise need to be used to prevent skidding, and amount s used are in line w ith the materials they replace. 72

72 According to the ACAA survey, 80% of boiler slag – a v itreous material often used as an abrasive – is reused, although industry has reported that the demand for boiler slag products is high, and virtually all of the slag is currently used.DRAFT DO NOT CITE OR QUOTE 145 of 563 5/03/10 3. Disposal of CCRs in Sand and Gravel Pi ts and Large Scale Fill Operations is Not Considered a Beneficial Use.

As indicated earlier, EPA has identified severa l proven damage cases associated with the placement of CCRs in sand and gravel pits. Th ere has also been significant community concern with large-scale fill operations. Because of th e damage cases and the concern that sand and gravel pits and large scale fill operations are es sentially landfills under a different name, EPA is clarifying and, thus, proposing to define the placement of CCRs in sand and gravel pits and large scale fill projects as land disposal that would be subject to either the proposed RCRA subtitle C or D regulations. Sites that are excavated so th at more coal ash can be used as fill are also considered CCR landfills.

However, EPA recognizes that we need to define or provide guidance on the meaning of “a large scale fill operation.” EPA solicits comments on a ppropriate criteria to distinguish between legitimate beneficial uses and inappropriate ope rations, such as, for example, a comparison to features associated with relatively small landf ills used by the utility industry, and whether characteristics of the materials would allow thei r safe use for a particular application in a particular setting (i.e., characteri ze both the materials for the presence of leachable metals and the area where the materials will be placed).

4. Issues Associated with Unencapsulated Beneficial Uses.DRAFT DO NOT CITE OR QUOTE 146 of 563 5/03/10 Since the May 2000 Regulatory Determination, the majo r issues associated with the placement of CCRs on the land for beneficial use has involved th e Gambrills, MD site which involves a sand and gravel pit and the Battlefield golf course, which was a large scale fill operation. These are the types of operations that EPA is proposing wo uld be subject to any disposal regulations proposed in today’s rule. However, because the Gambrills and Battlefield sites involved the unencapsulated placement of CCRs on the land, it rais es questions regarding the beneficial use of unencapsulated uses of CCRs; accordingly, in this section, the Agency pr esents information on the issues on which it is specifically soliciting comment.

First, we identify the array of environmental is sues associated with unencapsulated 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, a nd the site conditions, there is a potential for environmental concern.

• The importance of characterizing CCRs prior to their utilization is that CCRs from certain facilities may be acceptable under particular beneficial use scenarios, while the same material type from a different facility or from the same facili ty, but generated under different operating conditions (e.g., different air pollution cont rols or configurations) may not be acceptable for the same management scenario. Cha nges in air pollution controls will result in fly ash and other CCRs presen ting new contaminant issues (e.g., hexavalent chromium from post-NOx controls ). Additionally, as described in section I. F. 2, there is significant variability in total metals content and leach characteristics.

• The amount of material placed can signi ficantly impact whether placement of unencapsulated CCRs causes environmental risk s. There are great differences betweenDRAFT DO NOT CITE OR QUOTE 147 of 563 5/03/10 the amount of material disposed of in a la ndfill and in beneficial use settings. For example, a stabilized fly ash base course fo r roadway construction may be on the order of 6 to 12 inches thick under the road where it is used – these features differ considerably from the landfill and sand and gravel pit situations where hundreds of thousands to millions of tons of CCRs are disposed of and for which damage cases are documented.

• Unencapsulated fly ash used for structural fill is moistened and compacted in layers, and placed on a drainage layer. By moistening and compacting the fly ash in layers, the hydraulic conductivity can be greatly reduced, so metimes achieving levels similar to liner systems. This limits the transport of wate r through the ash and t hus acts to protect groundwater. The drainage layer prevents cap illary effects and t hus also limits the amount of water that remains in contact with the fly ash. Although EPA is not aware of the use of organosilanes for beneficial use opera tions in the U.S., if mixed with fly ash, it is reported to be able to essentially render the fly ash impermeable to water, and thus there may be emerging placement techniques that can also greatly influence the environmental assessment.

• Site conditions are important factors. H ydraulic conductivity of the subsurface, the rainfall in the area, the depth to grou ndwater, and other fact ors (e.g., changes in characteristics due to the a ddition of advanced air pollution controls) are important considerations in whether a specific bene ficial use will remain protective of the environment.

Second, EPA notes the work and research being done by states, federal agencies, and academics to assess, provide guidance on, or regulate to ad dress the environmental issues that may beDRAFT DO NOT CITE OR QUOTE 148 of 563 5/03/10 associated with beneficial use. In addition to the recent EPA research on constituent leaching from CCRs described earlier in the preamble, a few highlights include:

• Many states have beneficial use programs. The ASTSWMO 2006 Beneficial Use Survey Report states: “A total of 34 of the 40 reporti ng States, or 85 percent, indicated they had either formal or informal decision-making pr ocesses or beneficial use programs relating to the use of solid wastes.” 73 (http://www.astswmo.org/files/publicatio ns/solidwaste/2007BU SurveyReport11-30- 07.pdf) For example, Wisconsin’s Department of Natural Resources has developed a regulation (NR 538 Wis. Adm. Code), which in cludes a five-category system to allow for the beneficial use of industrial by-products , including coal ash. The state has approved CCRs in a full range of uses, including ro ad construction and agricultural uses.

• EPA and USDA are conducting a multi-year study on the use of FGD gypsum in agriculture. The results of that study should be available in late 2012.

• EPA developed an easy to use risk model fo r assessing the use of recycled industrial materials in highways. This model is shared with states to facilitate assessments to determine if such beneficial use projec ts will be environmentally protective. 74

73 Part of EPA’s efforts with the states is to support the development of a national database on state beneficial use determinations. Information on the beneficial use dete rmination database can be found on the Northeast Waste Management Officials’ Association (NEWMOA) website at http://www.newmoa.org/solidwaste/bud.cfm. This database helps states share information on beneficial use decisions providing for more consistent and informed decisions.

74 See a Final Report titled, “Use of EPA’s Industrial Waste Management Evaluation Model (IWEM) to Support Beneficial Use Determinations” at http://www.epa.gov/par tnerships/c2p2/pubs/iwem-report.pdf and the Industrial Waste Management Evaluation Model (IWEM) at h ttp://www.epa.gov/osw/nonhaz/industrial/tools/iwem.DRAFT DO NOT CITE OR QUOTE 149 of 563 5/03/10 • There is also considerable study and research by states and academic institutions, which EPA views as valuable in not only guiding th e parties to appropriate uses, but also in informing EPA. A few examples are:

o Li L, Benson CH, Edil TB, Hatipoglu B. Groundwater impacts from coal ash in highways. Waste and Management Resources 2006;159(WR4):151-63.

o Friend M, Bloom P, Halbach T, Grosenhe ider K, Johnson M. Screening tool for using waste materials in paving projects (STUWMPP) . Office of Research Services, Minnesota Dept. of Tran sportation, Minnesota; 2004. Report nr MN/RC–2005-03.

o Sauer JJ, Benson CH, Edil TB. Metals l eaching from highway test sections constructed with industrial byproducts. Un iversity of Wisconsin – Madison, Madison, WI: Geo Engineering, Department of Civil and Environmental Engineering; 2005 December 27, Geo Engineering Report No. 05-21.
Overall, federal agencies, states, and others are doing a great amount of work to promote environmentally sound beneficial use practices, to advance our understand ing, and to consider emerging science and practices. Furthermore, the beneficial use of CCRs is a world wide activity, so there is also consider able work and effort from around the globe. In Europe, nearly all CCRs are beneficially used, and when used are considered to be products rather than wastes. Sweden, for example, actively supports the use of CCRs in road construction, and has conducted long-term tests of its use in this manner.

While recognizing the many beneficial use opport unities for CCRs, EPA believes it is imperative to gather a full range of views on the issue of unencapsulated uses in order to ensure theDRAFT DO NOT CITE OR QUOTE 150 of 563 5/03/10 protection of human health and the environment. EPA is fully prepared to reconsider our proposed approach for these uses if comments provi de information and data to demonstrate that it is inappropriate. For example, previous risk analyses do not a ddress many of the use applications currently bei ng implemented, and have not addressed the changes to CCR composition with more advanced air pollution control methods and improved leachate characterization. In addition, some scientific li terature indicates that the uncontrolled (i.e., excessive) application of CCRs can lead to the potentially toxic accumulation of metals (e.g., in agricultural applications 75 and as fill material 76 ). Thus, while EPA does not want to negatively impact the legitimate beneficial use of CCRs unnecessarily, we are also aware of the need to fully consider the risks, management practices, state controls, research, and any other pertinent information. Thus, to help EPA determine whet her to revise its approach and regulate, for example, unencapsulated uses of CCRs on the land, we solicit comments on whether to regulate, and if so, the most appropriate regulatory ap proach to be taken. For example, EPA might consider a prohibition on these uses, except wher e, as part of a case-by-case, or material-bymaterial petition process where a ppropriate characterization of th e material is used (including taking into account the pH to which the materi al will be exposed) and a risk assessment,

75 See, for example, “Effects of coal fly ash amended soils on trace element uptake in plant,” S.S. Brake, R.R. Jensen, and J. M. Mattox, Environmental Geology, November 7, 2003 available at http://www.springerlink.com/conten t/3c5gaq2qrkr5unvp/fulltext.pdf.

76 See information regarding the To wn of Pines Groundwater Plume at http://www.epa.gov/region5superfu nd/npl/sas_sites/INN000508071.htm . Also see additional information for this site at http://www.epa.gov/region5/sites/pines/#updates.DRAFT DO NOT CITE OR QUOTE 151 of 563 5/03/10 approved by a regulatory Agency , shows that the risks were within acceptable ranges. 77 Moreover, if regulating these uses under the RCRA hazardous waste authority is deemed warranted, the risk assessment would have to be approved, through a notice-and-comment process, by EPA or an authorized state. EPA e xpects that the risk asse ssment would be based on actual leach data from the material. (S ee request for comment below on material characterization.)

In reaching its decision on whether to regulate un encapsulated uses, EPA would be interested in comments and data on the following:

• We would like comment on whether persons should be required to use a leaching assessment tool in combination with the Draf t SW-846 leaching test methods described in Section I. F. 2 and ot her tools (e.g., USEPA’s Industrial Waste Management Evaluation Model (IWEM)) to aid prospective beneficial us ers in calculating potential release rates over a specified period of time for a range of management scenarios, including use in engineering and commercial applications using proba bilistic assessment modeling .

• As discussed previously, EPA is working with USDA to study agricultural use of FGD gypsum to provide further knowledge in this ar ea. The Agency is interested in comments relating to the focus of these assessments, the use of historical data , the impact of pH on leaching potential of metals, the scope of management scenarios, the variable and changing nature of CCRs, and variable site conditions. Commenters interested in the EPA/USDA effort should consider the characteristics of FGD gypsum (see

77 As part of the petition application, the petitioner would also need to demonstrate that the CCRs are being beneficially used.DRAFT DO NOT CITE OR QUOTE 152 of 563 5/03/10 http://www.epa.gov/epawaste/partnerships/c2p2/pubs/fgdgyp.pdf ) and information on the current study (see http://www.epa.gov/epawaste /partnerships/ c2p2/pubs/fgd-fs.pdf).

• If EPA determines that regulations are n eeded, should EPA consider removing the Bevill exemption for such unencapsulated uses and regulate these under RCRA subtitle C or should EPA develop regulations under RCRA subtitle D?

• If materials characterization is required, what type of characterization is most appropriate? If the CCRs exceed the toxicity characteristic at pH levels different from the TCLP, should they be excluded from benefici al use? When are total levels relevant? EPA solicits information and data on the extent to which states request and evaluate CCR characterization data prior to the use of unencapsulated CCRs (keeping in mind that EPA ORD studies generally show that measurement of total concentrations for metals do not correlate well with metal leachate concentrations).

• If regulations are developed, should they cove r specific practices, for example, restricting fill operations to those that moisten and compact fly ash in layers to attain 95% of the standard Proctor maximum dry density value and provide a drainage layer? Are such construction practices largely followed now?

• Historically, EPA has proposed or imposed c onditions on other types of hazardous wastes destined for land placement (e.g., maximu m application rates and risk-based concentration limits for cement kiln dust us ed as a liming agent in agricultural applications (see 64 FR 45639; Augus t 20, 1999); maximum allowable total concentrations for non-nutritive and toxic me tals in zinc fertilizers produced from recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Comments are solicited as to whether EPA should estab lish standards or rely on implementing statesDRAFT DO NOT CITE OR QUOTE 153 of 563 5/03/10 to impose CCR-/site-specific limits based on front-end characterization that ensures individual beneficial us es remain protective.

• Whether to exclude from benefi cial use unencapsulated uses in direct contact with water bodies (including the seasona l high groundwater table)?

E. Placement of CCRs in Mi nefilling Operations

In today’s proposal, EPA is not addressing it s Regulatory Determination on minefilling, and instead will work with the OSM to develop eff ective federal regulations to ensure that the placement of coal combustion residuals in minefill operations is adequately controlled. In doing so, EPA and OSM will consider the recommendati ons of the National Research Council (NRC), which, at the direction of Congress, studied the h ealth, safety, and environm ental risks associated with the placement of CCRs in active and abandone d coal mines in all major U.S. coal basins. The NRC published its findings on March 1, 2006 , in a report enti tled ‘‘Managing Coal Combustion Residues (CCRs) in Mi nes,” which is available at http://books.nap.edu/openbook.php?isbn=0309100496.

The report concluded that the “pla cement of CCRs in mines as pa rt of coal mine reclamation may be an appropriate option for the disposal of this material. In such situations, however, an integrated process of CCR char acterization, site characterizati on, management and engineering design of placement activities, and design and im plementation 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 ofDRAFT DO NOT CITE OR QUOTE 154 of 563 5/03/10 CCRs in minefills to ensure that states have spec ific authority and that st ates implement adequate safeguards. The NRC Committee on Mine Placement of Coal Co mbustion 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 fram ework is in place to deal with mine-related issues. Consistent with the recommendations of the National Academy of Sciences, EPA anticipates that the U. S. Department of the Inte rior (DOI) will take the lead in developing these regulations. EPA will work closely with DOI thr oughout that process. Therefore, the Agency is not addressing minefilling operations in this proposed rule.

F. EPA is Not Proposing to Revise the Bevill Determination for CCRs Generated by Non-Utilities.

In this notice, EPA is not proposing to revi se the Bevill exclusion for CCRs generated at facilities that are not part of the electric power s ector and which use coal as the fuel in non-utility boilers, such as manufacturing facilities, universit ies, and hospitals. The Agency lacks sufficient information at this time to determine an appropr iate course of action fo r the wastes from these facilities.

Industries that primarily burn coal to generate power for their own purposes (i.e., non-utilities), also known as combined heat and power (CHP) plants , are primarily engaged in business activities, such as agriculture, mining, ma nufacturing, transportation, and education. The electricity that they generate is mainly for th eir own use, but any excess may be sold in theDRAFT DO NOT CITE OR QUOTE 155 of 563 5/03/10 wholesale market. 78 According to the Energy Inform ation Administration (EIA), CHPs produced 2.7% of the total electricity generated from coal combustion in 2007 79 and burned 2.3% of the total coal consumed for electricity generation (24 million tons) 80 at 2,967 facilities. 81 EPA estimates that CHPs generate approximately 3 million tons of CCRs annually or an average of just over 1,000 tons per facility. This is in comparison to electric ut ilities, which generated 136 million tons of CCRs in 2008, or an average of approximately 275,000 tons per facility. In addition, these manufacturing facilities generate other types of wast e, many of which are generated in much larger quanti ties than CCRs, and thus, they ar e likely to be mixed or comanaged together. As a result, the com position of any co-managed waste might be fundamentally different from the CCRs that are generated by electric ut ilities. Presently, EPA lacks critical data from these facilities sufficient to address key Bevill criteria such as current management practices, damage cases, risks, a nd waste characterizati on. Thus, EPA solicits information and data on CCRs that are generate d by these other industries, such as volumes generated, characteristics of the CCRs, whether they are co-managed with other wastes generated by the industry, as well as other such informa tion. In addition, EPA does not currently have enough information on non-utilities to determine wh ether a regulatory flexib ility analysis would be required under the Regulatory Flexibility Act, nor to conduct one if it is necessary. Therefore, the Agency has decided not to assess these opera tions in today’s proposal, and will instead focus on the nearly 98% of CCRs that ar e generated at electric utilities.

78 Energy Information Administration (http://www.eia.d oe.gov/cneaf/electricity/page/prim2/toc2.html#non).

79 http://www.eia.doe.gov/cneaf/e lectricity/epa/epaxlfile1_1.pdf

80 http://www.eia.doe.gov/cneaf/e lectricity/epa/epaxlfile4_1.pdf

81 http://www.eia.doe.gov/cneaf/e lectricity/epa/epaxlfile2_3.pdfDRAFT DO NOT CITE OR QUOTE 156 of 563 5/03/10 V. Co-Proposed Listing of CCRs as a Speci al Waste Under RCRA Subtitle C and Special Requirements for Disposal of CCRs Generated by Electric Utilities.

One of the alternatives in today’s co-proposal is to add a new category of wastes that would be subject to regulation under s ubtitle C of RCRA, by adding to 40 CFR part 261, Subpart F - Special Wastes Subject to Subtitle C Regulations for CCRs destined for disposal. Under this alternative, the Agency further proposes to list C CRs destined for disposal as a special waste and CCRs would then be subject to regulation under 40 CFR parts 260 through 268 and 270 to 279 and 124, and subject to the notification require ments of section 3010 of RCRA. This listing would apply to all CCRs destined for disposal. This section provides EPA’s basis for regulating CCRs under subtitle C of RCRA when disposed. As described in this preamble, the proposed listing would not apply to CCRs that are beneficially used (see sect ion IV), CCRs that are part of a state or federally required cleanup that commenced prior to the effective date of the final rule (see section VI), or CCRs genera ted by facilities outside the elect ric power sector (see section IV).

A. What is the Basis for Listing CCRs as a Special Waste?

Many of the underlying facts on which EPA would rely on to support its proposed special waste listing have been discussed in the previous sec tions, which lay out reasons why the Agency may decide to reverse the Bevill Regulatory Determin ation and exemption. Rather than repeat that discussion here, EPA simply references the discu ssion in the earlier sec tions. In addition, EPA would be relying on the various risk assessm ents conducted on CCRs to provide significantDRAFT DO NOT CITE OR QUOTE 157 of 563 5/03/10 support for a listing determination. EPA’s risk as sessment work includes four analyses: (1) U.S. EPA 1998, “Draft Final Report: Non- groundwater Pathways, Human H ealth and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 (FFC2) ” (June 5, 1998) referred to hereafter as the 1998 Non-groundwater risk assessment (available in docket # F-1999-FF2P-FFFFF in the RCRA Information Center, and on the EPA website at http://www.epa.gov/osw/nonhaz/industrial/spe cial/fossil/ngwrsk1.pdf); (2) preliminary groundwater and ecological risk screening of selected constituen ts in U.S. EPA 2002, “Constituent Screening for Coal Combustion Wast es,” (contractor deliverable dated October 2002, available in docket EPA-HQ-RCRA-2006- 0796 as Document # EPA-HQ-RCRA-2006- 0796-0470); referred to hereafter as the 2002 scr eening analysis; (3) U.S. EPA 2009a, “Human and Ecological Risk Assessment of Coal Combus tion Wastes” (September 2009) available in the docket for this proposed rule, and referred to he reafter as the 2009 risk assessment; and (4) U.S. EPA 2009b, “Inhalation of Fugitive Dust: A Screen ing Assessment of the Risks Posed by Coal Combustion Waste Landfills - DRAFT” available in the docket for this proposed rule. As explained below, the 2009 risk assessment correla tes closely with the listing criteria in EPA’s regulations.

1. Criteria for Listing CCRs as a Special Waste and Background on 2009 Risk
Assessment.

In making listing determinations under subtitle C of RCRA, th e Agency considers the listing criteria set out in 40 CFR 261.11. EPA considered these same criteria in making the proposed special waste listing decision.DRAFT DO NOT CITE OR QUOTE 158 of 563 5/03/10 The criteria provided in 40 CFR 261.11(a)(3) include elev en factors that EPA must consider in determining whether the waste pos es a “substantial present or pot ential hazard to human health and the environment when improperly treated, stor ed, transported or disp osed of or otherwise managed.” Nine of these factors, as descri bed generally below, are incorporated or are considered in EPA's risk assessment for the waste streams of concern:

o Toxicity (Sec. 261.11(a)(3)(i)) is considered in developing the health benchmarks used in the risk assessment modeling.

o Constituent concentrations (Sec. 261.11(a)(3)(ii )) and the quantities of waste generated (Sec. 261.11(a)(3)(vii i)) are combined in the calcul ation of the levels of the CCR constituents that pose a hazard.

o Potential of the hazardous constituents and a ny degradation products to migrate, persist, degrade, and bioaccumulate (sections 261( a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v), and 261.11(a)(3)(vi)) are all considered in the design of the fate and transport models used to determine the concentration of th e contaminants to which individuals are exposed.

o Two of the factors, plausible mismanagemen t and the regulatory actions taken by other governmental entities based on the damage caused by the constituents ((§§261.11(a)(3)(vii) and 261.11(a)(3)(x)), were used in establishing the waste management scenario(s) modeled in the risk assessment.DRAFT DO NOT CITE OR QUOTE 159 of 563 5/03/10 One of the remaining factors of the eleven listed in 261.11(a)(3) is consideration of damage cases (§261.11(a)(3)(ix)); these are discusse d in section II. C. The final factor allows EPA to consider other factors as appropria te (§261.11(a)(3)(xi)).

As discussed earlier, EPA conducted analyses of the risks posed by CCRs and determined (subject to consideration of public comment) that it would meet the criteria for listing set forth in 40 CFR 261.11(a)(3). The criteria for listi ng determinations found at 40 CFR Part 261.11 require the Administrator to list a solid waste as a hazardous waste (and thus subjec t to subtitle C regulation) upon determining that the solid waste meets one of three criteria in 40 CFR 261.11(a)(1)-(3). As just noted, th e criteria considered by EPA in determining that listing is warranted pursuant to 40 CFR 261.11(a)(3) are:

 Whether the waste contains any of the toxic c onstituents listed in Appendix VIII of 40 CFR part 261 (Hazardous Waste Consti tuents) and, after consideri ng the following factors, the Administrator concludes that the waste is capab le of posing a substant ial present or potential hazard to human health or the environment wh en improperly treated, stored, transported or disposed of, or otherwise managed: (i) The nature of the toxicity presented by the constituent. (ii) The concentration of the constituent in the waste. (iii) The potential of the cons tituent or any toxic degradati on product of the constituent to migrate from the waste into the environm ent under the types of improper management considered in paragraph (vii). (iv) The persistence of the constituent or a ny toxic degradation product of the constituent.DRAFT DO NOT CITE OR QUOTE 160 of 563 5/03/10 (v) The potential for the constitu ent or any toxic degradation product of the constituent to degrade into non-harmful constituen ts and the rate of degradation. (vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems. (vii) The plausible types of improper manageme nt to which the waste could be subjected. (viii) The quantities of the waste generated at individual generation sites or on a regional or national basis. (ix) The nature and severity of the human hea lth and environmental damage that has occurred as a result of the improper management of wastes containing the constituent. (x) Action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent. (xi) Such other factors as may be appropriate.

In 1994, EPA published a policy statement regardi ng how the Agency uses human health and environmental risk estimates in making listing deci sions, given the uncertain ty that can co-exist with risk estimates. Specifically:

“...the Agency’s listing determination policy u tilizes a “weight of ev idence” approach in which risk is a key factor...however, risk leve ls themselves do not necessarily represent the sole basis for a listing. Ther e can be uncertainty in calcula ted risk values and so other factors are used in conjunction with risk in making a listing decision....EPA’s current listing determination procedure...uses as an initial cancer risk “level of concern” a calculated risk level of 1 x 10 -5 (one in one hundred thousand)...(1) Waste streams forDRAFT DO NOT CITE OR QUOTE 161 of 563 5/03/10 which the calculated high-end indi vidual cancer-risk level is 1 x 10 -5 or higher generally are considered candidates for a list decision...(2) Waste stream s for which these risks are calculated to be 1 x 10 -4 or higher...generally will be co nsidered to pose a substantial present or potential hazard to human health and the environment and generally will be listed as hazardous waste. Such waste streams fall into a category presumptively assumed to present sufficient risk to require their listing as hazardous waste. However, even for these waste streams there can in some cases be factors which could mitigate the high hazard presumption. These additional factors... will also be considered by theAgency in making a final determination. (3) Waste streams for which the calculated highend individual cancer-risk level is lower than 1 x 10 -5 generally are considered initial candidates for a no-list decision. (4) Waste streams for which these risks are calculated to be 1 x 10 -6 or lower, and lower than 1.0 HQs or EQs for any non-carcinogens, generally will be considered not to pose a substantial present or potential hazard to human health and the environment and generally will not be listed as hazardous waste. Such waste streams fall into a category presumptively assumed not to pose sufficient risk as to require their listing as hazardous waste. Howeve r, even for these waste streams, in some cases, there can be factors that could mitig ate the low hazard presumption. These also will be considered by the Agency in making a final determination. (5) Waste streams where the calculated high-end individual cancer-risk level is between 1 x 10 -4 and 1 x 10 -

6 fall in the category for which there is a pres umption of candidacy fo r either listing (risk
> 10 -5 ) or no listing (risk < 10 -5 ). However, this presump tion is not as strong as when risks are outside this range. Therefore, li sting determinations for waste streams would always involve assessment of the additional factors discussed below....AdditionalDRAFT DO NOT CITE OR QUOTE 162 of 563 5/03/10 factors. b. The following factors will be considered in making listing determinations, particularly for wastes falling in to the risk range between 1 x 10 -4 and 1 x 10 -6 . (1) Certainty of waste characterization; (2) Ce rtainty in risk asse ssment methodology; (3) Coverage by other regulatory programs; (4) Waste volume; (5) Evidence of cooccurrence; (6) Damage cases showing act ual impact to human health or the environment; (7) Presence of toxicant(s) of unknown or unquantifiable risk.” See 59 FR 66075-66077, December 22, 1994.

B. Background on EPA’s 2009 Risk Assessment.

1. Human Health Risks.

Individuals can be exposed to the constituents of concern found in CCRs through a number of exposure routes. Potential contaminant rel eases from landfills a nd surface impoundments include: leaching to ground water; overland transport from erosion and runoff; and air emissions. The potential of human exposure from any one of these exposure pathways for a particular chemical is dependent on the physical and ch emical characteristics of the chemical, the properties of the waste stream, and the envi ronmental setting. EPA has conducted a peerreviewed risk assessment of potential human health risks from CCR constituents leaching to groundwater that subsequently migrate either to a nearby drinking wate r well, or to nearby surface water, and is ingested as drinking wate r or through fish consumption (U.S. EPA 2009a). EPA has also performed preliminary analyses of human health effects from CCR constituents that have eroded or have run off from CCR waste management units (U.S. EPA 2002), and ofDRAFT DO NOT CITE OR QUOTE 163 of 563 5/03/10 human health effects from br eathing windblown particulate ma tter from CCR landfill disposal operations (the 1998 risk assessment and U.S. EPA 2009b).

Longstanding EPA policy is for EPA risk assessment s to include a characterization of the risks at two points on a distribution (i.e., range) of risk estimates: a central tendency estimate that represents conditions likely to be encountered in a typical ex posure situation, and a high end estimate that represents conditions likely to be encountered by i ndividuals with higher exposures (U.S. EPA 1995). 82 Examples of factors that would infl uence a nearby resident’s exposure are the residence’s distance from a CCR waste mana gement unit, and an individual’s behavior or activity patterns. In the 2009 risk assessment, the high e nd risk estimates are the 90 th percentile estimates from a probabilistic analysis.

The comparisons that EPA used in this rule to judge whether either a high end or central tendency estimated risk is of concern are the risk criteria discussed in the 1995 policy. As noted under that policy, for an individu al’s cancer risk, the risk crite ria are in the range of 1 x 10 -6 , or one in one million “excess” (above and beyond pr e-existing risk) probability of developing cancer during a lifetime, to 1 x 10 -4 (one in ten thousand), 83 with 1 x 10 -5 (one in one hundred

82 Guidance for Risk Characterization , U.S. Environmental Protectio n Agency, 1995; accessible at http://www.epa.gov/OSA/spc/pdfs/rcguide .pdf, which states that “For the Agency's purposes, high end risk descriptors are plausible estimates of the individual risk for those persons at the upper end of the risk distribution,” or conceptually, individuals with “exposure above about the 90th percentile of the population distribution”). As suggested in the Guidance , we also provide 50th percentile results as the central tendency estimate of that risk distribution.

83 See 40 CFR 300.430.DRAFT DO NOT CITE OR QUOTE 164 of 563 5/03/10 thousand) being the “point of departure” for listing a waste a nd subjecting it to regulation under subtitle C of RCRA. 84 For human non-cancer hazard, the risk criterion is an estimated exposure above the level at which no adverse health effect s would be expected to occur (expressed as a ratio of the estimated exposure to the exposur e at which it is likely that there would be no adverse health effects; this ra tio is also called a hazard quotient (HQ), and a risk of concern equates to a HQ greater than one, or, in certain cases of drinking water exposure, water concentrations above the MCL establishe d under the Safe Drinking Water Act.

The exposure pathways for humans that EPA has evaluated for CCR landfills and surface impoundments are nearby reside nts’ groundwater ingestion an d air inhalation, and fish consumption by recreational fishers.

2. Ecological Risks

For ecological non-cancer hazards that are modele d, the risk criterion is a hazard quotient that represents impacts on individual organisms, with a risk of concern being an estimated HQ greater than one. In some instances, EPA also considered documented evidence of ecological harm, such as field studies published in peer-rev iewed scientific literature. Such evidence is often sufficient to determine adverse ecological e ffects in lieu of or in addition to modeling potential ecological risks.

84 As noted previously, EPA’s hazardous waste listing determ ination policy is described in the notice of proposed rulemaking for wastes from the dye and pigment industries at 59 FR 66075 -66077.DRAFT DO NOT CITE OR QUOTE 165 of 563 5/03/10 Two types of exposures can occur for ecologi cal receptors: exposures in which ecological receptors inhabit a waste management unit di rectly, and exposures in which CCRs or its chemical constituents migrate, or move, out of the waste management unit and contaminate nearby soil, surface water, or sediment.

C. Consideration of Indi vidual Listing Criteria.

CCRs contain the following Appendix VIII toxi c constituents: antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, ni ckel, selenium, silver, and thallium. These Appendix VIII constituents are frequently found in CCRs, as has been reported by the U.S. EPA (1988, 1999, 2002, 2006, 2008, and 2009). 85 These are discussed below with respect to the

85 Full references: U.S. EPA (Environmental Protection Agency). 1988. Wastes from the Combustion of Coal by Electric Utility Power Plants – Report to Congress . EPA-530-SW-88-002. U.S. EPA Office of Solid Waste and Emergency Response. Washington, DC. November. U.S. EPA (Environmental Protection Agency). 1999. Report to Congress: Wastes from the Combustion of Fossil Fuels—Volume II , EPA 530-S-99-010. Office of Solid Waste. March. U.S. EPA (Environmental Protection Agency). 2002. Constituent Screening for Coal Combustion Wastes . Draft Report prepared by Resear ch Triangle Institute for Office of Solid Waste, Washington, DC. September. U.S. EPA (Environmental Protection Agency). 2006. Characterization of Mercury-Enriched Coal Combustion Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control . EPA 600/R-06/008. Office of Research and Development. Resear ch Triangle Park, NC. January. U.S. EPA (Environmental Protection Agency). 2008. Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control . EPA/600/R-08/077. Report to U.S. EPA Office of Research and Development, Air Pollution Control Division. Research Triangle Park, NC. July.DRAFT DO NOT CITE OR QUOTE 166 of 563 5/03/10 factors outlined in § 261.11( a)(3)(i)-(xi), and the Agency’s fi ndings. In the following discussion of the eleven listing factors, we combined factors iii (Migration), iv (Persistence), v (Degradation) and vi (Bioaccumulation); and fact ors vii (Plausible Type s of Mismanagement), viii (Quantities of the Waste Generated), and ix (Nature and Severity of Effects from Mismanagement) for a more lucid presentation of our arguments.

1. Toxicity – Factor (i)

Toxicity is considered in deve loping the health benchmarks used in risk assessment modeling. The Agency for Toxic Substances and Disease Registry (ATSDR) ToxFAQsTM, 86 the EPA Integrated Risk Information System (IRIS), 87 and the Toxicology Data Network (TOXNET) of the National Institutes of Health 88 are all sources of toxicological data on the Appendix VIII hazardous constituents found in CCRs. (The informa tion from these data sources on the toxicity of the metals identified is included in the docket to today’s proposed rule.) Two types of ingestion benchmarks are developed. For carcino gens, a cancer slope factor (CSF) is developed. A CSF is the slope of the curve representing the relationship between dose and cancer risk. It is used to calculate the probability that the toxic na ture of a constituent ingested at a specific daily dose will cause cancer. For non-carcinogens, a reference dose (RfD) is developed. The RfD (expressed in units of mg of substance/kg body we ight-day) is defined as an estimate (with

U.S. EPA (Environmental Protection Agency). 2009. Human and Ecological Risk Assessment of Coal Combustion
Wastes . Office of Resource Conservation and Recovery, Washington, DC. September.

86 www.atsdr.cdc.gov/toxfaq.html

87 http://cfpub.epa.gov/ncea/iris/inde x.cfm?fuseaction=iris.showSubsta nceList&list_type=alpha&view=B

88 http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDBDRAFT DO NOT CITE OR QUOTE 167 of 563 5/03/10 uncertainty spanning perhaps an order of ma gnitude) of a daily exposure to the human population (including sensitive subgroups) that is lik ely to be without an appreciable risk of deleterious effects during a lifetime. The constituents of concern associated with CCRs include antimony, arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, mercury, nickel, selenium, silver, and thallium. Based on the information in ASTDR’s Tox FAQs, EPA’s IRIS system and TOXNET, the Agency believes that th e metals identified are sufficiently toxic that they are capable of posing a substantial presen t or potential hazard to human health and the environment when improperly treated, stored, tr ansported disposed of, or otherwise managed. A brief summary of the toxic effects associated with these constituents is presented below, including for the four Appendix VIII hazardous c onstituents that were estimated in the draft groundwater risk assessme nt to pose high-end (90 th percentile) risks at or above the risk criteria in one or more situations, and that were also foun d to present risk to human health in one or more damage cases (arsenic, cadmium, lead, and selenium): Arsenic . Ingestion of arsenic has been shown to cause skin cancer and cancer in the liver, bladder and lungs. 89 Antimony . Antimony is associated with altered gl ucose and cholesterol levels, myocardial effects, and spontaneous abor tions. EPA has set a limit of 145 ppb in lakes and streams to protect human health from the harmful eff ects of antimony taken in through water and contaminated fish and shellfish. 90

89 ATSDR ToxFAQs. Available at: h ttp://www.atsdr.cdc.gov/toxfaq.html

90 Ibid.DRAFT DO NOT CITE OR QUOTE 168 of 563 5/03/10 Barium. Barium has been found to potentially cause ga strointestinal disturbances and muscular weaknesses when people are exposed to it at levels above the EP A drinking water standards for relatively short periods of time. 91 Beryllium. Beryllium can be harmful if you breathe it. If beryllium air levels are high enough (greater than 1,000 ug/m 3 ), an acute condition can result. This condition resembles pneumonia and is called acute beryllium disease. 92
Cadmium and Lead. Cadmium and lead have the following effects: kidney disease, lung disease, fragile bone, decreased nervous syst em function, high blood pr essure, and anemia. 93
Hexavalent Chromium. Hexavalent chromium has been shown to cause lung cancer when inhaled. 94 Mercury. Exposure to high levels of metallic, inorga nic, or organic mercury can permanently damage the brain, kidneys, and developing fetus. 95
Nickel . The most common harmful health effect of nickel in humans is an allergic reaction. Approximately 10-20% of the population is sensitiv e to nickel. The most common reaction is a skin rash at the site of contact. Less frequent ly, some people who are sensitive to nickel have asthma attacks following exposure to nickel. Some sensitized people react when they consume food or water containing nickel or breathe dust containing it. 96

91 Ibid

92 Ibid

93 Ibid

94 Ibid

95 Ibid

96 IbidDRAFT DO NOT CITE OR QUOTE 169 of 563 5/03/10 Selenium. Selenium is associated with selenosis. 97
Silver . Exposure to high levels of silver fo r a long period of time ma y result in a condition called arygria, a blue-gray discolora tion of the skin and other body tissues. 98
Thallium. Thallium exposure is associated with hair loss, as well as nervous and reproductive system damage. 99

2. Concentration of Constituents in Waste – Factor (ii)

A CCR constituent database was developed for the Regulatory Determination in May 2000 and in followup work leading to today’s co-proposal. This database contained data on the total CCR constituents listed above, as well as many others , with the Appendix VIII constituents found in varying concentrations (see Table 6). 100

Table 6. Total Metals Concentrations Found in CCRs (ppm) Constituent Mean Minimum Maximum Antimony 6.32 0.00125 3100 Arsenic 24.7 0.00394 773
Barium 246.75 0.002 7230

97 Ibid

98 Ibid

99 Ibid

100 Additional data on the waste characteristics of fl y ash and FGD are presente d in section I. F. 2.DRAFT DO NOT CITE OR QUOTE 170 of 563 5/03/10 Table 6. Total Metals Concentrations Found in CCRs (ppm) Beryllium 2.8 0.025 31
Cadmium 1.05 0.000115 760.25 Chromium 27.8 0.005 5970
Lead 25 0.0074 1453 Mercury 0.18 0.000035 384.2
Nickel 32 0.0025 54055
Selenium 2.4075 0.0002 673 Silver 0.6965 0 3800 Thallium 1.75 0.09 100

The data in Table 6 show that many of these me tals are contained in CCRs at relatively high concentrations, such that if CCRs were impr operly managed, they could leach out and pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed. The risk assessment that was conducted confirms this finding, as do the many damage cases that have been documented and presented in today’s co-propos al, including documents containe d in the docket to today’s proposed rule.

3. Migration, Persistence, Degradation, and Bi oaccumulation—Factors ( iii), (iv), (v), and (vi)DRAFT DO NOT CITE OR QUOTE 171 of 563 5/03/10 The potential of the hazardous constituents and any degradation products to migrate, persist, degrade and/or bioaccumulate in the environm ent are all factors that EPA considered and evaluated in the design of the fate and transp ort models that were used in assessing the concentrations of the toxic constituents to which humans and ecological receptors may be exposed. However, before discussing the hazar dous constituents in the fate and transport models, the Agency would note that the toxi c constituents for CCRs are all toxic metals— antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver and thallium, which do not decompose or de grade with the passage of time. Thus, these toxic metals will persist in the e nvironment for very long periods of time, and if they escape from the disposal site, will continue to provide a potential source of long-term contamination.

The purpose of the risk assessment was to use th e fate and transport models to assess likely migration of the CCR toxic constituents from di fferent waste types through different exposure pathways, to receptors and to predict whether CCRs under different management scenarios may produce risks to human health and the envir onment. To estimate the risks posed by the management of CCRs in landfills and surface im poundments, the risk assessment estimated the release of the CCR toxic constituents fr om landfills and surface impoundments, the concentrations of these constituents in envir onmental media surrounding coal-fired utility power plants, and the risks that these concentrations pose to human and ecological receptors. The risk estimates were based on a groundwater fate and tr ansport model in which constituents leached to groundwater consumed as drinking water, migrated to surface water and bioaccumulated in recreationally caught and consumed fish, and on direct ecological exposure. The specific 50 th
and 90 th percentile risk assessment results for rele vant Appendix VIII constituents are discussedDRAFT DO NOT CITE OR QUOTE 172 of 563 5/03/10 below. While these results are based on a s ubset of CCR disposal units, they are likely representative of the risks posed by other similar disposal units. As discussed previously, the risk assessment demonstrates that if CCRs are improperly managed, they have the potential to present a hazard to human health and the environment above a 1 x 10 -4 to 1 x 10 -6 cancer range or an HQ of 1. A detailed discussion of the modeling and risks from this pathway can be found in U.S. EPA 2009a (available in the docket fo r this proposal). This report presents the methodology, results, and uncertainties of EPA’s assessment of human health risks resulting from groundwater contamination from coal-fired electr ic utilities.

Ingestion of Groundwater: The risk assessment predicted that CCRs pose an estimated trivalent arsenic cancer risk of 4 in 10,000 for unlined land fills and 2 in 10,000 for clay-lined landfills at the 90 th percentile. No cancer risks a bove 1 in 100,000 were found at the 50 th percentile. The 90 th percentile results also estimated that thallium is ingested at three times the reference dose and antimony at twice the referenc e dose for unlined landfills. For clay-lined landfills, only thallium is estimated to exceed the reference dose, with a 90 th percentile inges tion of twice the reference dose.

CCRs co-managed with coal refuse in landfills ar e estimated to pose arsenic cancer risks of 5 in 10,000 for an unlined landfill and 2 in 10,000 for a clay-lined landfill at the 90 th percentile. EPA estimates that arsenic poses a 2 in 100,000 risk of cancer at the 50 th percentile for unlined landfills, but poses cancer risks of less than 1 in 100,000 for clay or composite-lined landfills. Thallium is estimated at three times the re ference dose in unlined landfills at the 90 th percentile, but did not exceed the reference dose at the 50 th percentile for any liner type.DRAFT DO NOT CITE OR QUOTE 173 of 563 5/03/10 For unlined landfills managing FBC waste, arsenic is estimated to have a cancer risk of three in one hundred thousand at the 90 th percentile. For clay-lined landfills managing FBC waste, arsenic is estimated to have a cancer risk of six in one hundred thousand at the 90 th percentile, while thallium is estimated to have an HQ of 4, and antimony is estimated to have an HQ of 3.

The Appendix VIII constituents in CCRs managed in landfills are not all estimated to arrive at the drinking water well at the same time. For un lined landfills, the median number of years until peak well water concentrations are estimated to occur is approximately 2,800 to 9,700 years for arsenic, 2,600 to 10,000 years for selenium, a nd 2,300 years for thallium. For clay-lined landfills, the median estimated time until peak well concentrations is approximately 4,000 to 10,000 years for arsenic, 5,100 to more than 10,000 years for selenium, and 4,300 years for thallium. Of the contaminated groundwater plumes that are estimated to reach the receptor wells from composite-lined units, the constituent conc entrations were not estimated to reach peak concentrations in the 10,000 year time period that was modeled. 101

For surface impoundments, the risk estimates differ. CCRs managed alone, that is, without coal refuse in the same impoundment, are found to pose an arsenic cancer risk of 2 in 1,000 for unlined surface impoundments and 9 in 10,000 for clay-lined surface impoundments at the 90 th percentile. For unlined surface impoundments at the 90 th percentile, selenium’s HQ is two and lead’s is three. At the 50 th percentile, none of the constitu ents assessed for non-cancer effects

101 The risk model used by EPA evaluates conditions over a 10,000 year period, and considers constituent concentrations during that period. In some cases, peak concentrations do not occur during the 10,000 year period.DRAFT DO NOT CITE OR QUOTE 174 of 563 5/03/10 exceed their reference dose in any scenario, but ar senic did pose estimated cancer risks of 1 in 10,000 and 6 in 100,000 for unlined and clay-lined units, respectively. For the surface impoundments with composite liners, arsenic di d not exceed cancer risks of 1 in 100,000, nor did selenium exceed its reference dose.

Co-disposed CCRs and coal refuse managed in surface impoundments resulted in the highest risks. For the 90 th percentile, arsenic’s estimated cancer risk is 2 in 100 and 7 in 1,000 for unlined and clay-lined surf ace impoundments, respectively. 102 At the 50 th percentile, these units still resulted in estimated arsenic cancer risks of 6 in 10,000 for the unlined surface impoundment and 2 in 10,000 for the clay-lined surface impoundment. Cadmium and lead both are estimated to exceed the reference dose by nine times at the 90 th percentile for unlined surface impoundments. In clay-lined surface impoundment s, cadmium has an estimated cadmium HQ of 3. When managed in surface impoundments with co mposite liners, these constituents’ estimated cancer risks did not exceed 1 in 100,000, nor are they estimated to exceed their reference doses.

As with landfills, the modeling shows differing arrival times of various constituents at the modeled well locations. Due to di fferences in behaviors when interacting in soil, some chemical constituents move more quickly than others th rough the subsurface environment. For unlined surface impoundments, the median number of year s until peak well water concentrations would occur is estimated to be 74 years for hexavalent selenium and 78 years for arsenic. For clay-

102 Including data with very high leach levels in surface impoundments where pyritic wastes were managed. As mentioned earlier, management of CCRs with coal refuse may have changed, and some pore water data from the coal refuse may not represent the management of these materials today. EPA has solicited comments on these issues.DRAFT DO NOT CITE OR QUOTE 175 of 563 5/03/10 lined surface impoundments, the median number of years was estimated to be 90 years for hexavalent selenium and 110 years for trivalent arsenic. Of the plumes that did reach the receptor wells from composite-lined units, 103 the median number of years was estimated to be 4,600 years for hexavalent selenium and 8,600 years for trivalent arsenic.

While hexavalent chromium, and nickel were no t modeled using the fate and transport models, they did show the potential for excess risk at the screening stage. 104 Risk attenuation factors were developed for each of these constituents at the 50 th and 10 th percentiles. Here, attenuation refers to the dilution of the concentration of a constituent. Thus, the 10 th percentile (not the 90 th percentile) was developed to repr esent the high-end risks. Thes e risk attenuation factors were calculated by dividing the screening risk results by the full-scale risk results, across all unit types

103 In other words, based on the results from this subset of the total number of Monte Carlo realizations.

104 Previous risk assessment results for CCR (U.S. EPA, 1998) indicated concern for the groundwater pathway and limited concern for aboveground pathways for human and ecological receptors. The primary purpose of subsequent risk analyses was to update those results by incorpora ting new waste characterization data received since 1998 and by applying current data and methodologies to the risk an alyses. The initial step in this process is screening and constituent selection for a more detailed analysis. The goal of screening is to identify CCR constituents, waste types, receptors, and exposure pathwa ys with risks below the level of concern and eliminate those combinations from further analysis. The screenin g analysis (U.S. EPA, 2002) compared the 90th percentile leachate values directly to the human health benchmarks identified above . In other words, it was assumed that a human receptor was drinking leachate direc tly from a CCR landfill or surface impoundment with no attenuation or variation in
exposure.DRAFT DO NOT CITE OR QUOTE 176 of 563 5/03/10 combined, for the constituents modeled in the fu ll-scale assessment. Using the risk attenuation factors, none of the constituents were estima ted to exceed an HQ of 1 at either the 50 th or 10 th percentile for landfills. For surface impoundments, hexavalent chromium was estimated to exceed an HQ of 1 at the 50 th percentile, while hexavalent chromium was estimated to exceed an HQ of 1 at the 10 th percentile. The HQ for nickel unde r the surface impoundment scenario was less than 1 using the 50 th and 10 th percentile values. However, the use of risk attenuation factors in place of probabilistic fate a nd transport modeling increases th e uncertainty associated with these results. This analysis was conducte d only for the drinking water exposure pathway.

Consumption of Recreationally Caught Fish: For the unlined, clay-lin ed, or composite-lined landfills, none of the modeled Appendix VIII haza rdous constituents posed a cancer risk greater than 1 in 100,000, nor did they exceed their reference doses. However, for surface impoundments co-disposing of CCRs with coal refuse, trivalent arsenic’s 90 th percentile estimates are 3 in 100,000 and 2 in 100,000 excess can cer risk for unlined and clay-lined units, respectively. Pentavalent arsenic’s 90 th percentile estimate is 2 in 100,000 excess cancer risk for unlined impoundments. For all other liner and management unit scenarios at the 90 th percentile, and all scenarios at the 50 th percentile, there were no arseni c cancer risks above 1 in 100,000. Hexavalent selenium is estimated to result in exposures at three times the reference dose and twice the reference dose in the unlined a nd clay-lined surface impoundment scenarios, respectively, at the 90 th percentile. However, selenium is not estimated to exceed the reference dose in the composite lined scenario at the 90 th percentile, or any scenario at the 50 th percentile.DRAFT DO NOT CITE OR QUOTE 177 of 563 5/03/10 Particulate matter inhalation: Air emissions from CCR disposal and storage sites can originate from waste unloading operations, spreading a nd compacting operations, the re-suspension of particulates from vehicular tra ffic, and from wind erosion. Ai r inhalation exposures may cause adverse human health effects, either due to i nhalation of small-diameter (less than 10 microns) “respirable” particulate matter that causes adve rse effects (PM10 and smaller particles which penetrate to and potentially de posit in the thoracic regions of the respiratory tract), which particles are associated with a host of cardio and pulmonary mortality and morbidity effects. See e.g. 71 FR at 61151-62 and 61178-85 (Oct. 6, 2006) ; see also 40 CFR sections 50.6 and 50.13 (National Ambient Air Quality Standards for th oracic coarse particles and fine particles).

To evaluate the potential exposure of residents to particulate matter that li ve near landfills that have disposed of CCRs, EPA has performed a screening-level analysis using the SCREEN3 model. This analysis, in Inhalation of Fugitive Dust: A Screen ing Assessment of the Risks Posed by Coal Combustion Waste Landfills - DRAFT (US EPA 2009b, copy of which is in the docket for this proposed rule), indicates that, without fugitive dust controls, ther e could be exceedances of the National Ambient Air Qualit y Standards (NAAQS) for fine pa rticulate matter in the air at residences near CCR landfills. EPA requests comme nt and data on the screening analysis, on the results of any ambient air monitoring for part iculate matter that has been conducted, where air monitoring stations are located near CCR landf ills, along with information on any techniques, such as wetting, compaction, or daily cover th at may be employed to reduce such exposures.

A description of the modeling and risks from this pathway for disposal of CCRs in landfills and surface impoundments can be found in the Draft Final Report: Non-ground Water Pathways,DRAFT DO NOT CITE OR QUOTE 178 of 563 5/03/10 Human Health and Ecological Risk Analysis fo r Fossil Fuel Combustion Phase 2 (FFC2); June 5, 1998. 105 This analysis did not address the issue of enrichment of toxic constituents present in the finer, inhalable fraction of the ov erall particulate matter size distribution, 106 but used the total constituent concentrations to represent the con centrations of constituents present on the inhaled particulate matter. Based on the analysis, at la ndfills, the highest estimated risk value was an individual excess lifetime risk of 4 in one million for the farmer, due to inhalation of chromium (all chromium present in the particulate matter wa s assumed to be in the more toxic, hexavalent form). For surface impoundments, the highest risk value was 2 in one million for the farmer (again assuming all chromium present was hexa valent). The Agency requests comment on the analysis, as presented in the draft final report, as well as any data, incl uding air monitoring data that may be available regarding th e potential for residents to be exposed to toxic constituents by this exposure pathway.

Ecological Exposure: Where species were directly expose d to surface impoundments, the risk assessment found ecological risks du e to selenium, silver, nickel, chromium, arsenic, cadmium, barium, lead, and mercury. For scenarios where species were exposed to constituents that had migrated from the groundwater to surface water and sediment, ecological risk exceedances were found for lead, selenium, arsenic, ba rium, antimony, and cadmium at the 90 th percentile, but not at the 50 th percentile. EPA’s risk assessment, conf irmed by the existing damage cases and field studies published in the peer-reviewed scientific literature, show elevated selenium levels in

105 www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ngwrsk1.pdf

106 See, for example, Vouk, V. and Piver, W. “Metallic Elements in Fossil Fuel Co mbustion Products: Amounts and Form of Emissions and Evaluation of Carcinogenicity and Mutagenicity.” Env Health Perspec 1983: 47(201-225).DRAFT DO NOT CITE OR QUOTE 179 of 563 5/03/10 migratory birds, and elevated contaminant leve ls in mammals as a result of environmental uptake, fish deformities, and inhibited fish repr oductive capacity. Because of the large size of these management units, many being 100’s of acres to one that is abou t 2,600 acres, receptors can often inhabit these waste management units. There are a number of recent references in the peer-reviewed scientific literature specific to CCRs managed in surface impoundments that confirm the 1998 risk assessment results and pr ovide additional pertinent information of potential ecological damage. Hopkins, et al. (2006) 107 observed deformities and reproductive effects in amphibians living on or near CCR dis posal sites in Georgia. Rowe, et al. (2002) 108 provided a thorough review of labor atory and field studies that relate to the impact of CCR surface impoundment management practices’ on aqua tic organisms and communities. Examples of studies cited in Rowe, et al. (2002) that illustrates the impact of CCRs on aquatic organisms in direct contact with surface impoundment waters and/or sediments include Benson and Birge (1985), 109 Coutant, et al. (1978) 110 and Rowe, et al. (2001), 111 while examples of studies cited in

107 Hopkins, W.A., S.E. DuRant, B.P. Staub, C.L. Rowe , and B.P. Jackson. 2006. Reproduction, embryonic development, and maternal transfer of contaminants in the amphibian Gastrophryne carolinensis. Environmental Health Perspectives . 114(5):661-666.

108 Rowe, C., Hopkins, W., Congdon, G. “Ecotoxicological Implications of Aquatic Disposal of Coal Combustion Residuals in the United States: A Review.” Env Monit Assess 2002: 80(270-276).

109 Benson, W. and Birge, W. “Heavy metal tolerance and metallothionein induction in fathead minnows: results from field and laboratory investigations.” Environ Toxicol Chem 1985:4(209-217).

110 Coutant, C., Wasserman, C., Chung, M. , Rubin, D., Manning, M. “Chemistry and biological hazard of a coal-ash seepage stream.” J. Water Poll. Control Fed. 1978:50(757-743).

111 Rowe C., Hopkins, W., and Coffman, V. “Failed recruitment of southern toads ( Bufo terrestris ) in a traceelement contaminated breeding habitat: dire ct and indirect effects that may lead to a local population sink.” Arch. Environ. Contam. Toxicol. 2001:40(399-405).DRAFT DO NOT CITE OR QUOTE 180 of 563 5/03/10 Rowe, et al. 2002 that illustrates the impact of CCRs on aquatic organisms in water bodies near CCR surface impoundments include Lemly (1993), 112 Sorensen, et al. (1982) 113 and (1988). 114 This latter category may reflect CCR impacts a ttributable to three constituent migration mechanisms: 1) NPDES-permitted discharges from impoundments; 2) overtopping of impoundments; and 3) groundwater-t o-surface-water discharges (modeled in US EPA 2009a), as well as other, non-CCR-related, sources of pollutants.

Although chromium, beryllium, and silver were not modeled, they were analyzed using dilution attenuation factors developed for the 50 th and 10 th percentiles in the same manner as described above. The only exceedance of the HQ of 1 was for silver at the 10 th percentile unde r the landfill scenario. The only exceedances of the ecolo gical criteria for surf ace impoundments of the 40 CFR part 261 Appendix VIII constituents was for chromium at the 10 th percentile. Since fullscale modeling was not conducted, the result s for these constitu ents are uncertain.

4. Plausible Types of Mismanagement, Quanti ties of the Waste Generated, Nature and Severity of Effects from Mismanagemen t– Factors (vii), (viii) and (ix)

112 Lemly A., “Guidelines for evaluating selenium data from aquatic monitoring and assessment studies.” Environ. Monit. Assess. 1993:28(83-100).

113 Sorensen, E., Bauer, T., Bell, J., Harlan, C. “Selenium accumulation and cytotoxicity in teleosts following chronic, environmental exposure.” Bull. Environ. Contam. Toxicol. 1982:29(688-696).

114 Sorenson, E. “Selenium accumulati on, reproductive status, and histopat hological changes in environmentally exposed redear sunfish.” Arch Toxicol 1988:61(324-329).DRAFT DO NOT CITE OR QUOTE 181 of 563 5/03/10 As discussed earlier, approximately 46 million tons of CCRs were managed in calendar year 2008 in landfills (34%) and nearly 29.4 million tons were managed in surface impoundments (22%). 115 EPA has estimated that in 2004, 69% of the CCR landfills and 38% of the CCR surface impoundments had liners. As shown in the risk assessment and damage cases, the disposal of CCRs into unlined landfills and surface impoundments is likely to pose significant risks to human health and the environment. Additionally, documented damage cases have helped to confirm the actuality and magnitude of risks posed by these unlined disposal units.

The CCR waste stream is generated in very large volumes and is increasing. The ACAA estimates that the production of CCRs has increa sed steadily from approximately 30 million tons in the 1960s to over 120 million tons in the 2000s. 116 A recent ACAA survey estimates a total CCR production of just over 136 million tons in 2008. 117 This is a substantially large waste stream when compared to the 6.9 million tons of non-wastewater hazardous wastes disposed by all other sectors in 2007, and the 2 million tons of hazardous waste being reported as disposed of in landfills and surface impoundments in 2005. 118

115 Estimated from the 2009 ACAA survey and Energy Information Administration 2005 F767 Power Plant database.

116 ACAA (American Coal Ash Association). 2008. Production & Use Chart (1966-2007)

. http://www.acaa-usa.org/associations/8003/file s/Revised_1966_2007_CCP_Prod_v_Use_Chart.pdf

117 ACAA (American Coal Ash Association). 2009. 2008 Coal Combustion Product (CCP) Production & Use Survey Results

. http://www.acaa-usa.org/a ssociations/8003/files/2007_ACAA_CCP_S urvey_Report_Form% 2809-15-08%29.pdf

118 The National Biennial RCRA Hazardous Waste Report ( 2007) available at http://www.epa.gov/epawaste/inforeso urces/data/br07/national07.pdf.DRAFT DO NOT CITE OR QUOTE 182 of 563 5/03/10 EPA currently has documented evidence of prov en damages to groundwater and surface water from 27 disposal sites and potential damages at 40 sites which are discussed in detail above and in the Appendix to this proposal. The damage cas es resulting from CCR constituents migrating into groundwater were generally the same with those predicted in the risk assessment with respect to constituents which migrated, the concentrations reaching receptors, and the consequent magnitude of risk to those receptors. Of the cons tituents in Appendix VIII of Part 261, four were found at levels of concern in both the risk asse ssment and the damage cases (arsenic, cadmium, lead, and selenium). Two additional Appendi x VIII (Part 261) constituents (chromium and nickel) were found in damage cases, and showed th e potential for risk in the risk assessment, but were not modeled through fate and transport modeling. Finally, there were two Appendix VIII (Part 261) constituents (antimony and thallium) that were projected to be capable of migrating and reaching receptors at levels of concern in the ri sk assessment, but have yet to be identified in any of our groundwater damage cases. 119

The damages to surface water from Appendix VIII (Part 261) constituents do not reflect a ground water to surface water pathway, but rather reflec t surface water discharges. Five damage cases resulted in selenium fish consum ption advisories consistent with the risk assessment’s prediction that selenium consumption from fish in water bodies affected by CCR dis posal units would result in excess ecologic and human health risk. We are aw are that at least three of the fish advisories

119 While this could indicate a potential conservatism in the model with respect to these two constituents, it is more likely to result from a failure to sample for these constituents as frequently. This is consistent with the data reported in Table 4-29 of the revised risk assessment (only 11 samples taken for antimony and thallium in surface impoundments versus hundreds for various other constituents).DRAFT DO NOT CITE OR QUOTE 183 of 563 5/03/10 were subsequently rescinded when the criteria was reassessed a nd revised. The risk assessment also predicts that arsenic would pose such risks. However, while no arsenic fish advisories have been linked to CCR disposal at this time, the risk assessment predicts that selenium will migrate faster than arsenic.

In addition to the impacts on human health fr om groundwater and surface water contaminated by CCR released from disposal units, the damage cases have also shown the following adverse effects to plants and wildlife: elevated seleni um levels in migratory birds, wetland vegetative damage, fish kills, amphibian deformities, snak e metabolic effects, plant toxicity, mammal uptake, fish deformities, and inhibited fish re productive capacity. Although these effects cannot easily be linked to the results of the risk a ssessment as was done for groundwater and surface water above, the risk assessment generally agreed with the damage cases because it sometimes showed very high risks to ecological recepto rs. For additional information on ecological damages, see the document titled “What Are the Environmental and Health Effects Associated with Disposing of CCRs in Landfills and Surf ace Impoundments?” in the docket to this proposal.

Furthermore, four of the 27 proven damage case disposal sites have b een listed on the EPA’s National Priorities List (NPL). The NPL is the li st of national priority s ites with known releases or threatened releases of hazardous substan ces, pollutants, or contaminants throughout the United States and its territories. The Hazard Ra nking System (HRS), the scoring system EPA uses to assess the relative threat associated with a release from a site, is the primary method usedDRAFT DO NOT CITE OR QUOTE 184 of 563 5/03/10 to determine whether a site should be placed on the NPL. 120 The HRS takes into account the three elements of environmental and human health risk: (1) probability of release; (2) exposure; and (3) toxicity. EPA generally will list sites w ith scores of 28.5 or a bove. The HRS is a proven tool for evaluating and prioritizi ng the releases that may pose th reats to human health and the environment throughout the nation. Whereas each of those 4 NPL site s also contains waste other than CCRs, CCRs are one of the prev alent waste types in each case. 121

In addition, the Kingston, Tennessee damage case (see the Appendix) helps to illustrate the additional threats to human heal th and the environment that ca n be caused by the failure of a CCR waste management unit. At TVA's Kingston f acility, there were four failure conditions: the presence of an unusually weak fly ash (‘Slime s’) foundation; the fill geometry and setbacks; increased loads due to higher fill; and hydraulically placed loose wet ash. If owners or operators do not maintain due diligence regarding the st ructural integrity of surface impoundments, significant damage to human health and the environment could be a likely outcome. In summary, while the preponderance of documented dama ge cases were the result of releases from unlined landfills and surface impoundments, EPA belie ves that the above data identify situations (e.g., adverse impacts on migratory birds) illust rative of potentia l problems occurring from the management of CCRs in any type of surface impoundment.

120 U.S. EPA 2007. “Introduction to the Hazard Ranking System (HRS).” Accessed at: http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm.

121 For specifics, please see http://www.regulations.gov /fdmspublic/component/main?main=Doc umentDetail&d=EPA- HQ-RCRA- 2006-0796- 0015.DRAFT DO NOT CITE OR QUOTE 185 of 563 5/03/10 5. Action Taken by Other Governmental Agen cies or Regulatory Programs Based on the Health or Environmental Hazard Posed by the Waste or Waste Constituent – Factor (x)

As a result of the mismanagement of CCRs, EPA and states have taken steps to compel cleanup in several situations. Specifi cally, in addition to EPA placing sites on the NPL due to the disposal or indiscriminant placement of CCRs, at least 12 states have issued administrative orders for corrective actions at CCR disposal sites. Correctiv e action measures at these CCR management units vary depending on the site spec ific circumstances and include formal closure of the unit, capping, re-grading of ash and the installation of liners ove r the ash, ground water treatment, groundwater monitoring, and combinations of these measures.

6. Other Factors – Factor (xi)

The damage cases and the risk assessment al so found excess risks for human and ecological receptors that resulted from non- Appendix VIII (Part 261) constituents. 122 While not currently identified under RCRA as hazardous or toxic constitu ents, several of these constituents have the same toxic endpoints as the Appendix VIII (Part 261) constituents found in CCRs, while nitrate is associated with pregnancy complications and methemoglobinemia (blue baby syndrome). 123 Although these non-Appendix VIII (Part 261) constituen ts do not provide an independent basis for listing CCRs, EPA finds their presence in the da mage cases and risk assessment results to be

122 Aluminum, boron, chloride, cobalt, copper, fluoride, iron, lithium, manganese, molybdenum, nitrate/nitrite, strontium, sulfate, vanadium, and zinc.

123 ATSDR CSEM. Available at: http://www.atsdr.c dc.gov/csem/nitrate/no3physiologic_effects.htmlDRAFT DO NOT CITE OR QUOTE 186 of 563 5/03/10 relevant to the listing decision because of the poten tial to cause additive or synergistic effects to the Appendix VIII constituents. Fo r instance, exposure to high levels of cobalt (cobalt has an HQ of 500 when rounded to 1 signif icant digit) can resu lt in lung and heart effects, the same endpoints as exposure to high le vels of antimony. Thus, thes e two constituents could act additively or synergistically on both the hear t and lungs. The risk assessment showed 90th percentile cobalt drinking water in gestion to be 500 times the refe rence dose. Thus, cobalt could exacerbate the heart and lung effect s due to CCR antimony exposures.

Therefore, based on our examination of CCRs against the criteria for listing, a listing determination for CCRs destined for disposal can be based such factor s as (1) the continued evidence that CCRs in landfills and surface impo undments may not be properly managed – e.g., the lack of groundwater monitori ng for many existing units; (2) the continued gaps in some state regulations; (3) the damage cases we have doc umented to date, including the damage done by the recent catastrophic release of CCRs from th e impoundment failure in Kingston, Tennessee; and (4) the results of the ri sk assessment, which indicates high-end risks associated with disposal of CCRs in unlined and clay-lin ed CCR landfills and surface impoundments far exceeding acceptable levels (e.g., exceedi ng a cancer risk threshold of
1x10 -5 ) 124 and the non-cancer risk threshold (HQ greater than 1).
VI. Summary of the Co-Proposed Subtitle C Regulations.

124 This risk level is consistent with those discussed in EPA's hazardous waste listing determination policy (see the discussion in a proposed lis ting for wastes from the dye and pigment in dustries, December 22, 1994; 59 FR 66072).DRAFT DO NOT CITE OR QUOTE 187 of 563 5/03/10 Under the subtitle C alternativ e, EPA would list CCRs from elect ric utilities and independent power producers intended for dispos al in landfills and surface im poundments as a special waste, which would make them subject to the existin g subtitle C regulations at 40 CFR parts 260 through 268, as well as the permitting require ments in 40 CFR part 270, and the state authorization process in 40 CFR parts 271-272. 125 These regulations establish, among other things, location restrictions; standards for liner s, leachate collection and removal systems, and groundwater monitoring for land disposal units; fugitive dust control; closure and post-closure care requirements; storage requirements; corr ective action; financial assurance; waste characterization; and permitting requirements. These regulations also impose requirements on generators and transporters of CCRs destined for disposal, including ma nifesting (if the CCRs destined for disposal are sent off site). As discussed in de tail in section IV. E of today’s preamble, EPA is proposing to leave the Bevill determination in place for CCRs used beneficially. Thus, CCRs benefici ally used would not be subject to regulation from the point of generation or from the point they are recovere d from landfills or surfa ce impoundments, to the point where they are used beneficially. In a ddition, when beneficially used (e.g., in wallboard and concrete), the CCRs become part of a ne w product; these products do not carry the special waste listing. When these products reach the end of their useful life and are to be disposed of, this represents a new point of generation. This new waste would be subject to RCRA subtitle C if the waste exhibits a characteri stic of hazardous waste (i.e., i gnitability, corrosivity, reactivity, or toxicity).

125 As discussed in section VI. D of the preamble, as part of the proposal to list CCRs as a special waste, as is done routinely with listed wastes, EPA is also proposing to subject CCRs that are disposed of to the notification requirements under CERCLA at 40 CFR part 302.DRAFT DO NOT CITE OR QUOTE 188 of 563 5/03/10 In the majority of cases, EPA is proposing th at CCRs be subject to the existing subtitle C requirements without modification. Accordingly, for those regul atory requirements that we propose not to modify or for which EPA does not specifically solicit comment, EPA is not proposing to reopen any aspect of those requireme nts, and will not respond to any unsolicited comments submitted during this rulemaking. However, where EPA has determined that special characteristics of these wastes warrant ch anges; e.g., where implementation of existing requirements would present practical difficulties, or where additional requirements are necessary due to the special charact eristics of these wastes, EPA is propos ing to revise the requirements to account for these considerations. For example, EP A is proposing tailored design criteria for new CCR disposal units, pursuant to its aut hority under section 3004(x) of RCRA. 126 Similarly, under the authority of section 3004(x) of RCRA, EPA is proposing to modify the CCR landfill and surface impoundment liner and leak detection system require ments and the effective dates for the land disposal restrictions, and the su rface impoundment retrofit re quirements. EPA is also proposing to establish new land disposal prohibitions and treatment standards for both wastewater and non-wastew ater CCRs. In addition, to address dam safety and stability issues, EPA is proposing design and inspection requireme nts for surface impoundments, similar to those of the Mine Safety and Health Administra tion (MSHA) design requirements for slurry impoundments at 30 CFR part 77.216 for surface impound ments. Further, EPA is proposing that

126 Section 3004(x) of RCRA provides EPA the authority to modi fy certain statutory provisio n (i.e., 3004(c), (d), (e), (f), (g), (o), and (u) and 3005(j) ta king into account the special character istics of such wastes, the practical difficulties associated with implementation of such requirem ents, and site-specific characteristics, including, but not limited to, climate, geology, hydrology, and soil chemistry at the site, so long as such modified requirements are protective of human health and the environment.DRAFT DO NOT CITE OR QUOTE 189 of 563 5/03/10 all existing surface impoundments that have no t closed in accordance with the rule’s requirements by the effective date of this rule woul d be subject to all of the requirements of this rule, including the need to obtain a permit, irre spective of whether the uni t continues to receive CCRs or the facility otherwise engages in the active management of those units.

Finally, we would note that if the Agency conclu des to reverse the Bevill determinations and list CCRs as a special waste, EPA would make in a ny final rule conforming changes to 40 CFR parts 260 through 268 and 270 through 272 so that it is cl ear that these requirements apply to all facilities regulated under the authority of RCRA s ubtitle C that generate, transport, treat, store, or dispose of special wastes as well as to those facilities that gene rate, treat, store, or dispose of special wastes.

The following paragraphs set out th e details of this subtitle C pr oposal, with the modified or new requirement discussed in Section B. and the exis ting subtitle C requirements discussed in Section
C.

A. Special Waste Listing

Under this regulatory option, EPA is proposing to list CCRs genera ted by electric utilities and independent power producers destined for disposal as a special waste subject to the requirements of RCRA subtitle C by amendi ng 40 CFR part 261 and to add Subpart F - Special Wastes Subject to Subtitle C Regulations. The Agency believes this would be the appropriate manner for listing these wastes, and, as discussed in detail later in this section, th e Agency believes thatDRAFT DO NOT CITE OR QUOTE 190 of 563 5/03/10 listing CCRs destined for disposal as a special wa ste, rather than a hazardous waste could, in large measure, address potent ial issues of stigma.

B. Proposed Special Requirements for CCRs

The following paragraphs discuss the special requirements the Agency is proposing for CCRs. These requirements modify or ar e in addition to the general sub title C requirements found at 40 CFR parts 264 – 268 and 270 – 272.

1. Modification of Techni cal Standards Under 3004(x)

Section 3004(x) of RCRA authorizes the Administra tor to modify the stat utory requirements of sections 3004(c), (d), (e), (f), (g), (o), (u), and 3005(j) of RCRA in the case of landfills or surface impoundments receiving Bevill wastes, including CCRs that EPA determines to regulate under subtitle C, to take into account the special char acteristics of the wastes , the practical difficulties associated with implementation of such requirement s, and site-specific char acteristics, including, but not limited to the climate, geology, hydrology a nd soil chemistry at the site, so long as such modified requirements assure protection of human health and the environment. The Agency is proposing to modify, through its authority und er RCRA 3004(x), the CCR landfill and surface impoundment liner and leak dete ction system requirements, th e effective dates for the land disposal restrictions, and the surf ace impoundment retrofit requirements.DRAFT DO NOT CITE OR QUOTE 191 of 563 5/03/10 i. Modification of CCR Landfills and Su rface Impoundments from the section 3004(o) Liner and Leak Detection Requirements.

The minimum technological requirements set out in RCRA Section 3004(o)(1)(A)(i) requires that new hazardous waste landfills and surface impoundments, replacements of existing landfills and impoundments, and lateral expansions of existing landfills and impoundments, 127 to install two or more liners and a leachate collection and re moval system above (in the case of a landfill) and between such liners. Sec tion 3004(o)(4)(A) also requires these units to install a leak detection system. Landfills and surface impoundme nts covered under the regulations at 40 CFR part 264 are required to have a double liner system , and a leachate collection and removal system that can also serve as a leak detection system as describe d in 40 CFR sections 264.221 and 264.301. Under section 3005 (j)(1) (and, as expl ained below, effec tively under section 3005 (j)(11) as well), existing surface impoundments are required to meet all of these requirements as well.

EPA is proposing to modify the double liner and leachate collection and removal system requirement by substituting a requirement to insta ll a composite liner and leachate collection and

127 Replacement unit means a landfill, surface impoundment, or waste p ile unit (1) from which all or substantially all of the waste is removed, and (2) that is subsequently reused to treat, store, or dispose of such waste. “Replacement unit” does not apply to a unit from which waste is removed during closure, if the subsequent reuse solely involves the disposal of waste from that unit and other closing units or corrective action areas at the facility, in accordance with an approved closure plan or EPA or State appr oved corrective action. Lateral expansion means a horizontal expansion of the waste boundaries of an existing landfill or surface impoundment.DRAFT DO NOT CITE OR QUOTE 192 of 563 5/03/10 removal system. As modeled in EPA’s risk asse ssment, composite liners effectively reduce risks from all constituents to below the risk criter ia for both landfills and surface impoundments. Therefore, the Agency believes a composite line r system would be adequately protective of human health and the environment and a double liner system would be unnecessarily burdensome. The modified standards specify a composite liner system that consists of two components: the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower component mu st consist of at least a two-f oot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) sh all be at least 60-mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component. The leachate collection system must be desi gned and constructed to maintain less than a 30-cm depth of leachate over the liner.

EPA has concluded that these liner and leachat e collection requirements will be protective of human health and the environment from the rel ease of contaminants to groundwater from CCRs in landfills and surface impoundments. Specifically, the risk assessment indicates that risks from disposal units with composite lin ers will be less than the 1 x 10 -5 for carcinogens and less than an HQ of one for other hazardous c onstituents—level s that EPA has considered protective for the management of hazardous wastes. (The results of EPA’s risk analyses are discussed in section II.B, and in the full risk assessment document, which is in the docket for today’s proposed rulemaking.) Further support is provided by th e damage cases, as none of the proven damage cases involved lined landfills or surface impound ments (with the possible exception of one unit, which in any case did not have a composite li ner). In addition, the proposed modifiedDRAFT DO NOT CITE OR QUOTE 193 of 563 5/03/10 requirements are the design standards for compos ite liners specified for municipal solid waste landfills at 40 CFR part 258; based on EPA’s experi ence, such liner design would be expected to be effective in mitigating the risks of leaching to groundwater for a waste, such as CCRs. For example, CCRs do not contain volatile organics, such as ethylbenzene, which has recently been shown to be problematic for synthetic liners.

Although EPA has not confirmed damage cases invol ving the failure of clay liners, it is not proposing to allow new disposal un its to be built solely with clay liners. EPA’s modeling in its risk assessment indicated that clay liners could be of concern; EPA also believes that composite liners reflect today’s best practices for new un its, and, as such, can therefore be feasibly implemented. 128 Nevertheless, EPA solicits comments on whether clay liners should also be allowed under EPA’s regulations. To assist EP A in its review, we request that commenters provide data on the hydraulic conductiv ity of clay liners associated with coal ash disposal units, and information on the protectiven ess of clay liner designs ba sed on site-specific analyses.

Thus, we are proposing to amend the curren t requirements of 40 CFR 264.220, and 264.300 to require that CCR surface impoundme nts and landfills install a composite liner and leachate collection and removal system. EPA would codify these requirements, as well as other special requirements for CCR wastes in a ne w subpart FF of 40 CFR part 264.

128 EPA notes that the state of Maryland, in developing new standards for CCR disposal units under its subtitle D authorities, prescribes composite liners.DRAFT DO NOT CITE OR QUOTE 194 of 563 5/03/10 EPA also notes that section 3004(o)(2) allows th e Agency to approve alternate liner designs, based on site-specific demonstratio ns that the alternate design and operating practices, together with location characteristics, will prevent th e migration of any hazardous constituents into ground or surface water at least as effectively as the double-liner system (42 USC 6924(o)(2)). EPA solicits comment on whether, in addition to the flexibility provided by section 3004(o)(2), EPA’s regulations should also provide for alte rnative liner designs based on, for example, a specific performance standard, such as the subtitle D performance standard in 40 CFR 258.40(a)(1), or a site specific risk assessment, or a standard that the alternative liner, such as a clay liner, was at least as effective as the composite liner. Such an approach might be appropriate, for example, in situations where grou ndwater is particularly deep and/or infiltration rates are low, or where altern ative liner systems provide an equivalent level of protection.

Subtitle C of RCRA requires only new hazardous waste landfills (or new portions of existing landfills) to meet the minimum technology requir ements for liners and leachate collection and removal systems. RCRA secti on 3004 (o)(1)(A). The statute thus does not require existing landfills that are brought into th e subtitle C system because they are receiving newly listed hazardous wastes, or the new category of listed sp ecial wastes proposed in this notice, to be retrofitted with a new minimum-technology liner/le achate collection and removal system (or to close). They can continue to receive hazardous or special waste, and continue to operate as compliant hazardous or special waste landfills. Following from these provisions, EPA has not typically required existing landfills to be retr ofitted to meet the new requirements. Congress specifically established this a pproach under subtitle C, and EPA sees no reason or special argument to adopt more stringent requirements for CCR landfills, particularly given the volumeDRAFT DO NOT CITE OR QUOTE 195 of 563 5/03/10 of the material and the disrupti on that would be involved with any other approach. However, under the proposal, existing units would have to meet the groundwater monitoring, corrective action, and other requirements of the subtitle C regulations to assure that any groundwater releases from the unit were identified and promp tly remediated. This is consistent with the manner in which EPA has historically implemen ted the hazardous waste requirements. EPA believes that maintaining this approach in this co ntext will be protective, in part, because, unless facilities ship all of their wastes off-site (which EPA believes is highly unl ikely), they will need a permit for on-site management of CCRs, which w ill provide regulatory oversight that could, as necessary, address the risks from the existing (unpermitted) landfills.

By contrast, Congress was significantly more con cerned about the risks as sociated with unlined surface impoundments managing newly listed hazardous wastes (see 42 USC Section 6924, October 21, 1976). This is addressed in more de tail in section (iv) be low titled “Wet-Handling of CCRs, Closure, and Interim Status for Surface Impoundments.”

ii. Fugitive Dust Controls.

The proposed subtitle C approach would requ ire that surface impoundments and landfills be managed in a manner that controls fugitive dust consistent with any applicable requirements developed under a State Implementation Plan (SIP ) or issued by EPA under section 110 of the Clean Air Act (CAA). Specifically, EPA is proposing to adopt as a standard the 35 μ g/m 3 level established as the level of th e 24-hour NAAQS for fine particulat e matter (PM-2.5). In addition, CCR facilities would be required to control fugi tive dust by either covering or otherwiseDRAFT DO NOT CITE OR QUOTE 196 of 563 5/03/10 managing CCRs to control wind dispersal of dust, emplacement as wet conditioned CCRs to control wind dispersal, when stored in piles, or storage in tanks or buildings. For purposes of the proposal, wet conditioning means wetting CCRs with water to a moisture content that prevents wind dispersal, facilitates compaction, but does not result in free liquids . Trucks or other vehicles transporting CCRs are to be covered or otherwise manage d to control wind dispersal of dust. EPA is proposing this requirement based on th e results of a screening level analysis of the risks posed by fugitive dusts from CCR landfills , which showed that, without fugitive dust controls, levels at nearby locations could exceed the 35 ug/m 3 level established as the level of the 24-hour PM 2.5 NAAQS for fine particulate.

iii. Special Requirements for Stab ility of CCR Surface Impoundments.

To detect and prevent potential catastrophic releases, EPA is pr oposing requirements for periodic inspections of surface impoundments. The Agency believes that such a requirement is critical to ensure that the owner and opera tor of the surface impoundment becomes aware of any problems that may arise with the structural stability of th e unit before they occur an d, thus, prevent the past types of catastrophic releases, such as at Martins Creek, Pennsylva nia and TVA’s Kingston, Tennessee facility. Therefore, EPA is proposing th at inspections be conducted every seven days by a person qualified to recognize sp ecific signs of structural in stability and other hazardous conditions by visual observation an d, if applicable, to monitor in strumentation. If a potentially hazardous condition develops, the owner or operato r shall immediately take action to eliminate the potentially hazardous condition; notify the Re gional Administrator or the authorized State Director; and notify and prepare to evacuate, if necessary, all personnel from the property whichDRAFT DO NOT CITE OR QUOTE 197 of 563 5/03/10 may be affected by the potentially hazardous co ndition(s). Additionally, the owner or operator must notify state and local emergency response personnel if conditions warrant so that people living in the area down gradient from the surf ace impoundment can be evacuated. Reports of inspections are to be maintained in the facility operating record.

To address surface impoundment (or impoundment) in tegrity (dam safety), EPA considered two options. One option, which is the option proposed in this notice, is to establish standards under RCRA for CCR surface impoundments similar to those promulgated for coal slurry impoundments regulated by the Mine Safety an d Health Administration (MSHA) at 30 CFR 77.216. Facilities relying on CCR impoundments woul d need to (1) submit to EPA or the authorized state plans for the design, construc tion, and maintenance of existing impoundments, (2) submit to EPA or the authorized state plans for closure, (3) conduct periodic inspections by trained personnel who are knowledgeable in impound ment design and safety, and (4) provide an annual certification by an independent registered professional engineer that all construction, operation, and maintenance of impoundments is in accordance with the approved plan. When problematic stability and safety issues are identi fied, owners and operators would be required to address these issues in a timely manner.

In developing these proposed regulations fo r structural integrity of CCR impoundments, EPA sought advice from the federal agencies charged with managing the safety of dams in the United States. Many agencies in the federal governme nt are charged with dam safety, including the U.S. Department of Agriculture (USDA), the De partment of Defense (DOD), the Department of Energy (DOE), the Nuclear Regul atory Commission (NRC), the Depa rtment of Interior (DOI),DRAFT DO NOT CITE OR QUOTE 198 of 563 5/03/10 and the Department of Labor (DOL), MSHA. EP A looked particularly to MSHA, whose charge and jurisdiction appeared to EPA to be the mo st similar to our task. MSHA’s jurisdiction extends to all dams used as part of an active mining operation a nd their regulations cover “water, sediment or slurry impoundments” so they include dams for wa ste disposal, freshwater supply, water treatment, and sediment control. In fact, MSHA’s current impoundment regulations were created as a result of the da m failure at Buffalo Creek, West Virginia on February 26, 1972. (This failure released 138 million gallons of stormw ater run-off and fine coal refuse, and resulted in 125 persons being killed, another 1,000 were injured, over 500 homes were completely demolished, and nearly 1,000 others were damaged.)
MSHA has nearly 40 years of experience writing regulations and inspecting dams associated with coal mining, which is directly relevant to the issues presente d by CCRs in this rule. In our review of the MSHA regulations, we found them to be comprehensiv e and directly applicable to the dams used in surface impoundme nts at coal-fired utilities to manage CCRs. We also believe that, based on the record compiled by MSHA for its rulemaking, and on MSHA’s 40 years of experience implementing these regulations, thes e requirements will prevent the catastrophic release of CCRs from surface impoundments, as occurred at TVA’s facility in Kingston, Tennessee, and will generally meet RCRA’s mandat e to ensure the protection of human and the environment. Thus, we have modeled our pr oposal on the MSHA regulations in 30 CFR Part 77 and we have placed the text of the salient portion s of the MSHA regulations in the docket for this rulemaking. The Agency requests comment on EPA’s proposal to adopt the MSHA standards (with limited modifications to deal with i ssues specific to CCR impoundments) to address surface impoundment integrity under RCRA.DRAFT DO NOT CITE OR QUOTE 199 of 563 5/03/10 MSHA’s regulations cover impoundments which can present a hazard and which impound water, sediment or slurry to an elevation of more th an five (5) feet and ha ve a storage volume of 20 acre-feet or more and those that impound water, sediment, or slurry to an elevation of 20 feet or more. EPA seeks comment on whether to cove r all CCR impoundments fo r stability, regardless of height and storage volume, wh ether to use the cut-offs in the MSHA regulations, or whether other regulations, approaches, or size cut-offs s hould be used. If commen ters believe that other regulations or size cut-offs shoul d be adopted (and not the size-cu t offs established in the MSHA regulations), we request that commenters provide the basis and technical support for their position.

The second option that EPA cons idered, but is not being propos ed today, is to establish impoundment integrity requirements under the Clean Water Act’s NPDES permit system. Existing regulations at 40 CFR 122.41(e) require that permittees properly operate and maintain all facilities of treatment and control used to achieve co mpliance with their permits. In addition, regulations at 40 CFR 122.44(k) allow the use of be st management practices for the control and abatement of the discharge of toxic pollutants. Guidance could be developed to use best management practices to address impoundme nt construction, operation, and maintenance, consistent with the requirements of 40 CFR 122.41(e) and 122.44(k). Associated permit conditions could require that su rface impoundments be designed a nd constructed in accordance with relevant state and federa l regulations. The Agency re quests comments regarding the alternate use of NPDES permits rather than th e development of RCRA regulations to address dam safety and structural integrity.DRAFT DO NOT CITE OR QUOTE 200 of 563 5/03/10 iv. Wet-Handling of CCRs, Closure, and Interim Status for Surface Impoundments.

Where a nonhazardous waste surface impoundment is storing a waste that becomes newly subject to the RCRA hazardous waste requireme nts, RCRA subtitle C and the implementing regulations require these surface impoundments either to be closed or upgraded to meet the minimum technology requirements within four year s. RCRA section 3005 (j)(6), is implemented by 40 CFR 268.14. 129 In order to be eligible for this four year grace period, the impoundment must be in compliance with th e applicable groundwater monito ring provision under Part 40 CFR 265, Subpart F within 12 months of the prom ulgation of the new hazardous listing or characteristic.

RCRA section 3005 (j)(11) allows the placement of untreated hazardous waste (i.e. hazardous waste otherwise prohibited from land disposal which has not been treated to meet EPAestablished treatment standards before land disposal) in surface impoundments under limited circumstances. Such hazardous wastes may be placed in impoundments for purposes of treatment provided the impoundments meet the minimum technology requirements and provided that any treatment residues whic h either do not meet the treatment standards or which remain classified as hazardous wastes are remove d from the impoundment annually. See the implementing rules in 40 CFR section 268.4. EPA has interpreted this provision so as not to nullify the provisions of section 3005(j)(6), the upshot being that impoundments receiving newly

129 40 CFR 268.14 allows owners and operators of newly regulated surface im poundments to continue managing hazardous waste without comply ing with the minimum technology requirement s for a period up to four years before upgrading or closing the unit.DRAFT DO NOT CITE OR QUOTE 201 of 563 5/03/10 identified or listed wastes would have four years to close or retrofit under all circumstances. See 56 FR 37194. If the surface impoundment continues to treat hazardous wastes after the four year period, it must then be in compliance with 40 CFR 268.4 (Treatment Surface Impoundment Exemption).

Section 3005(j) of RCRA generally requires th at existing surface impoundments cannot obtain interim status and continue to receive or stor e newly regulated hazardous waste for more than four years after the promulgati on of the listing – unle ss the facility owner retrofits the unit by installing a liner that meets the requirements of section 3004(o)(1)(A), or meets the conditions specified in section 3005(j)(2). Under section 3005(j)(2), a surface impoundment may obtain interim status and continue to re ceive or store hazardous waste af ter the four-year deadline if (1) the unit has at least one liner, a nd there is no evidence it is leaki ng, (2) is located more than onequarter mile from an underground source of drinking water; and (3) complies with the groundwater monitoring requirements applicable to permitted facilities. In this case, under section 3005(j)(9), the facility ow ner, at the closure of the unit, would have to remove or decontaminate all waste residues, all contaminated liner material, and contaminated soil to the extent practicable.

As part of the requirement to assure that surface impoundments will be safely phased out, EPA also proposes to regulate surface impoundments th at have not completed closure prior to the effective date of the rule. Unde r that scenario, these units would be subject to the interim status closure requirements of 40 CFR 265.111 and 265.228(a)(2). For surface impoundments that have not met the interim status requirements by the effective date of the rule, they would beDRAFT DO NOT CITE OR QUOTE 202 of 563 5/03/10 subject to the full RCRA subtitle C closure requirements (e.g., obtain a Part A permit and comply with the interim status regulations).

EPA recognizes that for regulatory purposes, it has historically not required disposal units that cease receiving new listed or charact eristic wastes before the effective date of RCRA subtitle C to comply with the requirements. However, EPA believes that a revised a pproach is necessary to protect human health and the e nvironment, in this particular case, given the size of the CCR surface impoundments in question; the enormous vol umes of CCRs they typi cally contain (which typically represent overwhelming mass of the material in place) ; the fact that the CCRs are typically destined for permanent entombment when the unit is eventually closed (typically with limited removal); the presence of very large hydra ulic head leading to continued release—even where the impoundment has been drained—t hat is, improperly closed CCR impoundments remain open to precipitation and infiltration; and the continuing threat to human health and the environment through catastrophic failure, if the impoundments are not properly closed.

EPA’s authority under subtitle C of RCRA extends to wastes that are treated, stored, or disposed of; the statutory definition of disposal has been broadly interpreted to include passive leaking. But historically, EPA has construed the definiti on of disposal for re gulatory purposes to be narrower than the statutory defini tion of disposal. Although in some situations, post-placement management has been considered disposal, tri ggering RCRA subtitle C regulatory requirements e.g., multiple dredging of impoundments or mana gement of leachate, EPA has generally interpreted the statute to require a permit only if a facility treats, st ores, or disposes of the waste,DRAFT DO NOT CITE OR QUOTE 203 of 563 5/03/10 after the effective date of its designation as a hazardous waste. See, e.g., 43 Fed. Reg. 58984 (Dec. 18, 1978; 45 Fed. Reg. 33074 (May 1980).

The consequence of this interpretation is that, for example, no permit woul d be required if, after the rule’s effective date, a facility neither contin ued to accept the listed wastes for disposal, nor continued to “manage the wastes” in the existing un it. In other words, und er this interpretation, facility owners could abandon the unit before the effective date of the rule without incurring any regulatory obligations under RCRA subtitle C (p resuming no other regulated unit is present onsite).

Given the particularly signifi cant risk associated with CCR im poundments described above, as well as the fact that these risks are primarily dr iven by the existing dispos al units, EPA believes a broader interpretation of disposal is appropriate in this case. This is reinforced by the fact that the continued release of consti tuents to surrounding soil and groundwater through the continued infiltration of precipitation through inappropria tely closed CCR impoundments (or failure to remove the impoundment waters, which provid es a hydraulic head) pr operly constitute regulatory disposal in this specific situation.

As a practical matter, EPA believes that owners of facilities where CCRs are managed in existing surface impoundments being brought under RCRA s ubtitle C by today’s proposal would choose not to, or would not be able to, comply with eith er of these alternatives (i.e., retrofit or clean closure), given the size of the units and the vol ume of CCRs involved. Therefore, EPA believes that the section 3005(j) requirements, for all prac tical purposes, will have the effect of requiringDRAFT DO NOT CITE OR QUOTE 204 of 563 5/03/10 the closure of existing surface impoundments receiv ing CCRs within four years of the effective date of today’s proposed rule (unless th ey already meet the liner requirements). 130

Section 3004(x), however, gives EPA the authority to modify section 3005(j) requirements, if the specific criteria listed in that sect ion are met. In today’s notice, EPA is proposing to modify the time required for retrofitting su rface impoundments under section 3005 (j), because of the special characteristics (i.e., extremely large volumes) of CCRs and the practical difficulties associated with requiring facilities to cease to store CCRs within four year s of the effective date of today’s rule.

Therefore, EPA is proposing to modify the s ection 3005(j) requirements by extending the time limit for unit closure. The modified standard in today’s proposal woul d require facilities operating surface impoundments that do not m eet minimum technology requirements and are receiving CCRs to stop receiving those CCRs no later than five ye ars after the effective date of the final regulation and to close the unit within two years after that date. In other words, the time required for closure would be up to seve n years rather than four years.

EPA believes that the four-yea r deadline in RCRA section 30 05(j) receiving CCRs will be extraordinarily difficult if not impossible for ma ny facilities to meet, give n the size of the units

130 The HSWA surface impoundment retrofit requirements, as they applied to impoundments in ex istence at the time RCRA was amended in 1984, went into effect in 1988. EPA is not aware of any facility owner/operator managing an existing surface impoundment at the time who chose to re trofit its impoundment, rather than to close it. EPA believes facilities managing surface impoundments today, will similarly choose to cl ose the surface impoundment rather than retrofit.DRAFT DO NOT CITE OR QUOTE 205 of 563 5/03/10 and limitations in available alternative subtitle C disposal capacity. Faci lity owners choosing to close surface impoundments may have to make si gnificant engineering and process changes, e.g., to convert from wet- to dry-ha ndling of wastes, which cannot n ecessarily be accomplished within four years. For example, USWAG has raised concerns that there is limited manufacturing capacity for key conversion equipment, which coul d reasonably be expect ed to complicate the utilities’ ability to collectively make the necessary engineering changes within a four-year timeframe. An additional consideration is that EPA expects that many facilities would need to obtain permits for new units or fi nd alternative subtitle C capacity to receive the wastes diverted from surface impoundments. Also, facilities that use surface impoundments receiving CCRs to manage stormwater and nonhazardous wastewater will have to site and get permits for new stormwater management units before facility owners can cease utilizing existing units. The amount of time to achieve either of these alternatives relies, to some extent, on events beyond the facility’s control; for example, the timeframes to obtain a permit for a new unit can vary substantially and, in large measure, are ultimat ely dictated by the permitting authority, rather than the applicant. This may be further complicat ed by the fact that location standards or on-site space limitations can restrict the opportunity fo r siting new units at the generating facility, requiring utilities to find off-site disposal faci lities able to receive the special waste in the volumes in question.

In the 1984 amendments, Congress only allo wed surface impoundments four years to cease receiving hazardous waste (or comply with minimu m technological design requirements, etc.). Given the enormously greater volume of wa ste involved with CCR surface impoundments and the process changes that the faci lities will need to implement to convert to dry handling, EPADRAFT DO NOT CITE OR QUOTE 206 of 563 5/03/10 believes it not practicable to require surf ace impoundments to cease receiving CCR waste or comply with the minimum technological requireme nts four years and that additional time is appropriate. (As noted below, f acilities in most states will have significantly more time for planning, because the rules will not become effec tive in states authorized for the RCRA program before those states have amended their requirem ents consistent with today’s rule; the state regulatory process will likely take several years.) On the other ha nd, as the risks predicted in the risk assessment are extraordinarily high (up to 2 x 10 -2 ), EPA believes that closure within the shortest practicable time is important.

Any modifications of section 3005(j) must meet the section 3004(x) stricture that the modification must still “assure protection of human health and the environment (42 USC 6924(x).” EPA believes that allowing three addi tional years for closure, under today’s proposal, would be protective because surface impoundments subject to the closure requirements would be required (during this interim period) to have gr oundwater monitoring systems sufficient to detect releases of hazardous constituents into the groundwater, and take corrective action where releases were detected above drinking water levels. 131 Additionally, the median number of years until peak well water concentrations are reached fo r selenium and arsenic are estimated at 74 and 78 years, respectively, for unlined surface impoundments and 90 and 110 years, respectively, for clay-lined surface impoundments, reducing the lik ely risks posed over this five year period.

131 The Agency is also modifying the requirement that surface impoundments be dredged annually, based on RCRA section 3004(x). This is discussed in detail in section v (Proposed Land Disposal Restrictions) below.DRAFT DO NOT CITE OR QUOTE 207 of 563 5/03/10 In addition, although not directly relevant to leaching from these surface impoundments, we would also note (as described previously in this section) that the facility would be required to have an independent registered professional engineer certify that design of the impoundment is in accordance with recognized and generally accepted good engineering practices (RAGAGEP) 132 for the maximum volume of CCR slurry and wastewater that will be impounded therein, and that the design and management featur es ensure dam stability. Finally, the facilities will be required to conduct weekly inspections to ensure that any potentially hazardous condition or structural weakness will be qu ickly identified Therefore, the additional timeframe that EPA is proposing to allow – needed to address practic al realities – will “assu re protection of human health and the environment. While ground wa ter monitoring, correc tive action, and close oversight of these units is not, we believe the most appropriate long term solution, we do believe that these steps will protect publ ic health and the environment in the short term while the permanent solutions are being implemented.

EPA recognizes that the costs of these requireme nts will be significant, especially for existing surface impoundments and similar units that handle wet CCRs. EPA also acknowledges that the date by which impoundments have to close is an important issue, a ffecting the costs of phase-out of wet handling and the ability of industry to comply. USWAG has argued strenuously against a

132 Recognized and generally accepted good engineering practices (RAGAGEPs) are engineering, operation, or maintenance activities based on established codes, standard s, published technical reports or recommended practices (RP) or a similar document. RAGAGEPs detail generally approved ways to perform specific engineering, inspection or mechanical integrity activities. See h ttp://www.osha.gov/OshDoc/Direct ive_pdf/CPL_03-00-010.pdf.DRAFT DO NOT CITE OR QUOTE 208 of 563 5/03/10 closure requirement in the first place, and has asse rted that, if such a requirement were imposed, industry would require ten years to comply. 133

EPA is not persuaded by these comments. We appreciate the cost considerations, but also believe it is important that these surface im poundments cease receiving wet-handled CCRs and proceed to closure as soon as practicable. The Agency believes that the time period proposed today is sufficient to provide industry the time necessary to convert from wet-handling to dry handling of these wastes, close out existing units, and find or put in place new disposal capacity for these wastes. In addition, the Agency notes that TVA and other u tilities have already decided, or are being required by states, to close existing im poundments, regardless of the requirements of today’s proposed rule. As a re sult, EPA believes today’s proposal would have less effect than industry comme nters suggest because some facilities may be making these changes anyway and they reflect best management practices in today’s environment. However, EPA solicits comments on whether seven years (5 y ears to cease receiving waste and 2 years to close) from the effective date to implement these provisions is an achievable time for facilities to comply. EPA is interested in comments on proce dural, as well as technical issues (e.g., time to allow permit modifications for new capacity or EPA or state approval of closure plans). As stated earlier, EPA does note that, in the 1984 am endments to RCRA, Congress required existing hazardous waste surface impoundments without liners to retrofit within four years if they are to continue operating. Congress also required impoundments which place hazardous wastes into impoundments to either treat the wastes first, or to use minimum technology impoundments,

133 In developing cost estimates for closing its surface impoundments, TVA also assu med that the process would take place over ten years.DRAFT DO NOT CITE OR QUOTE 209 of 563 5/03/10 including a requirement to dredge the impound ment annually. See discussion of section 3005 (j)(11) and implementing regulations above. As a practical matter, this me ant that all but a very few surface impoundments ceased receiving hazardous wastes within this time period. Thus, a requirement that surface impoundments cease receivi ng liquid wastes in five years and close in seven years is consistent with Congressional di rection on appropriate tim e periods to phase out the management of CCRs in surface impoundments. Further, as noted prev iously, these specific requirements will not go into effect in most cases until a state is authorized for this aspect of the RCRA program, which normally takes from two to five years after the regulations become federally effective (with some estimates as long as eight year s), giving facilities substantial advance notice. (See discussion on when the rule s become effective in section VII of this preamble.) For commenters who suggest a longe r time period is needed, EPA solicits comment on how a longer time period would meet the section 3004(x) risk standard.

Whatever time period EPA selects, the Agency solicits comment on whether it should include a provision that would allow the re gulatory Agency to provide a dditional time on a case-by-case basis because of site-specific issues (e.g., pa rticular technical di fficulties or equipment availability outside the utility’s control, as we ll as permitting delays). This provision might be modeled after the provision of 40 CFR 264.112 and 265.112 (Amendment of Plans), allowing facilities to delay closure of h azardous waste management units.

Commenters have also stated that, while it may be appropriate to require closure of most existing impoundments, some may be clearly safe. Fo r example, existing impoundments theoretically may already have a composite liner, and present mi nimal threat of release (e.g., because they areDRAFT DO NOT CITE OR QUOTE 210 of 563 5/03/10 below grade or not far above grade). EPA so licits comment on whet her a variance process would be appropriate allowing some impoundments or similar un its that manage wet-handled CCRs to remain in operation because they presen t minimal risk to groundwater (e.g., because they have a composite liner) and minimal risk of a catastrophic release (e.g., as indicated by a low potential hazard rating under the Federal Gu idelines for Dam Safety established by the Federal Emergency Management Agency). It sh ould be noted that the statute already provides such a mechanism in section 3005 (j)(4) and (5) (based on making a so-called ‘no-migration’ demonstration—evidently Congress’ view of what level of control is co nsidered protective for hazardous waste impoundments not utilizing minimum technology controls 134 ) and commenters should address whether this exis ting case-by-case mechanism should be utilized here. In such cases, the wastes might also meet current LDR treatment standards.

v. Proposed Land Disposal Restrictions.

Through RCRA sections 3004 (d), (e), (f), and (g ), Congress has prohibite d the land disposal of hazardous waste unless the waste meets treatment st andards established by EPA before the waste is disposed of, or is disposed of in units fr om which there will be no migration of hazardous constituents for as long as the waste remains h azardous. The treatment standards may be either a treatment level or a sp ecified treatment method, and the treat ment must substantially diminish the toxicity of the waste or substantially reduce the like lihood of migration of hazardous

134 See RCRA section 3004 (d), (e), (f), and (g) all of which define a land disposal unit as protective of human health and the environment if “it has been demonstrated to a reas onable degree of certainty that there will be no migration of hazardous constituents from the disposal unit ... for as long as the wastes remain hazardous”.DRAFT DO NOT CITE OR QUOTE 211 of 563 5/03/10 constituents from the waste so that short-term and long-term th reats to human health and the environment are minimized (RCRA section 3004(m)). If the hazardous waste has been treated to the level or by a method specified in the regula tions (or if the waste as generated meets the treatment standard), the waste is not subject to any land disposal prohibition and may be disposed of in a land disposal unit which meet s the requirements of 40 CFR parts 264 or 265 (the exception being for surface impoundments discussed in the preceding subsection and further below). For hazardous wastes id entified or listed under RCRA s ection 3001 after the date of the 1984 amendments to RCRA subtitle C (the situati on here), EPA is required to determine whether the waste shall be prohibited from one or more methods of land di sposal within six months after the date of such identification or listing, and if EPA determines that one or more methods are prohibited, the Agency is also required to specif y treatment levels or methods of treatment for the waste (RCRA section 3004(g)(4)).

In an effort to make treatment standards as uniform as possible, while adhering to the fundamental requirement that the standards mu st minimize threats to human health and the environment before hazardous wastes can be land disposed, EPA developed the Universal Treatment Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever technically and legally possible, the Agency adopts the same technology-based numerical limit for a hazardous constituent regardless of the type of hazardous waste in which the constituent is present. See 63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS, in turn, reflect the performance of Best Demons trated Available Technologies (BDAT) of the constituents in question. These treatment standa rds can be met by any type of treatment, otherDRAFT DO NOT CITE OR QUOTE 212 of 563 5/03/10 than impermissible dilution, and wastes can satis fy the treatment standards as generated (i.e., without being treated).

As explained above, section 3004(x) of RCRA aut horizes the EPA Administ rator to modify the requirements of sections (d), (e ), (f), and (g) of section 3004 fo r Bevill wastes, including CCRs that EPA determines to regulate as hazardous, to take into account the spec ial characteristics of the wastes, the practical difficulties associated wi th implementation of the requirements, and sitespecific characteristics, so long as such modified requirements assu re protection of human health and the environment.

In conjunction with a proposed lis ting, EPA is proposing to prohibi t the land disposal of CCRs, unless they meet the applicable treatment standards. In addition, although CCRs could be disposed of without treatment in landfills a nd impoundments from wh ich there will be no migration of hazardous constituents for as long as the waste remains hazardous, EPA doubts that such a unit exists, given the volumes of CCRs and their many (documented) release pathways discussed above. In any case, no-migration dete rminations are necessarily made on a case-bycase basis, and the burden is on petitioners to show that individual land disposal units satisfy the exacting standard. See 40 CFR section 268.6.

Proposed Treatment Standards for Non-Wastewaters (Dry CCRs).

For non-wastewaters (i.e., dry CCRs), EPA is propos ing that CCRs be subject to the UTS. As EPA has found repeatedly, this standard refl ects the performance of Best DemonstratedDRAFT DO NOT CITE OR QUOTE 213 of 563 5/03/10 Available Technology and so satisfies the re quirements of section 3004 (m) (see Hazardous Waste Treatment Council v. EPA , 886 F. 2d 355, 363 (D.C. Cir. 1989)), and also does not force treatment past the point at which threats to human health and the environment are minimized (see 55 FR 6640, 6641-42 ( Feb. 26, 1990)). These standards should be achievable by application of various ava ilable technologies, although data 135 indicate that a great portion (if not virtually all) dry CCRs meet these standards as generated.

2. Proposed Treatment Standards for Wastewaters (Wet-Handled CCRs).

EPA is also proposing standards fo r wastewater CCRs. As an init ial matter, EPA is proposing to adopt a specific and different definition of wastewater for CCRs. Under the existing RCRA subtitle C rules, a wastewater is defined as one that contains less than 1% by weight total organic carbon (TOC) and less than 1% by wei ght total suspended so lids (i.e., the current wastewater definition for purpos es of LDRs; see 40 CFR part 268.2 (f)). Functionally, the current definition of wastewaters would not include slurried fly as h or slurried FGD from wet air pollution control systems. EPA believes it im portant to distinguish between nonwastewaters which involve dry coal ash and surface impoundme nt systems which are commonly viewed as involving wastewaters. EPA, therefore, is proposing to create th e distinction between wastewater and nonwastewater CCRs by classifying CCRs as wastewaters if the moisture content of the waste exceeds 50%. Thus, if CCRs contain more water than solids, the CCR would be classified as a wastew ater, and would be subject to the LDR treatment standard for wastewaters. By proposing the criteria at 50% moisture, EPA believes new methods for

135 EPA’s CCR constituent database which is available from the docket to this proposal.DRAFT DO NOT CITE OR QUOTE 214 of 563 5/03/10 pumping and disposal of high solids material without free liquids are still viable. EPA is proposing this definition to appropriately address risks associated with CCRs surface impoundments, which contain free liquids. Howe ver, the Agency requests comment on this alternative definition of wastew aters for purposes of determining which treatment standards the CCRs would be subject to.

As part of the proposed treatment standard, EP A is proposing that these wastewaters undergo solids removal so that the wast ewaters contain no greater than 100 mg/l total suspended solids (TSS) and meet the UTS for wastewaters. This proposed level is consistent with wastewater treatment requirements based on Best Practicab le Control Technology Currently Available for the Electric Power Generating Point Source Category (40 CFR section 423.12). 136 Solids separation is a base level water pollution control technology, which assures that the vast majority of coal ash and associated contaminants are removed and managed in landfills.

EPA is proposing that wastewaters meet the UTS for wastewaters at 40 CFR section 268.48 as the treatment standard for the liquid fraction. (The CCR solids removed from the wastewater stream would be a non-wastewater and would be subject to the UTS for non-wastewaters.) EPA believes dry disposal of the CCR solids will prot ect human health and the environment. As

136 Although TSS is not a hazardous cons tituent, it is a reasonable surrogate of effective tr eatment performance here because TSS necessarily cont ain the metal hazardous cons tituents which are the object of treatment, and these metals will necessarily be removed as TSS are removed. Se e e.g. National Lime Ass’n v. EPA, 234 F. 3d 625, 639 (D.C. Cir. 2000) (even though particulate matter is not a hazardous air pollutant, it can be used as a permissible surrogate for treatment of hazardous air pollutant metals since those metals are removed by treatment as PM is removed).DRAFT DO NOT CITE OR QUOTE 215 of 563 5/03/10 previously discussed, this is borne out by the resu lts of the Agency’s risk assessment and damage case assessments, which show that wet disposal poses the greatest risks of contaminant releases.

The Agency believes the proposed treatment methods will diminish the toxicity of the waste or substantially reduce the likelihood of migration of toxic constituents from the waste so that shortterm and long-term threats to human health a nd the environment are minimized. If finalized, EPA will add new treatment method codes to th e table of Technology Codes and Description of Technology-Based Standards at 40 CFR 268.42. EPA seeks comments on the proposed treatment standards.

3. Effective Date of the LDR Prohibitions.

Land disposal prohibitions are to be effective immediately unl ess EPA finds that there is insufficient alternative protective treatment, recovery or disposal capacity for the wastes. RCRA section 3004(h)(2). National capacit y variances can be for up to two years from the date of the prohibition. During the duration of a national capacity variance, the wastes do not require treatment in order to be land disposed. If th ey are disposed of in a landfill or surface impoundment, however, that unit must meet th e minimum technology requirements of RCRA section 3004(o). RCRA section 3004 (h) and 40 CFR section 268.5 (h). 137

137 EPA is also authorized to grant up to a one-year exte nsion, renewable for another year, of a prohibition effective date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants must demonstrate that adequate alternative treatment, recovery, or disposal capacity for the petitioners waste cannot reasonably be made available by the effective date due to circumstances beyond the applicant’s control, and that the petitioner has entered into a binding contractual commitment to construct or otherwise provide such capacity. 40 CFR section 268.5.DRAFT DO NOT CITE OR QUOTE 216 of 563 5/03/10 In this case, EPA is proposing that the prohib ition and treatment standards for nonwastewaters take effect within 6 months from the date of promulgation of the listing of CCRs as a special waste. We are proposing 6 months to allow time for owners and operato rs to set up analytic capacity and record-keeping mechanisms for dry CCR wastes, as well as for federal and state agencies to assure that implementation mech anisms are in place. We are not allocating additional time for treatment because our expectation is that all or virtually all dry CCRs meet the proposed treatment standa rds as generated. However , EPA solicits comment on this issue. EPA also notes that the proposed LDR prohibition and treatment st andards would not take effect until programs in authorized states are authorized and the state implementing rules take effect, so this proposal effectively is for th e prohibition and treatment standard requirement to take effect 6 months following the conclusion of the authoriza tion process and effectiv e date of authorized state rules. This should be ampl e time to come into compliance.

For wastewaters, however, under the authority of section 3004 (x), we are proposing that the prohibition and treatment standards take effect within five years of the prohibition. In practice, these requirements will have the effect of prohi biting disposal of wet-handled CCRs in surface impoundments after that date. The proposed date for the wastewater treatment standards would thus be the same as the proposed date that impoundments would stop receiving CCRs, and is being proposed for many of the same reasons. Surface impoundments, of course, are the land disposal units in which wastewaters are managed, so the issues are necessarily connected. As discussed in section VI. B. above , the statute allows owners and operators up to four years to retrofit existing surface impoundments to meet the minimum technology requirements (or toDRAFT DO NOT CITE OR QUOTE 217 of 563 5/03/10 close such surface impoundments) , and EPA has interpreted this provision as applying to treatment surface impoundments receiving hazar dous wastes otherwise prohibited from land disposal. See RCRA sections 3005 (j)(6) and 300 5 (j)(11). As further explained above, EPA believes that an additional three years is n eeded for owners and operators to close surface impoundments – i.e. seven years in all -- and is thus proposing a two year national capacity variance (as provided in RCRA s ection 3004(h)(2)) and a five y ear period for impoundment retrofitting yielding a se ven year extension.

The legal basis for the proposal is 3004 (x) (whi ch specifically authori zes modification of the section 3005 (j) requirements). Section 3005 (j) (11) allows untreated wastewaters to be managed in surface impoundments that do not m eet the minimum technology requirements, but requires that residues in the impoundment be dredged at least annually for management elsewhere. Given the enormous volume of CCRs currently managed in surface impoundments, estimated at 29.4 million tons per year (within EPA’s estimated range of 23.5 to 30.3 million tons for the total available U.S. hazardous waste disposal capacity) , and the absence of alternative disposal capacity in the short-term, EPA believes a nnual dredging is impractical and would defeat the purpose of pr oviding additional time to convert to the dry handling of CCRs. Moreover, in this short time, the utilities will be working to convert their processes to dry handling and it is not practicable or necessary to impose this addi tional requirement. Finally, as discussed previously, in the interim period be fore surface impoundments cease taking waste and are closed, numerous safeguards wi ll be in place to protect public health and the environment, including ground water monitoring and the requirement to act on any releases quickly. Thus,DRAFT DO NOT CITE OR QUOTE 218 of 563 5/03/10 while such measures are not a long-term solution, they will “assure protection of human health and the environment” in the short-term.

As this discussion clarifies, the issue of a nationa l capacity extension for CCR wastewaters is really an issue of how long it will take to c onvert to dry handling and to find management capacity for solids dredged from impoundments, i. e. issues arising under section 3005 (j)(11) of the statute. EPA, therefore, beli eves it has the authority and that it is appropriate to use section 3004 (x) to extend the national capacity peri od in order to convert to dry handling. 138

EPA is further proposing that during the national capacity variance (the in itial two years of the proposed two years plus five year extensi on of otherwise-appli cable requirements), CCR wastewaters could continue to be managed in impoundments that do not meet the minimum technology requirements. The reasons are iden tical to those allowi ng such impoundments to receive CCRs for the remainder of the proposed extension period.

EPA solicits comment on these proposals, in cluding comment on whether further time extensions are actually needed in light of the already extended time which will be afforded by the state authorization process.

C. Applicability of Subtitle C Regulations

138 EPA notes in addition that it is authorized under sectio n 3004 (x) to modify the requirements of LDR prohibitions under section 3004 (g), and EPA views capacity variances re lated to such prohibitions as within the scope of that section 3004 (x) authorization.DRAFT DO NOT CITE OR QUOTE 219 of 563 5/03/10 The discussion in this section de scribes the existing technical stan dards required in 40 CFR parts 264/265/267. However, persons who generate and transport CCRs, under the subtitle C alternative, would also be subj ect to the generator (40 CFR pa rt 262) and transporter (40 CFR part 263) requirements. Although EPA presents this to provide the public with background information as noted previously, EPA is not propos ing to modify these standards, nor to reopen the requirements.

1

. General Facility Requirements, in cluding Location Restrictions. Under the existing regulations, all of the following requirements wo uld apply: the general fa cility standards of 40 CFR parts 264/265/267 (Subpart B), the preparedness and preventi on standards of 40 CFR parts 264/265/267 (Subpart C), the contingency plan and emergency procedures of 40 CFR parts 264/265/267 (Subpart D), and the manifest system, recordkeeping, and reporting requirements of 40 CFR parts 264/265/267 (Subpart E). Consiste nt with section 264.18, the regulations would include location standards prohibitin g the siting of new treatment, stor age, or disposal units in a 100-year floodplain (unless the facili ty made a specific demonstration) 139 and seismic impact areas would be prohibited. 140

139 A 100-year flood means a flood that as a one-percent or greater chance of re curring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a sign ificantly long period.
140 A seismic impact area means an area with a two percent or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a perc entage of the earth’s grav itational pull (g), will exceed 0.10 g in 50 years. Note that in the pre-1997 ed itions of the NEHRP (National Earthquake Hazards Reduction Program) provisions, seismic hazards around the nation were defined at a un iform 10 percent probability of exceedance in 50 years. Since the 1997 NEHRP Provisions, however, the seis mic design maps have been redefinedDRAFT DO NOT CITE OR QUOTE 220 of 563 5/03/10 2. Ground water monitoring/corrective action for regulated units. The subtitle C alternative to today’s proposed rule would require the current ground water monitoring and corrective action requirements of 40 CFR parts 264/265 for regulat ed landfills and surf ace impoundments, without modification. Consistent with 40 CFR 265.90, exis ting CCR disposal units would be required to install groundwater monitoring systems within one y ear of the effective date of these regulations. The facility would operate under the self-implementing interim st atus requirements of 40 CFR part 265 until the regulatory au thority imposed the specific re quirements of 40 CFR part 264 through the RCRA permitting proc ess. Generally, 40 CFR pa rts 264/265 require groundwater monitoring systems that consist of enough wells, installed at appropr iate locations and depths, to yield ground water samples from the uppermost a quifer that represent the quality of background groundwater that has not been affected by leak age from the disposal unit. A detection monitoring program would be required to detect releases to groundwater of CCR constituents listed in the facility permit (these constituents , we believe, would be the metals typically identified as constituents of concern in CCRs). Monitoring frequency is determined by the EPA Regional Administrator or, more typi cally the authorized state, and required in the RCRA permit. If any of the constituents listed in the facility permit are detected at levels that constitute statistically significant eviden ce of contamination, the owner or operator must initiate a

such that for most regions of the nation, the maximum considered earthquake ground motion is defined with uniform probability of exceedance of 2 percent in 50 years. The change in the exceed ance probability (from 10% to 2%) was responsive to comments that the use of 10 percent probability of exceedance in 50 years is not sufficiently conservative in the central and eastern United States wh ere earthquakes are expected to occur infrequently.DRAFT DO NOT CITE OR QUOTE 221 of 563 5/03/10 compliance monitoring program to determine whethe r the disposal units ar e in compliance with the groundwater protection standard s established by EPA or the stat e and specified in the permit. (See 40 CFR part 264, subpart F.)

Under 40 CFR part 264, subpart F, if the result s of the compliance monitoring program indicate exceedances of any of the constituent levels list ed in the permit for the groundwater protection standard, the owner or operator would have to initiate correc tive action to achieve compliance with the groundwater pr otection standards.

3. Storage. EPA is not proposing to modify the existing 40 CFR parts 264/265/267 storage standards. These regulations es tablish design and operating requi rements for containers, tanks, and buildings used to treat or store hazardous wa stes. For containers, the regulations establish requirements for the storage of hazardous wast e, including a requirement for secondary containment. However, if the wastes do not contain free liquids, they need not require a secondary containment system, provided the storag e area is sloped or is otherwise designed and operated to drain and remove liqui d resulting from precipitation or the containers are elevated or otherwise protected from contact with accumulated liquid.

For new tanks, owners or operators must submit to EPA or the authorized states an assessment certified by an independent regi stered professional engineer that the foundation, structural support, seams, connections, and pressure contro ls (if applicable) are adequately designed and that the tank system has sufficient structural streng th, compatibility with the waste(s) to be stored or treated, and corrosion protection to ensure that the tank will not collapse, rupture, or fail.DRAFT DO NOT CITE OR QUOTE 222 of 563 5/03/10 Tank systems are required to have secondary containment under section 264.193, unless they receive a specific variance; however, tanks that c ontain no free liquids and are in buildings with an impermeable floor do not requ ire secondary containment. Ne w tanks (that are required to have secondary containment) must have secondar y containment when constructed; existing tanks (that are required to have sec ondary containment) must come in to compliance within two years of the rule’s effective date (or when the tank has reached fifteen years of age). Section 264.193 specifically describes the sec ondary containment required, and the variance process.

Containment buildings must be completely enclos ed with a floor, walls, and a roof to prevent exposure to the elements (e.g., precipitation, wind , run-on), and to assure containment of the managed wastes. Buildings must be designed so th at they have sufficient structural strength to prevent collapse or other failure, and all surfaces to be in contact with hazardous wastes must be chemically compatible with those wastes.

Recently, representatives of the utility industry have stated their view that CCRs cannot be practically or cost effectively managed under the existing 40 CFR parts 264/265/267 storage standards, and that these sta ndards impose significant costs wit hout meaningful benefits when applied specifically to CCRs. 141 In particular, they cite the very large volume of wastes that must be handled on a daily basis, and the extensive storage and other infrastructure already in place that might have to be retrofitted if the exis ting 40 CFR parts 264/265/267 storage requirements applied. For example, they state that some CCRs are stored prior to disposal in silos which are

141 While the utility industry did not specifically mention the 40 CFR part 267 storage standards, we presume that they would make the same technical arguments with respect to those standards.DRAFT DO NOT CITE OR QUOTE 223 of 563 5/03/10 not located within a building and may contain free liquids. As a result, under the subtitle C requirements, the owner or operator would be required to construc t a building with an impermeable floor, or construct a secondary co ntainment system around the silo (alternatively, they could go through a variance pro cess with the regulatory Agency).

EPA believes that the variance process allowing alternatives to seconda ry containment would address the concerns raised by industry. The Agency, however, recognizes that the variance process imposes time and resource burdens not on ly on industry, but on the regulatory agencies. EPA notes that, in the case of larger volume, higher toxicity mineral pr ocessing materials being reclaimed, the Agency developed special stor age standards under RCRA subtitle C, and it solicits comments on whether those or similar- type standards would be appropriate for CCRs. 142 Namely, in 40 CFR 261.4(a)(17), EPA required th at tanks, containers, and buildings handling this material must be free standing and not a surface impoundment (as defined in the definitions section of this proposal) and be ma nufactured of a material suitable for storage of its contents. (While not specifically mentioned in this section, we would also c onsider a requirement that such materials meet appropriate specifications, such as those established either by the American Society of Testing Materials (ASTM), the American Petroleum Institute (API), or Underwriters Laboratories, Inc. (UL) standards.) Buildings must be man-made structures and have floors constructed from non-earthen materials, have walls, and have a roof suitable for diverting

142 Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Second ary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Pres erving Wastewaters; Final Rule (http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm).DRAFT DO NOT CITE OR QUOTE 224 of 563 5/03/10 rainwater away from the foundation. A building may also have doors or removable sections to enable trucks or machines access.

EPA solicits comments on the practicality of th e proposed subtitle C storage requirements for CCRs, the workability of the existing variance pr ocess, and the alternative requirements based, for example, on the mining and mineral processing wastes storage requirements. EPA has not developed cost estimates for managing CCRs in compliance with the 40 CFR parts 264/265/267 storage standards. EPA solicits specific comments on these potential costs.

4. Closure and Post-Closure Care. Under the RCRA subtitle C alternative to this co-proposal, all of the requirements for closure and post-cl osure care of landfills and surface impoundments would apply to those landfills that continue to receive CCRs, or otherwise actively manage them, and to those surface impoundments that have not co mpleted closure, when the requirements of a final rule become effective. The 40 CF R parts 264/265 landfill and surface impoundment requirements establish cover requirements (e.g., th e cover must have a permeability less than or equal to the permeability of any bottom liner system and must minimize the migration of liquids through the closed landfill). These requirements are generally applied through a closure-plan or permit approval process. Also, the regulations require 30 years of post- closure care, including maintenance of the cap and ground-water monitori ng, unless an alternative post-closure period is established by EPA or the authorized state.

5. Corrective action. EPA is also not proposing to m odify the existing corrective action requirements, including the faci lity-wide corrective ac tion requirements of RCRA under sectionDRAFT DO NOT CITE OR QUOTE 225 of 563 5/03/10 3004(u), section 3008(h), and 40 CFR 264.101. Under thes e requirements, landfills that continue to receive CCRs or otherwise actively manage them, and surface impoundments that have not completed closure on the date the final rule beco mes effective, will be requires to characterize, and as necessary remediate, releases of CC Rs or hazardous constituents. Section 3004(x) provides EPA the flexibility to modify correc tive action requirements for facilities managing CCRs, including facility-wide corr ective action (assuming EPA can reasonably determine that an alternative is protectiv e of human health and the environm ent). The facility-wide corrective action requirement applies to a ll solid waste management units from which there have been releases of hazardous wastes or hazardous cons tituents; however, EPA does not see a compelling reason to change the corrective action requireme nts. Imposing corrective action requirements, including facility-wide co rrective action, will assure that closed and inactive units at the facility are properly characterized and, if necessary, remediated, especially since many of these closed or inactive units are unlined. Nevertheless, EPA solicits comment on whether EPA should modify the corrective action requirements under se ction 3004(x) of RCRA. Commenters should specifically address the issue of how other alternatives could be protective without mandating corrective action as needed for all solid waste management units from which there have been releases of hazardous waste or hazard ous constituents at the facility.

6. Financial assurance. EPA is also not proposing to modi fy the existing financial assurance requirements at 40 CFR parts 264/265/267, subpart H. Financial assurance must be adequate to cover the estimated costs of closure and post-cl osure care (including f acility-wide corrective action, as needed), and specific levels of financia l assurance are required to cover liability for bodily injury and property damage to third pa rties caused by sudden accidental occurrencesDRAFT DO NOT CITE OR QUOTE 226 of 563 5/03/10 arising from operations of the facility. Allowable financial assurance mechanisms are trust funds, surety bonds, letters of credit, insu rance policies, corpor ate guarantees, and demonstrations and documentation that owners or ope rators of the facility have sufficient assets to cover closure, post-closure care , and liability. The regulations also require financial assurance for corrective action under section 264.101.

As we have estimated that 53 local governments own and operate coal-fired electric utilities, EPA seeks comment on whether a financial test similar to that in 40 CFR 258.74(f) in the Criteria for Municipal Solid Waste Landfills shoul d be established for local governments that own and operate coal-f ired power plants.

7. Permitting requirements. Under the RCRA subtitle C alternative, facilities that manage CCRs (in this case, facilities with landfills and surface impoundments, and other possible management units used to store or dispose of CCRs, or generating facilities that store CCRs destined for offsite disposal) must obtain a permit from EPA or fro m the authorized state. The effect of EPA’s proposed listing would extend these permitting requi rements to those facilities managing special wastes regulated under subtitle C of RCRA. Parts 124, 267 and 270 detail the specific procedures for the issuance and modification of permits, including public participation, and through the permit process regul atory agencies impose techni cal design and management standards of 40 CFR parts 264/267. F acilities with landfills that ar e in existence on the effective date of the regulation (which in this case woul d generally be the effec tive date of the state regulations establishing the federal CCR requi rements) – which receive CCRs or actively manage CCRs -- are eligible for “interim stat us” under federal regulations, providing theyDRAFT DO NOT CITE OR QUOTE 227 of 563 5/03/10 comply with the requirements of 40 CFR sec tion 270.70. By contrast, fa cilities with surface impoundments that have not completed closure as outlined in this proposal would be subject to the existing permitting requirements, irrespective of whether they continue to receive CCRs into the unit or to actively manage CCRs. While facilities are in interim status, they are subject to the largely self-implementing requirements of 40 CF R part 265. As noted pr eviously, in a final regulation, EPA would make conforming changes to these parts of the CFR to make it clear that the requirements apply to facilities that manage either hazardous wast es or special wastes regulated under subtitle C.

8

. EPA is Not Proposing to Apply the Subtitle C Requirements to CCRs from Certain On-Going State or Federally Required Cleanups

.

Under the subtitle C alternativ e, the Agency is proposing to allow state or federally-required cleanups commenced prior to the e ffective date of the final rule to be completed in accordance with the requirements determined to be appropria te for the specific cleanup. EPA’s rationale for this decision is two-fold. First, for state or federally required cleanups that already commenced and are continuing, the state or federal government has entered into an administrative agreement with the facility owner or operator which specifie s remedies, clean-up goals, and timelines that were determined to be protective of human hea lth and the environment, based on the conditions at the site. The overseeing Agency will also be able to ensure th at the cleanup waste, if sent offsite (which may sometimes be necessary) will go to appropriately designed and permitted facilities. Second, altering th e requirements for cleanups currently underway would be disruptive and could cause signi ficant delays in achieving cl ean-up goals. Once the ruleDRAFT DO NOT CITE OR QUOTE 228 of 563 5/03/10 becomes final, EPA or the state will be able to avail themselves of regulations under RCRA designed specifically for cleanup. However, th e Agency takes comment on this proposed provision.

D. CERCLA Designation and Reportable Quantities.

Under current law and regulations, all hazardous wastes listed under RCR A and codified in 40 CFR 261.31 through 261.33, and special wastes under 261.50 if the propos ed special waste listing is finalized, as well as any solid waste th at is not excluded from regulation as a hazardous waste under 40 CFR 261.4(b) and that exhibits one or more of the characteristics of a RCRA hazardous waste (as defined in §§ 261.21 through 261.24), are hazardous substances under CERCLA, as amended (see CERCLA section 101( 14)(C)). CERCLA hazardous substances are listed in Table 302.4 at 40 CFR 302.4 along with their reportable quan tities (RQs). If a hazardous substance is released in an amount th at equals or exceeds its RQ within a 24-hour period, the release must be reported immediatel y to the National Re sponse Center (NRC) pursuant to CERCLA section 103.

Thus, under this subtitle C altern ative, and as EPA does with any other listed waste, the Agency is proposing to also list CCRs as a CERCLA hazardous substance in Table 302.4 of 40 CFR 302.4. The key constituents of concern in CCRs ar e already listed as hazardous substances under CERCLA (i.e., arsenic, cadmium, mercury, selenium), and therefore persons who spill or release CCRs already have reporting obligations, dependi ng on the volume of the spill. Typically, underDRAFT DO NOT CITE OR QUOTE 229 of 563 5/03/10 current CERCLA requirements, a person releas ing CCRs, for example, would report depending on his estimate of the amount of arsenic or ot her constituents contained in the release.

Typically, when EPA lists a new waste subject to RCRA subtitle C, the statutory one-pound RQ is applied to the waste. However, EPA is pr oposing two alternative methods to adjust the onepound statutory RQ. The first method, one traditi onally utilized by the Agency, adjusts the RQ based on the lowest RQ of the most toxic substa nce present in the waste. The second method, as part of the Agency’s effort to review and re -evaluate its methods for CERCLA designation and RQ adjustment, adjusts the one-pound statutor y RQ based upon the Agency’s characterization and physical properties of the complex mixtures whic h comprise the waste to be designated as S001. The Agency invites comment on both methods, and may, based upon these comments and further information, decide to go forward with either method or both methods.

1. Reporting Requirements

Under CERCLA section 103(a), the person in charge of a vessel or facility from which a CERCLA hazardous substance has been released in a quantity that is equal to or exceeds its RQ within a 24-hour period must im mediately notify the NRC as soon as that person has knowledge of the release. The toll -free telephone number of the NRC is 1-800-424-8802; in the Washington, DC, metropolitan area, the number is (202) 267-2675. In addition to the reporting requirement under CERCLA, section 304 of the Emergency Planning and Community Right-toKnow Act (EPCRA) requires owners or operators of certain faci lities to report releases of extremely hazardous substances and CERCLA hazardous substances to state and localDRAFT DO NOT CITE OR QUOTE 230 of 563 5/03/10 authorities. The EPCRA section 304 notification must be given im mediately after the release of an RQ (or more) within a 24-hour period to the community emergency coordinator of the local emergency planning committee (LEPC) for any area likely to be affected by the release and to the state emergency response commission (SERC) of any state likely to be affected by the release.

Under section 102(b) of CERCLA, all hazardous substances (as defined by CERCLA section 101(14)) have a statutory RQ of one pound, unless and until the RQ is adjusted by regulation. In this rule, EPA is proposing to list CCRs that ar e generated by electric utility and independent power producers that are intended fo r disposal (and not beneficial ly used), as special wastes subject to regulation under subtit le C of RCRA. In order to coordinate the RCRA and CERCLA rulemakings with respect to the new special waste listing, the Agency is also proposing adjustments to the one-pound statutory RQs for this special waste stream.

2. Basis for RQs and Adjustments

EPA’s methodology for adjusting th e RQs of individual hazardous substances begins with an evaluation of the intrinsic physical, chemical, a nd toxicological properties of each hazardous substance. The intrinsic properties examined, ca lled "primary criteria," are aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation) , ignitability, reactivit y, chronic toxicity, and potential carcinogenicity.DRAFT DO NOT CITE OR QUOTE 231 of 563 5/03/10 Generally, for each intrinsic property, EPA ranks the hazardous substance on a five-tier scale, associating a specific range of values on each scale with an RQ value of 1, 10, 100, 1,000, or 5,000 pounds. The data for each hazardous substan ce are evaluated using the various primary criteria; each hazardous substance may receiv e several tentative RQ values based on its particular intrinsic properties. The lowest of the tentative RQs becomes the ‘‘primary criteria RQ’’ for that substance.

After the primary criteria RQ are assigned, the substances are further evaluated for their susceptibility to certain degrada tive processes, which are used as secondary adjustment criteria. These natural degradative processes are biodegra dation, hydrolysis, and photolysis (BHP). If a hazardous substance, when released into the envi ronment, degrades relatively rapidly to a less hazardous form by one or more of the BHP proce sses, its RQ (as determined by the primary RQ adjustment criteria) is generally raised by one level. Conversely, if a hazardous substance degrades to a more hazardous product after its release, the original substance is assigned an RQ equal to the RQ for the more hazardous substance, which may be one or more levels lower than the RQ for the original substance. Table 7 pr esents the RQ for each of the constituents of concern in CCRs taken from Table 302.4—List of Hazardous Substances and Reportable Quantities at 40 CFR 302.4.

Table 7. Reportable Quantities of Constituents of Concern
Hazardous Waste
No. Constituent of Concern RQ Pounds (Kg) S001 Antimony......................................................... 5000 (2270)DRAFT DO NOT CITE OR QUOTE 232 of 563 5/03/10 Hazardous Waste
No. Constituent of Concern RQ Pounds (Kg)
Arsenic............................................................ Barium............................................................ Beryllium......................................................... Cadmium......................................................... Chromium...................................................... Lead............................................................... Mercury......................................................... Nickel.................................................................... Selenium......................................................... Silver.................................................................. Thallium................................................................. 1 (0.454) No RQ 10 (4.54) 10 (4.54) 5000 (2270) 10 (4.54) 1 (0.454) 100 (45.4) 100 (45.4) 1000 (454) 1000 (454)

The standard methodology used to adjust the RQ s for RCRA wastes is based on an analysis of the hazardous constituents of the waste stream s. EPA determines an RQ for each hazardous constituent within the waste stream and establishe s the lowest RQ value of these constituents as the adjusted RQ for the waste stream. EPA is proposing to use the same methodology to adjust RQs for listed special wastes. In this notice, EPA is proposing a one-pound RQ for listed CCRs based on the one pound RQs for arsenic and mercur y (i.e., the two constituents within CCRs with the lowest RQ). In this same rule, how ever, EPA is also proposi ng that an alternative method for adjusting the RQ of the CCR wastes al so can be used in lieu of the one pound RQ.DRAFT DO NOT CITE OR QUOTE 233 of 563 5/03/10 3. Application of the CERCLA Mi xture Rule to Listed CCR.

Although EPA is proposing a one-pound RQ for CCRs listed as a special waste, we are also proposing to allow the owner or operator to us e the maximum observed concentrations of the constituents within the listed CCR wastes in determining when to re port releases of the waste.

For listed CCR wastes, where the actual concentr ations of the hazardous constituents in the CCRs are not known and the waste meets the S001 listing description, EPA is proposing that persons managing CCR waste have the option of reporting on the basis of the maximum observed concentrations that have been identi fied by EPA (see Table 8 below). Thus, although actual knowledge of constituent concentrations ma y not be known, assumptions can be made of the concentrations based on the EPA identified maximum concentrations. These assumptions are based on actual sampling data, specifically th e maximum observed concentrations of hazardous constituents in CCRs. 143 Table 7 identifies the hazardous constituents for CCRs, their maximum observed concentrations in parts per million (ppm), the constituents’ RQs, and the number of pounds of CCRs needed to contain an RQ of each constituent for the CCR to be reported.

Table 8. Pounds Required to Contain RQ for Each Constituent of Listed CCR

Waste stream constituent Maximum
ppm RQ (lbs) Pounds required to contain RQ
CCR .................. 1 ..................... Antimony....................................... 3,100 5,000 1,612,903

143 EPA’s CCR constituent concentrations database is available in the docket to this notice.DRAFT DO NOT CITE OR QUOTE 234 of 563 5/03/10 Waste stream constituent Maximum
ppm RQ (lbs) Pounds required to contain RQ Arsenic.......................................... 773 1 1,294 Barium.......................................... 7,230 No RQ No RQ Beryllium....................................... 31 10 322,581 Cadmium........................................ 760 10 13,158 Chromium....................................... 5,970 5,000 837,521 Lead.............................................. 1,453 10 6,883 Mercury.......................................... 384 1 2,604 Nickel............................................. 6,301 100 15,871 Selenium.......................................... 673 100 148,588 Silver............................................. 338 1,000 2,958,580 Thallium.......................................... 100 1,000 10,000,000

For example, if listed CCR wastes are released fr om a facility, and the actu al concentrations of the waste’s constituents are not known, it may be assumed that the concentrations will not exceed those listed above in Table 8. Thus, applying the mixture rule, the RQ threshold for arsenic in this waste is 1, 294 pounds—that is, 1,294 pounds of listed CCR waste would need to be released to reach the RQ for arsenic. Repor ting would be required only when an RQ or more of any hazardous constituent is released.

Where the concentration levels of all hazardous constituents are known, the traditional mixture rule would apply. Under this scenario, if the actual concentr ation of arsenic is 100 ppm, 10,000DRAFT DO NOT CITE OR QUOTE 235 of 563 5/03/10 pounds of the listed CCR waste would need to be re leased to reach the RQ for arsenic. As applied to listed CCR waste, EPA’s proposed ap proach reduces the bu rden of notification requirements for the regulated community and adequately protects human health and the environment.

The modified interpretation of the mixture rule (40 CFR 302.6) as it appl ies to listed CCR wastes in this proposal is consistent with EPA’s approach in a final rule listi ng four petroleum refining wastes (K169, K170, K171, and K172) as RCRA hazardous wastes and CERCLA hazardous substances (see 63 FR 42110, Aug., 6, 1998). In that rule, th e Agency promulgated a change to the regulations and its interpretation of the mixt ure rule to allow facilities to consider the maximum observed concentrations for the consti tuents of the petroleum refining wastes in determining when to report releases of the four wastes. EPA codified this change to its mixture rule interpretation in 40 CFR 302.6( b)(1) as a new subparagraph (iii) . In another rule, EPA also followed this approach in the final rule listi ng two chlorinated aliphati c production wastes (K174 and K175) as RCRA hazardous wastes and CERCLA hazardous substances (see 65 FR 67068, Nov. 8, 2000). If the proposed subtitle C altern ative becomes final, EPA may modify 40 CFR section 302.6(b)(1) to extend the modified interpretation of the mixture rule to include listed
CCR wastes.

4. Correction of Table of Maximum Observed Constituent Concentrations Identified by
EPA.DRAFT DO NOT CITE OR QUOTE 236 of 563 5/03/10 When the final rule that listed Chlorinated Aliphatics Production Wastes was published in the Code of Federal Regulations (CFR), the exis ting table that provided the maximum observed constituent concentrations fo r petroleum refining wastes (K169, K170, K171, and K172) was inadvertently replaced instead of amended to add the maximum observed constituent concentrations for the chlorinated aliphatic pr oduction wastes (K174 and K175). Therefore, the Agency is at this time proposing to correct th at inadvertent removal of the petroleum refining wastes by publishing a complete table that includes, the petroleum refining wastes, the chlorinated aliphatic production wastes, and now the CCR wastes (e.g., K169, K170, K171, K172, K174, K175, and S001).

E. Listing of CCR as Special Wastes to Address Perceived Stigma Issue

Commenters suggested that the listing of CCRs as a hazardous waste will impose a stigma on their beneficial use, and significan tly curtail these uses. EPA questi ons this assertion, in fact, our experience suggests that the incr eased costs of disposal of CCRs as a result of regulation of CCRs under RCRA subtitle C would create a strong economic incentive for increased beneficial uses of CCRs. We also believe that the incr eased costs of disposal of CCRs, as a result of regulation of CCR disposal, but not beneficial uses, should achieve increased usage in nonregulated beneficial uses, simply as a resu lt of the economics of supply and demand. The economic driver—availability of a low-cost, functi onally equivalent or often superior substitute for other raw materials—will continue to make CCRs an increasingly desirable product. Furthermore, it has been EPA’s experience in developing and implem enting RCRA regulation and elsewhere that material inevitably fl ows to less regulated applications.DRAFT DO NOT CITE OR QUOTE 237 of 563 5/03/10 However, with that said, the electric utility industry, the stat es, and those companies that beneficially use CCRs have nevertheless commente d that listing of CCRs as a RCRA subtitle C waste will impose a stigma on their beneficial use and significantly curtail these uses. In their view, even an action that regulates only CCRs de stined for disposal as RCRA subtitle C waste, but retains the Bevill exemption for beneficial uses , would have this adverse effect. Finally, the states particularly have comment ed that, by operation of state law, the beneficial use of CCRs would be prohibited under many st ates’ beneficial use programs, if EPA were to designate CCRs destined for disposal as a RCRA subtitle C wast e. Unlike the incentive effect introduced by increased disposal costs in which firms rationally try to avoid higher costs or seek lower cost of raw materials, the idea that there will be a stigma effect rests on an assu mption that s tigma would alter consumer preferences thereby decreasing e nd-users’ willingness to pay for products that include CCPs. This would have the practical e ffect of shifting the aggregate CCP demand curve downward.

Some of the other comments that have been made include: (1) beneficially used CCRs are the same material as that which would be consider ed hazardous; this asymmetry increases confusion and the probability of lawsuits , however, unwarranted, (2) while the supply of CCRs to be beneficially used may increase given the additio nal incentives to avoid disposal costs, the consumer demand may decrease as negative percep tions are not always based on reason, (3) any negative impact on beneficial use will require more reliance on virgin materials with higher GHG and environmental footprints, (4) state support may be weak ened or eliminated, even in states that are friendly to benefi cial use, (5) competitors who us e virgin or other materials areDRAFT DO NOT CITE OR QUOTE 238 of 563 5/03/10 taking advantage of the hazardous waste designa tion by using scare tactics and threats of litigation to get customers to stop using produc ts containing CCRs, (6) customers are already raising questions about the safety of products that contain CCRs, a nd (7) uncertainty is already hurting business as customers are switching to produc ts where there is less regulatory risk and potential for environmental liabilities. For ex ample, one commenter stated that they have received requests to stop selling boiler slag for ice control due to potential liability.

EPA is concerned about potential stigma and, as we have stated previously, we do not wish to discourage environmentally sound bene ficial uses of CCRs. In looki ng to evaluate this issue, we believe it is first important to understand that th e proposed rule (if the su btitle C alternative is finalized) would regulate CCRs under subtitle C of RCRA only if they are destined for disposal in landfills and surface impoundment s, and would leave the Bevill de termination in effect for the beneficial use of CCRs. That is, the legal status of CCRs that ar e beneficially used would remain entirely unchanged (i.e., they would not be re gulated under subtitle C of RCRA as a hazardous waste, nor subject to any fede ral non-hazardous waste requir ements). EPA is proposing to regulate the disposal of CCRs unde r subtitle C of RCRA because of the specific nature of disposal practices and the specific risks these prac tices involve—that is, th e disposal of CCRs in (often unlined) landfills or surf ace impoundments, with millions of tons placed in a concentrated location. The beneficial uses that EPA identif ies as excluded under th e Bevill amendment, for the most part, present a significantly different picture, a nd a significant different risk profile. As a result, EPA is explicitly not proposing to change their Bevill status (although we do take comment on whether “unconsolidated uses” of CCRs need to be subject to federal regulation). (For further discussion of the beneficial use of CCRs, see sec tion IV. D in this preamble.)DRAFT DO NOT CITE OR QUOTE 239 of 563 5/03/10 Furthermore, in today’s preamble, we make it clear that certain uses of CCRs– e.g., FGD gypsum in wallboard – do not involve “waste” ma nagement at all; rather, the material is a legitimate co-product that, under mo st configurations, has not been discarded in the first place and, therefore, would not be considered a “solid waste” under RCRA. Moreover, EPA’s experience suggests that it is unlikely that a material that is not a waste in the first place would be stigmatized, particularly when used in a cons olidated form and while continuing to meet long established product specifications.

In fact, EPA’s experience with past waste re gulation, and with how hazardous waste and other hazardous materials subject to regul ation under subtitle C are used and recycled, suggests that a hazardous waste “label” does not impose a significan t barrier to its beneficial use and that nonregulated uses will increase as the costs of dis posal increase. There are a number of examples that illustrate these points, although admittedly many of these products are not used in residential settings:

• Electric arc furnace dust is a listed hazar dous waste (K061), and yet it is a highly recycled material. Specifically, between 2001 and 2007, approximately 42% to 51% of K061 was recycled (according to Biennial Repor ting System (BRS) data). Both currently and historically, it has been used as an ingredient in fertiliz er and in making steel, and in the production of zinc products, including pha rmaceutical materials. Slag from theDRAFT DO NOT CITE OR QUOTE 240 of 563 5/03/10 smelting of K061 is in high demand for use in road construction. 144 In fact, there is little doubt that without its regulation as a hazardous waste, a significantly greater amount of electric arc further dust woul d be diverted from recycling to disposal in non-hazardous waste landfills.

• Electroplating wastewater sludge is a listed hazardous waste (F 006) that is recycled for its copper, zinc, and nickel content fo r use in the commercial market. In 2007, approximately 35% of F006 material was r ecycled (according to BRS data). These materials do not appear to be stigmatized in the marketplace.

• Chat, a Superfund mining cleanup waste with le ad, cadmium and zinc contamination, is used in road construction in Ok lahoma and the surrounding states. 145 In this case, the very waste that has triggered an expensive Superfund cleanup is succ essfully offered in the marketplace as a raw material in road build ing. The alternative co sts of disposal in this case are a significant driv er in the beneficial use of this material, and the Superfund origin of the material has not se rved as a barrier to its use.

• Used oil is regulated under RCRA subtitle C standards. While used oil that is recycled is subject to a separate set of standards under subtitle C (a nd is not identified as a hazardous waste), “stigma” does not prev ent home do-it-yourselfers from collecting used oil, or automotive shops from accepting it and sending it on for recovery. Collected used oil may be re-refined, reused, or used as fuel in boi lers, often at the site where it is collected.

144 According to the most recen tly available data, in 2008 Horsehead produced about 300,000 tons per year of an Iron-Rich Material (IRM) as a by-product of its dust recycling process, and in 2009 Inmetco produced close to 20,000 tons per year. PADEP asserts th at these plants cannot meet the dema nds for use of the slag by PennDOT.

145 40 CFR 260, 39331-39353.DRAFT DO NOT CITE OR QUOTE 241 of 563 5/03/10 Safety Kleen reported that in 2008, the company recycled 200 million gallons of used oil. (This example is almost directly analogous to the situation with respect to CCRs, although for CCRs, we are not proposing to subj ect them to any management standards when used or recycled, but, as in the case of used oil, this a lternative would avoid labeling CCR’s as “hazardous waste,” even wh ile relying on subtitle C authority.)

• Spent etchants are directly used as ingredie nts in the production of a copper micronutrient for livestock; and

• Spent solvents that are gene rated from metals parts washin g and are generally hazardous wastes before reclamation are directly us ed in the production of roofing shingles.

Furthermore, common products and product ingredie nts routinely used at home (e.g., motor oil; gasoline; many common drain cleaners and househol d cleaners; and cathode ray tube monitors for TVs and computers) are hazardous wastes in other contexts. This includes fluorescent lamps (and CFLs) which are potentially hazardous beca use of mercury. Consumers are generally comfortable with these products, and their regulatory status does not discourage their use. Given this level of acceptance, EPA questions whether CCR-based materials that might be used in the home, like concrete or wallboard, would be like ly to raise concerns where they are safely incorporated into a product.

Certain commenters have also expressed the con cern that standards-set ting organizations might prohibit the use of CCRs in specif ic products or materials in thei r voluntary standards. Recently, chairpersons of the American Standards and Testing Materials (ASTM) International Committee C09, and its subcommittee, C09.24, in a Decembe r 23, 2009 letter indicated that ASTM wouldDRAFT DO NOT CITE OR QUOTE 242 of 563 5/03/10 remove fly ash from the project specifications in its concrete standard if EPA determined that CCRs were a hazardous waste when disposed. However, it remains unclear whether ASTM would ultimately adopt this position, in light of EP A’s decision not to revise the regulatory status of CCRs destined for beneficial use. Furt her ASTM standards are developed through an open consensus process, and they currently apply to the use of numerous hazardous materials in construction and other activities. For example, ASTM provides sp ecifications fo r the reuse of solvents and, thus, by implication, does not appear to take issue with th e use of these recycled secondary materials, despite their classification as hazardous wastes. 146

Others take a different view on how standard-setting organizations will react. Most notably, a US Green Building Council representative was refe renced in the New York Times as saying that LEED incentives for using fly ash in concrete would remain in place, even under an EPA hazardous waste determination. 147 If the Green Building Council (along with EPA) continues to recognize fly ash as an environmentally beneficial substitute for Portland cement, the use of this material is unlikely to decrease solely because of “stigma” concerns. Additionally, we believe it is unlikely that ASTM will prohibit the use of fly ash in concrete under its standards solely because of a determination that fly ash is regulated under subtitle C of RCRA when it is

146 See, for example, ASTM Volume 15.05, Engine Coolants, Halogenated Organic Solvents and Fire Extinguishing Agents; Industrial and Specialty Chemicals, at http ://www.normas.com/ASTM/BOS/vol ume1505.html. See also ASTM D5396 - 04 Standard Specification for Reclaimed Perchloroethylene, at http://www.astm.org/Standards/D5396.htm

147 See http://www.nytimes.com/gwire/2020/01/13/13greenwi re-recycling-questions-complicate-epa-coal-ash-de90614.html.DRAFT DO NOT CITE OR QUOTE 243 of 563 5/03/10 discarded, especially given that this use of fl y ash is widely accepted throughout the world as a practice that improves the performa nce of concrete, it is one of the most cost-effective near-term strategies to reduce GHG emissions, and there is no evidence of meaningful risk, nor any reason to think there might be, involved with its use in cement or concrete.

Finally, many states commented that their statut es or regulations prohibit the use of hazardous wastes in their state beneficial use programs and, therefore, that if EPA lists CCRs as hazardous wastes (even if only when intended for disposal), their use would be precluded in those states. EPA reviewed the regulations of ten states with the highest consumption of fly ash and concluded that, while these states do not gene rally allow the use of hazardous waste in their beneficial use programs, this general prohibiti on would not necessarily prohibit the beneficial use of CCRs under the proposal that EPA outlines in this rule. Beneficially used CCRs would remain Bevill-exempt solid wastes, or in some ca ses, would not be considered wastes at all and thus, the legal status of such CCRs may not be affected by EPA’s proposed RCRA subtitle C rule. As an example, the use of slag derived from electric furnace dust (K061) is regulated under Pennsylvania’s beneficial use program, despite the fact that it is derived from a listed hazardous waste. However, we are also aware that, in the case of Florida, its stat e definition of hazardous waste would likely prohibit the beneficial use of CCRs were the co-proposed RCRA subtitle C regulation finalized and were there no change to Florida’s definition of hazardous waste.

The primary concern raised by these commenters is the fact that CCRs would be labeled a “hazardous waste” (even if only when disposed) and will change the public perception of products made from CCRs. To address this c oncern, EPA is proposing, as one alternative, toDRAFT DO NOT CITE OR QUOTE 244 of 563 5/03/10 codify the listing in a separate, unique section of the regulations. Currently, hazardous wastes are listed in 40 CFR 261, Subpart D, which iden tifies the currently regul ated industrial wastes, and which is labeled, “Lists of Hazardous Wastes .” EPA would create a new Subpart F and label the section as "List of Special Wa stes Subject to Subtitle C,” to distinguish it from the industrial hazardous wastes. The regulations would identify CCRs as a “Special Waste” rather than a Klisted hazardous waste, so that CCRs would not automatically be identified with all other hazardous wastes. See sections V through VII for th e full description of our regulatory proposal.

EPA believes that this action co uld significantly reduce the like lihood that products made from or containing CCRs would automatically be perc eived as universally “hazardous.” When taken in combination with (1) the fact that beneficially used CCRs w ill remain exempt and (2) EPA’s continued promotion of the beneficial use of CC Rs, we believe this will go a long way to address any stigmatic impact that might otherwise result from the regulation of CCRs under subtitle C of RCRA. We are seeking comment on other suggestions on how EPA might promote the beneficial use of CCRs, as well as suggestions that would reduce any perceived impacts resulting from “stigma” due to the identification of CCRs as “special wastes re gulated under subtitle C authority.”

In summary, based on our experiences, we expect that it will be more likely that the increased costs of disposal of CCRs as a result of regulation of CCR disposal under subtitle C would increase their usage in non-regul ated beneficial uses, simply as a result of the economics of supply and demand. The economic driver—availability of a low-cost, functionally equivalent orDRAFT DO NOT CITE OR QUOTE 245 of 563 5/03/10 often superior substitute for ot her raw materials -- would continue to make CCRs an increasingly desirable product.

VII. How would the Proposed Subtitl e C Requirements be Implemented?

A. Effective Dates

If EPA were to finalize the s ubtitle C regulatory alternative proposed today, the rule, as is the case with all RCRA subtitle C rules, would beco me effective six months after promulgation by the appropriate regulatory authority -- that is, six months after promulgation of the federal rule in States and other jurisdictions where EPA im plements the hazardous waste program (Iowa, Alaska, Indian Country, and the te rritories, except Guam) and in authorized States, six months after the State promulgates its regulations that EPA has approved via th e authorization process (unless State laws specify an alternative time). This means that facilities managing CCRs must be in compliance with the provisions of these regulations on their effective date, unless the compliance date is extended. For this proposed regulatory alternative, the compliance dates for several of the proposed requirements for existing units are being extended due to the need for additional time for facilities to modify their existing units. The precise dates that facilities will need to be in compliance with the various re quirements will depend on whether they are in a jurisdiction where EPA administer s the RCRA subtitle C program or whether they are in a State authorized to administer the RCRA subtitle C program.

To summarize,DRAFT DO NOT CITE OR QUOTE 246 of 563 5/03/10 (1) In States and jurisdictions where EPA ad ministers the RCRA program (Iowa, Alaska, the territories [except Guam], and Indi an Country), most of the subtit le C requirements go into effect and are enforceable by EPA six months after prom ulgation of the final rule. This includes the generator requirements, transporter requireme nts, including the manifest requirements, permitting requirements for facilities managing CCRs, interim status standards, surface impoundment stability requirements, and the Land Disposal Restriction (LDR) treatment standards for non-wastewaters in 40 CFR part 268. However, we are proposing that existing CCR landfills and surface impoundments (as defined in this regulation) will be given additional time to comply with several of the proposed requir ements as specified later in this section. Any new CCR landfills, including lateral expansions (a s defined in the regulation), must be in compliance with all the requirements of any fina l regulation before CCRs can be placed in the unit.

(2) In States that are authorized to administer the RCRA program, the requirements that are part of the RCRA base program (i.e., those promulga ted under the authority of RCRA and not the HSWA amendments) will not be effective unti l the State develops and promulgates its regulations. Once those regulations are effective in the States, they are enforceable as a matter of State law and facilities must co mply with those requirements under the schedule established by the State. These RCRA base requirements will become part of the RCRA authorized program and enforceable as a matter of federal la w once the State submits and EPA approves a modification to the State’s authorized program. (See the State Authoriz ation section (section VIII) for a more detailed discussion.) The requir ements that are more stringent or broader in scope than the existing regulations and are pr omulgated pursuant to HSWA authority willDRAFT DO NOT CITE OR QUOTE 247 of 563 5/03/10 become effective and federally enforceable on the effective date of the approved state law designating CCRs as a special waste subject to subtit le C -- that is, they are federally enforceable without waiting for authorization of the program revision applicab le to the HSWA provisions. On the other hand, any requirements that are prom ulgated pursuant to HSWA authority, but are less stringent than the existing subtitle C requirements {e.g., modifications promulgated pursuant to Section 3004(x)) will become effective only when the State promulgates those regulations (and federally enforceable when the State program revision is authorized), as the State has the discretion to not adopt those less stringent requirements.

B. What Are the Requirements with Which Facilities Must Comply?

It is EPA’s intention that this proposed alternative, if finalized, will be implemented in the same manner as previous regulations under RCRA subtit le C have been. The following paragraphs describe generally how this proposal will be implemented. While this notice provides some details on specific requirements, it is EPA’s inte ntion that, unless otherw ise noted, all current Subtitle C requirements become applicable to the facilities generating, transporting, or treating, storing or disposing of CCRs listed as special wastes. While in this notice EPA has described the major subtitle C requirements, EPA has not undertak en a comprehensive description of all of the subtitle C regulatory requirements which ma y be applicable; therefore, we encourage commenters to refer to the regulations at 40 CFR parts 260 to 268, 270 to 279, and 124 for details.

1. Generators and Transporters.DRAFT DO NOT CITE OR QUOTE 248 of 563 5/03/10 i. Requirements

Under this proposed regulation, regulated CCRs de stined for disposal become a newly listed special waste subject to the subtitle C requirements. Persons th at generate this newly identified waste is required to notify EPA within 90 days af ter the wastes are identified or listed 148 (by EPA or the state) and obtain an EP A identification number if they do not already have one in accordance with 40 CFR 262.12. (If the person who generates regulated CCRs already has an EPA identification number, EPA is proposing not to require that they re -notify EPA; however, EPA is seeking comment on this issue.) Moreover , on the effective date of this rule in the relevant state, generators of CCRs must be in compliance with the generator requirements set forth in 40 CFR part 262. These requirements in clude standards for waste determination (40 CFR 262.11), compliance with the manifest (40 CFR 262.20 to 262.23), pre-tr ansport procedures (40 CFR 262.30 to 262.34), generator accumulation (40 CFR 262.34), record keeping and reporting (40 CFR 262.40 to 262.44), and the im port/export procedures (40 CFR 262.50 to 262.60). It should be noted that the current generator accumulation provisions of 40 CFR 262.34 allow generators to accumulate hazardous wastes without obtaining interim status or a permit only in units that are container accumulation units, tank systems or containment buildings; the regulations also place a limit on the maximum amount of time that wastes can be accumulated in these units. If these wastes are managed in landfills, surface impoundments or other units that are not tank systems, containers , or containment buildings, th ese units are subject to the permitting requirements of 40 CFR parts 264, 265, and 267 and the generator is required to

148 See section 3010 of RCRA.DRAFT DO NOT CITE OR QUOTE 249 of 563 5/03/10 obtain interim status and seek a permit (or modify interi m status or a permit, as appropriate). These requirements would be applied to spec ial wastes as well. Permit requirements are described in Section VII.D below.

Transporters of CCRs destined for disposal wi ll be transporting a special waste subject to subtitle C on the effective date of this regulation. Pers ons who transport these ne wly identified wastes will be required to obtain an EPA identificati on number as described above and must comply with the transporter requ irements set forth in 40 CFR part 263 on the effective date of the final rule. In addition, generators and transporters of CCRs destined for dispos al should be aware that an EPA identified waste subject to the EPA waste manifest require ments under 40 CFR part 262 meets the definition for a hazardous material under the Department of Transportation's Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) and must be offered and transported in accordance with all applicable HMR requirements, including materials classification, packaging, and hazard communication. 149

ii. Effective Dates and Compliance Deadlines.

Generators must notify EPA within 90 days after the date that CCRs are identified or listed as special wastes (by EPA or the state). The other requirements for generators and transporters (in
40 CFR parts 262 and 263) are effective and generators and transporters must be in compliance with these requirements on the effect ive date of the final rules. Th e effective date of these rules is six months after promulgation of the federal ru le in non-authorized Stat es and in authorized

149 See the definition for "hazardous waste" in 49 CFR 171.8.DRAFT DO NOT CITE OR QUOTE 250 of 563 5/03/10 States generally six months afte r promulgation of the State regulat ions. (See previous section for a more detailed discussion of effective dates.)

2. Treatment, Storage, and Di sposal Facilities (TSDs)

i. Requirements

Facilities treating, storing, or disposing of the newly listed CCRs are subject to the RCRA 3010 notification requirements, the permit requireme nts in 40 CFR part 270, and regulations in 40 CFR part 264 or 267 for permitted facilities or part 265 for interim status facilities, including the general facility requirements in subpart B, th e preparedness and prevention requirements in subpart C, the contingency plan and emergenc y procedure requirement in subpart D, the manifest, recordkeeping and reporting requirements in subpart E, the closure and post-closure requirements in subpart G, the corrective action requirements, including facility-wide corrective action in subpart F, and the financial a ssurance requirements in subpart H .

C. RCRA Section 3010 Notification.

Pursuant to RCRA section 3010 a nd 40 CFR 270.1(b), facilities managing these special wastes subject to subtitle C must notify EPA of their waste management activities within 90 days after the wastes are identified or listed as a special waste. (As not ed above, for facilities in States where EPA administers the program, this will be 90 days from the date of promulgation of the final federal regulation; in author ized States, it will be 90 days fr om the date of promulgation ofDRAFT DO NOT CITE OR QUOTE 251 of 563 5/03/10 listing CCRs as a special waste by th e state, unless the state provide s an alternative timeframe.) This requirement may be applied even to those TSDs that have previously notified EPA with respect to the management of hazardous wast es. The Agency is proposing to waive this notification requirement for persons who handle CCRs and have already : (1) notified EPA that they manage hazardous wastes, and (2) received an EPA identification number because requiring persons who have notified EPA and received an EPA identification number would be duplicative and unnecessary, although the Agency requests comment on whether it should require such persons to re-notify the Agency th at they generate, transport, tr eat, store or dispose of CCRs. However, any person who treats, stores, or dispos es of CCRs and has not previously received an EPA identification number for other waste must obtain an identification number pursuant to 40 CFR 262.12 to generate, transport, treat, store, or dispose of CCRs within 90 days after the wastes are identified or listed as special wastes subject to subtitle C , as described above.

D. Permit Requirements

As specified in 40 CFR 270.1(b) , six months after promulga tion of a new regulation, the treatment, storage or disposal of hazardous wast e or special waste subject to subtitle C by any person who has not applied for and received a RC RA permit is prohibited from managing such wastes. Existing facilities, however, may satisfy the permit requirement by submitting Part A of the permit application. Timely submission of Part A and the notification qualifies a facility for interim status under section 3005 of RCRA and facilities with interi m status are treated as having been issued a permit until a final deci sion is made on a permit application.DRAFT DO NOT CITE OR QUOTE 252 of 563 5/03/10 The following paragraphs provide addition details on how the permitting requirements would apply to various categories of facilities:

1. Facilities Newly Subject to RCRA Permit Requirements

Facilities that treat, st ore, or dispose of regulated CCRs at the time the rule becomes effective would generally be eligible for interim stat us pursuant to section 3005 of RCRA.(see section 3005(e)(1)(A)(ii) of RCRA). 150 EPA believes most, if not all utilities generating CCRs and most if not all off-site disposal sites will be in this situation. In order to obtain interim status based on treatment, storage, or disposal of such newly listed CCRs, eligible facilities are required to comply with 40 CFR 270.70(a) and 270.10(e) (or more likely with analogous state regulations) by providing notice under RCRA section 3010 (if they do not have an EPA identification number) and submitting a Part A permit application no later than six months after date of publication of the regulati ons which first require them to co mply with the standards. (In most cases, these would be the state regulations implementing th e federal program; however, in those States and jurisdictions where EPA impl ements the program, the deadline will be six months after promulgation of the final federal ru le.) Such facilities ar e subject to regulation under 40 CFR part 265 until EPA or the state issues a RCRA permit. In addition, under section

150 Section 3005(e) of RCRA states, in pa rt, that “Any person who. . . .is in existence on the effective date of statutory or regulatory changes under th is Act that render the facility subject to the requirement to have a permit under this section . . . .shall be treated as having been issued such permit until such time as final administrative disposition of such application is made, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application.DRAFT DO NOT CITE OR QUOTE 253 of 563 5/03/10 3005(e)(3) and 40 CFR 270.73(d), not later than 12 months after the effective date of the regulations that render the facility subject to the requirement to have a RCRA permit and which is granted interim status, land disposal facilities newly qualifying for interim status under section 3005(e)(1)(A)(ii) also must submit a Part B permit application and certify that the facility is in compliance with all applicable ground wate r monitoring and financial responsibility requirements. If the facility fails to submit thes e certifications and the Pa rt B permit application, interim status will terminate on that date.

2. Existing Interim Status Facilities

EPA is not aware of any utilities or CCR treatme nt or disposal sites in RCRA interim status currently, and therefore EPA does not believe the standard federa l rules on changes in interim status will apply. However, in case such a si tuation exists, EPA describes below the relevant provisions. Again, EPA is de scribing the federal requireme nts, but because the proposed requirements that subject these facilities to permitting requirement s are part of the RCRA base program, authorized state regulations will govern the process, and the date those regulations become effective in the relevant state will trigger the process.

Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste mana gement facilities (as defined in 40 CFR 270.2) that treat, store, or dispose of newly identified hazardous wastes and are currently operating pursuant to interim status under section 30 05(e) of RCRA, must file an amended Part A permit application with EPA no later than the effective date of the final rule in the State where the facility is located. By doi ng this, the facility may continue managing theDRAFT DO NOT CITE OR QUOTE 254 of 563 5/03/10 newly listed wastes. If the facility fails to file an amended Part A application by such date, the facility will not receive interim status for manage ment of the newly listed wastes (in this case CCRs) and may not manage those wastes until the faci lity receives ei ther a permit or a change in interim status allowing such activ ity (40 CFR 270.10(g)). This requ irement, if applicable to any electric utilities, will be applie d to those facilities managing C CRs destined for disposal since these facilities w ill now be managing CCRs subject to the subtitle C requirements.

3. Permitted Facilities

EPA also believes that no electric utilities treating, stor ing, or disposing of CCRs currently has a RCRA permit for its CCR management unit(s), nor is EPA aware of any on-going disposal of CCRs at permitted hazardous waste TSDs, although the latter situation is a possibility. Federal procedures for how permitted haza rdous waste facilities manage newly listed hazardous wastes are described below, but again in practice (with the exception of those jurisdictions in which EPA administers the hazardous waste program), th e authorized state regulations will govern the
process.

Under 40 CFR 270.42(g), facilities that alrea dy have RCRA permits must request permit modifications if they want to continue mana ging the newly listed wa stes (see 40 CFR 270.42(g) for details). This provision states that a permittee may continue managing the newly listed wastes by following certain requirements, including submitting a Class 1 permit modification request on or before the date on which the wast e or unit becomes subject to the new regulatory requirements (i.e., the effective date of the fina l federal rule in those jurisdictions where EPADRAFT DO NOT CITE OR QUOTE 255 of 563 5/03/10 administers the program or the effective date of the State rule in authorized States), complying with the applicable standards of 40 CFR parts 265 and 266 and submitting a Class 2 or 3 permit modification request within 180 days of the eff ective date of the final rule. Again, these requirements , if applicable to any electric utilities, w ill be applied to those facilities managing CCRs destined for disposal sin ce they are now subject to the subtitle C requirements.

E. Requirements in 40 CFR parts 264 and 265.

The requirements of 40 CFR part 264 and 267 for permitted facilities or part 265 for interim status facilities, including the general facility standards in su bpart B, the preparedness and prevention requirements in subpart C, the contingency plan and emergency procedure requirements in subpart D, the manifest, recordke eping and reporting requirements in subpart E, the corrective action requirements, including facili ty-wide corrective action in subpart F, and the financial assurance requirements in Subpart H, ar e applicable to TSDs and TSDs must be in compliance with those requirements on the effective date of the final (usu ally state) regulation, except as noted below. These requirements will apply to those facilities managing CCRs destined for disposal.

Moreover, all units in which newl y identified hazardous wastes are tr eated, stored, or disposed of after the effective date of the final (usually state) rule that are not excluded from the requirements of 40 CFR parts 264, 265 and 267 will be subject to both the general closure and post-closure requirements of subpart G of 40 CFR parts 264 and 265 and the unit-specific closure requirements set forth in the applicable unit technical st andards in subparts 40 CFR partsDRAFT DO NOT CITE OR QUOTE 256 of 563 5/03/10 264 or 265 (e.g., subpart N for landfill units). In addition, EPA promulgated a final rule that allows, under limited circumstances, regulated landfills or surface impoundments, (or land treatment units which is not used for the management of CCR waste) to cease managing hazardous waste, but to delay subtitle C closur e to allow the unit to continue to manage nonhazardous waste for a period of time prior to closure of the unit (see 54 FR 33376, August 14, 1989). Units for which closure is delayed continue to be subject to all applicable 40 CFR parts 264 and 265 requirements. Dates and procedures for submittal of necessary demonstrations, permit applications, and revised applications ar e detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e). As stated earlier, these requi rements will be applicable to those facilities managing CCRs destined for disposal, since they will be managing a newly listed waste subject to subtitle C requirements.
Except as noted below, existing facilities are re quired to be in compliance with the surface impoundment stability requirements, the LDR treat ment standards for non-wastewaters, and the fugitive dust controls on the effective date of the final rule.

For certain of the other requirement s, existing facilities will have: (a) 60 days from the effective date of the final rule to install a permanent identification marker on each surface impoundment as required by 40 CFR 264.1304(d) a nd 40 CFR 265.1304(d). (b) 1 year from the effective date of the final rule: to submit plans for each surface impoundments as required by 264.1304(b) and 265.1304(b). to adopt and submit to the Regional Administ rator a plan for carrying out the inspection requirements for each surface impoundment in 40 CFR 264.1305 and 40 CFR 265.1305.DRAFT DO NOT CITE OR QUOTE 257 of 563 5/03/10 to comply with the groundwater monitori ng requirements for each landfill and surface impoundment in 40 CFR 264, Subpart F and 265, Subpart F. (c) 2 years from the effective date of the final rule: to install, operate, and main tain run-on and run-off controls as required by 264.1304(g) and 265.1304(g) for surface impoundments and by 264.1307(d) and 265.1307(d) for landfills . (d) 5 years from the effective date of the final rule : to comply with the LDR wastewater treatment standard . to stop receiving CCR waste in surface impoundments. (e) 7 years from the effective date of the fina l rule to close surface impoundments handling
CCRs.

Any new CCR landfills, including lateral expansions of existing landfills (as defined in the regulation), must be in compliance with all the requirements of the fina l regulation before CCRs can be placed in the unit.
The table below (Table 9) provides a summary of the effective dates for the various requirements:
Table 9. CCR Rule Requirements

Compliance Date Non Authorized State Compliance Date Authorized State

Remove Bevill 6 months after 6 months after State adoptsDRAFT DO NOT CITE OR QUOTE 258 of 563 5/03/10 Compliance Date Non Authorized State Compliance Date Authorized State Exclusion promulgation of final rule regulations (under State law); federally enforceable when state program revision is authorized.

Listing CCRs as a Special Waste Subject to subtitle C Same Same

Notification (generators and TSDs) 90 days after rule promulgation (that is, the date the CCRs are listed as a Special Waste subject to subtitle C. 90 days after State rule promulgation (that is, the date the CCRs are listed as a Special Waste subject to subtitle C.

Generator requirements (40 CFR part 262) 6 months after promulgation On the effective date of the State regulations.

Transporter Requirements (40 CFR part 263) 6 months after promulgation On the effective date of State regulationsDRAFT DO NOT CITE OR QUOTE 259 of 563 5/03/10 Compliance Date Non Authorized State Compliance Date Authorized State

Permit Requirement/ Interim Status File Part A of the permit application within six months of effective date of final rule. File Part A of the permit application within six months of effective date of State final rule.

Facility Standards in Part 264/265 On effective date unless specifically noted. On effective date of state regulation unless specifically noted. Install a permanent identification marker on each surface impoundment as required by 40 CFR 264.1304(d) and 40 CFR 265.1304(d). 60 days from the effective date of the final rule 60 days from the effective date of the State regulation.

Submit plans required by 264.1304(b) and 265.1304(b). 1 year from the effective date of the final rule 1 year from the effective date of the State regulation.DRAFT DO NOT CITE OR QUOTE 260 of 563 5/03/10 Compliance Date Non Authorized State Compliance Date Authorized State Adopt and submit to the Regional Administrator a plan for carrying out the inspection requirements in 40 CFR 264.1305 and 40 CFR 265.1305. 1 year from the effective date of the final rule 1 year from the effective date of the State regulation.

Comply with ground water monitoring requirements in 40 CFR 264 Subpart F and 40 CFR 265 Subpart F. 1 year from the effective date of the final rule 1 year from the effective date of the State regulation.

Install, operate, andmaintain run-on and runoff controls as required by 264.1304 (g) and 265.1304 (g) for surface impoundments and by 264.1307 (d) and 2 years from the effective date of the final rule 2 years from the effective date of the State regulation.DRAFT DO NOT CITE OR QUOTE 261 of 563 5/03/10 Compliance Date Non Authorized State Compliance Date Authorized State 265.1307 (d) for landfills.

Comply with the LDR

wastewater treatment standard. 5 years from the effective date of the final rule 5 years from the effective date of the State regulation.

Close surface impoundments receiving
CCR waste 7 years from the effective date of the final rule. 7 years from the effective date of the State regulation.

VIII. Impacts of a Subtitle C Rule on State Authorization.

A. Applicability of the Rule in Authorized States

Under section 3006 of RCRA, EPA au thorizes qualified states to administer their own hazardous waste programs in lieu of the federal program w ithin the state. Following authorization, EPA retains enforcement authority under s ections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement re sponsibility. The standards and requirements for state authorization are found at 40 CFR part 271.DRAFT DO NOT CITE OR QUOTE 262 of 563 5/03/10 Prior to enactment of the H azardous and Solid Waste Amendm ents of 1984 (HSWA), a state with final RCRA authorization administered its subtitle C hazardous waste program in lieu of EPA administering the federal program in that st ate. The federal requirements no longer apply in the authorized state, and EPA could not issue perm its for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements are promulgated, the state was obligated to enact equivalent authorities within specified time frames (one to two years). The new more stringent federal requireme nts did not take effect in the authorized state until the state adopted the fe deral requirements as state law, and the state requirements are not federally enforceable until EPA authorized the state program. This remains true for all of the requirements issued pursuant to statutory provisions that existed prior to
HSWA.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA aut hority take effect in authorized states at the same time that they take e ffect in unauthorized states. EP A is directed by the statute to implement these requirements and prohibitions in authorized states, unt il the state is granted authorization to do so. While states must still adopt new more stringent HSWA related provisions as state law to retain final author ization, EPA implements the HSWA provisions in authorized states until the states do so.

Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringe nt or broader in scope than the existing federal requirements. RCRA section 3009 allows the states to impose standa rds more stringent than those in the federalDRAFT DO NOT CITE OR QUOTE 263 of 563 5/03/10 program (see also 40 CFR 271.1). Therefore, aut horized states may, but are not required to, adopt federal regulations, both HSWA and non-HSWA, that are considered less stringent than previous federal regulations.

This alternative of the co-proposal is considered more stringent a nd broader in scope than current federal regulations and therefore States would be required to adopt regulations and modify their programs if this alte rnative is finalized.

B. Effect on State Authorization

If finalized, a subtitle C rule for CCRs would af fect state authorization in the same manner as any new RCRA subtitle C requirement; i.e., (1) th is alternative of the co-proposal would be considered broader in scope and more stringent than the current federal program, so authorized states must adopt regulations so that their prog ram remains at least as stringent as the federal program; and (2) they must receive authorizati on from EPA for these program modifications. The process and requirements for modification of state programs at 40 CFR 271, specifically 271.21, will be used.

However, this process is made more complex due to the nature of this particular rulemaking and the fact that some of the provision s of this alternative, if finalized would be finalized pursuant to the RCRA base program authority and some pur suant to HSWA authority. For RCRA base program or non-HSWA requirements, the general ru le, as explained previously, is that the new requirements do not become enforceable as a matte r of federal law in authorized states untilDRAFT DO NOT CITE OR QUOTE 264 of 563 5/03/10 states adopt the regulations, modify their prog rams, and receive authorization from EPA. For HSWA requirements, the general rule is that HSWA requirements are enforceable on the effective date of the final federal rule. If an authorized State has not promulgated regulations, modified their programs, and received author ization from EPA, then EPA implements the requirements until the State receive s program authorization.

In accord with 271.2(e)(2), authorized states must modify their programs by July 1 of each year to reflect changes to the federal program occu rring during the “12 months preceding the previous July 1.” Therefore, for example, if the federal rule is promulgated in December 2011, the states would have until July 1, 2013 to modify their progra ms. States may have an additional year to modify their programs if an amendment to a stat e statute is needed. See 40 CFR 271.21(e)(2)(v).

As noted above, this alternativ e to the co-proposal is proposed pursuant in part to HSWA authority and in part to non-HSWA or RCRA ba se program authority. The majority of this alternative is proposed pursuant to non-HSWA aut hority. This includes, for example, the listing of CCRs destined for disposal as a special waste subject to subtitle C and the impoundment stability requirements. These requirements will be applicable on the effective date of the final federal rule only in those states that do not have final author ization for the RCRA program. These requirements will be effective in authorized states once a state promulgates the regulations and they will become a part of the authorized RCRA program and thus federally enforceable, once the state has submitted a program modification and received authorization for this program modification.DRAFT DO NOT CITE OR QUOTE 265 of 563 5/03/10 The prohibition on land disposal unless CCRs meet the treatment standards and modification of the treatment standards in 40 CFR part 268 are proposed pursuant to HSWA authority and would normally be effective and federally enforceable in all States on the effective date of the final federal rule. However, because the land dispos al restrictions apply to those CCRs that are regulated under subtitle C, until authorized states revise their programs and become authorized to regulate CCRs as a special waste subject to RCRA subtitle C, the land disposal restriction requirements would apply only in those States th at currently do not exclude CCRs from subtitle C regulation (that is, CCRs are regu lated under subtitle C if they exhibit one or more of the characteristics) and the CCRs in fa ct exhibit one or more of the RCRA subtitle C characteristics. However, once the state has the authority to regulate CCRs as a special waste, the LDR requirements become federally enforceable in all States.

In addition, the tailored manage ment standards promulgated pu rsuant to sec tion 3004(x) of RCRA are also proposed pursuant to HSWA authority. However, as these tailored standards are less stringent than the existing RCRA subtitle C re quirements, States woul d not be required to promulgate regulations for these less stringen t standards – should a State decide not to promulgate such regulations, the fa cilities in that state would be required to comply with the full subtitle C standards. Theref ore, the tailored management st andards will be effective in authorized States only when States promulgate such regulations.

Therefore, the Agency would add this rule to Ta ble 1 in 40 CFR 271.1(j), if this alternative to the co-proposal is finalized, which identifies the federal program re quirements that are promulgated pursuant to HSWA and take effect in all states, regardless of thei r authorization status. Table 2DRAFT DO NOT CITE OR QUOTE 266 of 563 5/03/10 in 40 CFR 271.1(j) would be modified to indicate that these requirements are self-implementing. Until the states receive authorization for th e more stringent HSWA provisions, EPA would implement them, as described above. In implementing the HSWA requirements, EPA will work closely with the states to avoid duplication of effort. Once authori zed, states adopt an equivalent rule and receive authorization for such rule from EPA, the authori zed state rule will apply in that state as the RCRA subtitle C requirement in lieu of the equivalent federal requirement.

IX. Summary of the Co-Proposal Regulati ng CCRs Under Subtitle D Regulations.

A. Overview and General Issues

EPA is co-proposing and is soliciting comme nt on an approach under which the May 2000 Regulatory Determination would remain in pl ace, and EPA would issue regulations governing the disposal of CCRs under sections 1008(a), 2002, 4004 and 4005( a) of RCRA (i.e., “Subtitle D” of RCRA). Under this approach, the CCRs would remain classified as a non-hazardous RCRA solid waste, and EPA would develop nationa l minimum criteria governing facilities for their disposal. EPA’s co-proposed subtitle D minimum criteria are discussed below.

Statutory standards fo r Subtitle D approach. Under RCRA 4005(a), upon promulgation of criteria under 1008(a)(3), any solid waste manageme nt practice or disposal of solid waste which constitutes the "open dumping" of solid wast e is prohibited. The crit eria under RCRA 1008(a)(3) are those that define the act of open dumping, and are prohibited under 4005(a), and the criteria under 4004(a) are those to be used by states in their planning processes to determine whichDRAFT DO NOT CITE OR QUOTE 267 of 563 5/03/10 facilities are "open dumps" and which are "sanitary landfills." EPA has in practice defined the two sets of criteria identicall y. See, e.g., Criteria for Classifi cation of Solid Waste Disposal Facilities and Practices, 44 Fed. Reg. 53438, 53438-39 (Sept. 13, 1979). EPA has designed today's co-proposed subtitle D criteria to integrate with the existing open du mping criteria in this respect, as reflected in the proposed changes to 257.1.

Section 4004(a) of RCRA provides that EPA sha ll promulgate regulations containing criteria distinguishing which facilities are to be classified as sani tary landfills and which are open dumps. This section provides a standard th at varies from that under RCRA subtitle C. Specifically, subtitle C provides that management standard s for hazardous waste treatment, storage, and disposal facilities are those “necessary to protect human health or the environment.” See, e.g. , RCRA 3004(a). By contrast, Sect ion 4004(a) provides that [a]t a minimum , the such criteria shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility. Such regulations may provide for the classifi cation of the types of sanitary landfills. Thus, under the RCRA subtitle D regulatory standard in 4004 , EPA is to develop requirements based on the adverse effects on health or the en vironment from disposal of solid waste at a facility, and accordingly, EPA looked at such eff ects in developing today’s co-proposed Subtitle D rule.

At the same time, EPA believes that the differing standards, in particular the reference to the criteria as those which are needed to assure that there is “no reasonable probability” of adverseDRAFT DO NOT CITE OR QUOTE 268 of 563 5/03/10 effects, allows the Agency the ability to adopt standards different from those required under the subtitle C proposal where appropriate. EPA notes that the 4004(a) standard refers to the “probability” of adverse e ffect on health or the environment. In EPA’s view, this provides it the discretion to establish re quirements that are less certain to eliminate a risk to health or the environment than otherwise might be required unde r Subtitle C, and allows additional flexibility in how those criteria may be applied to facilitie s. At the same time, however, EPA notes that the requirements meeting the “no reasonable probability” standard are those “at a minimum” – thus, EPA is not constrained to limit itself to that standard should it determ ine that additional protections are appropriate.

Statements in the legislative history of 4004(a) ar e also consistent with EPA’s interpretation of the statutory language. While it pr ovides little in the way of guidance on the meaning of the “reasonable probability” standard, the legislative history does indicate that Congress was aware of effects from solid waste disp osal facilities that included surf ace runoff, leachate contamination of surface- and groundwaters, and also identified concerns over the location and operations of landfills. See H. Rep. 94-1491, at 37-8. In addition, the le gislative history confirms that the standard in 4004(a) was intended to set a minimum for the criteria. See H. Rep. 94-1491, at 40 (“This legislation requires that the Administrator de fine sanitary landfill as disposal site at which there is no reasonable chance of a dverse effects on health and the environment from the disposal of discarded materi al at the site. This is a minimum requirement of this legislation and does not preclude additional requirements .” Emphasis added.)

1. Regulatory approach.DRAFT DO NOT CITE OR QUOTE 269 of 563 5/03/10 In developing the proposed RCRA subtitle D option for CCRs, EPA considered a number of existing requirements as relevant models for mini mum national standards for the safe disposal of CCRs. The primary source was the existing requirements under 40 CFR part 258, applicable to municipal solid waste landfills, which provide a comprehensive framework for all aspects of disposal in land-based units, such as CCR landfills. Based on the Agency’s substantial experience with these requireme nts, EPA believes that the pa rt 258 criteria represent a reasonable balance between ensuring the protecti on of human health and the environment from the risks of these wastes and the practical realities of facilities’ ability to implement the criteria. The engineered structures regulated under pa rt 258 are very similar to those found at CCR disposal facilities, and the regula tions applicable to such units w ould be expected to address the risks presented by the constituents in CCR wast es. Moreover, CCR wastes do not contain the constituents that are likely to require modification of the existi ng part 258 requirements, such as organics; for example, no adjustments would be needed to ensure that groundwater monitoring would be protective, as the CCR constituents are all readily distinguishable by standard analytical chemistry. As discussed throughout th is preamble, each of the provisions adopted for today’s subtitle D co-proposal re lies, in large measure, on the record EPA developed to support the 40 CFR part 258 municipal solid waste landfill criteria, along with the other record evidence specific to CCRs, discussed throughout the co-propos ed subtitle C alternative. EPA also relied on the Agency’s Guide for Industrial Wast e Management (EPA530-R-03-001, February 2003), to provide information on existing best management practices that facilities have likely adopted. The Guide was developed by EPA and state and trib al representatives, as well as a focus group of industry and public interest stakeholders chartered under the Federal Advisory CommitteeDRAFT DO NOT CITE OR QUOTE 270 of 563 5/03/10 Act, and reflects a consensus view of best prac tices for industrial waste management. It also contains recommendations based on more recent scientific devel opments, and state-of-the art disposal practices for solid wastes.

In addition, EPA considered that many of the technical requirements th at EPA developed to specifically address the risks from the disposal of CCRs as part of the subtitle C alternative, would be equally justified unde r a RCRA subtitle D regime. Thus, for example, EPA is proposing the same MSHA-based standards for su rface impoundments that are discussed as part of the subtitle C alternative. The factual reco rd—i.e., the risk analysis and the damage cases-- supporting such requirements is th e same, irrespective of the stat utory authority under which the Agency is operating. Although the statutory st andards under subsections C and D differ, EPA has historically interpreted bot h statutory provisions to establish a comparable level of protection, corresponding to an ac ceptable risk level ranging betw een 1 x 10-4 to 1 x 10-6. In addition, EPA does not interpret section 4004 to preclude the Agency from establishing more stringent requirements where EPA deems such mo re stringent requirements appropriate. Thus, several of the provisions EPA is proposing under RCRA subtitle D either correspond to the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after the existing subtitle C requirements. These provisions incl ude the following regulator y provisions specific to CCRs that EPA is proposing to establish: scope, and applicability (i.e., who will be subject to the rule criteria/requirements), the Design Crit eria and Operating Crite ria (including provisions for surface impoundment integrity), and severa l of the provisions sp ecifying appropriate pollution control technologies. Additional support for EPA’s d ecision to specify appropriate monitoring, corrective action, clos ure, and post-closure care re quirements (since the specificDRAFT DO NOT CITE OR QUOTE 271 of 563 5/03/10 requirements correlate closely w ith the existing 40 CFR 258 require ments) is found in the risk analysis and damage case information. Finally, many of the definitions are the same in each section.

However, both the RCRA subtitle C proposals and the existing 40 CFR part 258 requirements were developed to be implemented in the context of a permitting program, where an overseeing authority evaluates the requirements, and can ad just them, as appropriate to account for site specific conditions. Because there is no corre sponding guaranteed perm it mechanism under the RCRA subtitle D regulations proposed today, EPA al so considered the 40 CFR part 265 interim status requirements for hazardous waste facilities, which were desi gned to operate in the absence of a permit. The interim status requirements were particularly relevant in developing the proposed requirements for surface impoundments, since such units are not regulated under 40 CFR part 258. Beyond their self-implementing design, these requirements provided a useful model because, based on decades of experience in implementing these requirements, EPA has assurance that they provide national requirements that have proven to be protective for a variety of wastes, under a wide variety of site conditions. Past expe rience also demonstrates that facilities can feasibly implement these requirements.

Taking all of these considerations into account , EPA has generally designed the proposed RCRA subtitle D criteria to create self-implementing requirements. These self-implementing requirements typically consist of a technica l design standard (e.g., the composite liner requirement for new CCR landfills and surface im poundments). In addition, for many of these requirements, the Agency also has established performance criter ia that the owner or operatorDRAFT DO NOT CITE OR QUOTE 272 of 563 5/03/10 can meet, in place of the technical design standard, which provides th e facility with flexibility in complying with the minimum national criteria. EPA generally has chosen to propose an alternate performance standard for a number of reasons. In severa l cases, the alternative standard is intended to address the circumstances where th e appropriate requirement is highly dependent on site-specific conditions (s uch as the spacing and locat ion of ground-water wells); consequently, uniform, national standards that assure the requisite level of protection are extremely difficult to establish. EPA could esta blish a minimum national requirement, but to do so, EPA would need to establish th e most restrictive criteria that would ensure protection of the most vulnerable site conditions. Because this would result in overregula tion of less vulnerable sites, EPA questions whether su ch a restrictive approach woul d be consistent with the RCRA section 4004 standard of ensuring “no reasonable probability of advers e effects.” (emphasis added). The existing 40 CFR part 258 requirements provide the flex ibility to address this issue by establishing alternate pe rformance standards and relying on the oversight resulting from state permitting processes, and supported by EPA approval of state plans. Indeed, EPA made clear in the final MSWLF rule that this was the reason that several of the individual performance standards in the existing 40 CFR part 258 requirements are availa ble only in states with EPA approved programs. See, e.g ., 56 FR 51096 (authorizing alternativ e cover designs). However, EPA cannot rely on these oversight mechanis ms to implement the RCRA 4004 subtitle D requirements. Under these provisi ons of RCRA, EPA lacks the aut hority to require state permits, approve state programs, and to enforce the criter ia. Moreover as discussed in Section IV, the level of state oversight varies appreciably among states. Conseque ntly, for these provisions EPA is also proposing to require the owner or operato r of the facility to obtain certifications by independent registered professiona l engineers to provide verifica tion that these provisions areDRAFT DO NOT CITE OR QUOTE 273 of 563 5/03/10 properly applied. EPA has also proposed to require certificatio ns by independent professional engineers more broadly as a mechanism to facilitate citizen oversight and enforcement. As discussed in greater detail belo w, EPA is proposing to require minimum qualifications for the professionals who are relied upon to make such cer tifications. In genera l, EPA expects that professionals in the field will have adequate in centive to provide an honest certification, given that the regulations require that the engineer not be an employ ee of the owner or operator, and that they operate under penalty of losing their license.

EPA believes that these provisions allow facilities the flexibility to account for site conditions, by allowing them to deviate from the specific tech nical criteria, provided the alternative meets a specified performance standard, yet also provide some degree of third-party verification of facility practices. The availability of meaningf ul independent verificati on is critical to EPA’s ability to conclude that th ese performance standards will meet the RCRA section 4004 protectiveness standard. EPA recognizes that relying upon thir d party certifications is not the same as relying upon the state regulatory authorit y, and will likely not prov ide the same level of “independence.” For example, although not an employee, the engineer will still have been hired by the utility. EPA therefore br oadly solicits comment on whether this approach provides the right balance between establishing sufficient guara ntee that the regulations will be protective, and offering facilities sufficient flexibility to be ab le to feasibly implement requirements that will be appropriate to the site conditi ons. In this regard, EPA would also be interested in receiving suggestions for other mechanisms to provide facility flexibilit y and/or verification.DRAFT DO NOT CITE OR QUOTE 274 of 563 5/03/10 There is a broad range of the extent to which st ates already have some of these requirements in place under their current RCRA subtitle D waste ma nagement programs established under state law, as explained previously in this preamble. EPA and cer tain commenters, however, have identified significant gaps in state programs a nd current practices. Fo r example, EPA does not believe that many, if any, states currently have provisions that would likel y cause the closure of existing surface impoundments, such as the provis ions in today’s proposed rule that surface impoundments must either retrofit to meet all requirements, such as installing a composite liner, or stop receiving CCRs within a ma ximum of five years of the eff ective date of the regulation. The RCRA subtitle D proposal outlined here is in tended to fill such gaps and ensure national minimum standards. EPA intends to provide a comp lete set of requirements, designed to ensure there will be no reasonable probability of advers e effects on health or the environment caused by CCR landfills or surface impoundments. EPA’s co-proposed RCRA subtitle D minimum criteria are discussed below.

2. Notifications.

In response to EPA’s lack of authority to requ ire a state permit program or to oversee state programs, EPA has sought to enhance the pr otectiveness of the proposed RCRA subtitle D standards by providing for state a nd public notifications of the th ird party certifications, as well as other information that documents the decisions made or actions taken to comply with the performance criteria. As discussed in the se ction-by-section analysis below, documentation of how the various standards are met must be placed in the operating record and the state notified. The owner or operator must also maintain a web site available to the public that contains theDRAFT DO NOT CITE OR QUOTE 275 of 563 5/03/10 documentation that the standard is met. EPA is proposing that owners and operators provide notification to the public by posting notices and relevant inform ation on an internet site with a link clearly identified as being a link to notifications, reports, a nd demonstrations required under the regulations. EPA believes the internet is currently the most convenient and widely accessible means for gathering information and dissemina ting it to the public. However, the Agency solicits comments regarding the methods for providi ng notifications to the public and the states. EPA also solicits comments on whether there could be homeland security implications with the requirement to post information on an internet site and whether posting certain information on the internet may duplicate information that is al ready available to the public through the state.

The co-proposed subtitle D regulation accordingly includes a number of p ublic notice provisions. In particular, to ensure that persons residi ng near CCR surface impoundments are protected from potential catastrophic releases, we are propos ing that when a potentially hazardous condition develops regarding the integrity of a surf ace impoundment, that the owner or operator immediately notify potentially affect ed persons and the state. The Agency is also proposing to require that owners or operators notify the state, and place the repor t and other supporting materials in the operating record and on the compa ny’s internet site of various demonstrations, documentation, and certifications. Accordingly, noti ce must be provided: (1) of demonstrations that CCR landfills or surface impou ndments will not adversely a ffect human health or the environment; (2) of demonstrati ons of alternative fugitive dust control measures; (3) annually throughout the active life and post-closure care pe riod that the landfill or surface impoundment is in compliance with the groundw ater monitoring and correctiv e action provisions; (4) when documentation related to the design, installa tion, development, and decommission of anyDRAFT DO NOT CITE OR QUOTE 276 of 563 5/03/10 monitoring wells, piezometers and other measurement, sampling, and analytical devices has been placed in the operating record; (5) when certific ation of the groundwater monitoring system by an independent registered professional engineer or hydrologist has been placed in the operating record; (6) when groundwater monitoring samp ling and analysis program documentation has been placed in the operating record ; (7) when the use of an alternat ive statistical method is to be used in evaluating groundwater monitoring data a nd a justification for the alternative statistical method has been placed in the ope rating record; (8) when the owner or operator finds that there is a statistically significant increase over backgro und for one or more of the constituents listed in Appendix III of the proposed ru le, at any groundwater monitoring well; (9) when a notice of the results of assessment monito ring that may be required under the groundwater monitoring program is placed in the operating record; (10) wh en a notice is placed in the operating record that constituent levels that triggered asse ssment monitoring have re turned to or below background levels; (11) when a notice of the inte nt to close the unit has been placed in the operating record; and (12) when a certification, signed by an independent registered professional engineer verifying that post-closu re care has been completed in accordance with the post-closure plan, has been placed in the operating record. Please consult the proposed subtitle D regulation provided with this notice for all the proposed notification and documentation requirements.

As explained earlier, the RCRA subtitle D approach relies on state and citizen enforcement. EPA believes that it cannot conclude that the RCRA subtitle D regula tions will ensure there is no reasonable probability of adverse effects on hea lth or the environment, unless there is a mechanism for states and citizens to monitor th e situation, such as wh en groundwater monitoring shows exceedances, so that they can determine when intervention is appropriate. EPA alsoDRAFT DO NOT CITE OR QUOTE 277 of 563 5/03/10 believes that notifications, such as those descri bed above, will minimize the danger of owners or operators abusing the self-implementing syst em through increased transparency and by facilitating the citizen suit enforcement mechanism.

EPA is proposing that owners a nd operators provide notification to the public by posting notices and relevant information on an in ternet site with a link clearly identified as being a link to notifications, reports, and demonstrations re quired under the regulati ons. EPA believes the internet is currently the most convenient and wi dely accessible means for gathering information. However, the Agency solicits comments regarding the methods for providing notifications to the public and the states.

B. Section-by-Section discussion of RCRA subtitle D criteria

1. Proposed modifications to Part 257, Subpart A.

EPA is proposing to modify the existing ope n dumping criteria found in 40 CFR 257.1, Scope and Purpose , to recognize the creation of a new subpart D, which consolidates all of the criteria adopted for determining which CCR La ndfills and CCR Surface impoundments pose a reasonable probability of adverse effects on health or the environment under sections 1008(a)(3) and 4004(a) of the Act. Faciliti es and practices failing to sati sfy these consolidated subpart D criteria violate RCRA’s prohi bition on open dumping. The proposed regulation also excludes CCR landfills and surface impoundments subject to proposed subpart D from subpart A, except as otherwise provided in subpart D.DRAFT DO NOT CITE OR QUOTE 278 of 563 5/03/10 In general, these provisions are intended to inte grate the new requirements with the existing open dumping criteria, and have only been modified to clarify that the proposed RCRA subtitle D regulations define which CCR landfills and surf ace impoundments violate the federal standards, and therefore may be enforced by citizen su it under RCRA 4005(a) and 7002. EPA has also proposed language to make clear that thos e CCR landfills and surface impoundments that are subject to the new proposed Subpart D would not also be subject to Subpart A, with the exception of three of the existing Subpart A criteria (257.3-1, Floodplains , 257.3-2 Endangered Species , 257.3-3 Surface water ) that would continue to apply to these facilities. The applicability of these three provisions to CCR disposal faci lities is discussed late r in this preamble.

Finally, EPA also notes that its intent in excluding CCR landfills and surface impoundments from 40 CFR 257 Subpart A in this manner is to consolidate the requ irements applicable to those particular facilities in one set of RCRA subtitle D regulations. EPA does not intend to modify the coverage of 40 CFR 257 subpart A as to other dis posal facilities and practices for CCRs, such as beneficial uses of CCRs when they are applied to the land used for food-chain crops. It is EPA’s intent that such activities would continue to be subject to the existing cr iteria under Subpart A.

2. General provisions.

The proposed general provisions address the appl icability of the new proposed RCRA Subpart D requirements, the continuing appl icability of certain of the ex isting open dumping criteria,DRAFT DO NOT CITE OR QUOTE 279 of 563 5/03/10 provide for an effective date of 180 days af ter promulgation, and define key terms for the proposed criteria.

Applicability . The applicability provisions identify those solid waste disposal facilities subject to the new proposed RCRA Subpart D (i.e., CCR landfills and CCR surface impoundments as defined under proposed 257.40(b)). The applicability se ction also identifies three of the existing subpart A criteria that would continue to apply to these facilities: 257.3-1, Floodplains , 257.3-2 Endangered Species , 257.3-3 Surface water . The applicability of these provisions to CCR disposal facilities is discu ssed later in this preamble.

The applicability section also spec ifies an effective date of 180 da ys after publication of the final rule. EPA believes that, with the specific excep tions discussed below, this time frame strikes a reasonable balance between the time that owners and operators of CCR units would need in order to come into compliance with the rule’s requirements, and the need to implement the proposed requirements in a timeframe that will maximize protection of health and the environment. We note that 180 days is the timef rame for persons to come into compliance with most of the requirements under RCRA subtitle C, and believe that if persons can meet the hazardous waste provisions within this time peri od under RCRA subtitle C, that it is reasonable to conclude that persons should be able to me et those same or similar requirements under RCRA subtitle D. EPA also notes that pending finalization of any regulat ions, facilities continue to be subject to the existing pa rt 257 open dumping criter ia as they may apply.

3. Definitions.DRAFT DO NOT CITE OR QUOTE 280 of 563 5/03/10 This section of the proposed regula tion discusses the definitions of some of the key terms used in the proposed RCRA subtitle D rule that are n ecessary for the proper interpretation of the proposed criteria. Because EPA is creating a separate section of the regulations specific to CCR units, EPA is also consolidating the existing defi nitions in this secti on. However, by simply incorporating these unmodified definitions into th is new section of the regulations, EPA is not proposing to reopen, or soliciting comments on these requirements. Nor, for definitions where the only modification relates to an adjustment sp ecific to CCRs, is EPA proposing to revise or reopen the existing part 257 or part 258 definitions as they apply to other categories of disposal facilities, as those will remain unaltered. A ccordingly, EPA will not respond to any comments on these definitions.

Aquifer . EPA has defined aquifer for this proposal as a geologic formation, group of formations, or portion of a formation capable of yielding significant quantitie s of ground water to wells or springs. This is the same definition currently used in EPA's hazardous waste program and MSWLF criteria in 40 CFR 258.2 and differs from the original criteria definition (40 CFR 257.3- 4(c)(1)) only in that it substitutes the term “significant” for “usable.” The Agency is proposing to adopt the modified definition to make the subtit le C and subtitle D alternatives consistent.

Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes. CCRs are also known as co al combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes.DRAFT DO NOT CITE OR QUOTE 281 of 563 5/03/10 CCR Landfill . The co-proposed criteria includes a defini tion of “CCR landfill” to mean an area of land or an excavation, includ ing a lateral expansion, in which CCRs are placed for permanent disposal, and that is not a land application un it, surface impoundment, or injection well. For purposes of this proposed rule, landfills also incl ude piles, sand and gravel pits, quarries, and/or large scale fill operations. EPA modeled this defi nition after the definition of “Municipal solid waste landfill (MSWLF) unit” contained in the ex isting criteria for those facilities. Although this is somewhat different than the definition propos ed under the subtitle C alternative (which is based on the existing part 260 definition), EPA in tends for this proposed definition to capture those landfills and other large-sc ale disposal practices that are described in EPA’s damage cases and risk assessments discussed in sections II, VI, and the RIA.

CCR Surface Impoundment . EPA has proposed to define this term to mean a facility or part of a facility, including a lateral expansion, that is a natural topographic depression, human-made excavation, or diked area formed primarily of earthen materials (althoug h it may be lined with human-made materials), that is designed to hold an accumulation of liquid CCR wastes or CCR wastes containing free liquids and th at is not an injection well. EPA has included as examples of surface impoundments settling and aeration pits, ponds , and lagoons. This is the same definition that EPA is proposing as part of the subtitle C alternative, and is generally consistent with the definition of “surface impoundment or impoundment ” contained in the existing 257.2 criteria. EPA further proposes in the definition a desc ription of likely cond itions at a CCR surface impoundment, stating that CCR surface impoundment s often receive CCRs that have been sluiced (flushed or mixed with water to facil itate movement), or wast es from wet air pollution control devices. EPA intends for this proposed definition to capture t hose surface impoundmentsDRAFT DO NOT CITE OR QUOTE 282 of 563 5/03/10 that are described in EPA’s dama ge cases and risk assessments de scribed in sections II, VI, and the RIA.

Existing CCR Landfill/Existing CCR Surface Impoundment . EPA has included a proposed definition of this term to mean a CCR landf ill or surface impoundment, which was in operation on, or for which construction commenced prior to the effective date of the final rule. The proposed definition states that a CCR la ndfill or surface impoundment has commenced construction if: (1) The owner or operator has obta ined the Federal, State and local approvals or permits necessary to begin physical construction; and (2) either (i) a continuous on-site, physical construction program has begun; or (ii) the owner or operator has entered into contractual obligations—which cannot be cancelled or modi fied without substantial loss—for physical construction of the CCR landfill or surface impound ment to be completed within a reasonable time. These definitions are identical to the co-proposed subtitle C definitions, described in section VI. EPA sees no reason to establish sepa rate definitions of these units for purposes of RCRA subtitle D since the question of whether th ese units are existing should not differ between whether they are regulated under RCRA subtitles C or D.

Factor of safety (Safety factor) . The proposed definition is the ratio of the forces tending to resist the failure of a structure to the forces tending to cause such failure as determined by accepted engineering practice. This definition is the same as the co-proposed subtitle C definitions, described in section VI. EPA s ees no reason to establish a separa te definition for this term for purposes of RCRA subtitle D since the question of “Factor of safety” should not differ between units that would be regulated under RCRA subtitles C or D
.DRAFT DO NOT CITE OR QUOTE 283 of 563 5/03/10 Hazard potential classification . This term is proposed to be defined as the possible adverse incremental consequences that result from the releas e of water or stored contents due to failure of a dam (or impoundment) or mis-operati on of the dam or appurtenances.

The proposed definition further delineates the classification into four categories:

- High hazard potential surface impoundment which is a surface impoundment where failure or mis-operation will probably cause loss of human life;

- Significant hazard potential surface impoundment which is a surface impoundment where failure or mis-operation results in no probable loss of human lif e, but can cause economic loss, environmental damage, disruption of lifeline f acilities, or impact other concerns; and

- Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/or environmental losses. Losses are principally limited to the surface impoundment owner’s property. -Less than low hazard potential surface impoundment means a surface impoundment not meeting the definitions for High, Signifi cant, or Low Hazard Potential

This definition, just like the proposed RCRA subtitle C definiti on, follows the Hazard Potential Classification System for Dams, developed by the U.S. Army Corps of Engineers for the National Inventory of Dams. This system is a wi dely-used definitional sche me for classifying the hazard potential posed by dams, and EPA expect s that the regulated community’s familiarity with these requirements will make their app lication to CCR surface impoundments relatively straightforward.DRAFT DO NOT CITE OR QUOTE 284 of 563 5/03/10 Independent registered profes sional engineer or hydrologist . This term is defined as a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or surface impoundment who has received a ba ccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training a nd experience in groundwat er hydrology and related fields as may be demonstrated by state registrati on, professional certific ations, or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.

Because the proposed RCRA subtitle D require ments cannot presuppose the existence of a permit or state regulatory oversig ht, the criteria in today's propos ed rule are self-implementing. However, as discussed earlier, to try to mini mize the potential for overregulation, and to provide some degree of flexibility, EPA is proposing to allo w facilities to deviate from the criteria upon a demonstration that the alternativ e meets a specified performance st andard. But to provide for a minimum level of verification and to reduce the oppor tunity for abuse, the Agency believes it is imperative to have an independent party review, and certify the facility’s demonstrations. The Agency also believes that those professionals certifying the requirements of today's proposed rule should meet certain minimu m qualifications. The Agency is proposing to define a “qualified ground-water scientist” to be a scientist or e ngineer who has received a baccalaureate or postgraduate degree in the natural sc iences or engineering and has sufficient training and experience in ground-water hydrology and related fields as may be demonstrated by State registration, professional certification, or completion of accr edited university programs that enable that individual to make sound professional judgments rega rding ground-water monitoring,DRAFT DO NOT CITE OR QUOTE 285 of 563 5/03/10 contaminant fate and transport, and corrective acti on. This requirement is the same as the current requirement at § 258.50(f). The Agency believes th at specialized coursework and training should include, at a minimum, physical geol ogy, ground-water hydrology or hydrogeology, and environmental chemistry (e.g., soil chemistry or low temperature geochemistry). Some national organizations, such as the American Instit ute of Hydrology and th e National Water Well Association, currently certify or register ground -water professionals. States may of course establish more stringent requirements for these professionals , including mandatory licensing or certification. As discussed above, EPA seeks comment on the proposed reliance on independent professionals in implementing the proposed flexibility of performance standards.

Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or existing CCR surface impoundment made af ter the effective date of the final rule. This definition is identical to the co-proposed su btitle C definition, described in section VI. EPA sees no reason to establish a separate definition of this term for purposes of RCRA subtitle D since whether a lateral expans ion has occurred at a CCR landf ill or surface impoundment should not differ between those units regul ated under RCRA subtitles C or D.

New CCR landfill means a CCR landfill from which there is placement of CCRs without the presence of free liquids, which began operation, or for which th e construction commenced after the effective date of the rule. This definition is identical to the co-proposed subtitle C definition, described in section VI. EPA s ees no reason to establish a separa te definition for this term for purposes of RCRA subtitle D since whether a la ndfill is new should not differ between those landfills that are regulated under RCRA subtitles C or D.DRAFT DO NOT CITE OR QUOTE 286 of 563 5/03/10 New CCR surface impoundment means a CCR surface impoundment into which CCRs with the presence of free liquids have been placed, whic h began operation, or for which the construction commenced after the effective date of the rule . EPA sees no reason to establish a separate definition for this term for purpos es of RCRA subtitle D since whether a surface impoundment is new should not differ between those surface impoundments that are regulated under RCRA subtitles C or D.

Recognized and generally accepte d good engineering practices means engineering maintenance or operation activities ba sed on established codes, standard s, published technical reports, recommended practice, or similar document. Such practices detail gene rally approved ways to perform specific engineering, inspection, or m echanical integrity activities. In several provisions, EPA requires that the facility opera te in accordance with “recognized and generally accepted good engineering practices,” or requires an independent engineer to certify that a design or operating parameter meets this standard. The definition refe rences but does not attempt to codify, any particular set of e ngineering practices, but to allow the professiona l engineer latitude adopt improved practices that refl ect the state-of-the art practice s, as they develop over time. This definition is the same as the definition EPA is proposing under the subtit le C alternative.

4. Location Restrictions.

To provide for no reasonable probability of adve rse effects on health or the environment from the disposal of CCRs at CCR landfills and su rface impoundments, EPA believes that any RCRADRAFT DO NOT CITE OR QUOTE 287 of 563 5/03/10 subtitle D regulation would need to ensure that CCR disposal units were appropriately sited. The proposed location restrictions in clude requirements relating to pl acement of the CCRs above the water table, wetlands, fault areas, seismic impact zones, and unstable areas. In addition, as previously noted, the location standards in subpart A of 40 CFR Part 257 for floodplains, endangered species, and surface waters would also continue to apply. Finally, the proposed regulations also address the closure of ex isting CCR landfills and surface impoundments.

The location standards in this proposal are prim arily based on the locati on standards developed for municipal solid waste landfill units, and represen t provisions to ensure that the structure of the disposal unit is not adversel y impacted by conditions at the si te, or that the location of a disposal unit at the site woul d not increase risks to human heal th or the environment. The criteria for municipal solid waste landfills provid e restrictions on siting units in wetlands, fault areas, seismic impact zones, and unstable areas. 151 Each of those factor s is generally recognized as having the potential to impact the structure of a disposal un it negatively or increase the risks to human health and the environment. As di scussed below in more detail, each of these provisions adopted for today’s RCRA subtitle D co -proposal relies in large measure, on the record EPA developed to support the 40 CFR part 258 municipal solid waste landfill criteria. EPA’s Guide for Industrial Waste Manage ment (EPA530-R-03-001, February 2003) also

151 The proposed definition of seismic impact zone was modi fied from the part 258 definition as explained in the “Discussion of Individual Location Requirements” section below. The part 258 criteria also include location restrictions relating to airport safety and floodplains, in 258.10 and 258.11, respectively. EPA has not proposed an analogue to 258.10 because the hazard addressed by that crite rion, bird strikes to aircra ft, is inapplicable in the context of CCR disposal units, which do not tend to attract birds to them. As discussed in the main text, EPA is proposing to maintain the existing criterion in 257, subpart A for floodplains.DRAFT DO NOT CITE OR QUOTE 288 of 563 5/03/10 identifies these location restri ctions as appropriate for indus trial waste management. These proposed requirements are all disc ussed in turn below, after a general explanation of the Agency’s proposed treatment of new CCR dispos al units compared to existing CCR disposal units.

a. Differences in Location Restrictions for Existing and New CCR Landfills and Surface Impoundments, and Lateral Expansions. EPA is proposing different se ts of location restrictions under the Subtitle D approach, depending on whether a unit is a CCR landfill or surface impoundment, and whether it is an existing or ne w unit. Lateral expansions fall within the definitions of new units, and are treated accordingly.

While new landfills would be required to comply with all of the location restrictions, EPA is proposing to subject existing landfills to only tw o of the location restrictions— floodplains, and unstable areas—in today's rule. Existing landfills are already subject to the floodplains location restriction because it is containe d in the existing 40 CFR part 257, subpart A criteria, which have been in effect since 1979. Because owners and operators of existing landfills already should be in compliance with this criterion, applying this location restriction will have no impact to the existing disposal capacity, while continuing to provide protec tion of human health and the environment.

The Agency decided to apply today's final uns table area location rest riction to existing CCR landfills, because the Agency believes that the impacts to human health and the environment that would result from the rapid and catastrophic dest ruction of these units outweighs any disposalDRAFT DO NOT CITE OR QUOTE 289 of 563 5/03/10 capacity concerns resulting from the cl osure of existing CCR disposal units.

On the other hand EPA is not proposing to impose requirements on existing CCR landfills in wetlands, fault areas, or seismic impact areas. We base this decision on the possibility that a significant number of CCR landfills may be located in areas subject to this requirement. The Agency believes that such landfills pose less ri sks and are structurally less vulnerable than surface impoundments, and disposal capacity sh ortfalls, which could result if existing CCR landfills in these locations were required to close, raise greater environmental and public health concerns than the potential risks caused by existin g units in these locations. For example, if existing CCR landfills located in wetlands were requi red to close, there would be a significant decrease in disposal capacity, particularly given the Agency’s expectation that many existing surface impoundments will choose to close, in response to this proposed rule. In addition, wetlands are more prevalent in some parts of the country (e.g., Florida and Louisiana). In these States, the closure of all existi ng CCR landfills located in wetlands could potentially significantly disrupt statewide solid waste management. Ther efore, the Agency believes that it may be impracticable to require the closure of existing CCR landfills located in wetlands. However, EPA seeks comment and additional information regarding the number of existing CCR landfills that are located in such areas.

Concern about impacts on solid waste disposal cap acity as well as the lower level of risks and the structural vulnerability of landfills, as compared to surface impoundments, were also the primary reasons the Agency is not proposing to subject existing CCR landfills to today's proposed fault area location restrictions. The closure of a significant number of existing CCRDRAFT DO NOT CITE OR QUOTE 290 of 563 5/03/10 landfills located in fault areas could result in a serious reduction of CCR landfill capacity in certain regions of the U.S. where movement al ong Holocene faults is common, such as along the Gulf Coast and in much of California and the Pacific Northwest. The Agency, however, does not have specific data showing the number of un its and the distance between these disposal units and the active faults, and therefor e, is unable to precisely estima te the number of these existing CCR landfills that would not meet today's fau lt area restrictions. EPA therefore solicits comment and additional data and information regarding the extent to which existing CCR landfills are currently located in such locations. However, gi ven the potential for impacts on solid waste capacity and the lower levels of risk associated with landfills compared to surface impoundments, EPA has concluded that it may not be appropriate to subject existing CCR landfills to the proposed fault area requirements.

Similarly, the Agency is not proposing to impose th e seismic impact zone restrictions on existing CCR landfills located in these areas. As with the other location rest rictions, the Agency anticipates that a significant number of existing CCR disposal units are located in these areas. EPA is concerned that such facilities would be unable to meet the requirements, because retrofitting would be prohibitively expensive and technically very difficult in most cases, and would therefore be forced to close.

EPA generally seeks comment and additional in formation regarding the extent to which CCR landfill capacity would be affected by applying these location restrictions to existing CCR landfills. Information on the prevalence of ex isting CCR landfills in such areas would be of particular interest to the Agen cy. EPA also notes that the pr oposed location requirements do notDRAFT DO NOT CITE OR QUOTE 291 of 563 5/03/10 reflect a complete prohibition on siting facilities in such area s, but provide a performance standard that facilities must meet in order to site a unit in such a location. EPA therefore solicits comment on the extent to which facilities could comply with these performance standards, and the necessary costs that would be incurred to retrofit the unit to meet these standards.

As discussed earlier in this preamble, this propo sed approach is generally consistent with the proposed approach to existing landfills under subtitle C of RCRA, and with Congressional distinctions between the risk s presented by landfills and su rface impoundments. Existing landfills that are brought into the hazardous waste system because they are receiving newly listed hazardous wastes are not generally required to be retrofitted with a new minimum-technology liner/leachate collection and removal system (or to close), and they would not be subject to such requirements under today’s proposal. EPA sees no reason or special argument to adopt more stringent requirements under the co-proposed subtitle D criteria for CCR landfills, particularly given the volume of the material and the disr uption that could be involved if these design requirements were applied to existing landfills.

By contrast, and consistent with its approach to existing surface impound ments under subtitle C, the proposed regulations would apply all of th e location restrictions to existing surface impoundments. This means that facilities would need to either demons trate that the surface impoundment meets the performance standard that serves as the alternative to the prohibition, retrofit the unit so that it can meet the performa nce standard, or close. EPA is making this distinction because, as discussed in sections IV-VI, the record indicates th at the risks associated with CCR surface impoundments are substantially higher than the risks posed by CCR landfills.DRAFT DO NOT CITE OR QUOTE 292 of 563 5/03/10 The impacts to human health and the environm ent that would result from the rapid and catastrophic destruction of these units could result in in juries to human health and the environment, that are far more significant, as il lustrated by the impacts of the recent TVA spill in Tennessee. The risks to human health and the environment of such a catastrophic collapse far outweigh the costs of requiring surface impoundments to retrofit or close. Moreover, there are significant economic costs associated with the fa ilure of a surface impoundment; as noted earlier, the direct cost to clean up the TVA spill is cu rrently estimated to exceed one billion dollars. Surface impoundments, also are more vulnerable to structural problems if located in unstable areas, fault areas and seismic impact areas. Fi nally, as already noted, the distinction EPA is making between existing landfills and existing su rface impoundments is also consistent with Congressional direction; as di scussed in section VI, Congre ss specifically required existing surface impoundments receiving hazardous wastes to retrofit to meet the new statutory requirements or to close, in direct contrast to their treatment of existing landfills.

Although many surface impoundments may close as a result of these requirements, EPA believes that it is proposing to take a number of actions to alleviate c oncerns that this will present significant difficulties with regard to disposal capacity in the s hort-term: e.g., “grandfathering” in existing CCR landfills, allowing CCR landfills to vertically expand w ithout retrofitting, and delayed implementation dates. At the same time, as discussed in greater detail in section VI, with regard to the subtitle C co-proposal, EP A is soliciting comment on the appropriate amount of time necessary to meet these time frames as well as measures that could help to address the potential for inadequate dispos al capacity. EPA notes, however, that unlike under the subtitle C co-proposal, EPA is not proposing to require facil ities to cease wet handling. Thus EPA expectsDRAFT DO NOT CITE OR QUOTE 293 of 563 5/03/10 that both the impacts and the time frames needed for facilities to come into compliance would be lower.

While the proposed requirements relating to the placement above the water table, wetlands, fault areas, and seismic impact zones would not appl y to existing CCR disposal units, all of these restrictions apply to lateral expansions of existing CCR disposal units, as well as new CCR disposal units. Therefore, under the proposal, owners and operators of existing CCR landfills could vertically expand their existing facilities in these locations, but must comply with the provisions governing new units if they wish to laterally expand. EPA expects that allowing such vertical expansion will allow for increased capaci ty, which will be particul arly important, if, as EPA expects, many surface impoundments would close, should this regulation be adopted. At the same time, EPA believes that the risks to hum an health or the enviro nment will be mitigated because facilities will be require d to otherwise comply with th e more stringent environmental restrictions, such as the corre ctive action and closure provisi ons proposed below.

b. Discussion of Individual Location Requirements.

Placement above the water table. The co-proposed subtitle D re gulations would prohibit new CCR landfills and all surface impoundments from be ing located within two feet of the upper limit of the natural water table. EPA is proposing to define the natural wa ter table as the natural level at which water stands in a shallow well open along its length and penetrating the surficial deposits just deeply enough to encounter standing water at the bottom. This is the level of water that exists, when uninfluenced by groundwater pumping or other en gineered activities.DRAFT DO NOT CITE OR QUOTE 294 of 563 5/03/10 Floodplains . CCR landfills and surface impoundments are currently subject to the open dumping criteria contained in 40 CFR 257, Subpart A. These minimum criteria include restrictions on floodplain impacts under 257.3-1. As facilities s hould already be comp lying with this requirement, EPA is not proposing to modify it as part of today’s rule. Accordingly, EPA is not reopening this requirement.

Wetlands. The regulations require that the facili ty prepare and make available a written demonstration that such engineer ing measures have been incorpor ated into the unit’s design to mitigate any potential adverse impact, and require certification by an independent registered professional engineer either that the new CCR disposal unit is not in a prohibited area, as defined by the regulation, or that the demonstrat ion meets the regula tory standards.

Today's proposed wetland provisions would appl y only to new CCR landfills, including lateral expansions of existing CCR disposal units, a nd all surface impoundments. New CCR landfills, which include lateral expansions, as well as a ll surface impoundments, are barred from wetlands unless the owner or operator of the disposal unit can make the following demonstrations certified by an independent registered professional engineer or hydrologist. First, the owner or operator must rebut the presumption that a practicable alternative to the propos ed CCR disposal unit or lateral expansion is av ailable that does not involve wetla nds. Second, the owner or operator must show that the construction or operation of the unit will not cau se or contribute to violations of any applicable State water qua lity standard, violate any applicab le toxic effluent standard or prohibition, jeopardize the continue d existence of endangered or th reatened species or criticalDRAFT DO NOT CITE OR QUOTE 295 of 563 5/03/10 habitats, or violate any requireme nt for the protection of a marine sanctuary. Third, the owner or operator must demonstrate that the CCR disposal unit or lateral expansion will not cause or contribute to significant degradati on of wetlands. To this end, th e owner or operator must ensure the integrity of the CCR disposal unit , and its ability to protect eco logical resources by addressing: erosion, stability, a nd migration potential of native wetland soils, muds and deposits used to support the unit; erosion, stability, and migration potential of dredged and fill materials used to support the unit; the volume and chemical nature of the CCRs; impacts on fish, wildlife, and other aquatic resources and their habitat from release of CCRs; the potential effects of catastrophic release of CCRs to the wetland and the resulting impacts on the environment; and any additional factors, as necessary, to demons trate that ecological resources in the wetland are sufficiently protected. Fourth, the owner or ope rator must demonstrate that steps have been taken to attempt to achieve no ne t loss of wetlands by first avoi ding impacts to wetlands to the maximum extent practicable, then minimizi ng unavoidable impacts to the maximum extent practicable, and finally offse tting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions. The owner or operator must place the demonstrations in the operating record and the co mpany’s internet site, and notify the state that the demonstrations have been placed in the operating record

For facilities that cannot make such a demonstrat ion, this proposed provision effectively bans the siting of new CCR landfills or surface impoundme nts in wetlands, and would require existing surface impoundments to close.

EPA notes that this section of the proposal is consistent with regulat ory provisions currentlyDRAFT DO NOT CITE OR QUOTE 296 of 563 5/03/10 governing the CWA section 404 program, including the definition of wetlands contained in proposed 257.61. See 40 CFR 232.2(r). EPA believe s that wetlands are very important, fragile ecosystems that must be protected, and has iden tified wetlands protecti on as a top priority. Nevertheless, EPA has proposed to continue to allow existing CCR landfills to be sited in wetlands to minimize the disruption to existi ng CCR disposal facilities, as it is EPA’s understanding that many existing CCR landfills are located near surface water bodies, in areas that also may qualify as wetlands under the propos ed criteria. Likewise, EPA is concerned that an outright ban of new CCR landfills in wetlands w ould severely restrict the available sites or expansion possibilities, given that EPA is proposing to impose other conditions on surface impoundments that may cause many to ultimately clos e. As noted in section VI, concerns have been raised regarding the potential for disposal capacity shortfalls, whic h could lead to other health and environmental impacts, such as the transportation of large volumes of CCRs over long distances to other sites. Accordingly to pr ovide additional flexibility in the proposed RCRA Subtitle D rules, and to address concerns regard ing the potential for disp osal capacity shortfalls, EPA is not proposing an outright ban on siting of existing CCR disposal units in wetlands.

However, EPA continues to believe that siting new CCR disposal units in wetlands should only be done under very limited conditions. The Agen cy is therefore proposing a comprehensive set of demonstration requirements. In addition, the Agency believes that when such facilities are sited in a wetland, that th e owner or operator should offset any impacts through appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands). This approach is consistent with the Agency's goal of achieving no overall net loss of the nation's re maining wetland base, as defined by acreage andDRAFT DO NOT CITE OR QUOTE 297 of 563 5/03/10 function. Specifically, § 257.61(a)(4) requires owne rs or operators of new CCR landfills and surface impoundments to demonstrate that steps ha ve been taken to achieve no net loss of wetlands (as defined by acreage and function) by first avoiding impacts to wetlands and then minimizing such impacts to the maximum extent feasible, and finally, offsetting any remaining wetland impacts through all appropriate and f easible compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands).

The Agency has also included other requirements to ensure that the demonstrations required under the proposed rule are comprehensive and ensure no reasonable probability of adverse effects to human health and the environment. First, EPA has included la nguage in § 257.61(a)(2) clarifying that the owner or ope rator must demonstrate that bo th the construction and operation of the unit will not result in vi olations of the standards spec ified in § 257.61(a)(2)(i)-(iv). Second, in § 257.61(a)(3) EPA proposes to identify the factors the owner or operator must address in demonstrating that th e unit will not cause or contribut e to significant degradation of wetlands. These factors, which were partially derived from the section 404(b)(1) guidelines, address the integrity of the CCR unit and its abi lity to protect the ecol ogical resources of the wetland. In addition, EPA is propos ing requirements for third-part y certification and state/public notice, to provide some verification of facility pr actices, and to generally assist citizens’ ability to effectively intervene and enforce the requirements, as necessary.

Fault Areas. The proposed rule would ban the locati on of new CCR landfills and any surface impoundment within 200 feet (60 meters) of fau lts that have experien ced displacement during the Holocene Epoch. The Holocene is a unit of geologic time, extending from the end of theDRAFT DO NOT CITE OR QUOTE 298 of 563 5/03/10 Pleistocene Epoch to the presen t and includes the past 11,000 years of the Earth's history. EPA is proposing to define a fault to include a zone or zones of rock fract uring in any geologic material along which there has been an observabl e amount of displacement of the sides relative to each other. Faulting does not always occur al ong a single plane of movement (a “fault”), but rather along a zone of movement (a “fault zone”) . Therefore, “zone of fracturing,” which means a fault zone in the context of the definition, is incl uded as part of the definition of fault, and thus the 200-foot setback distance will apply to th e outermost boundary of a fault or fault zone.

The 200-foot setback was first adopted by EPA in the criteria for municipa l solid waste landfills (MSWLFs), codified at 40 CFR part 258. In the course of that pr oceeding, EPA documented that seismologists generally believed that the structural integrity of MSWLFs could not be unconditionally guaranteed when they are built w ithin 200-feet of a fault along which movement is highly likely to occur. Moreover, EPA relied on a study that showed that damage to engineered structures from eart hquakes is most severe when the structures were located within 200-feet of the fault along which displacement occurred. Because the engineered structures found at MSWLFs are similar to those found in CCR disposal units, EP A expects that the potential for damage to those structures would be similar in the event of an earthquake near a CCR landfill or surface impoundment. Therefor e, EPA is proposing a similar setback requirement for new CCR landfills and all surface impoundments. In general, EPA believes that the 200-foot buffer zone is necessary to protect engineered structures from seismic damages. EPA also expects that the 200-foot buffer is appropriate for CCR surface impoundments, but seeks comment and data on whether the buffer z one should be greater for such units.DRAFT DO NOT CITE OR QUOTE 299 of 563 5/03/10 However, the Agency is also concerned that th e 200-foot setback may be overly protective in some geologic formations, but it is unable to provide a clear definition of these geologic formations. Therefore, the Agency is propos ing to allow the opportunity for an owner or operator of a new CCR disposal unit to demonstrate that an alternative setback distance of less than 200 feet will prevent damage to the structural integrity of facility and will be protective of human health and the environment. The dem onstration must be certified by an independent registered professional engineer and the owner or ope rator of the CCR disposal unit must notify the state that the demonstrati on has been placed in the operatin g record and on the company’sinternet site. This approach is consistent with other sections of today's RCRA subtitle D coproposal for alternatives to the specified self-implementing requirement.

Seismic Impact Zones . As noted, the proposed rule woul d also ban the location of new CCR landfills and any surface impoundment s in seismic impact zones, unless owners or operators demonstrate that the unit is designed to resist the maximum horizontal acceleration in lithified earth material for the site. The design features to be protected include al l containment structures (i.e., liners, leachate collection systems, and su rface water control systems). The demonstration must be certified by an independe nt registered professional engi neer and the owner or operator must notify the state that the demonstration ha s been placed in the ope rating record and on the company’s internet site. For purposes of this requirement, EPA is proposing to define seismic impact zones as areas having a 10 percent or gr eater probability that the maximum expected horizontal acceleration in hard rock, expressed as a percentage of the earth's gravitation pull (g), will exceed 0.10g in 250 years. This is based on the existing part 258.14 definition of seismic impact. The maps for the 250-year intervals are r eadily available for all of the U.S. in the U.S.DRAFT DO NOT CITE OR QUOTE 300 of 563 5/03/10 Geological Survey Open-File Report 82-1033, entit led “Probabilistic Estimates of Maximum Acceleration and Velocity in Rock in the Contiguous United States.”

Another approach would be to adopt criteria of the National Earthqua ke Hazards Reduction Program (NEHRP) of the U.S. Geological Survey us ed to develop national seismic hazard maps. The NEHRP uses ground motion prob abilities of 2, 5, and 10% in 50 years to provide a relative range of seismic hazard across the country. The larger probabilities indi cate the level of ground motion likely to cause problems in the western U.S. The smaller probabilities show how unlikely damaging ground motions are in many places of the eastern U.S. The maps are available at http://earthquake.usgs.gov/hazards/ products/. A 50 year time period is commonly used because it represents the typical lifespan of a building, and a 2% probability level is generally considered an acceptable hazard leve l for building codes. For areas along known active faults, deterministic and scenario ground motion maps could be used to describe the expected ground motions and effects of sp ecific hypothetical large earthquakes (see http://earthquake.usgs.gov/hazard s/products/scenario/). The Agen cy solicits comments on the proposed definition and whether there are variants like those used to deve lop the national seismic hazard maps that could lessen the burden on the industry and the geographic areas covered by the proposed definition. For additional informa tion on the National Seismic Hazard Mapping Project, see http://earthqu ake.usgs.gov/hazards/about/.

Unstable Areas . EPA is proposing to require owners or operators of all CCR landfills, surface impoundments and lateral expansions located in uns table areas to demonstrate that the integrity of the structural components of the unit will not be disrupted. EPA’ s damage cases haveDRAFT DO NOT CITE OR QUOTE 301 of 563 5/03/10 provided indirect evidence of the kind of environmental and huma n health risks that would be associated with failure of the structural compone nts of the surface impoundment from subsidence or other instability of the earth at a CCR di sposal unit. Accordingly, EPA believes that, to provide a reasonable probability of preventing rel eases and consequent damage to health and the environment from CCRs released from landfills or surface impoundments, limits on the siting of such disposal units is appropriate.

The proposed Subtitle D rule provides that “unsta ble areas” are locations that are susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the CCR disposal unit’s structural components responsi ble for preventing releases from such units. Unstable areas are characterized by localized or regional ground subsid ence, settling (either slowly, or very rapidly and catastrophically) of overburden, or by slope failure. The owner or operator must consider the followi ng factors when determining wh ether an area is unstable: (1) On-site or local soil conditions that may result in significant differential settling; (2) on-site or local geologic or geomorphologic features; and (3) on-site or local hum an-made features or events (on both the surface and subsurface). The structural components include liners, leachate collection systems, final cover systems, run- on and run-off control systems, and any other component used in the construction and operatio n of the CCR landfill, surface impoundment or lateral expansion that is nece ssary for protection of human health and the environment.

Unstable areas generally include: (1) Poor foundation conditions—areas where features exist that may result in inadequate foundation support for the structural component s of the CCR landfill, surface impoundment orDRAFT DO NOT CITE OR QUOTE 302 of 563 5/03/10 lateral expansion (this include s weak and unstable soils); (2) Areas susceptible to mass movement—areas wh ere the downslope movement of soil and rock (either alone or mixed with water) oc curs under the influence of gravity; and (3) Karst terraces—areas that are underlain by so luble bedrock, generally limestone or dolomite, and may contain extensive subter ranean drainage systems and re latively large subsurface voids whose presence can lead to the rapid development of sinkholes. Karst areas are characterized by th e presence of certain physiograp hic features such as sinkholes, sinkhole plains, blind valleys, solu tion valleys, losing streams, caves, and big springs, although not all these features are always present. EPA's intent in this pr oposed requirement is to include as an unstable area only those karst terraces in which rapid subsidence and sinkhole development have been a common occurrence in recent geolog ic time. Many of the karst areas are shown on the U.S. Geological Survey's National Atlas map entitled “Engineering Aspects of Karst,” published in 1984.

Specific examples of such natural or human-i nduced phenomena include: Debris flows resulting from heavy rainfall in a small watershed; th e rapid formation of a sinkhole as a result of excessive local or regional ground-water withdrawal; rockfalls along a cliff face caused by vibrations set up by the detonation of explosiv es, sonic booms, or other mechanisms; or the sudden liquefaction of a soil with the attendant loss of shear strength following an extended period of constant wetting and drying. Various na turally-occurring conditi ons can make an area unstable and these can be very unpredictable and destructive, especially if amplified by humaninduced changes to the environment. Such condi tions can include the pr esence of weak soils, over steepened slopes, large subs urface voids, or simply the pres ence of large quantities ofDRAFT DO NOT CITE OR QUOTE 303 of 563 5/03/10 unconsolidated material near a watercourse.

The Agency recognizes that rapid sinkhole formati on that occurs in some karst terraces can pose a serious threat to human health and the envi ronment by damaging the structural integrity of dams, liners, caps, run-on/run-off control system s, and other engineered structures. However, EPA is not proposing an outrigh t ban of CCR landfills and surface impoundments in all karst terraces because of concerns regarding the imp acts of such a ban in certain regions of the country. For example, several States (i.e., Ke ntucky, Tennessee) are comprised mostly of karst terraces and banning all CCR disposal facilities in karst terraces would cause severe statewide disruptions in capacity availabl e for CCR disposal. Moreover, the Agency believes that some karst terraces may provide sufficient struct ural support for CCR disposal units and has accordingly tried to provide flexibility for siting in these areas. Therefore, EPA is proposing to allow the construction of new CCR units, and th e continued operation of existing CCR landfills and surface impoundments in karst terraces where the owner or operator can demonstrate that engineering measures have been incorporated into the landfill, surface impoundment, or lateral expansion design to ensure that the integrity of the structural components of the landfill or surface impoundment will not be disrupted. Th e demonstration must be certified by an independent registered professiona l engineer, and the owner or opera tor must notify the state that the demonstration has been placed in the operatin g record and on the company’s internet site.

Closure of Existing CCR Landfills and Surface Impoundments. The proposed rule would require owners and operators of existing CCR landfills and surface impoundments that cannot make the demonstrations required under §257.62(a) af ter the effective date of the rule, to close the landfillDRAFT DO NOT CITE OR QUOTE 304 of 563 5/03/10 or surface impoundment within five years of the date of publication of the final rule. Closure and post-closure care must be done in accordance with §257.100 and §257.101. The proposed rule would also allow for a case-by-case extension for up to two more years if the facility can demonstrate that there is no a lternative disposal capacity and there is no immediate threat to health or the environment. This demonstration must be certified by an independent registered professional engineer or hydrologist. The owner or operator mu st place the demonstration in the operating record and on the company’s internet s ite and notify the state that this action was taken.

Thus, the proposed rule allows a maximum of 7 year s from the effective date of the final rule if this alternative is finally promulgated for existi ng CCR landfills to comply with the unstable area restrictions, and existing CCR surf ace impoundments to comply with the location restrictions or to close. As discussed under the subtitle C opti on, EPA believes that five years will, in most cases, be adequate time to complete proper and effective facility clos ure and to arrange for alternative waste management. However, th ere may be cases where alternative waste management capacity may not be readily availabl e or where the siting and construction of a new facility may take longer than five years. EP A believes the two-year extension should provide sufficient time to address these potential problem s. EPA continues to believe that impacts on human health and the environment need to be carefully considered, and therefore, today's proposed rule requires the owner or operator to demonstrate that there is no available alternative disposal capacity and there is no potential threat to human health and the environment before adopting the two-year extension. These time frames are consiste nt with those EPA is proposing under its subtitle C co-proposal for surface impound ments. EPA is aware of no reason that theDRAFT DO NOT CITE OR QUOTE 305 of 563 5/03/10 time frames would need to differ under subtitle D, but solicits comment on this issue.

5. Design Requirements.

The CCR damage cases and EPA’s quantitative gr oundwater risk assessmen t clearly show the need for effective liners – namely composite line rs – to very significantly reduce the probability of adverse effects. The co-proposed subtitle D design standards would re quire that new landfills and all surface impoundments that have not complete d closure prior to the effective date of the rule, can only continue to operate if composite liners and leachate collection and removal systems have been installed. Units must be retrof itted or closed within five years of the effective date of the final rule, which is the time frame EPA is proposing for surface impoundments to retrofit or close under the subtitle C alternative. EPA is proposi ng to require the same liner and leachate collection and removal systems as part of the subtitle D criteria that are being proposed under the RCRA subtitle C co-proposal. The tec hnical justification for these requirements is equally applicable to the wastes and the units, irrespective of th e statutory authority under which the requirement is proposed.

EPA is also proposing to adopt the same a pproach to new and existing units under RCRA subtitle D that it is proposing under RCRA sub title C. EPA would only require new landfills (or new portions of existing landfills) to meet th ese minimum technology requirements for liners and leachate collection and removal systems. Existing landfills that continue to receive CCRs after the effective date of the final rule, would not be required to be retrofi tted with a new minimumtechnology liner/leachate collecti on and removal system (or to close). They can continue toDRAFT DO NOT CITE OR QUOTE 306 of 563 5/03/10 receive CCRs, and continue to operate as comp liant landfills, without violating the open dumping prohibition. However, existing landfills would have to meet groundwater monitoring, corrective action, and other requirements (except as noted) of the subtitle D criteria, to assure that any groundwater releases from the unit were identified and promptly remediated. EPA sees no reason or special argument to adopt any diffe rent approach under the co-proposed subtitle D regulations for CCR landfills, particularly given the volume of the material and the disruption that would be involved if these design requi rements were applied to existing landfills.

By contrast, existing surface impoundments that have not completed closure by the effective date of the final rule would be required to retrofit to install a liner. This is consistent with, but not identical to, the approach proposed under the RCRA subtitle C alternative. Under the subtitle C alternative, EPA is not proposing to require existing surface impoundme nts to install the proposed liner systems because the impoundments would only continue to operate for a limited period of time. EPA’s proposed treatment stan dards—dewatering the wastes—will effectively phase out wet handling of CCRs. During this interim period (seven years as proposed), EPA believes that it would be infeasible to requi re surface impoundments to retrofit, and that compliance with the groundwater monitoring an d other subtitle C requirements would be sufficiently protective. EPA lacks the au thority under RCRA subtitle D to establish a comparable requirement; EPA only has the au thority under RCRA section 4004 to establish standards relating to “disposal,” not treatment, of solid wastes. Although EPA expects that many surface impoundments will choose to close rather th an install a liner, wet-handling of CCRs can continue, even in existing units, and EPA’s risk assessment confir ms that the long-term operationDRAFT DO NOT CITE OR QUOTE 307 of 563 5/03/10 of such units would not be prot ective without the inst allation of the composite liner and leachate collection system described below.

The composite liner would consist of two comp onents: an upper compon ent consisting of a minimum 30-mil flexible membrane liner (FML), and a lower component consisting of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. The FML component would be required to be inst alled in direct and uni form contact with the compacted soil component. (In other words, the new landfill or new surface impoundment would be required to have a liner and leachate collection and removal system meeting the same design standard now included in EPA’s municipa l solid waste landfill criteria.) EPA solicits comment, however, on whether any subtitle D option s hould allow facilities to use an alternative design for new disposal units, so long as the owner or operator of a unit could obtain certification from an independent registered professional engi neer or hydrologist that the alternative design would ensure that the appropriate concentration values for a set of constituents typical of CCRs will not be exceeded in the uppermost aquifer at the relevant point of compliance--i.e., 150 meters from the unit boundary down gradient from the unit, or the property boundary if the point of compliance (i.e., the monitoring well) is be yond the property boundary. Although the existing part 258 requirements allow for such a demonstr ation, EPA is not proposing such a requirement in today’s rule. EPA’s risk assessment shows that only a composite liner would ensure that disposal of CCR will meet the RCRA section 4004 standard on a national level, even though site specific conditions could support the use of alternate liner designs in individual instances. In the absence of a strong state oversight mechanism, such as a permit, EPA is reluctant to allow facilities to modify this key pr otection. Nevertheless, EPA would be interested in receiving dataDRAFT DO NOT CITE OR QUOTE 308 of 563 5/03/10 and information that demonstrates whether under other site conditi ons, an alternative liner would be equally protective. In this regard, EPA would also be inte rested in information documenting the extent to which such conditions currently exist at CCR units. If EPA adopts such a performance standard, EPA anticipates adopting a re quirement that is as consistent as possible with the existing part 258 requirements, and would re quire the same documentation and notification procedures as with the other self-implementing provisions in the co-proposed subtitle D option.

-Stability requirements for surface impoundments. In our recent assessment of surface impoundments managing CCRs, EPA has identified defi ciencies in units cu rrently receiving wethandled CCRs. 152 The damage cases also demonstrate the need for requirements to address the stability of surface impoundments, to prevent the damages associated with a catastrophic failure, such as occurred at the TVA facility in 2008. EPA is therefore proposing to adopt as part of the subtitle D operating criteria for surface impoundme nts, the same stability requirements that are proposed as part of the subtitle C alternative. As explained in that sect ion, these are based on the long-standing MSHA requirements, with only mi nor modifications necessary to tailor the requirements to CCR unit conditions.

For those surface impoundments which continue to operate, (i.e., both new and existing) the proposed regulation would require that an indepe ndent registered profes sional engineer certify that the design of the impoundment is in acco rdance with recognized and generally accepted

152 For the findings of the assessment, see: http://www.epa.gov/epawaste/nonhaz/industrial/s pecial/fossil/surveys/index.htm#surveyresultsDRAFT DO NOT CITE OR QUOTE 309 of 563 5/03/10 good engineering practices for the maximum volume of CCR slurry and wastew ater that will be impounded therein, and that together design and management featur es ensure dam stability. The proposed regulation also requires the facility to conduct weekly inspections to ensure that any potentially hazardous condition or structural wea kness will be quickly identified. As with the co-proposed RCRA subtitle C option, the proposed RCRA subtitle D regulati on also requires that existing and new CCR surface impoundments be inspected annually by an independent registered professional engineer to assure that the design, ope ration, and maintenance of the surface impoundment is in accordance with curren t, prudent engineering practices for the maximum volume of CCR slurry and CCR wa ste water which can be impounded. EPA has concluded, subject to considera tion of public comment, that thes e requirements are necessary to ensure that major releases do not occur that would cause adve rse effects on health or the environment.

6. Operating requirements.

EPA is proposing to establish specific criteria to address the day-to-day operations of the CCR landfill or surface impoundment. The criteria were developed to prevent the health and environmental impacts from CCR landfills and surface impoundments identified in EPA’s quantitative risk groundwater risk assessment and the damage cases. Included among these criteria are controls relating to runon and runoff from the surface of the facilities, discharges to surface waters, and pollution caused by windblow n dust from landfills, and record-keeping.DRAFT DO NOT CITE OR QUOTE 310 of 563 5/03/10 -Existing criteria for Endange red Species and Surface Water . CCR landfills and surface impoundments are currently subject to the ope n dumping criteria c ontained in 40 CFR 257, Subpart A. These minimum criteria include rest rictions on impacts to endangered species under 257.3-2, and impacts to surface water under 257.3-3. As facilities should already be complying with these requirements, EPA is not proposing to modify these existing requirements in today’s co-proposal. EPA notes that the surface water crit erion is not enforceable by RCRA citizen suit. The extent to which this criterion may be enfo rced is governed by the remedies available under the CWA, which is the source of th e requirement, rather than RCRA. See, e.g., Arc Ecology v. U.S. Maritime Admin. , No. 02:07-cv-2320 (E.D. Cal. Jan. 21, 2010); Guidelines for the Development and Implementation of State Soli d Waste Management Plans and Criteria for Classification of Solid Waste Disposal Fac ilities and Practices, 46 Fed. Reg. 47048, 47050 (Sept. 23, 1981).

-Run-on and run-off controls. The purpose of the run-on standard is to minimize the amount of surface water entering the landfill and surface impoundment facility. Run-on controls prevent (1) erosion, which may damage the physi cal structure of the landfill; (2) the surface discharge of wastes in solution or suspensi on; and (3) the downward percolation of run-on through wastes, creating leachate. The proposed regulation requires run-on control systems to prevent flow onto the active portion of the CCR landfill or surface impoundment during the peak discharge from a 24-hour, 25-year storm. This he lps to ensure that run-off does not cause an overflow of the surface im poundment or scouring of material from a landfill or the materials used to build the surface impoundment.DRAFT DO NOT CITE OR QUOTE 311 of 563 5/03/10 Run-off is one of the major sources of hazardous constituent releases from mismanaged waste disposal facilities , including CCR landfills and surface im poundments. Additionally, run-off control systems from the active por tion of CCR disposal units are required to collect and control at least the water volume resul ting from a 24-hour, 25-year storm. This protects surface water that would otherwise flow untreat ed into a body of water. The f acility is required to prepare a report, available to the public, documenting how relevant calculations were made, and how the control systems meet the standa rd. A registered professional engineer must certify that the design of the control systems m eet the standard. Also, the ow ner or operator is required to prepare a report, certif ied by an independent registered pr ofessional engineer, and documenting how relevant calculations were made, and how th e control systems meet the standard. The state must be notified that the report was placed in th e operating record for the site, and the owner or operator must make it available to the public on th e owner’s or operator’s internet site. Under the existing part 257 requirements, to which CCR units are currently subject, runoff must not cause a discharge of pollutants into waters of the Unite d States that is in vi olation of the National Pollutant Discharge Elimination System (NPDES ) under section 402 of the Clean Water Act. (40 CFR 257.3-3). EPA is not proposing to revise the existing requirement, but is merely incorporating it here for ease of the regulated community.

The Agency chose the 24-hour period because it is an average that includes storms of high intensity with short duration and storms of lo w intensity with long dur ation. EPA believes that this is a widely used standard, and is also th e current standard used for hazardous waste landfills and municipal solid waste landfill units under 40 CFR Part 258.. EPA has no information thatDRAFT DO NOT CITE OR QUOTE 312 of 563 5/03/10 warrants a more restrictive standard for CCR landfills and surface impoundments than for MSWLFs and hazardous waste landfills.

Fugitive dust requirements. EPA has included under the co-proposed RCRA subtitle D regulation requirements similar to those incl uded under the Subtitle C co-proposal, based upon its risk assessment findings that fugitive dust co ntrol at 35 μg/m3 or less is protective of human health or the environment. This is discussed in section VI above. Due to the lack of a permitting oversight mechanism under the RCRA Subtitle D a lternative, and to f acilitate citizen-suit enforcement of the criteria, EPA has provided for certification by an i ndependent registered professional engineer, notification to the state th at the documentation ha s been placed in the operating record, and provisions making available to the public on the ow ner’s or operator’s internet site documentation of the measures taken to comply with the fugitive dust requirements.

Recordkeeping requirements . EPA believes that it is appropr iate for interested states and citizens to be able to access all of the inform ation required by the proposed rule in one place. Therefore, the co-proposed Subtitle D altern ative requires the owner or operator of a CCR landfill or surface impoundment to record and reta in near the facility in an operating record which contains all records, reports, studies or other documentation required to demonstrate compliance with §§257.60 through 257.83 (relating to th e location restrictions, design criteria, and operating criteria) an d 257.90 through 257.101 (relating to ground water monitoring and corrective action, and closure and post-closure care).DRAFT DO NOT CITE OR QUOTE 313 of 563 5/03/10 The proposed rule would also require owners and operators of CCR su rface impoundments that have not been closed in accordance with the closure criteria to place in the operating record a report containing several items of information. The reports would be required beginning every twelfth months after existing CCR surface impoundme nts would be required to comply with the design requirements in section 257.71 (that is, no later than seven years after th e effective date of the final rule) and every twelfth month following the date of the initial plan for the design, construction, and maintenance of new surface impoundments and lateral expansions required under § 257.72(b)) to address: (1) Changes in the geometry of the im pounding structure for the reporting period; (2) Location and type of insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period; (3) The minimum, maximum, and present depth a nd elevation of the impounded water, sediment, or slurry for the reporting period; (4) Storage capacity of the impounding structure; (5) The volume of the impounded water, sediment, or slurry at the end of the reporting period; (6) Any other change which may have affect ed the stability or operation of the impounding structure that has occurred dur ing the reporting period; and (7) A certification by an independe nt registered prof essional engineer that all construction, operation, and maintenance were in accordance with the plan. Th e owner or operator would be required to notify the state that the report has been placed in the operating record and on the owner’s or operator’s internet site.DRAFT DO NOT CITE OR QUOTE 314 of 563 5/03/10 These reporting requirements are similar to those required under MSHA regulations for coal slurry impoundments (30 CFR 77.2 16-4). As the Agency has stated previously, MSHA has nearly 40 years of experience writing regulations and inspecting dams as sociated with coal mining, which is directly relevant to the issu es presented by CCRs in this proposal. In our review of the MSHA regulations, we found them to be comprehensiv e and directly applicable to and appropriate for the dams used in surface im poundments at coal-fired utilities to manage
CCRs.

The proposed rule would also allow the owne r or operator to submit a certification by an independent registered professiona l engineer that there have been no changes to the information in items (1)-(6) above to the surface impoundment instead of a full report, although a full report would be required at least every 5 years.

7. Ground water monitoring/Corrective action.

EPA’s damage cases and risk assessments all in dicate the potential for CCR landfills and surface impoundments to leach hazardous constituents into groundwater, impairing drinking water supplies and causing adverse impacts on huma n health and the environment. Indeed, groundwater contamination is one of the key en vironmental risks EPA has identified with CCR landfills and surface impoundments. Furthermore, as mentioned previously, the legislative history of RCRA section 4004 specifically eviden ces concerns over groundwater contamination from open dumps. To this end, groundwater mo nitoring is a key mechan ism for facilities to verify that the existing containment structures, su ch as liners and leachate collection and removalDRAFT DO NOT CITE OR QUOTE 315 of 563 5/03/10 systems, are functioning as intended. Thus, EP A believes that, in order for a CCR landfill or surface impoundment to show no reasonable probab ility of adverse effects on health or the environment, a system of routine groundwater m onitoring to detect any such contamination from a disposal unit, and corrective action requirement s to address identified contamination, is
necessary.

Today's co-proposed subtitle D cr iteria require a system of monito ring wells be installed at new and existing CCR landfills and surface impoundments. The co-proposed criteria also provide procedures for sampling these wells and methods fo r statistical analysis of the analytical data derived from the well samples to detect the pr esence of hazardous cons tituents released from these facilities. The Agency is proposing a groundwater monitoring program consisting of detection monitoring, assessment monitoring, an d a corrective action program. This phased approach to groundwater monitoring and correc tive action programs provide for a graduated response over time to the problem of groundwat er contamination as the evidence of such contamination increases. This allows for proper consideration of the transport characteristics of CCR constituents in ground water, while protec ting human health and the environment, and minimizing unnecessary costs.

In EPA’s view, the objectives of a groundwater monitoring and corrective action regime and analytical techniques for evaluating the quality of groundwater are similar regardless of the particular wastes in a disposal unit, and rega rdless of whether the unit is a landfill or surface impoundment. Therefore, EPA has largely mode led the proposed groundwater monitoring and corrective action requirements for CCR landf ills and surface impoundments after those forDRAFT DO NOT CITE OR QUOTE 316 of 563 5/03/10 MSWLFs in the 40 CFR part 258 cr iteria, and for disposal units that may receive conditionallyexempt small quantity generator (CESQG) h azardous waste under 40 CFR part 257, subpart B. EPA believes that the underlying rationale for those requirements is generally applicable to groundwater monitoring and corrective action for CCR landfills and surface impoundments. Accordingly, EPA does not discuss these requirem ents at length in today’s preamble. Rather, EPA refers the reader to the deta iled discussions of these requirements in the preambles to the final and proposed rules for the MS WLF criteria for more information. 153 See Solid Waste Disposal Facility Criteria, 56 Fed. Reg. 50978 (Oct . 9, 1991) (final rule); Solid Waste Disposal Facility Criteria, 53 Fed. Reg. 33314 (Aug. 30, 1988) (proposed rule).

However, for a number of the requirements, EP A is proposing to modify or revise these requirements. Below, EPA discusses the particul ar areas where the Agency is proposing to make modifications, and solicits comment on those spec ific differences. EPA, more generally, solicits comment on whether relying on the existing gr oundwater monitoring and corrective action requirements for MSWLFs and CESQG facilities, as modified in today’s proposal, are appropriate for CCR landfills and surface impoundments.

Relying on the existing criteria in 40 CFR 258 and 257 Subpart B has several advantages.

153 The preambles to the CESQG rules have more limited discussions of these requirements. See Criteria for Classification of Solid Wast e Disposal Facilities and Practices; Identifi cation and Listing of Hazardous Waste; Requirements for Authorization of State Hazardous Waste Programs, 61 Fed. Reg. 34252, 34259-61 (July 1, 1996) (final rule); Criteria for Classification of Solid Waste Di sposal Facilities and Practices; Identification and Listing of Hazardous Waste; Requirements for Auth orization of State Hazard ous Waste Programs, 60 Fed. Reg. 30964, 30975- 77 (June 12, 1995) (proposed rule).DRAFT DO NOT CITE OR QUOTE 317 of 563 5/03/10 Specifically, like the co-proposed Subtitle D re gulations for CCR disposal, these requirements are structured to be largely self-implementing. In addition, states and ci tizens should already be familiar with those processes, which have been in place since 1991, and EPA expects that this familiarity with the processes may facilitate the states’ creation of regulatory programs for CCR disposal facilities under state law, to the extent they do not already exist, and thus providing oversight (which EPA believes is important in implementing these rules) that is already found through MSWLFs and CESQG landfill permitting programs. Furthermore, familiarity with the overall approach may facilitate the states’ and citi zens’ oversight of CCR disposal activities through the citizen suit mechanism, which is available, regardless of whether a state has adopted a regulatory program under state la w for CCR disposal facilities.

At the same time, however, EPA is mindful of th e differences in the statutory authorities for establishing criteria for CCR landfills and su rface impoundments versus MSWLFs and CESQG facilities, and in particular, the possibility that a state ma y lack a permit program for CCR disposal units. Accordingly, EPA has sought to tailor these proposed requirements in the CCR disposal context, in particular by including in several of the pr oposed requirements a certification by an independent registered professional engineer or, in some cases, hydrologist, in lieu of the state approval mechanisms that are used in the 40 CFR part 258/257, Subpart B criteria. Such certifications are found in proposed §§ 257.95(h) (e stablishment of an alternative groundwater protection standard for constituents for which MCLs have not been established); and 257.97(e) (determination that remediation of a release of an Appendix IV constituent from a CCR landfill or surface impoundment is not necessary). As di scussed earlier in this preamble, EPA believes that this provides an important independent va lidation of the particul ar route chosen. EPADRAFT DO NOT CITE OR QUOTE 318 of 563 5/03/10 solicits comment in particular on the appropria teness of relying on such a mechanism under the proposed groundwater monitoring and corrective action criteria.

In other instances, however, EPA has decided not to propose to allow fac ilities to operate under an alternative standard, such as the existing provisions under 257.21(g) and 258.50(h) (establishing alternative schedules for groundw ater monitoring and corrective action); and 258.54(a)(1) and (2), and 257.24(a)(1) and (2), which allow the Director of an approved State to delete monitoring parameters, and establish an alternative list of i ndicator parameters, under specified circumstances. EPA is proposing not to adopt these alternatives for CCR disposal facilities because groundwater monitoring is the si ngle most critical set of protective measures on which EPA is relying to protect human health and the environment. EPA is not proposing to require existing landfills to retrofit to install a co mposite liner. Since these units will continue to operate in the absence of a composite liner, gr oundwater monitoring is the primary means to prevent groundwater contamination. Although EP A is proposing to require existing surface impoundments to retrofit with composite liners, th ese units are more sus ceptible to leaking, and thus the need for a rigorous groundwater m onitoring program is correspondingly high. Moreover, EPA is concerned that provisions a llowing such modification of these requirements are particularly susceptible to abuse, since such provisions would al low substantial cost avoidance. Therefore, in the absence of a st ate oversight mechanism in place to ensure such modifications are technically appropriate, such a provision may operate at the expense of protectiveness. In addition, give n the extremely technical nature of these requirements, EPA is concerned that such provisions would render the requirements appreciably more difficult for citizens’ to effectively enforce. In some inst ances, including these alte rnative standards wouldDRAFT DO NOT CITE OR QUOTE 319 of 563 5/03/10 not be workable. For example, establishi ng alternative schedules under the groundwater monitoring and corrective action provisions (as currently provided under 257.21(g) and 258.50(h)) the Agency believes would not be workab le in the context of a self-implementing rule, because there is no regulatory entity to judge the reasonableness of the desired alternatives. The Agency thus solicits comments on these omi ssions from today’s proposed rule, and also on whether a more prescriptive approach could or should be developed under subtitle D of RCRA. EPA also solicits comment on whether the requi rement for certification by an independent professional engineer would be effectiv e or appropriate in such a case.

Applicability . The co-proposed subtitle D criteria requi re facilities to install a groundwater monitoring system at existing landfills and su rface impoundments within one year of the effective date of the regulation so that any rel eases from these units will be detected, thus providing an opportunity to detect and, if nece ssary, take corrective action to address any releases from the facilities. The proposed ru le also provides that ne w CCR landfills and surface impoundments comply with the groundwater mon itoring requirements in the rule before CCRs can be placed in the units. EPA expects that the one-year timeframe for existing units is a reasonable time for facilities to install the necessa ry systems. This is the same time frame provided to facilities under the existing part 265 interim status regulations, and past experience demonstrates this implementation schedule would generally be feasible. Although one year for the installation of groundwater mon itoring is a shorter time frame th an EPA provided to facilities as part of the original part 258 or part 257 subpart A require ments, there are good reasons to establish a shorter time frame here. As discusse d in section IV, many of the existing units into which much of the CCR is currently disposed are unlined, and they are aging. Under theseDRAFT DO NOT CITE OR QUOTE 320 of 563 5/03/10 circumstances, EPA believes that installation of groundwater monitoring is cr itical to ensure that releases from these units are detected and a ddressed appropriately. Moreover, EPA offered a longer implementation period in 1991 based on a factual finding that a shortage of drilling contractors existed; in the 1995 rule establishing groundwater monitoring requirements for CESQG facilities, EPA determined that this shortage had ended. EPA is aware of no information to suggest that a similar shortage exists today, but specifi cally solicits comment on this issue.

EPA has not included provisions for suspension of ground water monitoring that is currently allowed under 257.21(b) and 258.50(b). This is one of those provisions discussed above, that EPA believes are potentially, particul arly susceptible to abuse, and EPA is reluctant to adopt a comparable provision in the absence of an approved state permit program. In addition, since these proposed criteria are designe d to be applied even in the absence of state action, EPA has not included provisions for state establishmen t of a compliance schedule under 257.21(d) and 258.50(d). EPA solicits comment on whether these types of provisions ar e appropriate for CCR landfills and surface impoundments.

Section 257.90 also requires that the owner or operator of the CCR landfill or surface impoundment must notify the state once each year throughout the active life and post-closure care period that such landfill or surface impoundment is in compliance with the groundwater monitoring and corrective action provi sions of this subpart. This no tification must also be placed on the owner or operator’s internet site. EPA beli eves that annual notifica tion will facilitate state oversight of the groundwater monitori ng and corrective action provisions.DRAFT DO NOT CITE OR QUOTE 321 of 563 5/03/10 Ground water monitoring systems. The co-proposed subtitle D criteria require facilities to install, at a minimum, one up gradient and th ree down gradient wells at all CCR units. EPA is proposing this requirement based on the subt itle C interim status self-implementing requirements.

The design of an appropriate groundwater monitori ng system is particularly dependent on site conditions relating to groundwater flow, and the de velopment of a system must have a sufficient number of wells, installed at appropriate locations and depths, to yield groundwater samples from the uppermost aquifer that represents the quality of background gro undwater that has not been affected by contaminants from CCR landf ills or surface impoundments. EPA’s existing requirements under parts 257, Subpart B, 258, a nd 264 all recognize this, and because they operate in a permitting context, these require ments do not generally establish inflexible minimum requirements. Because the same guarantee of permit oversight is not available under the criteria developed for this proposal, EPA belie ves that establishing a minimum requirement is necessary. Past experience demonstrates that these monitoring requirements will be protective of a wide variety of conditions and wastes, and that facilities can feasibly implement these requirements. Moreover, in many instances a mo re detailed groundwater monitoring system may need to be in place, and EPA is therefore requi ring a certification by the independent registered professional engineer or hydrologist that the gr oundwater monitoring system is designed to detect all significant groundw ater contamination.DRAFT DO NOT CITE OR QUOTE 322 of 563 5/03/10 Groundwater sampling and analysis requirements. Owners and operators need to ensure that consistent sampling and analysis procedures ar e in place to determine whether a statistically significant increase in the level of a hazardous c onstituent has occurred, i ndicating the possibility of groundwater contamination. The co-proposed subtitle D criteria w ould require the same provisions addressing groundwater sampling and anal ysis procedures with those already in use for CESQG and MSWLF facilities, since genera lly the same constituents and analysis procedures would be appropriate in both instances. However, EPA is requesting comment on one issue in particular. In the fi nal MSWLF criteria, EPA noted that in order to ensure protection of human health and the environment at MSWLFs, it was important to make sure that the right test methodology from among those listed in this s ection was selected for the conditions present at a particular MSWLF. At the ti me, EPA indicated its expectation that as states gained program approval, they would take on th e responsibility of approving alte rnate statistical tests proposed by the facilities. See 56 Fed. Reg. 51071. Because st ates may choose not to create a regulatory oversight mechanism under the co-proposed s ubtitle D rule for CCR landfills and surface impoundments, however, EPA is requesting comment on whether the lack of such an oversight mechanism will impair selecti on of appropriate test methodol ogies, and whether EPA should instead adopt a different approach to ensure the protection of hu man health and the environment at CCR disposal facilities. For example, one ap proach might be for EPA to tailor a list of methodologies to particular site conditions. EPA would welcome suggest ions from commenters on alternative approaches to this issue.

Detection monitoring program. The parameters to be used as indicators of groundwater contamination are the following: boron, chloride , conductivity, fluoride, pH , sulphate, sulfide,DRAFT DO NOT CITE OR QUOTE 323 of 563 5/03/10 and total dissolved solids (TDS). In selecti ng the parameters for detection monitoring, EPA selected constituents that are present in CCRs , and would rapidly move through the subsurface and thus provide an early detection as to whethe r contaminants were migrating from the disposal unit. EPA specifically solicits comment on the appropriateness of this list of parameters.

In this provision of the proposed RCRA subtitle D co-proposed rule, EPA has decided not to include provisions parallel to 258.54(a)(1) and (2), and 257.24(a )(1) and (2) which allow the Director of an approved State to delete monitoring parameters, and establish an alternative list of indicator parameters, under spec ified circumstances. EPA is not including these provisions because it believes that a set of specified parameters are ne cessary to ensure adequate protectiveness, since EPA’s information on CCRs indicates that their composition would not be expected to vary such that th e parameters are inappropriate. Under the proposed rule, monitoring would be required no less frequently than semi-a nnually. EPA has again decided not to include a provision that would allow an alternative sampli ng frequency, because of the lack of guaranteed state oversight and poten tial for this provision to diminish protection of human health and the environment, as mentioned in the introductory discussions above. EPA solicits comments on whether it should allow deletion of monitoring pa rameters and alternativ e sampling frequencies, based on compliance with a performance standard that has been documented by an independent registered professional engineer or hydrologist. Commenters interested in supporting such an option are encouraged to provide data to demonstrate the conditions under which such alternatives would be protective, as well as information to indicate the prevalence of such conditions at CCR facilities.DRAFT DO NOT CITE OR QUOTE 324 of 563 5/03/10 Assessment monitoring program. When a statistically significant increase over background levels is detected for any of the monitored constituents, the rule would require the facility to begin an assessment monitoring program to detect releas es of CCR constituents of concern including aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chloride, chromium, copper, fluoride, iron, lead, manganese, mercury, molybdenum , pH, selenium, sulphate, sulfide, thallium, and total dissolved solids.

EPA specifically solicits comment on the appr opriateness of this list of parameters For the same reasons as discussed under the propose d requirements for detection monitoring , EPA has chosen not to include in the proposed requirements for assessment mon itoring provisions for allowing a subset of wells to be sampled, the deletion of assessment monitoring para meters, or alternative sampling frequencies. EPA again solicits comm ent on whether these options are appropriate for CCR landfills and surface impoundments.

Assessment of corrective measures. The proposed rule also requi res that whenever monitoring results indicate a statistically significant leve l of any appendix IV constituent exceeding the groundwater protection standard, th e owner or operator must initi ate an assessmen t of corrective action remedies. Unlike for the MSWLF and CE SQG criteria, the proposed rule provides a discrete time frame for completion of the assess ment, at 90 days, while the earlier criteria provided for its completion within a “reasonable period of time.” EPA believes that without a state oversight mechanism, a finite time frame is appropriate. EPA selected 90 days as the period over which the assessment must be comple ted because it expects that this will be aDRAFT DO NOT CITE OR QUOTE 325 of 563 5/03/10 sufficient length of time to complete the requ ired activities. EPA solicits comment on the appropriateness of the 90-day timeframe.

Selection of Remedy. The proposed rule establishes a fr amework for remedy selection based upon the existing requirements for MSWLFs and CE SQG facilities. These provisions have been modified to eliminate consideration of “practicab le capabilities” where such considerations have been included in the MSWLF and CESQG criteria. EPA believes that it does not have the discretion to include this consideration under the RCRA subtitle D co-proposal, because this consideration is explicitly re quired under the terms of RCRA section 4010. That section by its terms applies to facilities that may receive household hazardous wastes and CESQG wastes, and so is inapplicable to today’s co-proposed st andards for CCR landfills and surface impoundments. See 42 U.S.C. 6949a(c)(1). EPA solicits commen t on these modifications, specifically, on how this modification may affect the ability of the regulated community to co mply with the proposed criteria, and on how this modifica tion may affect the protectivene ss of the proposed standards for human health and the environment.

In the provisions discu ssing factors to be considered in de termining whether interim measures are necessary, EPA has modified proposed 257.98(a)(3 )(vi), to eliminate consideration of risks of fire or explosion, since EPA doe s not expect that these risks woul d be relevant to the disposal of CCRs in CCR landfills and surface impoundments.

Implementation of the co rrective action remedy. The co-proposed subtitle D criteria require that the owner or operator comply w ith several requirements to implement the corrective actionDRAFT DO NOT CITE OR QUOTE 326 of 563 5/03/10 program, again modeled after the existing requirements for MSWLFs and CESQG facilities. Similar to proposed section 257.97, these provisions have been made consistent with the underlying statutory authorities for this proposed rule. See discussions above.

In these provisions, EPA has decided not to incl ude a provision that is included in the MSWLF criteria in 258.58(e)(2) and 257.28(e) (2), allowing an alternative length of time during which the owner or operator must demonstrate that concentrations of constituents have not exceeded the ground water protection standards, in support of a determination that the remedy is complete. See proposed 257.98(e)(2). Instead, the proposed rule would require a se t period of three consecutive years. EPA solicits comment on whether to allo w for a different period of time. EPA is particularly concerned with whether such a pr ovision would provide prot ection to human health or the environment because of the lack of a guaranteed state oversight mechanism.

8. Closure and post-closure care.

Effective closure and post-closure care requirements, such as requirements to drain the surface impoundment, are essential to en suring the long-term safety of disposal units. Closure requirements, such as placing the cover system on the disposal unit, ensure that rainfall is diverted from the landfill or surface impoundme nt, minimizing any leaching that might occur based on the hydraulic head placed on the material in the unit. EPA’s Guide for Industrial Waste Management, prepared in consultation with indu stry experts, a Tribal representative, state officials, and environmental groups, documents th e general consensus on the need for effectiveDRAFT DO NOT CITE OR QUOTE 327 of 563 5/03/10 closure and post-closure requirements. 154 Post-closure care requirem ents are also particularly important for CCR units because the time to peak concentrations for selenium and arsenic, two of the more problematic constitu ents contained in CCR wastes, is particularly long, and therefore the peak concentrations in groundwater may not occur during the active life of the unit. Continued groundwater monitoring is therefore necessary during the post-closure care period to ensure the continued integrity of the unit and the safety of human health and the receiving environment. For these provisions, then, EPA has agai n modeled its proposed requirements for CCR landfills on those already in pl ace for MSWLFs with modificati ons to reflect the lack of a mandatory permitting mechanism, and other change s that it believes are appropriate to ensure that there is no reasonable probabili ty of adverse effects from the wastes that remain after a unit has closed. For surface impoundments, EPA has modeled its proposed requirements on the part 265 interim status closure requirements for surface impoundments, as well as the MSHA requirements. EPA solicits comment on whether these proposed requirements are appropriate for CCR landfills and surface impoundments.

Requirements specific to closure of CCR landf ills and surface impoundments include proposed 257.100(a) – (c). These provisions provide that prio r to closure of any CCR unit, the owner or operator must develop a plan describing th e closure of the unit, and a schedule for implementation. The plan must describe the st eps necessary to close the CCR landfill or surface impoundment at any point during the active lif e in accordance with the requirements in paragraphs (c) and (d) or (e) of this section, as app licable, and based on recognized and generally

154 Guide for Industrial Waste Management, available at http://www.epa.gov/epawaste/nonhaz/industrial/guide/index.htm.DRAFT DO NOT CITE OR QUOTE 328 of 563 5/03/10 accepted good engineering practices. EPA is pr oposing to define recognized and generally accepted good engineering practices in the same manner as it is proposing under the subtitle C alternative. The definition references but doe s not attempt to codify any particular set of engineering practices, but to a llow the professional engineer latitude in adopting improved practices that reflect the state-of -the art practices, as they devel op over time. The plan must be certified by an independent regist ered professional engineer. In addition, the owner or operator must notify the state that a plan has been plac ed in the operating record and on the owner’s or operator’s publically accessible internet site.

These provisions are modeled after the closure pl an requirements in 258.60(c). Of note here is that, while EPA rejected a certif ication requirement for MSWLF cl osure plans, EPA is proposing to require one here to increase the ability of ci tizens to effectively enforce the rules. In the MSWLF rule, EPA rejected a cert ification requirement because “ it will be relatively easy to verify that the plan meets the requirements,” due to the specific design criteria specified in the rule. However, this was in the context of a st ate program, where EPA coul d assure that states would play an active role in overseeing and en forcing the facility’s implementation of the requirements.

EPA is also proposing that the closure plan provid e, at a minimum, the information necessary to allow citizens and states to determine whether the facility’s closure plan is reasonable. This includes an estimate of the larg est area of the CCR unit ever re quiring a final cover during the active life of the unit, an d an estimate of the maximum invent ory of CCRs ever on-site during the active life of the unit.DRAFT DO NOT CITE OR QUOTE 329 of 563 5/03/10 Proposed 257.100(b) of the rule allows closur e of a CCR landfill or surface impoundment with CCRs in place or through CCR removal and decontam ination of all areas affected by releases from the landfill or surface impoundment. Propose d paragraph (c) provides that CCR removal and decontamination are complete when constituent concentrations throughout the CCR landfill or surface impoundment and any areas affected by releases from the CCR landfill or surface impoundment do not exceed the numeric cleanup levels for those CCR constituents, to the extent that the state has established such clean up levels in which the CCR landfill or surface impoundment is located. These “clean- closure” provisions are modeled after EPA’s "Guide for Industrial Waste Management," found at http://www.epa.gov/epawaste/nonhaz/industrial/gui de/chap11s.htm). As previously noted, the Guide represents a consensus view of best prac tices for industrial waste management, based on involvement from EPA, and state and tribal representa tives, as well as a focus group of industry and public interest stakeholders chartered under the Federal Advisory Committee Act. EPA has included this provision to allow some flexibility in the self-implementing scheme for facilities in their closure options, while providing protecti on for health and the e nvironment under either option. Although EPA anticipates that f acilities will mostly likely not clean close their units, given the expense and difficulty of such an operation, EPA believes that they are generally preferable from the standpoint of land re-use and redevelopment, and so wishes explicitly to allow for such action in the proposed subtitle D ru le. EPA is also considering whether to adopt a further incentive for clean closure, under wh ich the owner or operator of the CCR landfill or surface impoundment could remove the deed notation required under proposed 257.100(m), if all CCRs are removed from the facilit y, and notification is pr ovided to the state. In the absence ofDRAFT DO NOT CITE OR QUOTE 330 of 563 5/03/10 state cleanup levels, metals should be removed to either statistically equivalent background levels, or to maximum contaminant levels (MCLs) , or health-based numbers. One tool that can be used to help evaluate whether waste removal is appropriate at the site is the risk-based corrective action process (RBCA) using recogn ized and generally accepted good engineering practices such as the ASTM Ec0-RBCA process. EPA solicits comment on the appropriateness of this provision under a RCRA subtitle D rule, and information on the number of facilities that may take advantage of a clean-closure option.

For closure of surface impoundments with CCRs in place, EPA has developed substantive requirements modeled on a combination of the existing 40 CFR part 265 interim status requirements for surface impoundments, and the long- standing MSHA standards. At closure, the owner or operator of a surface impoundment woul d be required to eith er drain the unit, or solidify the remaining wastes. EPA is also proposi ng to require that the wastes be stabilized to a bearing capacity sufficient to support the final cove r. The proposed criteria further require that, in addition to the technical cover design requireme nts applicable to landfil ls, any final cover on a surface impoundment would have to meet requireme nts designed to address the nature of the large volumes of remaining wastes. Specifically, EPA is proposing that th e cover be designed to minimize, over the long-term, the migration of liquids through the closed impoundment; promote drainage; and accommodate settling and subsidence so that the cover's integrity is maintained. Finally, closure of the unit is also subject to th e general performance standard that the probability of future impoundment of water, sediment, or sl urry is precluded. This general performance standard is based on the MSHA regul ations, and is designed to ensu re the long-term safety of the surface impoundment.DRAFT DO NOT CITE OR QUOTE 331 of 563 5/03/10 The proposed RCRA subtitle D regulation requi res that CCR landfills and surface impoundments have a final cover system designed and constructe d to have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1×10 − 5 cm/sec, whichever is less; it also requir es an infiltration la yer that contains a minimum of 18-inches of earthen material. The regulation also requires an erosion layer that contains a minimum of 6-inches of earthen mate rial that is capable of sustaining native plant growth as a way to minimize erosion of the fi nal cover. These requirements are generally modeled after the performance standard and t echnical requirements cont ained in the existing RCRA subtitle D rules for MSWLFs, in 258.60. EPA is also proposing, however a fourth requirement not found in those criteria modeled afte r the interim status clos ure requirements of 265.228(a)(iii)(D) that accounts for the conditions found in surface impoundments. Specifically, EPA is proposing that the final cover be designe d to minimize the disruption of the final cover through a design that accommodates settling and subsidence. EPA believes that these requirements strike a reasonable balance between the costs of a protective final cover, and avoiding risks to health and the environment fr om the remaining wastes at the CCR landfill or surface impoundment. The regulation requires cer tification by an independent registered professional engineer that these standards were met. The design of the final cover system, including the certification, must be placed in the operating record and on the owner’s or operator’s internet site. Based on the MSHA standards, EPA is also proposing that unit closure must provide for major slope stability to prevent the sloughing of the landf ill over the long term.DRAFT DO NOT CITE OR QUOTE 332 of 563 5/03/10 Alternatively, the rule allows the owner or operator of the CCR landfill or surface impoundment to select an alternative final cover design, provided the alternative cover desi gn is certified by an independent registered professiona l engineer and notification is provided to the state that the alternative cover design has been placed in the operating record and on the owner’s or operator’s internet site. The alternative final cover design must include a infiltrati on layer that achieves an equivalent reduction in infiltration, and an erosio n layer that provides equivalent protection from wind and water erosion, as the inf iltration and erosion layers specifi ed in the technical standards in paragraph (d). Under this alternative, EPA e xpects that evapo-transpir ation covers may be an effective alternative, which are not appropriately evaluated based on permeability alone. For example, an independent registered professiona l engineer might certify an alternative cover design that prevents the same level of infiltrati on as the system describe d above (i.e., no greater than 1×10 − 5 cm/sec, etc), based on: (1) hydrologic m odeling and lysimetry or instrumentation using a field scale test sec tion, or (2) hydrologic modeling an d comparison of the soil and climatic conditions at the site with the soil and climatic conditi ons at an analogous site with substantially similar cover design. In this case, the owner or operator of the disposal unit must obtain certification from an inde pendent registered professional engineer that the alternative cover would minimize infiltration at least as eff ectively as the “design” cover described above. As with the other final covers, the design of the evapo-transpirat ion cover must be placed on the owner’s or operator’s internet site.

EPA has included this alternative cover requirement to increase the flexibility for the facility to account for site-specific conditi ons. However, EPA is speci fically soliciting comment on whether this degree of flexibility is appropriate , given the lack of guaranteed state oversight. InDRAFT DO NOT CITE OR QUOTE 333 of 563 5/03/10 the final MSWLF rule, EPA adopted a comparable provision, but concluded that this alternative would not be available in States without appr oved programs. See, 56 FR 51096. Given that EPA can neither approve state programs, nor rely on the existence of a state permit process, EPA questions whether this kind of requirement is appropriate. Commenters who believe this requirement would be appropriate are encouraged to include examples documenting the need for flexibility in developing cover requireme nts, as well as data and information to demonstrate that alternative cover designs would be protective. EPA would also welcome suggestions for other methods to allow owners and operators of CCR landfills and surface impoundment facilities to account for site-specific conditions that provide a lower degree of individual facility discretion, such as a list of approved cover designs.

The proposed rule includes the same 30- a nd 180-day deadlines for beginning and completing closure, respectively, that ar e contained in existing secti on 258.60(f) and (g) for MSWLFs. However, EPA has decided not to propose to include a provision under which the owner and operator could extend those dead lines under the MSWLF criteria. EPA believes that extending the closure deadlines in this context is inappropri ate because, in the absence of an approved State program, the owner or operator c ould unilaterally decide to exte nd the time for closure of the unit, without any basis, or overs ight by a regulatory authority.

The proposed closure requirements also include a provision addressing re quired deed notations. In this regard, EPA is considering whether to include a provision for removing the deed notation once all CCRs are removed from the facility, and notification is provided to the state of this action. In the MSWLF rule , we adopted such a provision, but de termined that state oversight ofDRAFT DO NOT CITE OR QUOTE 334 of 563 5/03/10 such a provision was essential, given the potential for abuse. As we noted in the final MSWLF rule, “EPA strongly believes that a decision to remove the deed notation must be considered carefully and that in practice very few owners or operators will be able to take advantage of the provision.” EPA solicits comment on the proprie ty of such a provision, and encourages commenters who are interested in supporting such an option, to suggest al ternatives to state oversight to provide for facility accountability.

Following closure of the CCR management unit, th e co-proposed subtitle D approach requires post-closure care modeled after the requireme nts in 258.60. The owner or operator of the disposal unit must conduct post-closure care for 30 years. EPA is proposing to allow facilities to conduct post-closure care for a decreased length of time if the owner or operator demonstrates that (1) the reduced period is sufficient to protec t human health and the environment, as certified by an independent registered professional engineer ; (2) notice is provided to the state that the demonstration has been placed in the operating re cord and on the owner’s or operator’s internet site; and (3) the owner or operator notifies the stat e of the company’s findings. The proposed rule also allows an increase in this period, again, with notification to the stat e, if the owner or operator of the CCR landfill or surface impoundment de termines that it is necessary to protect human health and the environment. The 30-year period is consistent with the period required under the criteria for MSWLFs , as well as under the subtitle C interim status requirements. EPA has no information to indicate that a different pe riod would be appropriate for post-closure care for CCR disposal units. EPA recogni zes that state oversight can be critical to ensure that postclosure care is conducted for the length of time necessary to protect human health and the environment; however , EPA also recognizes that there is no set length of time for post-closureDRAFT DO NOT CITE OR QUOTE 335 of 563 5/03/10 care that will be appropriate fo r all possible sites, and all po ssible conditions. EPA therefore solicits comment on alternative methods to accoun t for different conditions, yet still provide methods of oversight to assure facility accountability.

During post-closure care, the owner or operator of the disposal unit is required to maintain the integrity and effectiveness of any final cover, maintain and operate the leachate collection and removal system in accordance with the leachat e collection and removal system requirements described above, maintain the groundwater monito ring system and monitor the groundwater in accordance with the groundwater monitoring re quirements described above, and place the maintenance plan in the operating record and on the company’s internet site.

EPA is also considering whethe r to adopt a number of provisions to increase the flexibility available under these requirements. For example, EPA is considering a se lf-certified stoppage of leachate management, such as provided for in 258.61(a)(2), and is soli citing public comment on the need for such a provision, as well as its proprie ty, in light of the abse nce of guaranteed state oversight. EPA is also considering whether to a dopt a provision to allow any other disturbance, provided that the owner or ope rator of the CCR landfill or surf ace impoundment demonstrates that disturbance of the final cover, liner or ot her component of the cont ainment system, including any removal of CCRs, will not increase the potentia l threat to human health or the environment. The demonstration would need to be certified by an independent regi stered professional engineer, and notification provided to the state that the demonstr ation had been placed in the operating record and on the owner’s or opera tor’s internet site. In the MSWLF rule , EPA limited this option to approved states, on the ground that , “under very limited circumstances it may beDRAFT DO NOT CITE OR QUOTE 336 of 563 5/03/10 possible or desirable to allow cer tain post-closure uses of land, including some recreational uses, without posing a significant threat to human health and the envir onment, but such situations are likely to be very limited and need to be consider ed very carefully.” Commenters interested in supporting such an option should address why such a provision would nevertheless be appropriate in this context. In this regard, EPA would also be in terested in suggestions for other mechanisms providing facility fl exibility and/or oversight.

9. Financial Assurance.

EPA currently requires showings of financia l assurance under multiple programs, including for RCRA subtitle C hazardous waste treatment, storag e and disposal facilities; the RCRA subtitle I underground storage tank program; and under other statutory author ities. Financial assurance requirements generally help ensure that owners an d operators adequately plan for future costs, and help ensure that adequate funds will be avai lable when needed to cover these costs if the owner or operator is unable or unwilling to do so; otherwise, additional governmental expenditures may otherwise be neces sary to ensure continued prot ection of human health and the environment. Financial assurance require ments also encourage the development and implementation of sound waste management prac tices both during and at the end of active facility operations, since the associated costs of any financial assurance mechanism should be less when activities occur in an environmentally protective manner.

Today’s proposed RCRA subtitle D alternative doe s not include proposed financial responsibility requirements. Any such requirements would be proposed separately. Specifically, on January 6,DRAFT DO NOT CITE OR QUOTE 337 of 563 5/03/10 2010, EPA issued an advance notice of proposed rulemaking (“ANPRM”), identifying classes of facilities within the Electric Power Generation, Transmission, and Distribution industry, among others, as those for which it plans to develop, as necessary, financial re sponsibility requirements under CERCLA § 108(b). See Identification of Add itional Classes of Facili ties for Development of Financial Responsibility Requirement s under CERCLA Section 108(b), 75 Fed Reg. 816 (January 6, 2010). EPA solicits comments on wh ether financial responsibility requirements under CERCLA § 108(b) should be a key Agency focus should it regulate CCR disposal under a RCRA subtitle D approach. (By today’s proposed rule, EPA is not reopening the comment period on the January 2010 ANPRM, which clos ed on April 6, 2010. See Identification of Additional Classes of Facilities for Development of Financial Responsibility Requirements under CERCLA Section 108(b), 75 Fed. Reg. 5715 (Feb. 4, 2010) (extending comment period to April 6, 2010).) However, EPA also solicits commen t on existing state waste programs for financial assurance for CCR disposal facilities, and whet her and how the co-proposed RCRA subtitle D regulatory approach might integr ate with those programs.

10. Off-site disposal.

Under a subtitle D regulation, regulated CCR wastes shipped off-site for disposal would have to be sent to facilities that meet the standards above.

11. Alternative RCRA subtitle D approaches.DRAFT DO NOT CITE OR QUOTE 338 of 563 5/03/10 A potential modification to the subtitle D option that was evaluated in our Regulatory Impact Analysis (RIA) is what we have termed a sub title “D prime” option. Under this modification, the regulations would not require the closure or installation of composite liners in existing surface impoundments; rather, these surface impoundments c ould continue to oper ate for the remainder of their useful life. New surface impoundments woul d be required to have composite liners. The other co-proposed subtitle D requirements would re main the same. This modification results in substantially lower costs, but also lower benefits as descri bed in section XII, which presents costs and benefits of the RCRA subtitle C, D, and D prime options. EPA solicits comments on this approach.

Finally, another approach that has been suggested to EPA is a subt itle D regulation with the same requirements as spelled out in the co-proposal, for example, composite liners for new landfills and surface impoundments, groundwater monitoring, co rrective action, closure, and post-closure care requirements as co-proposed in this notice; however, in lieu of th e phase-out of surface impoundments, EPA would esta blish and fund a program for conducting annual (or other frequency) structural stability (assessments) of impoundments ha ving a “High” or “Significant” hazard potential rating as defined by criteria deve loped by the U.S. Army Corps of Engineers for the National Inventory of Dams. EPA would c onduct these assessments and, using appropriate enforcement authorities already available under RCRA, CERCLA, and/or the Clean Water Act, would require facilities to respond to issues identified with their surface impoundments. The theory behind this suggested approach is that an nual inspections would be far more cost effective than the phase-out of surface impoundments – approximately $3.4 million annually forDRAFT DO NOT CITE OR QUOTE 339 of 563 5/03/10 assessments versus $876 million annually for phase -out. EPA also solicits comments on this approach and its effectiveness in ensuring the structural inte grity of CCR surface impoundments.

X. How would the Proposed Subtitle D Regulations be Implemented?

A. Effective Dates

The effective date of the proposed RCRA subtitle D alternative, if this alternative is ultimately promulgated, would be 180 days after promulgation of a final rule. Thus, except as noted below, owners and operators of CCR landfills and su rface impoundments would need to meet the proposed minimum federal criteria180 days afte r promulgation of the final rule. As noted elsewhere in today’s preamble (see Section XI.), facilities would need to comply with the RCRA subtitle D criteria, irresp ective of whether or not the states ha ve adopted the standards. For the remaining requirements, the compliance dates would be as follows:

• For new CCR landfills and surface impoundments that are placed into service after the effective date of the final rule, the locati on restrictions and desi gn criteria would apply the date that such CCR landfills and surface impoundments are placed into service.

• For existing CCR surface impoundments, the comp liance date for the lin er requirement is five years after the effective date of the final rule.

• For existing CCR landfills and surface impound ments, the compliance date for the groundwater monitoring requirements is one year af ter the effective date of the final rule.DRAFT DO NOT CITE OR QUOTE 340 of 563 5/03/10 • For new CCR landfills and surface impoundments, and lateral expansions of existing CCR landfills and surface impoundments, the gr oundwater monitoring requirement must be in place and in complia nce with the groundwater monitoring requirements before CCRs can be placed in the unit. (Note: As discussed in Secti on IX, if EPA determines that financial assurance requirements would be implemented pursuant to CERCLA 108(b ) authority, the compliance date for this provision would be the date specif ied in those regulations.)

B. Implementation and Enforcement of Subtitle D Requirements.

As stated previously, EPA has no authority to implement and enforce the co-proposed RCRA subtitle D regulation. Therefore, the proposed RCRA subtitle D standards have been drafted so that they can be self implementing—that is, the fa cilities can comply wit hout interaction with a regulatory agency. EPA can however take action under section 7003 of RCRA to abate conditions that “may present an imminent a nd substantial endangermen t to health or the environment.” EPA could also use the imminent and substantial endangerment authorities under CERCLA, or under other federal au thorities, such as the Clean Water Act, to address those circumstances where a unit may pose a threat.

In addition, the federal RCRA subtitle D requirem ents would be enforceable by states and by citizens using the citizen suit provisions of RCRA 7002. Un der this section, any person may commence a civil action on his own behalf agains t any person, who (1) is alleged to be in violation of any permit, standard, regulation .... which has become effective pursuant to thisDRAFT DO NOT CITE OR QUOTE 341 of 563 5/03/10 chapter” Because a RCRA subtitle D proposal relies heavily on citizen enforcement, our proposal requires facilities to make any significant information related to their compliance with the proposed requirements publicly available.

XI. Impact of a Subtitle D Re gulation on State Programs

Under today’s co-proposal, EPA is proposing to establish minimum nationwide criteria under RCRA subtitle D as one alternative. If the Agency were to choose to promulgate such nationwide criteria, EPA would enc ourage the states to adopt such criteria; however, the Agency has no authority to require states to adopt such criteria, or to implement the criteria upon their finalization. Nor does EPA have authority in this instance to require fede ral approval procedures for state adoption of the minimum nationwide criteri a. States would be free to develop their own regulations and/or permitting prog rams using their solid waste laws or other state authorities. While states are not required to adopt such minimum nationwide cr iteria, some states (about 25) incorporate federal regulations by reference or have specific state stat utory requirements that their state program can be no more stringent than the federal regulations (about 12, with varying degrees of exceptions). In those cases, EPA would expect that if the minimum nationwide criteria were promulgated, these states would ad opt them, consistent with their state laws and administrative procedures.

If the states do not adopt or a dopt different standards for the ma nagement of CCRs, facilities would still have to comply with the co-proposed s ubtitle D criteria, if fi nalized, independently of those state regulations. Thus, even in the ab sence of a state program, CCR landfills and CCRDRAFT DO NOT CITE OR QUOTE 342 of 563 5/03/10 surface impoundments would be required to meet the proposed federal minimum criteria as set out in 40 CFR Part 257, Subpart D. As a result a nd to make compliance with the requirements as straightforward as possible, we have drafted the proposed criteria so that facilities are able to implement the standards without in teraction with regulatory official s -- that is, the requirements are self-implementing. Also, even in the absenc e of a state regulatory program for CCRs, these federal minimum criteria are enforceable by citizen s and by states using th e citizen suit provision of RCRA (Section 7002). EPA is also able to take action under RCRA Section 7003 to abate conditions that may pose an imminent and substa ntial endangerment to human health or the environment or and can rely on other federal auth orities. See the prev ious section for a full discussion of this issue.

XII. Impacts of the Proposed Regulatory Alternatives

A. What are the Economic Impacts of the Proposed Regulatory Alternatives?

EPA prepared an analysis of the potential costs a nd benefits associated w ith this action contained in the “Regulatory Impact Analysis” (RIA). A copy of the RIA is available in the docket for this action and the analysis is briefly summarized he re. For purposes of evaluating the potential economic impacts of the proposed rule, the RIA ev aluated baseline (i.e., current) management of CCRs consisting of two baseline components: (1) the average annual cost of baseline CCR disposal practices by the electric utility indus try, and (2) the monetized value of existing CCR beneficial uses in industrial ap plications. Incrementa l to this baseline, the RIA estimated (1) future industry compliance costs for CCR disposal associated with the regulatory optionsDRAFT DO NOT CITE OR QUOTE 343 of 563 5/03/10 described in today’s action, and (2) although not completely quantified or monetized, three categories of potential future benefits from RCRA regulation of CCR disposal consisting of (a) groundwater protection benefits at CCR disposal sites, (b) CCR impoundment structural failure prevention benefits, and (c) induced future annual increases in CCR benefici al use. The findings from each of these main sections of the RIA ar e summarized below. These quantified benefit results are based on EPA’s initial analyses using existing informa tion and analytical techniques.

1. Characterization of Baseline Affected Entities and CCR Management Practices

Today’s action will potentially aff ect CCRs generated by coal-fired electric utility plants in the NAICS industry code 221112 (i.e., the “Fossil Fuel Electric Powe r Generation” industry within the NAICS 22 “Utilities” sector code). Based on 2007 electricity genera tion data published by the Energy Information Administration (EIA), th e RIA estimated a total of 495 operational coalfired electric utility plants in this NAICS code could be affected by today’s action. These plants are owned by 200 entities consisti ng of 121 companies, 18 cooperati ve organizations, 60 state or local governments, and one Federal Agency. A sub-total of 51 of the 200 owner entities (i.e., 26%) may be classified as small businesses, small organizations, or small governments.

Based on the most recent (2005) EIA data on annual CCR tonnages generated and managed by electric utility plants greater than 100 megawatts nameplate capacity in size, supplemented with additional estimates made in the RIA for smaller sized electric utility plants between 1 and 100 megawatts capacity, these 495 plants generate about 140 million tons of CCRs annually, of which 311 plants dispose 57 million tons in company-owned landfills, 158 plants dispose 22DRAFT DO NOT CITE OR QUOTE 344 of 563 5/03/10 million tons in company-owned surface impoundme nts, and an estimated 149 plants may send upwards of 15 million tons of CCRs to offsite disposal units owned by other companies (e.g., NAICS 562 commercial waste management service co mpanies). Based on lack of data on the type of offsite CCR disposal units, and the fact that it costs much more to transport wet CCRs than dry CCRs (i.e., CCRs which have been de -watered), the RIA assumes all offsite CCR disposal units are landfills. Because some pl ants use more than one CCR management method, these management plant counts exceed 495 total pl ants. Based on the estimates developed for the RIA, total CCR disposal is about 94 million t ons annually which is two-thirds of annual CCR generation. (EPA notes that the alternative, lower CCR generation and disposal estimates of 131 million tons and 75 million tons cited elsewhere in today’s notice were derived from different and less comprehensive ACAA and EIA survey da ta sources, respectively, that do not include tonnage estimates for plants between 1 and 100 megawatt capacity.) In addition, 272 of the 495 plants supply CCRs which are not disposed for bene ficial uses in at leas t 14 industries, of which 28 of the 272 plants solely supply CCRs for bene ficial uses. As of 2005, CCR beneficial uses (i.e., industrial applications) involved about 47 million tons annually representing one-third of annual CCR generation, which the RIA estimates ma y grow to an annual quantity of 62 million tons by 2009. For 2008, the American Coal Ash Association estimates CCR beneficial use has grown to 60.6 million tons. 155

2. Baseline CCR Disposal

155 Note that ACAA’s definition of beneficial use does not align with that used by EPA in this rulemaking. For example, ACAA includes minefilling as a beneficial use, wh ere EPA classifies it as a separate category of use.DRAFT DO NOT CITE OR QUOTE 345 of 563 5/03/10 For each of the 467 operating electric utility plan ts which dispose CCRs onsite or offsite (28 of the 495 total plants solely send their CCRs for beneficial use and not disposal), the RIA estimated baseline engineering controls at CCR di sposal units and associated baseline disposal costs for two types of CCR disposal units: la ndfills and surface impoundments. Impoundments are sometimes named by electricity plant personn el as basins, berms, canals, cells, dams, embankments, lagoons, pits, ponds, reservoirs, or su mps. The baseline is defined as existing (current) conditions with respec t to the presence or absence of 10 types of environmental engineering controls and eight an cillary regulatory elements, plus projection of future baseline conditions of CCR disposal units without regulation over the 50-y ear future period-of-analysis - 2012 to 2061 - applied in the RIA. A 50-year fu ture period was applied in the RIA to account for impacts of the proposed regulatory options wh ich are specific only to future new disposal units given average lifespans of over 40-years. Existing conditions were determined based on review of a sample of current st ate government regulations of CC R disposal in 34 states, as well as limited survey information on CCR disposal units from studies published in 1995, 1996, and 2006 about voluntary engineering co ntrols installed for CCR dispos al units at some electric utility plants. The 10 baseline engineering controls evaluated in the RIA are (1) groundwater monitoring, (2) bottom liners, (3) leachate collection and removal systems, (4) dus t controls, (5) rainwater run-on and run-off controls, (6) financ ial assurance for correc tive action, disposal unit closure, and post-closure care, (7) disposal unit loca tion restrictions, (8) closure capping of disposal units, (9) post-clos ure groundwater monitoring, a nd (10) CCR storage design and operating standards prior to disposal (Note: Although listed here, this 10 th element was not estimated in the RIA because of EPA’s lack of information on baseline CCR storage practices). This specific set of engineeri ng controls represents the elemen ts of the RCRA 3004(x) custom-DRAFT DO NOT CITE OR QUOTE 346 of 563 5/03/10 tailored technical standards proposed in toda y’s notice for the RCRA subtitle C option. The eight ancillary elements evaluated in the RIA are (11) offsite trans port and disposal, (12) disposal unit structural integr ity inspections, (13) electricity plant facility-wide environmental investigations, (14) facility-w ide corrective action requirements, (15) waste disposal permits, (16) state government regulatory enforcemen t inspections, (17) environmental release remediation requirements, and (18) recordkeepin g and reporting to regulatory agencies. Some states require many of these tec hnical standards for future newl y-constructed CCR disposal units, some states require them for existing units, and some states have few or no regulatory requirements specific to CCR dispos al and thus were not estimated in the baseline cost. Furthermore, some of the ancillary elements are only relevant to the regulatory options based on subtitle C as co-proposed in today’s notice. The percentage of CCR landfills with baseline controls ranged from 61% to 81%, and th e percentage of CCR surface impoundments with baseline controls ranged from 20% to 49%, depe nding upon the type of control. Based on this estimation methodology, the RIA estimates the electric utility industry spends an average of $5.6 billion per year for meeting state-required a nd company voluntary enviro nmental standards for CCR disposal. Depending upon state location for any given electricity plant (which determines baseline regulatory requirements), and whether any given plant disposes CCRs onsite or offsite, this baseline cost is equivalent to an average cost range of $2 to $80 per ton of CCRs disposed
of.

3. Baseline CCR Beneficial UseDRAFT DO NOT CITE OR QUOTE 347 of 563 5/03/10 In addition to evaluating baseline CCR disposal practices, the RIA also estimated the baseline net benefits associated with th e 47 million tons per year (2005) of industrial beneficial uses of CCRs. CCRs are beneficially used nationwide as material ingred ients in at least 14 industrial applications according to the American Coal As h Association: (1) concrete, (2) cement, (3) flowable fill, (4) structural fill, (5) road base, (6) soil modifica tion, (7) mineral filler in asphalt, (8) snow/ice control, (9) blasti ng grit, (10) roofing granules, (1 1) placement in mine filling operations, 156 (12) wallboard, (13) waste solidification, and (14) agricu lture. The baseline annual sales revenues (as of 2005) receiv ed by the electric utility industry for sale of CCRs used in these industrial applications are es timated at $177 million per year. In comparison, substitute industrial ingredient materials (e.g., portland cement, quarried stone aggregate, limestone, gypsum) would cost industries $2,477 million per year. Thus, the beneficial use of CCRs provides $2,300 million in annual cost savings to these industrial applicat ions, labeled economic benefits in the RIA. Based on the lifecycl e materials and energy flow economic framework presented in the RIA, although only based on limited data representing 47% of annual CCR beneficial use tonnage involving only three of the 14 industr ial applications (i.e., concrete, cement and wallboard), baseline lifecycle benef its of beneficially using CCRs compared to substitute industrial materials are (a) $4,888 mill ion per year in energy savings, (b) $81 million per year in water consumption savings, (c) $36 5 million per year in greenhouse gas (i.e., carbon dioxide and methane) emissions reductions, and (d) $17,772 million per year in other air

156 While today’s proposed rule does not deal directly with the mine filling of CCRs, the RIA includes it as a baseline beneficial use because the RIA uses the categor ies identified by the Ameri can Coal Ash Association (http://acaa.affiniscape.com/disp laycommon.cfm?an=1&subarticlenbr=3). Howe ver, as noted previously in today’s notice, the Agency is working with OSM of the Department of Interior on the placement of CCRs in mine fill operations.DRAFT DO NOT CITE OR QUOTE 348 of 563 5/03/10 pollution reductions. Altogether, industrial benefici al uses of CCRs provide over $23 billion in
annual environmental benefits as of 2005. In addition, baseline CCR beneficial use provides $1,830 million per year in industrial raw materials costs savings to beneficial users, and $2,927 million per year in avoided CCR disposal cost to the electric utility indus try as of 2005. The sum of environmental benefits, industrial raw material s costs savings, and CCR disposal cost savings, $27.9 billion per year, gives the baseline level of what the RIA has labeled social benefits from the beneficial use of CCRs.

4. Estimated Costs for RCRA Regulation of CCR Disposal

The RIA includes estimates of the costs associated with the options described in today’s notice are summarized here: (1) RCRA subtitle C regula tion of CCRs as a “special waste;” (2) RCRA subtitle D regulation as “non-hazardous waste;” and (3) the subtitle “D prime” options. Full descriptions of each option are presented in a pr ior section of today’s notice. The RIA assumes that the engineering controls that would be established under the RCRA subtitle C option would be tailored on the basis of RCRA section 3004(x). The controls for the RCRA subtitle D option are identical to the subtitle C option. The contro ls under the subtitle “D prime” option would be identical as well, except that existing surf ace impoundments would not have to close or be dredged and have composite liners installed with in five years of the effective date of the regulation. The RIA also assumes all three optio ns retain the existing Bevill exemption for CCR beneficial uses.DRAFT DO NOT CITE OR QUOTE 349 of 563 5/03/10 The estimated costs for each option are incremental to the baseline, and are estimated in the RIA using both an average annualized and a present va lue equivalent basis over a 50-year period-ofanalysis (2012 to 2061) using both a 7% and an alternative 3% disc ount rate. These two alternative discount rates are required by the Office of Manage ment and Budget’s September 2003 “Regulatory Analysis” Circular A-4. Fo r the purpose of summary here, only the 7% discount rate results are presented for each option because the 7% rate repr esents the “base case” in the RIA for the reason that most of the regulatory compliance costs will be incurred by industry (i.e., private capital). On an average annualized ba sis, the estimated regulatory compliance costs for the three options are $1,474 million (subtitle C special waste), $587 million (subtitle D), and $236 million (subti tle “D prime”) per year. On a present value basis discounted at 7% over the 50-year future period-of-analysis applied in the RIA, estimated future regulatory compliance costs for the three options total $20,349 million, $8,095 million, and $3,259 million present value, respectively. EPA requests public comment on all data so urces and analytical approaches.

5. Benefits for RCRA Regul ation of CCR Disposal

The potential environmental and public health benefits of CCR regulation estimated and monetized in the RIA include three categories:
1. Groundwater protection benefits consisting of (a) human can cer prevention benefits and (b) avoided groundwater remediatio n costs at CCR disposal sites;
2. CCR impoundment structural failure preventio n benefits (i.e., cleanup costs avoided); andDRAFT DO NOT CITE OR QUOTE 350 of 563 5/03/10 3. Induced future increase in indus trial beneficial uses of CCRs. As was done with the cost estimates described ab ove, the RIA estimated benefits both at the 7% and 3% discount rates using the same 50-year pe riod-of-analysis. However, only the benefit estimates based on the 7% rate are summarized here. While the RIA focused on monetizing these three impact categories, there are also hu man non-cancer prevention benefits, ecological protection benefits, surface water protection be nefits, and ambient air pollution prevention benefits, which are not monetized in the RIA, but qualitatively described below.

i. Groundwater Protection Benefits

The RIA estimated the benefits of reduced human cancer risks and avoided groundwater remediation costs associated with controlli ng arsenic leaching from CCR landfills and surface impoundments. These estimates are based on EPA’ s risk assessment (described elsewhere in today’s notice), which predicts arsenic leaching rates using SPLP and TCLP data. Furthermore, recent research and damage cases indicate that these leaching te sts under-predict risks from dry disposal. 157 Therefore, the groundwater protection benefits may be underestimated in the RIA.

157 Recent EPA research demonstrates that CCRs can leac h significantly more aggressi vely under different pH conditions potentially present in disposal units. In the EPA Office of Resear ch & Development report “Characterization of Coal Combustion Residues from El ectric Utilities – Leaching and Characterization Data,” EPA-600/R-09/151, Research Triangle Park, NC, December 2009, CCRs from 19 of the 34 facilities evaluated in the study exceeded at least one of the Toxicity Characteristic regulatory values for at least one type of CCR (e.g., fly ash or FGD residue) at the self-generated pH of the material. This behavior likely explains the rapid migration of constituents from disposal sites like Chesapeake, VA and Gambrills, MD. See also the EPA Office of Research & Development reports (a) “Characterization of Mercury- Enriched Coal Combustion Residues from Electric UtilitiesDRAFT DO NOT CITE OR QUOTE 351 of 563 5/03/10 The RIA based estimation of future human can cer cases avoided on the individual “excess” lifetime cancer probabili ties reported in the EPA risk assessm ent, although the RIA also used more recent (2001) science published by th e National Research Council on arsenic carcinogenicity.

The RIA estimated groundwater protection benef its by categorizing electric utility plants according to their individual types of CCR dis posal units (i.e., landfill or impoundment) and presence/types of liners in those units. For each category, GIS data were used to determine the potentially affected populations of groundwater drinkers residing w ithin 1-mile of the disposal units. Results from the risk assessment were applied to these populat ions by using a linear extrapolation, starting from a risk of zero to the peak future risk as demonstrated by the risk assessment. The count of people who might poten tially get cancer was th en adjusted upward to account for the more recent and more widely acce pted arsenic carcinogenicity research by the National Research Council. 158 The RIA then segregated th e future cancer counts into lung

Using Enhanced Sorbents for Mercury Control,” EPA 600/R-06/008, January 2006; and (b) Characterization of Coal Combustion Residues from Electric Utilities Using Wet Scru bbers for Multi-Pollutant Control, EPA/600/R-08/077, July 2008.

158 EPA’s current Integrated Risk Information System (IRIS) has a cancer slope factor for arsenic developed in 1995. This slope factor is based on skin cancer incidence and was used in the 2010 EPA risk assessment. Skin cancer is a health endpoint associated with lower fatality risk than lung and bladder cancers induced by arsenic. Since the IRIS slope factors were developed, quantitative data on lung and bladder cancers have become available, and the skin cancer based slope factors no longer represent the current stat e of the science for health risk assessment for arsenic. The National Research Council (NRC) published the repor t, “Arsenic in Drinking Water: 2001 Update” (2001) which reviewed the available toxicological, epidemiological, and risk assessment literature on the health effects of inorganic arsenic, building upon the NRC’s prior report, “Arsenic in Drinking Water” (NRC 1999). The 2001DRAFT DO NOT CITE OR QUOTE 352 of 563 5/03/10 cancers and bladder cancers, as well as into those that were pred icted to result in death versus those that were not. The RIA monetized each of these cancer sub-categories using EPApublished economic values fo r statistical life and cost of illness.

The RIA further adjusted these monetized future cancer counts, to take into account existing state requirements for groundwat er monitoring at CCR disposal units, such that fewer cancer cases than initially projected would ultimately occur from early detection of groundwater contamination in those states. Therefore, a ba seline was established for the operation of state regulatory and remedial programs which led to a reduction in expected cancer cases in states with existing groundwater protection requirements. However, once groundwater contamination was found in those states, remediation costs woul d be incurred. Thus, the RIA also accounted for these costs under each of the regulatory op tions as well, thus avoiding possible doublecounting of cancer cases and reme diation costs. On an averag e annualized basis, the human cancer prevention component of the groundwater protection benefit category for the three options are $37 million (RCRA subt itle C special waste), $15 million (RCRA subtitle D), and $8 million (subtitle “D prime”) per year. On a present value basis, the human cancer prevention benefit totals $504 million, $207 million, and $104 million present value, respectively. On an average annualized basis, th e estimated avoided groundwater remediation cost benefit report, developed by an eminent committee of scientists with expertise in arsenic toxicology and risk assessment provides a scientifically sound and transparent assessment of risks of bladder and lung cancers from inorganic arsenic. EPA’s Science Advisory Board is currently reviewing EPA’s new proposed IRIS cancer slope factors based on bladder and lung cancer. Because the more recent NRC scientific information is ava ilable, the RIA (2010) uses the NRC arsenic cancer data fo r the estimate of benefits associated with cancers avoided by the proposed regulation of CCR.DRAFT DO NOT CITE OR QUOTE 353 of 563 5/03/10 component of the groundwater protection benefit category for the three options are $34 million (RCRA subtitle C special waste), $12 million ( RCRA subtitle D), and $6 million (subtitle “D prime”) per year. On a present value basis, th e avoided remediation cost benefit totals to $466 million, $168 million, and $84 million present value, re spectively. Added together on an average annualized basis, these two groundwater prot ection benefit components total to $71 million (RCRA subtitle C special waste), $27 million ( RCRA subtitle D), and $14 million (subtitle “D prime”) per year. On a present value basis, the groundwater protection benef it category totals to $970 million, $375 million, and $188 million present value, respectively.

ii. Impoundment Structural Failure Prevention Benefits

The December 2008 CCR surface impoundment collaps e at the Tennessee Valley Authority’s Kingston, Tennessee coal-fired elec tricity plant illustra ted that structural failures of large CCR impoundments can lead to catastrop hic environmental releases and large cleanup cost s. The RIA estimated the benefit of avoiding future cl eanup costs for impoundment failures, which the structural integrity inspection re quirement of all regulatory options , and the future conversion or retrofitting of existing or new impoundments (under the subtitle C, subtitle D, and subtitle “D prime” options) would be expected to prevent.

The RIA based the estimate of future cleanup cost s avoided on information contained in EPA’s 2009 mail survey 159 of 584 CCR impoundments operated by th e electric utility industry. In

159 Descriptive information and electric utility industry resp onses to EPA’s 2009 mail survey is available at the survey webpage http://www.epa.gov/waste/n onhaz/industrial/special/fossil/surveys/DRAFT DO NOT CITE OR QUOTE 354 of 563 5/03/10 response to the survey request for information on known spills or non-permitted releases from CCR impoundments within the last 10 years, re vealed 42 CCR impoundment releases spanning 1995 to 2009. Particularly, there were five sign ificant releases between 4,950 cubic yards and 5.4 million cubic yards of CCRs, and one catastro phic release of 5.4 million cubic yards of CCRs during this time period at coal fired power plan ts. Given these historic releases, the RIA projected the probability of future impoundment releases using a Poisson distribution. In addition to this approach, the RIA formulated tw o alternative failure s cenarios based on 96 highrisk CCR impoundments identified as at least 40 f eet tall and at least 25 years old. The two alternative failure scenarios assumed impoundment failure rates involving these 96 impoundments of 10% and 20%, respectively. On an average annualized basis ranging across these three alternative failure probability estimation methods (scenarios), the avoided cleanup cost benefit category for the three options is estimated at $128 million to $1,212 million (subtitle C special waste), $58 million to $550 million (subtitle D), and $29 million to $275 million (subtitle “D prime”) per year. On a present value basis, the avoide d cleanup cost benefit category totals $1,762 million to $16,732 million ( RCRA subtitle C special waste), $793 million to $7,590 million (RCRA subtitle D), and $405 m illion to $3,795 million present value (RCRA subtitle “D prime”), respectively.

iii. Benefit of Induced Future Increase in Industrial Beneficial Uses of CCRs

The third and final potential bene fit category evaluated in the RI A includes the potential effects of RCRA regulation of CCR disposal on future annual tonnages of CCR beneficial use. As its base case, the RIA estimates an expected futu re increase in beneficial use induced by theDRAFT DO NOT CITE OR QUOTE 355 of 563 5/03/10 increased costs of disposing CCR in RCRA-regulated disposal units. The RIA also evaluates the potential magnitude of a future decrease in benefici al use as a result of a potential “stigma” effect under the subtitle C option. Both scenarios are based on a baseline consis ting of (a) projecting the future annual tonnage of CCR generation by th e electric utility indus try in relation to the Energy Information Administration’s (EIA) future annual projection of co al consumption by the electric utility industry, and (b ) projecting the future baseline growth in CCR beneficial use relative to the historical gr owth trendline (i.e., absent today’s proposed regulation).

For the induced increase “base case” scenario, the compliance costs for each regulatory option represent an “avoided cost incentiv e” to the electric utility indust ry to shift additional CCRs from disposal to beneficial use. Proportional to th e estimated cost for each option, the RIA applied a beneficial use market elasticity factor to the proj ected baseline future growth in beneficial use to simulate the induced increase. On an average an nualized basis, the monetized value --- based on the same unitized (i.e., per-ton) mo netized social values assigned to the lifecycle benefits of baseline CCR beneficial uses --- of the estimated potential indu ced increases in future annual CCR beneficial use tonnage for the three opt ions are $6,122 million (RCRA subtitle C special waste), $2,450 million (RCRA subtitle D), and $980 million (subtitle “D prime”) per year. On a present value basis, the potential induced incr eases in beneficial use totals to $84,489 million (RCRA subtitle C special waste), $33,796 m illion (RCRA subtitle D), and $13,518 million (subtitle “D prime”) present value, respectively.

The RIA also monetized the alternative “stigma” s cenario of future reduction in beneficial use induced by the RCRA subtitle C option. The RIA formulated assumptions about the percentageDRAFT DO NOT CITE OR QUOTE 356 of 563 5/03/10 future annual tonnage reductions wh ich might result to some of the 14 beneficial use markets. For example, federally purchased concrete was assu med to stay at baseline levels because of the positive influence of comprehensive procurement guidelines that are already in place to encourage such types of benefi cial uses. Conversely, the leve ls of non-federally purchased concrete were assumed to decrease relative to th e baseline. On an average annualized basis, the monetized value --- based on the same unitized (i.e ., per-ton) monetized soci al values assigned to the lifecycle benefits of baseli ne CCR beneficial uses --- of th e potential “stigma” reduction in future annual CCR beneficial use for the RCRA subtitle C option is $16,923 million per year cost. On a present value basis, the potential “stigma” reduction in beneficial use totals to $233,549 million present value cost. The RIA did not estimate a potential “stigma” reduction effect on the RCRA subtitle D or subtitle “D prime” regulatory options.

B. Benefits Not Quantified in the RIA

1. Non-Quantified Plant and Wildlife Protection Benefits

EPA’s risk assessment estimated si gnificant risks of adve rse effects to plants and wildlife, which are confirmed by the existing CCR damage cases and field studies published in peer-reviewed scientific literature. Such reported adverse e ffects include: (a) elevated selenium levels in migratory birds, (b) wetland vegetative damage, (c) fish kills, (d) amphibian deformities, (e) snake metabolic effects, (f) plant toxicity, (g) elevated contaminan t levels in mammals as a result of environmental uptake, (h) fish deformities, and (i) inhibited fish reproductive capacity. Requirements in the proposed ru le should prevent or reduce th ese impacts in the future byDRAFT DO NOT CITE OR QUOTE 357 of 563 5/03/10 limiting the extent of environmental contaminat ion and thereby reducing the levels directly available.

2. Non-Quantified Surface Water Protection Benefits

In EPA’s risk assessment, recreational fishers co uld be exposed to chemical constituents in CCR via the groundwater-to-surface water exposure path way. Furthermore, State Pollutant Discharge Elimination System (SPDES) and National Pollu tant Discharge Elimination System (NPDES) discharges from CCR wet dispos al (i.e., impoundments) likely exceed the discharges from groundwater to surface water. Thus, exposure to arsenic via fish consumption could be significant. However, EPA expects that most electric utility plan ts will eventually switch to dry CCR disposal (or to beneficial use), a trend which is discussed in the RIA. Such future switchover will reduce potential future exposures to these constituents from affected fish.

3. Non-Quantified Ambient Air Protection Benefits

Another impact on public health not discussed in the RIA is the potenti al reduction of excess cancer cases associated with hexavalent chromium inhaled from the air. As estimated in the RIA, over six million people live within the Cens us population data “zip code tabulation areas” for the 495 electric utility plant locations. T hus, the potential population health benefits of RCRA regulation may be quite larg e. Inhalation of hexavalent chromium has been shown to cause lung cancer. 160 By requiring fugitive dust contro ls, the proposed rule would reduce

160 ATSDR Texas. Available at: h ttp://www.atsdr.cdc.gov/toxfaq.htmlDRAFT DO NOT CITE OR QUOTE 358 of 563 5/03/10 inhalation exposure to hexavalent chromium ne ar CCR disposal units that are not currently required to control fugitive dust.

Furthermore, several non-cancer he alth effects associated with CCRs are a result of particulate matter inhalation due to dry CCR di sposal. Human health effects for which EPA is evaluating causality due to particulate ma tter exposure include (a) cardiovasc ular morbidity, (b) respiratory morbidity, (c) mortality, (d) reproductive effect s, (e) developmental effects, and (f) cancer. 161 The potential for and extent of adverse health effects due to fugitive dusts from dry CCR disposal was demonstrated in the 2009 EPA repor t “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills - DRAFT,” which is available in the docket for today’s co-proposed rules. The co-proposed rules’ fugitive dust controls would serve to manage such potenti al risks by bringing them to acceptable levels.

CCR dust (and other types of particulate matter) can also be carried ove r long distances by wind and then settle on ground or water. The effects of this settling could include: (a) changing the pH of lakes and streams; (b) changing the nutri ent balance in coastal waters and large river basins; (c) depleting nutrients in soil; (d) damaging sensitive forests and farm crops; and (e) affecting the diversity of ecosystems. 162 Additionally, fine particul ates are known to contribute

161 Source: EPA Office of Rese arch & Development report “Integrated Sc ience Assessment for Particulate Matter: First External Review Draft,” EPA/600/R-08/139, 2008.

162 Source: U.S. EPA Office of Air & Radiation, Par ticulate Matter “Health and Environment” website at http://www.epa.gov/particles/health.htmlDRAFT DO NOT CITE OR QUOTE 359 of 563 5/03/10 to haze. 163 Thus, the fugitive dust controls contained in the proposed rule would improve visibility, and reduce the environm ental impacts discussed above.

C. Comparison of Costs to Benefits for the Regulatory Alternatives

For purposes of comparing the estimated regulator y compliance costs to the monetized benefits for each regulatory option, the RIA computed two comparison indicators: net benefits (i.e., benefits minus costs), and benefit/cost ratio (i.e., benefits divided by costs). The results of each indicator are displayed in the following tabl es (Table 10, Table 11 and Table 12) for three regulatory options, based on the 7% discount rate and the 50-year period-of-analysis applied in the RIA. There are three tables because thre e different scenarios were analyzed concerning potential impacts on benefici al use of CCRs impact unde r the regulatory options.

The three tables below represen t three possible outcomes regardi ng impacts of the rule upon the beneficial use of CCR. In the first table, EPA presents the potential impact scenario that we view to be most likely. This fi rst scenario assumes that the in creased cost of disposal from regulation under subtitle C will encourage industr y to seek out additional markets and greatly increase their beneficial use of CCRs. In the second table, EPA presen ts a negative effect on beneficial use, based on stigma, and the possibil ity of triggering use restrictions under state regulation and private sector standards due to su btitle C regulation. In the final table, EPA presents a scenario where beneficial use conti nues on its current path, w ithout any changes as a result of the rule. On the basis of past experi ence, EPA believes that it is likely that recycling

163 Ibid; and also see http://www.intheairwebreathe,com/html/photo_gallery.htmlDRAFT DO NOT CITE OR QUOTE 360 of 563 5/03/10 rates will increase as presented in the first scen ario. Comments are re quested on the impact of stigma on the beneficial use of CCRs.DRAFT DO NOT CITE OR QUOTE 361 of 563 5/03/10 Table 10 Comparison of Regulatory Benefits to Costs ($Millions @2009$ Prices and @7% Discount Rate over 50-Year Future Period-o f-Analysis 2012 to 2061)

Subtitle C “Special Waste” Subtitle D Subtitle “D prime”
A. Present Values: 1. Regulatory Costs (1A+1B+1C): $20,349 $8,095 $3,259 1A. Engineering Controls $6,780 $3,254 $3,254 1B. Ancillary Regulatory Requirements $1,480 $5 $5 1C. Conversion to Dry CCR Disposal $12,089 $4,836 $0

2. Regulatory Benefits (2A+2B+2C+2D): $87,221 to $102,191 $34,964 to $41,761 $14,111 to $17,501 2A. Monetized Value of Human Cancer Cases Avoided $504 $207 $104 2B.Groundwater Remediation Costs Avoided $466 $168 $84 2C. CCR Impoundment Failure Cleanup Costs Avoided $1,762 to $16,732 $793 to $7,590 $405 to $3,795 2D. Included Future Increase in CCR Beneficial Use $84,489 $33,796 $13,518

3. Net Benefits (2 - 1) $66,872 to $81,842 $26,869 to $33,666 $10,852 to $14,242 4. Benefit/Cost Ratio (2 / 1) 4.286 to 5.022 4.319 to 5.159 4.330 to 5.370 B. Average Annualized Equivalent Values:* 1. Regulatory Costs (1A+1B+1C) $1,474 $587 $236 1A. Engineering Controls $491 $236 $236 1B. Ancillary Regulatory Requirements $107 <$1 <$1 1C. Conversion to Dry CCR Disposal $876 $350 $0

2. Regulatory Benefits (2A+2B+2C+2D): $6,320 to $7,405 $2,533 to $3,026 $1,023 to $1,268 2A.Monetized Value of Human Cancer Cases Avoided $37 $15 $8 2B. Groundwater Remediation Costs Avoided $34 $12 $6 2C. CCR Impoundment Failure Cleanup Costs Avoi ded $128 to $1,212 $58 to $550 $29 to $275DRAFT DO NOT CITE OR QUOTE 362 of 563 5/03/10 2D. Included Future Increase in CCR Beneficial Use $6,122 $2,450 $980

3. Net Benefits (2 - 1) $4,845 to $5,930 $1,947 to $2,439 $786 to $1,032 4. Benefit/Cost Ratio (2 / 1) 4.286 to 5.022 4.319 to 5.159 4.330 to 5.370 * Note: Average annualized equivalent values calculated by multip lying the 50-year present values by a 50-year 7% discount rate “capital recovery factor” of 0.07246.

Table 11 Comparison of Regulatory Benefits to Costs Unde r Scenario #2 – Induced Beneficial Use Decrease ($Millions @ 2009$ Prices @ 7% discount Rate over 50 -Year Future Period-of-Analysis 2012 to 2061)

Subtitle C “Special Waste” Subtitle D Subtitle “D prime”
A. Present Values: 1. Regulatory Costs (1A+1B+1C): $20,349 $8,095 $3,259 1A Engineering Controls $6,780 $3,254 $3,254 1B Ancillary Costs $1,480 $5 $5 1C.Conversion to Dry CCR Disposal $12,089 4,836 $0 2. Regulatory Benefits (2A+2B+2C+2D): ($230,817) to ($215,847) $1,168 to $7,965 $593 to $3,983
2A. Monetized Value of Human Cancer Risks Avoided $504 $207 $104
2B. Groundwater Remediation Costs Avoided $466 $168 $84 2C. CCR Impoundment Failure Cleanup Costs Avoided $1,762 to $16,732 $793 to $7,590 $405 to $3,795 2D. Induced Impact on CCR Beneficial
Use ($233,549) N/A N/A 3. Net Benefits (2-1) ($251,166) to ($236,196) ($6,927) to ($130) ($2,666) to $724DRAFT DO NOT CITE OR QUOTE 363 of 563 5/03/10 Table 12 Comparison of Regulatory Benefits to Costs Unde r Scenario #3 - No Change to Beneficial Use ($Millions @ 2009$ Prices @ 7% discount Rate over 50 -Year Future Period-of-Analysis 2012 to 2061)

Costs Subtitle C “Special
Waste” Subtitle D Subtitle “D prime” 4. Benefit/Cost Ratio (2/1) (11.343) to (10.607) 0.144 to 0.984 0.182 to 1.222 B. Average Annualized Equivalent Values* 1. Regulatory Costs (1A+1B+1C): $1,474 $587 $236 1A Engineering Controls $491 $236 $236 1B Ancillary Costs $107 $0.36 $0.36 1C.Conversion to Dry CCR Disposal $876 $350 $0 2. Regulatory Benefits (2A+2B+2C+2D): ($16,725) to ($15,640) $85 to $577 $43 to $289
2A. Monetized Value of Human Cancer Risks Avoided $37 $15 $8
2B. Groundwater Remediation Costs Avoided $34 $12 $6 2C. CCR Impoundment Failure Cleanup Costs Avoided $128 to $1,212 $57 to $550 $29 to $275 2D. Induced Impact on CCR Beneficial Use ($16,923) NA NA 3. Net Benefits (2-1) ($18,199) to ($17,115) ($502) to ($9) ($193) to $52 4. Benefit/Cost Ratio (2/1) (11.347) to (10.610) 0.145 to 0.983 0.182 to 1.225 * Note: Average annualized equivalent values calculated by mu ltiplying 50-year present values by a 50-year 7% discount rate “capital recovery factor” of 0.07246.DRAFT DO NOT CITE OR QUOTE 364 of 563 5/03/10 Table 12 Comparison of Regulatory Benefits to Costs Unde r Scenario #3 - No Change to Beneficial Use ($Millions @ 2009$ Prices @ 7% discount Rate over 50 -Year Future Period-of-Analysis 2012 to 2061)

A. Present Values: 1. Regulatory Costs (1A+1B+1C): $20,349 $8,095 $3,259 1A. Engineering Controls $6,780 $3,254 $3,254 1B. Ancillary Costs $1,480 $5 $5 1C. Dry Conversion $12,089 4,836 $0 2. Regulatory Benefits (2A+2B+2C+2D): $2,732 to $17,702 $1,168 to $7,965 $593 to $3,983 2A. Monetized Value of Human Cancer Risks Avoided $504 $207 $104 2B. Groundwater Remediation Costs Avoided $466 $168 $84 2C. CCR Impoundment Failure Cleanup Costs Avoided $1,762 to $16,732 $793 to $7,590 $405 to $3,795 2D. Induced Impact on CCR Beneficial Use $0 $0 $0

3. Net Benefits (2-1) ($17,617) to ($2,647) ($6,927) to ($130) ($2,666) to $724 4. Benefit/Cost Ratio (2/1) 0.134 to 0.870 0.144 to 0.984 0.182 to 1.222 B. Average Annualized Equivalent Values 1. Regulatory Costs (1A+1B+1C): $1,474 $587 $236 1A. Engineering Controls $491 $236 $236 1B. Ancillary Costs $107 $0.36 $0.36 1C. Dry Conversion $876 $350 $0 2. Regulatory Benefits (2A+2B+2C+2D): $198 to $1,283 $85 to $577 $43 to $289
2A. Monetized Value of Human Cancer Risks Avoided $37 $15 $8
2B. Groundwater Remediation Costs Avoided $34 $12 $6 2C. CCR Impoundment Failure Cleanup Costs Avoided $128 to $1,212 $57 to $550 $29 to $275 2D. Induced Impact on CCR Beneficial Use $0 $0 $0DRAFT DO NOT CITE OR QUOTE 365 of 563 5/03/10 Table 12 Comparison of Regulatory Benefits to Costs Unde r Scenario #3 - No Change to Beneficial Use ($Millions @ 2009$ Prices @ 7% discount Rate over 50 -Year Future Period-of-Analysis 2012 to 2061)

3. Net Benefits (2-1) ($1,277) to ($192) ($502) to ($9) ($193) to $52

4. Benefit/Cost Ratio (2/1) 0.134 to 0.870 0.145 to 0.983 0.182 to 1.225 * Note: Average annualized equivalent values calculated by multip lying 50-year present values by a 50-year 7% discount rate “capital recovery fact or” of 0.07246.

EPA seeks comment on data and findings presented in the RIA, as well as on the cost and benefit estimation uncertainty factors identified in the RIA.

D. What are the Potential Environmental a nd Public Health Impacts of the Proposed Regulatory Alternatives?

The potential environmental and public health impacts of CCR regulation assessed within the RIA include the following three categories:

• Groundwater Benefits (human health benefits and cleanup costs avoided)

• Catastrophic Failure Benefits (catastr ophic and significant releases avoided)

• Beneficial Use Benefits

The analyses of the groundwater impacts for the RIA were derived based on results from the risk assessment that was conducted for coal combus tion residue landfills and surface impoundments.DRAFT DO NOT CITE OR QUOTE 366 of 563 5/03/10 The second category of catastroph ic impacts in the RIA was assessed, primarily based upon data on releases, as reported in EPA’s 2009 Informa tion Collection Request. And finally, the RIA assessment of beneficial use impacts was conducte d using life-cycle analyses of current types and quantities of CCR beneficial use in the US . While the RIA focuses on monetizing these three impact categories, EPA notes that there are also likely noncancer health impacts, ecological impacts, other surface water impacts, and impacts on the ambient air, which are not monetized in this RIA.

1. Environmental and Public Health Impacts Estimated in the RIA

Groundwater Impacts

In the RIA, EPA estimated the benefits of reduced cancer risks and avoided groundwater remediation costs associated with controlli ng arsenic from landfills and surface impoundments that manage coal combustion residuals (CCRs). These estimates are based on EPA’s risk assessment, which predicts leaching behavior us ing SPLP and TCLP data. Furthermore, recent research and damage cases indicate that these leaching tests may under-pre dict risks from dry disposal. 164 Therefore, the benefits estimated in this section are likely to underestimate the actual

164 Recent EPA research demonstrates that CCRs can leac h significantly more aggressi vely under different pH conditions potentially present in disposal units. In U.S. EPA (2009c), a recent ORD study of 34 facilities, CCRs from 19 facilities exceeded at least one of the Toxicity Char acteristic regulatory values for at least one type of CCR (e.g., fly ash or FGD residue) at the self-generated pH of the material. This behavior likely explains the rapid migration of constituents from disposal sites like Chesap eake, VA and Gambrills, MD. See also U.S. EPA (2006, 2008b).DRAFT DO NOT CITE OR QUOTE 367 of 563 5/03/10 benefits provided by the proposed rule. EPA ba ses the cancer cases avoided on the individual “excess” lifetime cancer probabilities reported in the risk assessment, although for the present analysis, EPA uses more recent science on arseni c carcinogenicity, reflected in more recent NRC research.

The RIA began its groundwater impacts assessm ent by first segregating facilities by their individual type of liner and their respective Waste Management Unit (WMU) designations. For each class of facility, GIS data were used to determine the pot entially affected populations of groundwater drinkers within 1-mile of the WMU. Results from the risk assessment were applied to these populations by using a li near extrapolation, starting from a risk of zero - to the peak future risk as demonstrated by the risk assessm ent. The number of people who might potentially get cancer was then adjusted to account for more recent research by the NRC.

Given the number of total potential cancers, EPA was able to use the same NRC data to split these cancers into lung cancers and bladder cancers, as well as into those that resulted in death versus those that did not. Once this subdivision was complete, EPA was then able to monetize these cancers using accepted economic values for a statistical life and cost of illness. In doing so, EPA was able to take account of both the pote ntial lag in cancer cessation and the increase in value of a statistical life due to increases in income.

EPA also recognized that due to the relevant pre-existing state regulations in this area, fewer cancers than the number projected would ultimately occur. Therefore, a baseline was established for the operation of state regulator y and remedial programs. This led to the exclusion of someDRAFT DO NOT CITE OR QUOTE 368 of 563 5/03/10 cancers where states would likely fill the gap in the absence of any EPA regulations. However, once contamination was found by states, cleanup co sts would be incurred. Thus, EPA accounted for these costs under each of the regulatory options as well.

Once groundwater remediation costs and cancer co sts under the baseline and each regulatory option were estimated, the aggregate benefits fr om each regulatory option were calculated (in comparison to the baseline). Net present value es timates were generated both at the 3% and 7% discount rate, as discussed in furt her detail within the RIA. To summarize, at a discount rate of 7%, the net present value of th e groundwater benefits (includi ng both the avoided cleanup costs and the value of cancer cases avoided) from the proposed rule totaled $970 million under the subtitle C option, and $375 million under the subtitle D option.

Catastrophic Failure Impacts

The 2008 surface impoundment failure at the TVA’ s Kingston, TN power plant illustrated that the improper handling of CCRs can lead to cat astrophic releases. EPA’s co-proposal for the management of CCRs includes requirements that would lead to all plants with surface impoundments converting to dry handling in landfills within 5-years of rule implementation. In the RIA, EPA estimated the avoided catastrophic failures and associated cleanup cost savings resulting from this provision of the rule.

First, EPA began by characterizing the releas es reported in its 2009 Information Collection Request. In this data se t, 42 releases were reporte d for the years 1995 through 2009.DRAFT DO NOT CITE OR QUOTE 369 of 563 5/03/10 Particularly, there were 5 significant releases of between 1 m illion and 1 billion gallons, and one catastrophic release of ove r 1 billion gallons during this time pe riod at coal fired power plants. Given these historic releases, EP A projected the occurrence of fu ture releases using a Poisson distribution. EPA then estimated future avoide d cleanup costs under the tw o proposed rules, and determined net present values of these benefits using both a 3% and 7% discount rate across the average and upper percentiles of risk demonstrat ed by the results of the Poisson distribution. The full details of these analyses are reported in the RIA. To su mmarize the results here at the 7% discount rate, the estimated net present va lue of avoided releases under the subtitle C requirements total $1,762 million on average (w ith the upper-bound estimates reaching from $3,140 to $4,177 million for the 90 th and 99 th percentiles). And under the subtitle D requirements and discount rate of 7%, the estimat ed net present value of avoided releases total $793 million on average (with the upper-bound es timates reaching from $1,413 to $1,880 million for the 90 th and 99 th percentiles).

In addition, a second Poisson distribution was de veloped as a sensitivit y analysis, using an alternative historical rate of occurrence. This was done to see to what extent an increased release rate would pose in terms of greater risks. Given the age of many CCR surface impoundments, an increase in the release rate might be expect ed. The cleanup costs avoided under the two coproposed rules were again calculated as describe d above and included in the RIA, given this alternative higher occurren ce rate. To summarize the results of this sensitivity analysis, at a 7% discount rate the estimated net present valu e of avoided releases under the subtitle C requirements total $5,154 million on average (w ith the upper-bound estimates reaching from $7,356 to $9,423 million for the 90 th and 99 th percentiles). And under the subtitle DDRAFT DO NOT CITE OR QUOTE 370 of 563 5/03/10 requirements and same discount rate of 7%, the estimated net pres ent value of avoided releases total $2,319 million on average (with the upper- bound estimates reaching from $3,310 to $4,240 million for the 90 th and 99 th percentiles).

Finally, a further sensitivity anal ysis was also performed to determine the extent to which these benefits would change if the catastrophic failures occu rred sooner than projected by the Poisson distribution. Here, 96 impoundments we re identified that were at leas t 40 feet tall and at least 25 years old. For the purposes of the assessment, benefit estimates were calculated based on assumed impoundment failure rates of both 10% and 20%. The RIA includes net present value estimates of the avoided cleanup costs under the two co-proposed rules for these two assumed failure rates, which are calculat ed using both 3% and 7% discount rates. Given the potential earlier releases, the analyses in the RIA find that at a 7 % disc ount rate and a 10% failure rate, the net present value of avoided catastrophic fa ilure costs is $8,366 under subtitle C, versus $3,795 million under subtitle D. Furthermore, when assuming a failure rate of 20% rather than 10%, the estimated net present value of avoide d catastrophic failure costs increases to $16,732 million under Subtitle C, versus $7,59 0 million under subtitle D.

Beneficial Use Impacts

The last category of such impacts assessed within the RIA includes the potential effects that the different regulatory options for disposal of coal combustion residuals (CCRs) may have upon the quantities of CCRs that are being beneficially us ed. In the RIA, EPA estimates the expected increase in beneficial use a ssociated with the increased co sts of disposing CCRs, and alsoDRAFT DO NOT CITE OR QUOTE 371 of 563 5/03/10 evaluates potential future cha nges in the beneficial uses of CCRs as a result of a potential “stigma” effect.

To begin, EPA projected the quantity of CCRs th at will be produced in the future, based upon Energy Information Administration’s (EIA) estimate s of future coal supply and demand. At the same time, EPA also projected the growth in the percent of beneficial us e that would take place absent any EPA rule. Combining these, EPA was able to project the total quantities of beneficially used CCRs under th e baseline of no federal rule.

However, it is anticipated that the increased CCR disposal costs associated with a federal RCRA subtitle C rule, and the continued applicati on of the Bevill exclusion to CCRs that are beneficially used, would provide significant incentive to electric utilities avoid higher disposal costs by increasing the quantity of CCRs going to beneficial use. Usi ng the cost projections from the RIA for CCR disposal, EPA assumed that there would initially be unit elasticity with respect to cost, but that the el asticity would decrease with incr easing market saturation. Based upon these assumptions, EPA projected the increased growth in beneficial use under a subtitle C rule. EPA then took the monetized benefits of cu rrent beneficial use, and applied them to our projected increases in benefi cial use under the rule.

When monetized, the values of these increases are extremely large, summing to a net present value of $5,560 million in economic benefits at a 7% discount rate. Furthermore, when considering total social benef its (e.g., decreased GHG emissions) the numbers are even greater, resulting in $84,489 million at a 7% discount rate. (Please note that because the total socialDRAFT DO NOT CITE OR QUOTE 372 of 563 5/03/10 benefits overlap with the economic benefits, thes e numbers should not be added together.) This number represents EPA’s lower-bou nd estimate of the potential incr ease that it anticipates will

occur.

On the basis of past experience, EPA believes it is realistic to expect that there is a possibility that recycling rates will increase under a subtitle C rule, increasi ng the beneficial use of CCRs. However, stakeholders have raised the potential issue of “stigma.” Thus , the RIA also assesses this potential stigma effect and develops estimat es of its potential impacts. Here, assumptions were made about what losses or reductions might result among the various sectors involved in the beneficial use of CCRs. For example, federa lly purchased concrete was assumed to stay at baseline levels because of the positive influenc e of comprehensive procurement guidelines that are already in place to encourage such types of be neficial uses. Conversely, for the purposes of assessing potential stigma effects, the levels of non-federally purchased concrete were assumed to decrease relative to the baseline.

When monetized, the values of these decreases ar e also large, summing to a net present value of $18,744 million in economic costs at a 7% discount rate. Furthermore, when considering total social benefits (e.g., GHG emissions) the numbers are even greater, re sulting in $233,549 million in economic costs at a 7% discount rate. This number represents EPA’s estimate of the potential worst-case decrease that could occur in the event of potential stigma effect.

Since the potential increases in beneficial use as discussed above are driv en largely by increases in disposal costs under the subti tle C option, EPA further estimate d the effects that would resultDRAFT DO NOT CITE OR QUOTE 373 of 563 5/03/10 under a subtitle D rule by applying a ratio of th e rule’s respective cost s under both the C and D options. Using the ratio of the subtitle D costs to the subtitle C costs (a ratio of 0.40:1); the net present value of social benefits associated with increased beneficial us e under subtitle D would be approximately $33,796 million (at an assumed disc ount rate of 7%). It is important to note further that under the subtitle D option for the proposed rule, no such stigma effect would exist and is, therefore, not accounted for in our analyses. However, to the extent th at a stigma effect is real, it could just as easily decrease beneficial use under a subtitle D option.

2. Environmental and Public Health Impacts Not Estimated in the RIA

Impacts on Plants and Wildlife

The risk assessment estimated significant risk of a dverse effects to plants and wildlife, which is confirmed by the many impacts seen in the existi ng damage cases and field studies published in the peer-reviewed scientific literature. These include: elevated selenium levels in migratory birds, wetland vegetative damage, fish kills, amphibian deformities, snake metabolic effects, plant toxicity, elevated contamin ant levels in mammals as a result of environmental uptake, fish deformities, and inhibited fish reproductive capac ity. Requirements in the proposed rule should prevent or reduce these impacts in the future by limiting the extent of environmental contamination and thereby reducing the levels directly available.

Impacts on Surface Water No t Captured in the RIADRAFT DO NOT CITE OR QUOTE 374 of 563 5/03/10 In EPA’s risk assessment, recreational fisher s could be exposed to constituents via the groundwater to surface water pathway. Furtherm ore, State Pollutant Discharge Elimination System (SPDES) and National Pollutant Discha rge Elimination System (NPDES) discharges from wet handling likely exceed the discharges from groundwater to surface water. Thus, exposure to arsenic via fish cons umption could be significant. Ho wever, EPA expects that most facilities will eventually switch to dry handling of CCRs, a trend which is discussed in the RIA. This will reduce potential exposures to these constituents from affected fish.

Impacts on Ambient Air

Another impact on public health not discussed in the RIA is the potenti al reduction of excess cancer cases associated with hexavalent chromi um inhaled from the air. Since over six million individuals are estimated to live within the Census population data “zip code tabulation areas” for the plant location zip codes of coal-fired power plants affected by this proposed rule, 165 the potential population health effects may be quite large. Inhalation of he xavalent chromium has been shown to cause lung cancer. 166 By requiring fugitive dust controls, the proposed rule would reduce inhalation exposure to he xavalent chromium near waste management units that are not currently required to cont rol fugitive dust.

Non-cancer Health Effects Associat ed with CCR Particulate Matter

165 US EPA. Regulatory Impact Analysis for EPA’s Proposed Regulation of Coal Combustion Wastes Generated by the Electric Utility Industry, 2009. Offi ce of Resource Conservation and Recovery.

166 ATSDR Texas. Available at: h ttp://www.atsdr.cdc.gov/toxfaq.htmlDRAFT DO NOT CITE OR QUOTE 375 of 563 5/03/10 There are several non-cancer hea lth effects associated with C CRs are a result of particulate matter inhalation due to dry ha ndling. Human health effects for which EPA is evaluating causality due to particulate matter exposure include cardiovas cular morbidity, respiratory morbidity, and mortality, reproductive a nd developmental effects, and cancer. 167 The potential for and extent of adverse health effects due to fugitive dusts from dry handling of CCRs was demonstrated in US EPA 2009b, “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills - DRAFT.” The proposed rule’s fugitive dust controls would serve to manage such potenti al risks by bringing them to acceptable levels.

Particles can also be carried ove r long distances by wind and then settle on ground or water. The effects of this settling include : changing the pH of lakes and streams; changing the nutrient balance in coastal waters and large river basins ; depleting nutrients in soil; damaging sensitive forests and farm crops; and affecting the diversity of ecosystems. 168 Additionally, fine particulates are known to contribute to haze. 169 Thus, the fugitive dust controls contained in the proposed rule would improve visibility, and reduc e the environmental impacts discussed above.

XIII. Other Alternatives EPA Considered.

167 Integrated Science Assessment for Pa rticulate Matter: First External Re view Draft. EPA/600/R-08/139. Research Triangle Park, NC: U.S. E nvironmental Protection Agency, Office of Research and Development. 2008.

168 http://www.epa.gov/particles/health.html

169 IbidDRAFT DO NOT CITE OR QUOTE 376 of 563 5/03/10 In determining the level of re gulation appropriate for the management of CCRs, taking into account both the need for regulations to prot ect human health and the environment and the practical difficulties associated with implementa tion of such regulations, the Agency considered a number of approaches in addition to regulating CCRs under subtitle C or subtitle D of RCRA. Specifically, the Agency also considered severa l combination approaches, such as regulating surface impoundments under subtitle C of RCRA, wh ile regulating landfills under subtitle D of
RCRA.

Under all of the approaches EPA considered, CCRs that were beneficially used would retain the Bevill exemption. In addition, under all the approaches, requirements for liners and ground water monitoring would be established, as well as annual inspections of all CCR surface impoundments by an independent re gistered professional engineer to ensure that the design, operation, and maintenance of surface impoundments are in accordance with recognized and generally accepted good engineering standards. However, the degree and extent of EPA’s authority to promulgate certain requirements, su ch as permitting, financial assurance, facilitywide corrective action, varies under RCRA subtitle C versus subtitle D. In addition, the degree and extent of federal oversight, including enforcement, varies based on whether a regulation is promulgated under RCRA subtitle C or subtitle D au thority. (See Section IV. for a more detailed discussion on the differences in EPA’s auth orities under RCRA subtitle C and subtitle D.)

Under one such approach, wet-handled CCRs - that is, those CCRs managed in surface impoundments or similar management units - would be regulated as a haza rdous or special waste under RCRA subtitle C, while dry handled CCRs - that is, those CCRs managed in landfills -DRAFT DO NOT CITE OR QUOTE 377 of 563 5/03/10 would be regulated under RCRA subtitle D. We t-handled CCR wastes woul d be regulated under the co-proposed subtitle C altern ative described earlier in the preamble (see section VI), while dry-handled CCRs would be regulated under th e co-proposed RCRA subtitle D alternative described earlier in the preamble (see section IX ). In addition, EPA w ould retain the existing Bevill exemption for CCRs that are beneficially used. Under this approach, EPA would establish modified requirements for wet-handled CCRs, purs uant to RCRA 3004(x), as laid out in the coproposed subtitle C alternative.

This approach would have many of the benefits of both of today’s co-proposed regulations. For example, this approach provides a high de gree of federal oversight, including permit requirements and federally enforceable requirements, for surface impoundments and similar units that manage wet CCRs. Based on the result s of our ground water risk assessment, it would also provide a higher level of pr otection for those wastes whose method of management presents the greatest risks (i.e., surface impoundments) . On the other hand, dry CCRs managed in landfills, while still presenting a risk if the CCRs are not prop erly managed, clearly present a lower risk, according to the risk assessment and, therefore, a subtitle D approach might be more appropriate. Also, landfills that manage CCRs are unlikely to present a risk of catastrophic failure, such as that posed by surface impoundment s that contain large volumes of wet-handled CCRs. EPA also believes this approach could address the concerns of many commenters who expressed their views that subtit le C regulations would overwhelm off-site disposal capacity and would place a stigma on beneficial uses of CCRs.DRAFT DO NOT CITE OR QUOTE 378 of 563 5/03/10 Of course, this approach also sh ares the disadvantages of the sub title C approach, as it applies to surface impoundments, and of the subtitle D appro ach, as it applies to la ndfills. For example, portions of the rules applicable to surface im poundments would not become enforceable until authorized states adopt the subti tle C regulations and become aut horized; and rules applicable to landfills would not be directly federally enforceable . For a full discussion of the advantages and disadvantages of the subtitle C and sub title D options see sections VI and IX.

Under another approach considered by EPA, th e Agency would issue th e proposed subtitle C regulations, but they would not go into effect for some time peri od, such as three years, as an example, after promulgation. The rule would in clude a condition that would exclude CCRs from regulation under subtitle C of RCRA in states that: (l) had devel oped final enforceable subtitle D regulations that are protective of human health and the environment, 170 (2) had submitted those regulations to EPA for review within two years after the promulgation date of EPA’s subtitle C rule, and (3) EPA had approved within one y ear, through a process allowing for notice and comment, possibly comparable to the current MSW subtitle D approval process. If a state failed to develop such a program within the two year tim eframe for state adoption of the regulations or if EPA did not approve a state program within the one-year timeframe for state approval, the hazardous waste or special waste listing would become effective. Under this alternative, each state would be evaluated indi vidually, which could lead to a situation where CCRs were managed as hazardous or special wastes in certain states, while in other states, they would be managed as non-hazardous wastes. Such an appr oach could present some implementation issues,

170 Under this approach, EPA also would establish minimum national standards that ensure that CCRs that are managed under the “D” regulations would be protective of human health and the environment.DRAFT DO NOT CITE OR QUOTE 379 of 563 5/03/10 particularly if CCRs were transported across stat e lines. In addition, EPA has serious questions as to whether RCRA, as currently drafted, would allow EPA to promulgate such a regulation. However, EPA solicits comments on this option, bot h generally and with respect to the specific time frames.

Commenters also have suggested an approach similar to that proposed for cement kiln dust (CKD) in an August 20, 1999 proposed ru le (see 64 FR 45632 available at http://www.epa.gov/fedrgstr/EPA-WASTE/1999/ August/Day-20/f20546.htm). Under the CKD approach, the Agency would establish detailed management standards under subtitle D of RCRA. CCRs managed in accordance with the st andards would not be a hazardous or special waste. However, CCRs that were in egregious violation of these requirements, such as disposal in land-based disposal units that were not mon itored for groundwater releases or in new units built without liners, would be considered listed hazardous or special waste and subject to the tailored subtitle C requirements. (EPA is soliciting comment on this approach because commenters have suggested it; interested commen ters may wish to consult the CKD proposal for more detail on how it would work. See 64 FR 45632 available at http://www.epa.gov/epawaste/nonhaz/industrial/specia l/ckd/ckd/ckd-fr.pdf). Like the previous approach, EPA is evaluating (and in fact is re -evaluating) this appr oach, and whether RCRA provides EPA the authority to promulgate such a rule.

Other commenters suggested yet another approa ch whereby EPA would regulate CCRs going for disposal under RCRA subtitle C, but they assert that EPA would not have to specifically list CCR as a hazardous waste using the criteria esta blished in 40 CFR 261.11. These commentersDRAFT DO NOT CITE OR QUOTE 380 of 563 5/03/10 believe that RCRA §3001(b)(3)(A) (the so-called Bevill Amendment) authorizes the Agency to regulate CCRs under subtitle C as long as the Agen cy determines that su btitle C regulation is warranted based on the considerat ion of the eight fact ors identified in RCRA §8002(n). The commenters analysis of their approach is set forth in a memorandum submitted to the Agency and is in the docket for today’s notice. EPA has not adopted th e commenters suggested reading of the statute, but solicits comments on it. (See "EPA Has Clear Authority to Regulate CCW under RCRA’s Subtitle C without Making a Formal Listing Determination," White Paper from Eric Schaeffer, Environmental Integrity Projec t which is available in the docket for this proposal.)

Finally, some commenters have suggested that EP A not promulgate any sta ndards, whether it be RCRA subtitle C or D, but continue to rely on th e states to regulate CCRs under their existing or new state authority, and that EPA could rely on RCRA section 7003 (imminent and substantial endangerment) authority, to the extent the Agency had information that a problem existed that it needed to address. The Agency does not believe th at such an approach is at all acceptable, and that national regulations whethe r it be under RCRA subtitle C or D needs to be promulgated. First, RCRA was designed as a preventative st atute and not one where EPA would get involved only after a problem has been discovered. Thus, su ch an approach would not be consistent with the purpose and objectives of RCRA. In addition, this approach would basically implement the status quo—that is, the control of CCRs over the last decade, whic h the Agency believes has not shown to be at all acceptable. Furthermore, im minent and substantial endangerment authority is facility-specific and resource intensive. That is , such authority can only be used when EPA has sufficient information to determine that disposal of CCRs are contributing to an imminent andDRAFT DO NOT CITE OR QUOTE 381 of 563 5/03/10 substantial endangerment. Thus, relying on this authority, without national regulations, is poorly suited to address the many problems that have o ccurred, and are likely to occur in the future. Nevertheless, the Agency solicits co mment on such an approach.

EPA solicits comments on all of the approaches discussed above. The Agency is still considering all of these approaches, as well as ou r legal authorities to pr omulgate them, and will continue to do so as we move toward finalizing the regulations applicable to the disposal of
CCRs.
XIV. Is the EPA Soliciting Co mments on Specific Issues?

Throughout today’s preamble, the Agency has id entified many issues for which it is soliciting comment along with supporting information and data . In order to assist readers in providing EPA comments and supporting information, in this section EPA is identifying many of the major issues on which comments with supporti ng information and data are requested.

Management of CCRs

 Whether regulatory approaches should be es tablished individually for the four Bevill CCR wastes (fly ash, bottom ash, boiler slag, and FGD sludges) when destined for disposal.

 The extent to which the information currently available to EPA re flects current industry practices at both ol der and new units.

 The regulatory approaches proposed in the no tice and the alternative approaches EPA is considering as discussed in Section XIII of the preamble.DRAFT DO NOT CITE OR QUOTE 382 of 563 5/03/10  The Agency has documented, through proven dama ge cases and risk analyses, that the wet handling of CCRs in surface impoundments poses higher risks to human health and the environment than the dry handling of CCRs in landfills. EPA seeks comments on the standards proposed in this noti ce to protect human health and the environment from the wet handling of CCRs. For example, in light of the TVA Kingston, Tennessee, and the Martins Creek, Pennsylvania CCR impoundment failures, shoul d the Agency require that owners or operators of existing and new CCR surface im poundments submit emergency response plans to the regulatory authority if we t handling of CCRs is practiced?

 The degree to which coal refuse management practices have changed and the impacts of those changes or, for example, groundwater monitoring and the use of liners.

 Information and data on CCRs that are generate d by non-utility industries, such as volumes generated, characteristics of the CCRs, and whet her they are co-managed with other wastes generated by the non-utility industry.

Risk Assessment

 Are there any additional data that are representative of CCR constituents in surface impoundment or landfill leachate (from literature, st ate files, industry or other sources) that EPA has not identified and should be used in evaluating the risks presented by the land disposal of CCRs?

 The screening analysis conducted to estimate risks from fugitive CCR dust; data from any ambient air monitoring for particulate matter th at has been conducted; where air monitoring stations are located near CCR landfills or surface impoundments; and information on anyDRAFT DO NOT CITE OR QUOTE 383 of 563 5/03/10 techniques, such as wetting, compaction, or dail y cover that are or can be employed to reduce such exposures.

 Whether site-averaged porewater data used in model runs in EPA’s risk analyses are representative of leachate from surface impoundments.

 Information and data regarding the existence of drinking water wells th at are down-gradient of CCR disposal units, any monitoring data th at exists on those monitoring wells and the potential of these wells to be intercepted by surface water bodies.

Liners

 Whether, in addition to the flexibility provided by section 3004(o)(2), regulations should also provide for alternative liner de signs based on, for example, a specific performance standard, such as the performance standard in 40 CFR 258.40(a)(1), or a si te specific risk assessment, or a standard that the alternative liner, such as a clay liner, was at least as effective as the composite liner.

 Whether clay liners designed to meet a 1x10 -7 cm/sec hydraulic conductivity might perform differently in practice than modeled in the ri sk assessment, including specific data on the hydraulic conductivity of clay liners a ssociated with CCR disposal units.

 The effectiveness of such additives as organos ilanes, including any analyses that would reflect long-term performance of the additi ves, as well as the appropriateness of a performance standard that would allow the use of these additives in lieu of composite liners.

Beneficial UseDRAFT DO NOT CITE OR QUOTE 384 of 563 5/03/10  The growth and maturation of state beneficial use programs and the growing recognition that the beneficial use of CCRs is a critical co mponent in strategies to reduce GHG emissions taking into account the potentially changing co mposition of CCRs as a result of improved air pollution controls and the new science on metals leaching.

 Information and data on the extent to which st ates request and evaluate CCR characterization data prior to the beneficial use of unencapsulated CCRs.

 The appropriate means of characterizing benefi cial uses that are both protective of human health and the environment and provide benefi ts. EPA is also requesting information and data demonstrating where the federal a nd state programs could improve on being environmentally protective and, where states have, or are developing, increasingly effective beneficial use programs.

 Whether certain uses of CCRs (e.g., uses invol ving unencapsulated uses of CCRs) warrant tighter control and why such tighter control is necessary.

 If EPA determines that regulations are need ed for the beneficial use of CCRs, should EPA consider removing the Bevill ex emption for such uses and regulate these uses under RCRA subtitle C, develop regulations under RCRA s ubtitle D or some other statutory authority, such as under the Toxic Substances Control Act?

 Whether it is necessary to define beneficial use better or develop detailed guidance on the beneficial use of CCRs to ensure protection of human health and the environment, including whether certain unencapsulated benefi cial uses should be prohibited.

 Whether the Agency should promulgate sta ndards allowing uses on the land, on a sitespecific basis, based on site specific risk assessments, taking into consideration theDRAFT DO NOT CITE OR QUOTE 385 of 563 5/03/10 composition of CCRs, their leaching potential under the range of conditions under which the CCRs would be managed, and the context in wh ich CCRs would be applied, such as location, volume, rate of application, and proximity to water.

 If materials characterization is re quired, what type of characteriza tion is most appropriate? If the CCRs exceed the toxicity charac teristic at pH levels differe nt from the TCLP, should they be excluded from beneficial use? Wh en are totals leve ls relevant?

 Whether EPA should fully develop a leaching asse ssment tool in combination with the Draft SW-846 leaching test methods described in Se ction I. F. 2 and other tools (e.g., USEPA’s Industrial Waste Management Evaluation Model (IWEM)) to aid prospective beneficial users in calculating potential rel ease rates over a specified pe riod of time for a range of management scenarios.

 Information and data relating to the agri cultural use of FGD gypsum, including the submission of historical data, taking into account the impact of pH on leaching potential of metals, the variable and changing nature of CCRs, and variable site conditions.

 Historically, EPA has proposed or imposed c onditions on other types of hazardous wastes used in a manner constituting disposal (e.g., maximum application ra tes and risk-based concentration limits for cement kiln dust used as a liming agent in agricultural applications (see 64 FR 45639; August 20, 1999); maximum allo wable total concentrations for nonnutritive and toxic metals in zinc fertilizer s produced from recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Shoul d EPA should establish standards, such as maximum/minimum thresholds, or rely on impl ementing states to impose CCR site-specific limits based on front-end characte rization that ensures individu al beneficial uses remain protective?DRAFT DO NOT CITE OR QUOTE 386 of 563 5/03/10  Whether additional beneficial uses of CCRs have been established, since the May 2000 Regulatory Determination, that have not been di scussed elsewhere in today’s preamble. The Agency solicits comment on any new uses of C CR, as well as the information and data which support that CCRs are beneficially used in an environmentally sound manner.

 Whether there are incentives that could be prov ided that would increa se the amount of CCRs that are beneficially used and comment on sp ecific incentives that EPA could adopt that would further encourage the beneficial use of CCRs.

 Information and data on the best means for estimating current and future quantities and changes in the beneficial use of CCRs, as well as on the price elasticity of CCR applications in the beneficial use market.

Stigma

 If EPA were to regulate CCRs as a “special waste” under subtitle C of RCRA, and stigma turns out to be an issue, suggestions on methods by which the Agency could reduce any stigmatic impact that might indirectly arise. We are seeking information on actual instances where “stigma” has adversely affected the bene ficial use of CCRs and the causes of these adverse effects.

 The issue of “stigma” and its impact on benefici al uses of CCRs, including more specifics on the potential for procedural difficulties for st ate programs, and measures that EPA might adopt to try to mitigate these effects.DRAFT DO NOT CITE OR QUOTE 387 of 563 5/03/10  For those commenters who argue that regula ting CCRs under subtitle C of RCRA would raise liability issues, EPA requests that commen ters describe the types of liability and the basis/data/information on which these claims are based.

 EPA furthermore welcomes ideas on how to be st estimate these effects for purposes of conducting regulatory impact analys is, and requests any data or me thods that would assist in this effort.

Today’s Co-proposed Regulations

General

 Some commenters have s uggested that EPA not promulgate any standards, whether they be RCRA subtitle C or D, but continue to rely on the states to regulate CCRs under their existing or new state authorities. The Ag ency solicits comment on such an approach, including how such an approach would be prot ective of human health and the environment.

RCRA Subtitle C Regulations

 Whether EPA should modify the corrective actio n requirements for facility-wide corrective action under the subtitle C co-p roposal under the authority of section 3004(x) of RCRA. If so, how such modification would be protectiv e of human health and the environment.

 Pursuant to RCRA section 3010 and 40 CFR 27 0.1(b), facilities managing these special wastes subject to RCRA subtitle C must notif y EPA of their waste management activitiesDRAFT DO NOT CITE OR QUOTE 388 of 563 5/03/10 within 90 days after the wastes are identified or listed as a special waste. The Agency is proposing to waive this notification requireme nt for persons who handle CCRs and have already : (1) notified EPA that they manage h azardous wastes, and (2) received an EPA identification number. Should such persons be required to re-notify th e Agency that they generate, transport, treat, store or dispose of CCRs?

 Representatives of the utility industry have stat ed their view that CCRs cannot be practically or cost effectively managed under the existing RCRA subtitle C storage standards, and that these standards impose significant costs wit hout meaningful benefits when applied specifically to CCRs. Comments are solicited on the practicality of the proposed subtitle C storage requirements for CCRs, the workability of the existing variance process allowing alternatives to secondary cont ainment, and the alternative requirements based, for example, on the mining and mineral processing waste storage requirements.

RCRA Subtitle D Regulations

 EPA broadly solicits comment on the approach of relying on certifications by independent registered professional hydrologi sts or engineers of the adequ acy of actions taken at coalfired utilities to design and operate safe waste management systems.

 The Agency does not have specific data showing the number of CCR landfills located in fault areas where movement along Holocene faults is common, and the distance between these units and the active faults and, thus, is unabl e to precisely estimate the number of these existing CCR landfills that would not meet t oday's proposed fault area restrictions.DRAFT DO NOT CITE OR QUOTE 389 of 563 5/03/10 Additional information regarding the extent to which existing landfills are currently located in such locations is solicited.

 In general, EPA believes that a 200-foot buffer zone is nece ssary to protect engineered structures from seismic damages and also expect s that the 200-foot buffer is appropriate for CCR surface impoundments. The Agency seek s comment and data on whether the buffer zone should be greater for surface impoundments.

 Additional information regarding the extent to which landfill capacity would be affected by applying the proposed subtitle D location restrictions to existing CCR landfills.

 The proposed location requirements do not reflec t a complete prohibiti on on siting facilities in areas of concern, but provide a performance sta ndard that facilities must meet in order to site a unit in such a location. Information on the extent to whic h facilities could comply with the proposed performance standards, and the ne cessary costs that would be incurred to retrofit CCR disposal units to meet these standards is solicited.

 The proposed definition of seismic impact zone s and whether there are variants that could lessen the burden on the industry and the geographic areas covered by the proposed definition.

 Whether the subtitle D option, if promulgated, should allow facilities to use alternative designs for new disposal units, so long as the owner or operator of a unit could obtain certification from an independent registered professional engin eer or hydrologist that the alternative design would ensure that the appropriate concen tration values for a set of constituents typical of CCRs will not be exceeded in the uppermost aquifer at the relevant point of compliance (i.e., 150 meters from the unit boundary down gradient from the unit, or the property boundary if the point of comp liance is beyond the property boundary).DRAFT DO NOT CITE OR QUOTE 390 of 563 5/03/10  Whether there could be homeland security im plications with the requirement to post information on an internet site and whether posting certain information on the internet may duplicate information that is already av ailable to the public through the state.

 Whether the subtitle “D prime” option is prot ective of human health and the environment.

 EPA is proposing that existing CCR landfills and surface impoundments that cannot make a showing that a CCR landfill or surface impoundment can be operated safely in a floodplain or unstable area must close within five years after the effective date of the rule. EPA solicits comment on the appropriate amount of time necessary to meet this requirement, as well as measures that could help to address the potential for inadequate disposal capacity.

 The effectiveness of annual surface impoundment assessments in ensuring the structural integrity of CCR surface impoundments over the long term.

Surface Impoundment Closeout

 Whether the Agency should provide for a variance process allowing some surface impoundments that manage wet-handled CCRs to remain in operation because they present minimal risk to groundwater (e.g., because they ha ve a composite liner) an d minimal risk of a catastrophic release (e.g., as indicated by a lo w or less than low potential hazard rating under the Federal Guidelines for Dam Safety esta blished by the Federal Emergency Management Agency).

Surface Impoundment StabilityDRAFT DO NOT CITE OR QUOTE 391 of 563 5/03/10  The adequacy of EPA’s proposals to addr ess surface impoundment integrity under RCRA.

 Whether to address all CCR impoundments for st ability, regardless of height and storage volume; whether to use the cut-offs in the MSHA regulations; or whet her other regulations, approaches, or size cut-offs shoul d be used. If commenters belie ve that other regulations or different size cut-offs should be adopted, we request that commenters provide the basis and technical support for their position.

 Whether surface impoundment integrity should be addressed under EPA’s NPDES permit program, rather than the development of regulations under RCRA, whether it be RCRA subtitles C or D.

Financial Assurance

 EPA broadly solicits comments on whether fina ncial assurance should be a key program element under a subtitle D approach, if the deci sion is made to promulgate regulations under RCRA subtitle D.

 Whether financial responsibility requirem ents under CERCLA § 108(b) should be a key Agency focus for ensuring that funds are available for addressing the mismanagement of
CCRs.

 How the financial assurance requirements might apply to surface impoundments that cease receiving CCRs before the effective date of the rule.

 Whether a financial test similar to that in 40 CFR 258.74(f) in the Criteria for Municipal Solid Waste Landfills should be established for local governments that own and operate coalfired power plants.DRAFT DO NOT CITE OR QUOTE 392 of 563 5/03/10 State Programs

 Detailed information on current and past in dividual state regula tory and non-regulatory approaches taken to ensure the safe mana gement of CCRs, not only under state waste authorities, but under other authorities as well, including the implementation of those approaches.

 The potential of federal regulations to cause disruption to states ’ implementation of CCR regulatory programs under their own authorities, including more specific s on the potential for procedural difficulties for state programs, and measures that EPA might adopt to try to mitigate these effects.

Damage Cases

 EPRI's report and additional data regarding the proven damage cases identified by EPA, especially the degree to which th ere was off-site contamination.

 The report of additional damage cases submitted to EPA on February 24, 2010 by the Environmental Integrity Pr oject and EarthJustice.

Regulatory Impact Analysis

 Data and findings presented in the RIA, as well as on the cost and benefit estimation uncertainty factors identified in the RIADRAFT DO NOT CITE OR QUOTE 393 of 563 5/03/10  Data on the costs of converting coal fired pow er plants from wet handling to dry handling with respect to the various air pollution contro ls, transportation systems, disposal units, and other heterogeneous factors.

 Relevant RCRA corrective actions and related co sts that would be useful in characterizing the potential costs for future actions.

 Information on other significant and catastroph ic surface impoundment releases of CCRs or other similar materials and cleanup cost s associated with these releases?

 Data on the costs of storage of CCRs in tanks or tank systems, on pads, or in buildings.

 EPA has also quantified and monetized the benefits of this rule to the extent possible based on available data and modeling tool s, but welcomes additional datathat may be available that would assist the Agency in expanding and refining our existing benefit estimates.

XV. Executive Orders and Laws Addressed in This Action.

A. Executive Order 12866: Regul atory Planning and Review.

Under section 3(f)(1) of Ex ecutive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is an "economically signifi cant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more (secti on 3(f)(1)). This determination is based on the regulatory cost estimates provided in EPA’ s “Regulatory Impact An alysis” (RIA) which is available in the docket for this proposal. Th e RIA estimated regulatory implementation and compliance costs, benefits and net benefits for a number of regulatory options, including a subtitle C “special waste” option, a subtitle D option and, a subtitle “D prime” option. TheDRAFT DO NOT CITE OR QUOTE 394 of 563 5/03/10 subtitle D prime option was briefly described in the Preamble and is more fully discussed in the RIA to the co-proposal. On an average annuali zed basis, the estimated regulatory compliance costs for the three options in today’s propos ed action are $1,474 million (subtitle C special waste), $587 million (subtitle D), and $236 million (subt itle “D prime”) per year. On an average annualized basis, the estimated regulatory benefi ts for the three options in today’s proposed action are $6,320 to $7,405 million (subtitle C sp ecial waste), $2,533 to $3,026 million (subtitle D), and $1,023 to $1,268 million (subtitle “D prime”) pe r year. On an average annualized basis, the estimated regulatory net benefits for the th ree options in today’s proposed action are $4,845 to $5,930 million (subtitle C special waste), $1,947 to $2,439 million (subtitle D), and $786 to $1,032 million (subtitle “D prime”) per year. All options exceed $100 million in expected future annual effect. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and changes made in response to OMB recommendations are documented in the docket for this proposal.

B. Paperwork Reduction Act.

The information collection requirements contained in this proposed rule has been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . The Information Collection Reque st (ICR) document prepared by EPA has been assigned EPA ICR number 1189.22.

Today’s action co-proposes two regu latory alternatives that would regulate the disposal of CCRs under RCRA. The regulatory options described in today’s notice contain mandatory informationDRAFT DO NOT CITE OR QUOTE 395 of 563 5/03/10 collection requirements. One of the regulatory options (subtitle C special waste option) would also trigger mandatory emergency notification re quirements for releases of hazardous substances to the environment under CERCLA and EPCRA. Th e labor hour burden and associated cost for these requirements are estimated in the ICR "S upporting Statement" for today's proposed action. The Supporting Statement identifies and estimate s the burden for the following nine categories of information collection: (the proposed options also contain other regul atory requirements not listed here because they do not involve information collection).

1. Groundwater monitoring 2. Post-closure groundwater monitoring 3. RCRA manifest cost (for subtitle C only) 4. Added cost of RCRA subtitle C permits for all offsite CCR landfills 5. Structural integrity inspections 6. RCRA facility-wide investiga tion (for subtitle C only) 7. RCRA TSDF hazardous waste disposal permit (for subtitle C only) 8. RCRA enforcement inspection (for subtitle C only) 9. Recordkeeping requirements

Based on the same data and cost calculations ap plied in the "Regulatory Impact Analysis" (RIA) for today's action, but using the burden estimation methods for ICRs, the ICR "Supporting Statement" estimates an average annual labor hour burden of 2.88 million hours for the subtitle C “special waste” option and 1.38 million hours for both the subtitle D and “D prime” options at an average annual cost of $192.93 million for the subtitle C “special waste” option and $92.6DRAFT DO NOT CITE OR QUOTE 396 of 563 5/03/10 million for both the subtitle D options. One-time capital and hourly costs are included in these estimates based on a three-year annualizati on period. The estimated number of likely respondents (under the options) ra nges from 90 to 495, depending on the information category enumerated above. Burden is defined at 5 CFR 1320.3(b). An Agency may not conduct or sponsor, and a person is not requir ed to respond to, a collection of information unless it displays a currently valid OMB control number. The OM B control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for mini mizing respondent burden, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA2009-0640. Submit any comments related to the ICR to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [Insert date of publication in the Federal Register] , a comment to OMB is best assured of having its full effect if OMB receives it by [Insert date 30 days after public ation in the Federal Register]

. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

C. Regulatory Flexibility Act.DRAFT DO NOT CITE OR QUOTE 397 of 563 5/03/10 The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substa ntial number of small entities. Small entities include small businesses, small organizati ons, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities in the electric utility industry, small entity is defined as: (1) a small fossil fuel electr ic utility plant as defined by NAICS code 221112 with a threshold of less than four million megawatt-hours of electricity output generated per year (based on Small Busi ness Administration size standards); (2) a small governmental jurisdiction that is a government based on municipalities with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated a nd is not dominant in its field.

EPA certifies that this action will not have a significant economic im pact on a substantial number of small entities (i.e., no SISNOSE). EPA nonetheless continues to be interested in the potential impacts of the proposed rule on sm all entities and welcomes comments on issues related to such impacts, including our estimated c ount of small entities th at own the 495 electric utility plants covered by this rule. This certif ication is based on the small business analysis contained in the RIA for today’s proposal, whic h contains the following findings and estimates.

• The RIA identifies 495 electric utility plants likely affected by the proposed rule, based on 2007 data. The RIA estimates these 495 plan ts are owned by 200 entities consistingDRAFT DO NOT CITE OR QUOTE 398 of 563 5/03/10 of 121 companies, 18 cooperative organi zations, 60 state or local governmental jurisdictions, and one Federal government Agen cy. The RIA estimates that 51 of these 200 owner entities (i.e., 26%) may be classified as small entities, consisting of 33 small municipal governments, 11 small companies, 6 small cooperatives, plus 1 small county government.

• The RIA includes a set of higher cost estimat es for the regulatory options and the RFA evaluation is based on these estimates and th erefore overestimates potential impacts of our proposed regulations. The RIA estimated that (a) none of the 51 small entities may experience average annualized regulatory comp liance costs of greater than three percent of annual revenues, (b) one to five of the 51 small entities (i.e., 2% to 10%) may experience regulatory costs greater than one pe rcent of annual revenues, and (c) 46 to 50 of the small entities (i.e., 90% to 98%) may experience regu latory costs less than one percent of annual revenues. These percen tages constitute the basis for today’s noSISNOSE certification.

As analyzed in the RIA, there are two electricit y market factors which may be expected to reduce or eliminate these potential revenue impacts on small entities, as well as for the other owner entities for the 495 plants:

• Electric utility plants have a mechanism to cover operating cost incr eases via rate hike petitions to public utility co mmissions in states which re gulate public utilities, and viaDRAFT DO NOT CITE OR QUOTE 399 of 563 5/03/10 market price increases in the 18 states (a s of 2008) which have de-regulated electric utilities, and

• The residential, commercial, industrial, a nd transportation sector economic demand for (i.e., consumption of) electricity is relatively price inelastic, whic h suggests that electric utility plants may succeed in passing through most or all regulatory costs to their electricity customers.

However, because the Agency is sensitive to an y potential impacts its regulations may have on small entities, the Agency requests comment on its an alysis, and its finding th at this action is not expected to have a significant economic imp act on a substantial number of small entities.

D. Unfunded Mandates Reform Act.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwis e prohibited by law, to assess th e effects of their regulatory actions on State, local, and tribal governments and the private sect or. This co-proposal contains a Federal mandate that may result in expenditure s of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector, in any one year.

The RIA includes a set of higher cost estimat es for the regulatory options and the UMRA evaluation is based on these estima tes and therefore overestimates the potential impacts of this co-proposal. Accordingly, EPA has prepared under section 202 of the UMRA a “WrittenDRAFT DO NOT CITE OR QUOTE 400 of 563 5/03/10 Statement” (an appendix to the RIA) which is summarized below. Today’s co-proposal will likely affect 495 electric utility plants owned by an estimated 200 entities, of which 139 private sector electric utility companies and coope ratives may incur between $415 million to $1,999
million in future annual direct costs across the high-end options in the RIA, which exceed the $100 million UMRA direct cost threshold under each of the regulatory options. In addition, 60 entities are state or local governments which may incur between $56 million to $97 million in
future annual direct costs acro ss the regulatory options, the uppe r-end of which is slightly under the $100 million UMRA direct cost threshold. The remainder single entity is a Federal government Agency (i.e., Tennessee Valley Authority).

Although the estimated annual direct cost on stat e or local government s is less than the $100 million UMRA threshold, (a) because the highest-co st regulatory option is only 3% less than the $100 million annual direct cost threshold, and (b) because there are a number of uncertainty factors (as identified in the RIA) which could result in regulatory costs being lower or higher than estimated, EPA consulted with small governments according to EPA’s UMRA interim small government consultation pl an developed pursuant to se ction 203 of the UMRA. EPA’s interim plan provides for two types of possibl e small government inpu t: technical input and administrative input. According to this plan, and consistent with section 204 of the UMRA, early in the process for developing today’s co-proposal, the Agency implemented a small government consultation process consisti ng of two consultation components.DRAFT DO NOT CITE OR QUOTE 401 of 563 5/03/10 • A series of meetings in calendar year 2009 we re held with the purpose of acquiring small government technical input, including: (1) a February 27 meeting with ASTSWMO’s Coal Ash Workgroup (Washington, DC); (2) a March 22-24 meeting with ECOS at their Spring Meeting (Alexandria VA); (3) a Apr il 15-16 meeting with ASTSWMO at their Mid-Year Meeting (Columbus OH), (4) a Ma y 12-13 meeting at the EPA Region IV State Directors Meeting (Atlanta, GA), (5) a June 17-18 meeting at the ASTSWMO Solid Waste Managers Conference (New Orlean s, LA), (6) a July 21-23 meeting at ASTSWMO’s Board of Directors Meeting (Sea ttle, WA), and (7) an August 12 meeting at ASTSWMO’s Hazardous Waste Subcom mittee Meeting (Washington DC). ASTSWMO is an organization with a mission to work closely with EPA to ensure that its state government members are aw are of the most current developments related to their state waste management programs. ECOS is a national non-profit, non-partisan association of state and territo rial environmental Agency leaders. As a result of these meetings, EPA received letters in mid-2009 from 22 state governments, as well as a letter from ASTSWMO expressing their stance on CCR disposal regulatory options.

Letters were mailed on August 24, 2009 to the follo wing 10 organizations re presenting state and local elected officials, to inform them and seek their input for today’s proposed rulemaking, as well as to invite them to a meeting held on September 16, 2009 in Washington DC: (1) National Governors Association; (2) Na tional Conference of State Legi slatures, (3) Council of State Governments, (4) National League of Cities, (5) U.S. Conference of Mayors, (6) County Executives of America, (7) National Associati on of Counties, (8) In ternational City/County Management Association, (9) Natio nal Association of Towns and Townships, and (10) ECOS.DRAFT DO NOT CITE OR QUOTE 402 of 563 5/03/10 These 10 organizations of elected state and local officials are identified in EPA’s November 2008 Federalism guidance as the “Big 10” organiza tions appropriate to co ntact for purpose of consultation with elected officials. EPA has r eceived written comments from a number of these organizations and a copy of their comments has b een placed in the docket for this rulemaking. The commenters express significant concerns with classifying CCRs as a hazardous waste. Their major concerns are that federal regulation could undercut or be duplicativ e of State regulations; that any federal regulation will have a great imp act on already limited State resources; and that such a rule would have a negative effect on beneficial use. A nu mber of commenters also raise the issue of the cost to their faci lities of a subtitle C rule, particul arly increased disposal costs and the potential shortage of hazardous waste disposal capacity.

Consistent with section 205 of UMRA, EPA identified and consid ered a reasonable number of regulatory alternatives. Today’s proposed rule identifies a number of regulatory options, and EPA’s RIA estimates that the aver age annual direct cost to industr y across the three originally considered options (e.g. as reflected in the RI A in Exhibit 7L) may range between $415 million to $1,999 million. Section 205 of the UMRA requires Fe deral agencies to sele ct the least costly or most cost-effective regulatory alternative unle ss the Agency publishes with the final rule an explanation of why such alte rnative was not adopted. We ar e co-proposing two regulatory options in today’s notice involving RCRA subtitl e C “special waste” and subtitle D. The justification for co-proposing the hi gher-cost options is that this provides for greater benefits and protection of public health and the environm ent by phasing out surface impoundments, compared to the lower cost subtitle D prime option.DRAFT DO NOT CITE OR QUOTE 403 of 563 5/03/10 E. Executive Order 13132: Federalism.

Executive Order 13132, entitled “Federalism” ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “m eaningful and timely i nput by State and local officials in the development of re gulatory policies that have federa lism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct eff ects on the States, on the rela tionship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under Executive Order 13132, EPA may not issue a regulation that has fe deralism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EP A consults with State and local officials early in the process of developing the proposed regulation.

EPA has concluded that this proposed rule may have federalism implications, because it may impose substantial direct compliance costs on St ate or local governments, and the Federal government may not provide the funds necessary to pay those costs. Accordingly, EPA provides the following federalism summary impact statem ent as required by section 6(b) of Executive Order 13132.DRAFT DO NOT CITE OR QUOTE 404 of 563 5/03/10 The RIA includes a set of higher cost estimates for the regulatory options and the Federalism evaluation is based on these estima tes and, therefore, overestimates the potential impacts of our proposal.

Based on the estimates in EPA’s RIA for toda y’s action, the proposed regulatory options, if promulgated, may have federalism implications because the options may impose between $56 million to $97 million in annual direct compliance costs on 60 state or local governments. These 60 state and local governments consist of 33 small municipal government jurisdictions, 19 nonsmall municipal government jurisdictions, 7 st ate government jurisdictions, and one county government jurisdiction. In a ddition, the 48 state governments w ith RCRA-authorized programs for the proposed regulatory options may in cur between $0.05 million to over $5.4 million in added annual administrative costs involving the 495 electric utility pl ants for reviewing and enforcing the various requirements. Based on these estimates, the expected annual cost to state and local governments for at l east one of the regulatory opti ons described in today’s notice exceeds the $25 million per year “substantial co mpliance cost” threshold defined in section 1.2(A)(1) of EPA’s November 2008 “Guidance on Executive Order 13132: Federalism.” In developing the regulatory options described in today’s notice, EPA cons ulted with 10 national organizations representing state a nd local elected officials to ensu re meaningful and timely input by state/local governments, consisting of two c onsultation components, which is described under the UMRA Executive Order discussion.DRAFT DO NOT CITE OR QUOTE 405 of 563 5/03/10 In the spirit of Executive Or der 13132, and consistent with EPA policy to promote communications between EPA and State and lo cal governments, EPA specifically solicits comment on this co-proposal from elected State and local government officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments.

Executive Order 13175 (65 FR 67249-67252, November 9, 2000) requires Federal agencies to provide funds to tribes, consult with tribes, and to conduct a trib al summary impact statement, for regulations and other actions which are expe cted to impose substantial direct compliance costs on one or more Indian tribal governments. Today’s co-proposal, whether under subtitle C or subtitle D authority, is likely to impose dire ct compliance costs on an estimated 495 coal-fired electric utility plants. This estimated plant count is based on operating plants according to the most recent (2007) data available as of mid-2009 from the DOE’s Energy Information Administration “Existing Genera ting Units in the United States by State, Company and Plant 2007.” Based on information published by the Center for Media and Democracy, 171 three of the 495 plants are located on tribal lands, but ar e not owned by tribal governments: (1) Navajo Generating Station in Coconino County, Arizona owned by the Salt River Project; (2) Bonanza Power Plant in Uintah County, Utah owned by the Deseret Generation and Transmission Cooperative; and (3) Four Corners Power Plant in San Juan County, New Mexico owned by the

171 The Center for Media and Democracy (CMD) was founded in 1993 as an independent, non-profit, non-partisan, public interest organization. Information about electri c utility plants located on tribal lands is from CMD’s SourceWatch Encyclopedia at: http://www.sourcewatch.org/index.php?title=C oal_and_Native_American_tribal_landsDRAFT DO NOT CITE OR QUOTE 406 of 563 5/03/10 Arizona Public Service Company. The Navajo Generating Station and the Four Corners Power Plant are on lands belonging to the Navajo Nati on, while the Bonanza Power Plant is located on the Uintah and Ouray Reservation of the Ute Indian Tribe. According to this same information source, there is one additional coal-fired electri c utility plant planned for construction on Navajo Nation tribal land near Farmington, New Mexico, but to be owned by a non-tribal entity (the Desert Rock Energy Facility to be owned by th e Desert Rock Energy Company, a Sithe Global Power subsidiary). Because none of the 495 plants are owned by tribal governments, this action does not have tribal implicati ons as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. EPA solicit s comment on the accuracy of the information used for this determination. EPA met with a Tribal Pres ident, whose Tribe owns a cement plant, and who was concerned about the adverse impact of designating coal combustion residuals as a hazardous waste and the effect that a hazardous waste designation would have on the plant’s business. We assured the Tribal President that we are aware of the “stig ma” concerns related to a hazardous waste listing and will be analyzing that issue throughout the rulemaking process.

G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks.

Executive Order (EO) 13045 (62 FR 19885, April 23, 1997) establishes federal executive policy on children’s health and safety risk s. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make it a high priority to identify and assess environmental health risks and safety risks that may disproportionately affect children in the United States. EPA has conducted a risk assessm ent which includes evaluation of child exposureDRAFT DO NOT CITE OR QUOTE 407 of 563 5/03/10 scenarios, as well as has evaluated Census child population data su rrounding the 495 plants affected by today’s co-proposal, because toda y’s action meets both of the two criteria for “covered regulatory actions” defi ned by Section 2-202 of EO 13045: (a) today’s co-proposal is expected to be an “economically significant” regulatory action as defined by EO 12866, and (b) based on the risk analysis discussed elsewhere in today’s notice, the environmental and safety hazards addressed by this action may have a disproportionate effect on children.

For each covered regulatory action, such as today’s action, Section 5 of EO 13045 requires federal agencies (a) to evaluate the environmen tal health or safety effects of the planned regulation on children, and (b) to explain why the pla nned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The remainder of this section below addresses both of these requirements, as well as presents a summary of the human health risk assessment findi ngs with respect to child exposure scenarios, and the results of the child demographic data evaluation.

G1. Evaluation of environmental hea lth and safety effects on children

EPA conducted a risk evaluation consisting of tw o steps, focusing on environmental and health effects to adults and to children that may o ccur due to groundwater contamination. The first step, conducted in 2002, was a screening effort targeting selected hazardous chemical constituents that appeared to be the most lik ely to pose risks. The second step, conducted between 2003 and 2009, consisted of more deta iled “probabilistic” modeling for those constituents identified in the screening as n eeding further evaluation. Constituents that mayDRAFT DO NOT CITE OR QUOTE 408 of 563 5/03/10 cause either cancer or non-cance r effects in humans (i.e., both adults and children) were evaluated under modeling scenarios where th ey migrate from a CCR landfill or surface impoundment toward a drinking water well or nearby surface water body, and where humans ingest the constituents either by drinking the co ntaminated groundwater or by eating fish caught in surface water bodies affected by the contaminated groundwater.

As described elsewhere in today’s notice, EPA f ound that for the non-cancer health effects in the groundwater-to-drinking-water path way and in the fish consumption pathways evaluated in the probabilistic modeling, child ren rather than adults had the hi gher exposures. This result stems from the fact that while at a given exposure point (e.g., a drinking wate r well located a certain distance and direction down-gradient from the landfill or surface impoundment), the modeled groundwater concentration is the same regardless of whether the receptor is an adult or a child. Thus the other variables in the exposure equatio ns (that relate drinking water intakes or fish consumption rates and body weight to a daily “dose” of the constituent) mean that, on a perkilogram-body-weight basis, children are exposed to higher levels of constituents than adults.

G2. Evaluation of children’s population Census data surrounding affected electric utility plants

The RIA for today’s co-proposal contains an evaluation of whether children may disproportionately live near the 495 electric utility plants potentially affect ed by this rulemaking. This demographic data analysis is supplementa l to and separate from the risk assessment summarized above. To make this determination, the RIA compares Census demographic data onDRAFT DO NOT CITE OR QUOTE 409 of 563 5/03/10 child populations residing near each of the 495 a ffected plants, to stat ewide children population data. The results of that ev aluation are summarized here.

• Of the 495 electric utility plants, 383 of th e plants (77%) operate CCR disposal units onsite (i.e., onsite landfills or onsite surface impoundments), 84 elec tric utility plants solely transport CCRs to offsite disposal units operated by other companies (e.g., commercial waste management companies), and 28 other elec tric utility plants generate CCRs that are solely beneficially used rather than dispose d. Child demographic data is evaluated in the RIA for all 495 plants because some regulat ory options could affect the future CCR management method (i.e., disposal vers us beneficial use) for some plants.

• The RIA provides three complementary approa ches to comparison of child populations surrounding the 495 plants to statewide child population data: (a) plant-by-plant comparison basis, (b) state-by-state aggreg ation comparison basis, and (c) nationwide total comparison basis. There are year 2000 Census data for 464 (94%) of the 495 electric utility plants which the RIA used fo r these comparisons and extrapolated to all 495 plants. Statewide children population benchmark percentages range from 21.5% (Maine) to 30.9% (Utah), with a nationwide average of 24.7%.

• For purpose of determining the relative de gree by which children may exceed these statewide percentages, the percentages are not only compared in absolute terms, but also compared as a numerical ratio whereby a ra tio of 1.00 indicates that the child population percentage living near an electric utility plan t is equal to the stat ewide average, a ratioDRAFT DO NOT CITE OR QUOTE 410 of 563 5/03/10 greater than 1.00 indicates the ch ild population percentage near th e electric utility plant is higher than the statewide population, and a ratio less than 1.00 indicates the child population is less than the re spective statewide average.

• Using the plant-by-plant basis, 310 electric utility plants (63%) have surrounding child populations which exceed their statewide child ren benchmark percentages, whereas 185 of the electric utility plants (37%) have children populations below their statewide benchmarks, which represents a ratio of 1.68 (i.e., 310/185). Since this ratio is much greater than 1.00, this finding indicates that a disproportionate number of electric utility plants have surrounding child population pe rcentages which exceed their statewide benchmark. Using the state-by-state aggrega tion basis, 27 of the 47 states (57%) where the 495 electric utility plants are located have disproportiona te percentages of children residing near the plants compared to the statewide averages, which also indicates a disproportionate surrounding ch ild population. Using the na tionwide aggregation basis across all 495 electric utility plants in a ll 47 states where the plants are located, 6.08 million people reside near these electric utility plants, including 1.54 million children (25.4%). Comparison of this percentage to the national aggregate benchmark across all states of 24.7% children yields a ratio of 1.03 (i.e., 25.4%/24.7 %). This ratio indicates a slightly higher disproportionate child population surrounding the 495 electric utility plants.

These three alternative comparis ons indicate that the current (baseline) environmental and human health hazards and risks from electric ut ility CCR disposal units, and the expected futureDRAFT DO NOT CITE OR QUOTE 411 of 563 5/03/10 benefits of the regulatory options being cons idered in today’s co-proposal may have a disproportionately higher eff ect on child populations.

The public is invited to submit comments or iden tify peer-reviewed studies and data that assess effects of early life exposure to CCRs managed in landfills and surface impoundments.

H. Executive Order 13211: Actions th at Significantly Affect Energy Supply, Distribution, or Use.

This co-proposal, if either of the options being considered is promulgated, is not expected to be a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because the regulatory options described in toda y’s co-proposal are not expected to have a significant adverse effect on the supply, distribu tion, or use of energy. This determination is based on the energy price analysis presented in EPA’s Regulatory Impact Analysis (RIA) for this proposed rule. The following is the basis for this conclusion.

The Office of Management and Budget’s (OMB ) July 13, 2001 Memorandum M-01-27 guidance for implementing this Executive Order identifies nine numerical indicators (thresholds) of potential adverse energy effects, three of wh ich are relevant for evaluating potential energy effects of this proposed rule: (a) increases in th e cost of energy production in excess of 1%; (b) increases in the cost of ener gy distribution in excess of 1%; or (c) other similarly adverse

outcomes.DRAFT DO NOT CITE OR QUOTE 412 of 563 5/03/10 Because EPA does not have data on energy produc tion costs or energy distribution costs for the 495 electric utility plants likely affected by th is rulemaking, EPA in its RIA for today’s action evaluated the potential impact on electricity prices (for the re gulatory options) as measured relative to the 1% numerical threshold of thes e two Executive Order indicators to represent an “other similarly adverse outcome.”

The RIA calculated the potential incr ease in electricity pri ces of affected plan ts that the industry might induce under each regulatory option. Because the price analysis in the RIA is based only on the 495 coal-fired electric utili ty plants that would likely be affected by the co-proposal (with 333,500 megawatts nameplate capacity), rather th an on all electric utility and independent electricity producer plants in each state using other fuels, such as natural gas, nuclear, hydroelectric, etc. (with 678,200 megawatts nameplat e capacity), the price effects estimated in the RIA are higher than would be if the regulatory costs were aver aged over the entire electric utility and independent electri city producer supply (totali ng 1,011,700 megawatts, not counting an additional 76,100 megawatts of combin ed heat and electricity producers).

The price effect calculation in the RIA involved estimating pl ant-by-plant annual revenues, plant-by-plant average annualized regulatory co mpliance costs for each regulatory option, and comparison with statewide average electricity prices for the 495 electric utility plants. In its analysis, the Agency used the May 2009 statewide average retail prices for electricity published by DOE’s, Energy Information Administratio n; these costs ranged from $0.0620 (Idaho & Wyoming) to $0.1892 (Hawaii) per kilowatt-hour, and the nationw ide average for the 495 plants was $0.0884. Based on a 100% regulatory cost pa ss-thru scenario representing an upper-boundDRAFT DO NOT CITE OR QUOTE 413 of 563 5/03/10 potential electricity price incr ease for each plant, the RIA estimated the potential target electricity sales revenue needed to cover these co sts for each plant. The RIA then compared the higher target revenue to recent annual revenue esti mates per plant, to calc ulate the potential price effect of this cost pass-thru scenario on electricity prices fo r each of the 495 el ectric utility plants, as well as on a state-by-state sub-to tal basis and on a nationwide basis across all 495 electric utility plants.

The RIA includes a set of higher cost estimates for the regulatory options and this Executive Order 13211 evaluation is based on the higher es timates and , therefore, overestimates the potential impacts of our proposal.

The RIA indicates that on a nationwide basis for all 495 electric utility plants, compared to the estimated average electricity pr ice of $0.0884 per kilowatt-hour, the 100% regulatory cost passthru scenario may increase pri ces for the 495 electric utility plants by 0.172% to 0.795% across the original regulatory options; th e high-end is the estimate associated with a regulatory cost pass-thru scenario increase for the 495 electric utility plants for the subtitle C “special waste” option. Based on this analysis, the Agency does not expect that either ofthe options being coproposed today would have a sign ificant adverse effect on the supply, distribution, or use of energy. However, the Agency solicits co mments on our analysis and findings.

I. National Technology Transfer and Advancement Act.DRAFT DO NOT CITE OR QUOTE 414 of 563 5/03/10 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 not e) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus sta ndards are technical st andards (e.g., materials specifications, test methods, sampling procedures , and business practices) that are developed or adopted by voluntary consensus st andards bodies. NTTAA direct s EPA to provide Congress, through OMB, explanations when the Agency de cides not to use avai lable and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standard s. Therefore, EPA is not considering the use of any vol untary consensus standards.

J. Executive Order 12898: Federal Acti ons to Address Environmental Justice in Minority Populations and Low-Income Populations.

Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provi sion directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disp roportionately high and adverse human health or environmental effects of their programs, policie s, and activities on minority populations and lowincome (i.e., below poverty line) popul ations in the United States.DRAFT DO NOT CITE OR QUOTE 415 of 563 5/03/10 Furthermore, Section 3-302(b) of EO 12898 states that Federal agencies, whenever practicable and appropriate, shall collect, maintain and an alyze information on minority and low-income populations for areas surrounding fac ilities or sites expected to ha ve substantial environmental, human health, or economic effects on the surro unding populations, when such facilities or sites become the subject of a substa ntial Federal environm ental administrative or judicial action. While EO 12898 does not establish qua ntitative thresholds for this “substantial effect” criterion, EPA has collected and analyzed population da ta for today’s co-proposal because of the substantial hazards and adverse risks to the environment and human health described elsewhere in today’s notice.

The RIA for today’s action presents comparisons of minority and low-income population Census data for each of the 495 electric utility plant locations, to respec tive statewide population data, in order to identify whether thes e two demographic groups may di sproportionately reside near electric utility plants. The re sult of these comparisons indica te (a) whether existing hazards associated with CCR disposal at electric utility plants to comm unity safety, human health, and the environment may disproportionately a ffect minority and low-income populations surrounding the plants, and (b) whet her the expected effects (i.e., benefits and costs) of the regulatory action described in today’s co-proposal rule may disproportiona tely affect minority and low-income populations.

Of the 495 electric utility plants, 383 of the plan ts (77%) operate CCR dis posal units onsite (i.e., onsite landfills or onsite surf ace impoundments), 84 electric utility plants solely transport CCRs to offsite disposal units operated by othe r companies (e.g., commercial waste managementDRAFT DO NOT CITE OR QUOTE 416 of 563 5/03/10 companies), and 28 of the electric utility plants generate CCRs that are solely beneficially used rather than disposed. The minority and low-inco me Census data evaluation is conducted for all 495 plants because some regulatory options co uld affect the future CCR management method (i.e., disposal versus benefi cial use) for some plants.

In addition to this Census data evaluation, the RIA identifies three other possible affects of the co-proposal on (a) populations surrounding offs ite CCR landfills, (b) populations surrounding the potential siting of new CCR la ndfills and (c) populations within the customer service areas of the 495 electric utility plants who may incur elec tricity price increases resulting from regulatory cost pass-thru. These three Census data evaluations are also summarized below.

J.1. Findings of Environmental Justice Analysis for Electric Utility Plants

For the first comparison, the RIA provides thr ee complementary approaches to evaluating the Census data on minority and low- income populations: (a) itemized plant-by-plant comparisons to statewide percentages, (b) state-by-state aggr egation comparisons, and (c) nationwide aggregate comparisons. There are year 2000 Census data fo r 464 (94%) of the 495 electric utility plants which the RIA used for these comparisons and extr apolated to all 495 plan ts. Statewide minority population benchmark percentages range from 3.1% (Maine) to 75.7% (Hawaii), with a nationwide average of 24.9%, a nd statewide low-income populat ion percentages range from 7.3% (Maryland) to 19.3% (New Mexico), with a nationwide average of 11.9%.DRAFT DO NOT CITE OR QUOTE 417 of 563 5/03/10 For purpose of determining the relative degree by which either group may exceed these statewide percentages, in addition to a comparison of abso lute percentages, the percentages are compared as a numerical ratio whereby a ratio of 1.00 indi cates that the group populat ion percentage living near an electric utility plant is equal to the statewide average, a ratio greater than 1.00 indicates the group population percentage n ear the electric utility plant is higher than the statewide population, and a ratio less than 1.00 indicates the gr oup population is less than the respective statewide average.

Using the plant-by-plant comparison, 138 electric utility plants (28%) have surrounding minority populations which exceed their statewide minority benchmark percentages, whereas 357 of the electric utility plants (72%) have minority popu lations below their statewide benchmarks, which represents a ratio of 0.39 (i.e., 138/357). Becau se this ratio is less than 1.00, this finding indicates a relatively small number of the elec tric utility plants have surrounding minority population percentages which disproportionately ex ceed their statewide benchmarks. On a plant zip code tabulation area basis, 256 electric utility plants (52% ) have surrounding low-income populations which exceed their re spective statewide benchmarks, whereas 239 plants (48%) have surrounding low-income populations below their stat ewide benchmarks, which represents a ratio of 1.07 (i.e., 256/239). Because this ratio is above 1.00, it indicates that a slightly disproportionate higher number of electric utility plants have surrounding low-income population percentages which exceed their statewide benchmarks.

Using the state-by-state aggregation comparis on, the percentages of minority and low-income populations surrounding the plants were compar ed to their respective statewide populationDRAFT DO NOT CITE OR QUOTE 418 of 563 5/03/10 benchmarks. From this analysis, state ratios re vealed that 24 of the 47 states (51%) have higher minority percentages, and 29 of the 47 states (62%) have higher low-income percentages surrounding the 495 electric u tility plants, suggesting a slightly disproportionate higher minority surrounding population and a higher dispropor tionate, higher low-income surrounding population. However, in comparison to the ot her two numerical comparisons—the plant-byplant basis and the nationwide aggregation basi s, this approach does not include numericallyweighting of state plant counts or state su rrounding populations, which explains why this comparison method yields a different numerical result.

Using the nationwide aggregation co mparison across all 495 electric ut ility plants in all 47 states where the plants are located, 6.08 million people reside near these plants, including 1.32 million (21.7%) minority and 0.8 million (12.9%) low- income persons. A comparison of these percentages to the national benchmark of 24.9% minority and 11.9% low-income, represents a minority ratio of 0.87 (i.e., 21.7%/24.9%) and a low-income ratio of 1.08 (i.e., 12.9%/11.9%). These nationwide aggregate ratios indicate a disproportionately lower minority population surrounding the 495 electri c utility plants, and a dispr oportionately higher low-income population surrounding these plants.

These demographic data comparisons indicate th at the current (baseline) environmental and human health hazards and risks from electric ut ility CCR disposal units, and the expected future effects (i.e., benefits and costs) of the regulatory options descri bed in today’s co-proposal may have a disproportionately lower effect on minority populations and may have a disproportionately higher eff ect on low-income populations.DRAFT DO NOT CITE OR QUOTE 419 of 563 5/03/10 J.2 Environmental Justice Analysis for Offsite Landfills, Siting of New Landfills, and Electricity Service Area Customers

There are three other potential differential eff ects of the regulatory options on three other population groups: (a) populations surrounding offs ite landfills, (b) popula tions surrounding the potential siting of new landfills and (c) populations within the customer service areas of the 495 electric utility plants. The RIA for today’s not ice does not quantify thes e potential effects so only a qualitative discussi on appears below.

The potential effect on offsite landfills as ev aluated in the RIA only involves the RCRA subtitle C “special waste” based regulat ory option described in today’ s co-proposal, whereby electric utility plants may switch the ma nagement of CCRs, in whole or in part, from current onsite disposal to offsite commercial RCRA-permitted la ndfills. In addition, some or all of the CCRs which are currently disposed in offsite landfil ls that do not have RCRA operating permits may also switch to RCRA-permitted commercial landfills. Another fraction of annual CCR generation which could also switch to offs ite commercial RCRA-permitted landfills are CCRs which are currently supplied for i ndustrial beneficial use applications if such use is curtailed.

The future addition of any or all of these three fractions of CCR ge neration to offsite commercial hazardous waste landfills could exceed their capacity considering that a much smaller quantity of about 2 million tons per year of existing RCRA-regul ated hazardous waste is currently disposed of in RCRA subtitle C permitted landfills in the US. As of 2009, there are 19 commercialDRAFT DO NOT CITE OR QUOTE 420 of 563 5/03/10 landfills with RCRA hazardous waste permits to receive and dispose of RCRA-regulated hazardous wastes located in 15 states (AL, CA , CO, ID, IL, IN, LA, MI, NV, NY, OH, OK, OR, TX, UT). This potential shif t could have a disproportionate effect on populations surrounding these locations, and in particular, minority and low-income populati ons surrounding commercial hazardous waste facilities, for th e reason that a recent (2007) study determined that minority and low-income populations disproportionately live n ear commercial hazardous waste facilities. However, the study included other types of comm ercial hazardous waste treatment and disposal facilities in addition to comm ercial hazardous waste landfills.

The siting of new landfills is another potential e ffect due to possible chan ges in the management of CCRs, especially if the switch to offsite commercial hazardous waste landfills causes a capacity shortage (as described above) under su btitle C option. Howeve r, since it is unknown where these new landfills might possibly be sited, two possibilities were examined: (a) an expansion of existing commercial subtitle C landfills offsite from electric utility plants, and (b) an expansion of existing electric utility plant onsite landfills. If an expansion of existing commercial subtitle C landfills were to occur, this potential shift could have a disproportionate effect on populations surr ounding these locations, as described previously.

The other possibility is the expansion of electric utility plant onsite landfills. That is, these landfills become permitted under RCRA subtitle C a nd expand existing onsite landfills or build new ones onsite. If this were to occur, the envi ronmental justice impacts could be similar to the demographic comparison findings previously di scussed, which indicates that the current environmental and human health hazards and risk s from electric utility CCR disposal units, andDRAFT DO NOT CITE OR QUOTE 421 of 563 5/03/10 the expected future effects (i.e., benefits and costs) of the regulatory options, may have a disproportionately lower effect on minority popu lations, but may have a disproportionately higher effect on low-income populations.

A third potential effect of the regulatory options described in today’s notice is the increase in price of electricity supplied by some or all of the affect ed 495 electric utility plants to cover the cost of regulatory compliance (a s evaluated in a previous sec tion of today’s notice). Thus, customers in electric utility se rvice areas could experi ence price increases, as described above in the Federalism sub-section of today’s notice. The RIA for today’s action did not evaluate the demographics of the customer service area popu lations for the 495 electric utility plants.DRAFT DO NOT CITE OR QUOTE 422 of 563 5/03/10 APPENDIX to the Preamble: Documented Da mages from CCR Management Practices.

EPA has gathered or received through comme nts on the 1999 Report to Congress and the May 2000 Regulatory Determination, and through allegations, 135 possible damage cases. Six cases involved minefills and, therefore, are outside the scope of toda y’s proposed rule. Sixty-two cases have not been further assessed because there was little or no supporting information to assess the allegations.

Of the remaining 67 cases, EPA determined that 24 were proven damage cases. Sixteen were determined to be proven damage cases to ground water and eight were determined to be proven damages cases to surface water, as a result of elevated levels of contaminants from CCRs. 172 Four of the proven ground water damage cases we re from unlined landfills, five were from unlined surface impoundments, one involved a su rface impoundment for which it is not clear whether the unit was lined, and the remaining si x were from unlined sand and gravel pits. Another 43 alleged cases were determined to be potential damage cases to ground water or surface water. However, four of these potenti al damage cases were attributable to oil combustion wastes, which are outside the scope of this notice. Therefore, we have determined that there were a total of 40 pot ential damage cases attributable to CCRs. (The concern with

172 Of the 16 proven cases of damages to ground water, th e Agency has been able to confirm that corrective action has been completed in seven cases and are ongoing in the remaining nine cases. Corrective action measures at these CCR management units vary depending on site specific ci rcumstances and include formal closure of the unit, capping, re-grading of ash and the installation of liners over the ash, ground water treatment, groundwater monitoring, and combinations of these measures.DRAFT DO NOT CITE OR QUOTE 423 of 563 5/03/10 wastes from the combustion of oil involved unl ined surface impoundments. Prior to the May 2000 Regulatory Determination, th e unlined oil ash impoundments were closed, and thus EPA decided regulatory action to addr ess oil ash was unnecessary.) These cases are discussed in more detail in the document “Coal Combustion Wastes Damage Case Assessments” available in the docket to the 2007 NODA at www.regulations.gov/fdmspublic/component/mai n?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015. Three proven damage cases are sites that have been listed on EPA’s National Priorities List (NPL). The sites, and links to additional information are: (1) Chisman Creek, Virginia (http://www.epa.gov/reg3hwmd/npl/VAD980712913.ht m), (2) Salem Acres, Massachusetts (http://yosemite.epa.gov/r1/npl_pad.nsf/f 52fa5c31fa8f5c885256adc0050b631/C8A4A5BEC0121 F048525691F0063F6F3?OpenDocument), and (3) U. S. Department of Energy Oak Ridge Reservation, Tennessee (http://www.epa.gov/region4/waste/npl/ npltn/oakridtn.htm). One potential damage case has also been listed on the NPL: Lemberger Landfill, Wisconsin ( http://www.epa.gov/region5/supe rfund/npl/wisconsin/WID980901243.htm ). Another site has undergone remediation under EPA enfor cement action: Town of Pines (http://cfpub.epa.gov/supercpad/cu rsites/cactinfo.cfm?id=0508071).

In response to the 2007 NODA (see section II. A. ), EPA received information on 21 alleged damage cases. Of these, 18 pertain to alleged vi olations of state solid waste permits, and 3 to alleged violations of NPDES permits. Upon review of this information, we conclude that 13 of the alleged RCRA violations are ne w, and one of the alleged NPDES violations is new; the otherDRAFT DO NOT CITE OR QUOTE 424 of 563 5/03/10 damage cases have previously been submitted to EPA and evaluated. In addition, five new alleged damage cases have been brought to EP A’s attention since Febr uary 2005 (the closure date of damage cases assessed by the NODA’s comp anion documents). For the most part, these cases involve activities that are different from the prior damage cases and the focus of the regulatory determination on groundwater c ontamination from landfills and surface impoundments. Specifically:

o Two of the new alleged cases i nvolve the structural failure of surface impoundments; i.e., dam safety and structural integrity issues, wh ich were not a consider ation at the time of the May 2000 Regulatory Determination. In both cases, there we re Clean Water Act violations.

o One other alleged case involve s the failure of an old disc harge pipe, and is clearly a regulated NPDES permit issue.

o Two other alleged cases involve the use of coal ash in large scale structural fill operations, one of which involves an unlined sand and gravel pit. The Agency is considering whether to regulate this method of disposal as a landfill or whether to address the issue separately as part of its rulema king to address minefilling. EPA is soliciting comments on those alternatives.

The Agency has classified three of the five ne w cases as proven damage cases (BBBS Sand and Gravel Quarries, Martins Creek Power Plant, TVA Kingston Power Plant), one as a potential damage case (Battlefield Golf Course), and the other as not being a damage case under RCRA (TVA Widows Creek). Several of the recently submitted damage cases are discussed brieflyDRAFT DO NOT CITE OR QUOTE 425 of 563 5/03/10 below. The following descriptions further illustra te that there are additional risk concerns (dam safety, and fill operations) which EPA did not evaluate when it completed its the May 2000 Regulatory Determination, in which EPA pr imarily was concerned with groundwater contamination associated with landfills and surface impoundments and the beneficial use of CCRs. Additional information on these damage cases is included in the docket.

Recent Cases

BBBS Sand and Gravel Quarries - Gambrills, Maryland

On October 1, 2007, the Maryland Department of the Environment (MDE) filed a consent order in Anne Arundel County, Maryland Circuit Court to settle an environmental enforcement action that was taken against the owner of a sand and gravel quarry and the owner of coal fired power plants (defendants) for contamin ation of public drinking water wells in the vicinity of the sand and gravel quarry.

Specifically, beginning in 1995, the defendants used fly ash and bottom ash from two Maryland power plants to fill excavated portions of two sand and gravel quarries. Ground water samples collected in 2006 and 2007 from resi dential drinking water wells near the site indicated that, in certain locations, contaminants, in cluding heavy metals and sulfat es were present at or above ground water quality standards. The Anne Ar undel County, Maryland Department of Health tested private wells in 83 home s and businesses in areas around the disposal site. MCLs wereDRAFT DO NOT CITE OR QUOTE 426 of 563 5/03/10 exceeded in 34 wells [arsenic (1), beryllium (1), cadmium (6), lead (20), 173 and thallium (6)]. The actual number of wells affected by fly ash a nd bottom ash is undetermined since some of the sample results may reflect natural minerals in the area. SMCLs were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate (5 )]. MDE concluded that leachate from the placement of CCRs at the site resulted in the discha rge of pollutants to waters of the state. Based on these findings, as well as an MDE consent order, EPA has concluded that the Gambrills site is a proven case of damage to ground water resultin g from the placement of CCRs in unlined sand and gravel quarries.

Under the terms of the consent order, the defend ants are required to pay a fine, remediate the ground water in the area and pr ovide replacement water supplie s for 40 properties. A retail development is now planned for the site with a cap over the fill designed to reduce infiltration and subsequent leaching from the site. An MD E fact sheet on this site is available at www.mde.state.md.us/assets/document/AA_Fly_Ash_QA.pdf.

Battlefield Golf Course - Chesapeake, Virginia

On July 16, 2008, the City of Chesapeake, Virginia sent a letter to the EPA Region III Regional Administrator requesting assistan ce to perform an assessment of the Battlefield Golf Course. The 216 acre site was contoured with 1.5 million c ubic yards of fly ash, amended with 1.7% to 2.3% cement kiln dust to develop the golf course. Virginia’s Administrative Code allowed the use of fly ash as fill material (considered a beneficial use under Virginia’s Administrative Code)

173 It is uncertain whether lead exceedances were due to CCRs or lead in plumbing and water holding tanks.DRAFT DO NOT CITE OR QUOTE 427 of 563 5/03/10 without a liner as long as the fl y ash was placed at least two f eet above groundwater and covered by an 18-inch soil cap.

Because of ground water contamination discovered at another site where fly ash was used, the City of Chesapeake initiated a drinking wa ter well sampling assessment at residences surrounding the golf course. Additionally, 13 mon itoring points were installed around the site. No monitoring points were installed through the fl y ash area to avoid creating an additional path of contaminant migration. EPA cond ucted a site investigation by re viewing analytical data from fly ash, soil, surface water, sediment, and gr oundwater sampling events completed in 2001, 2008 and 2009. The sampling results of the City of Chesapeake ground water and surface water sampling 174 indicated that the highest de tections of metals occurred in monitoring wells located on the golf course property. The concentrations of arsenic, boron, chromium, copper, lead and vanadium detected in groundwater collected from on-site monitoring wells were considered to be significantly above background c oncentrations. Of these compounds, only boron has been detected in approximately 25 drinking water wells.

Although not a primary contaminant of concern, boron is suspected to be the leading indicator of fly ash migration. The highest level of boron reported in a re sidential well was 596 μ g/L which was significantly below the health-based regiona l screening level for bor on in tap water of 7,300
μ g/L. Additionally, the secondary drinking wa ter standard for manganese (0.05 mg/L) was exceeded in nine residential wells; however, the natural levels of both manganese and iron in the

174 Available at http://cityofchesapeake.net/services/citizen_info/battlefieldgolfclub/index.shtml )DRAFT DO NOT CITE OR QUOTE 428 of 563 5/03/10 area’s shallow aquifer are very hi gh and, thus, it could not be ruled out that the elev ated levels of manganese and iron are a result of the natura l background levels of these two contaminants.

Metal contaminants were below MCLs and Safe Drinking Water Act (SDWA) action levels in all residential wells that EPA tested, except for l ead. Lead has been detected during EPA sampling events above the action level of 15 μ g/L in six residential wells. The lead in these wells, however, does not appear to come from the fly ash. Lead concentrations are lower in groundwater collected from monitoring we lls on the golf course (1.1 to 1.6 μ g/L) than in these residential wells; and lead concentrations in the fly ash are not higher than background concentrations of lead in soil.

The recently issued EPA Final Site Inspection Report 175 concluded that (i) Metal contaminants were below MCLs and Safe Drinking Water Act (SDWA) action levels in all residential wells that EPA tested; (2) the residential well data indi cate that metals are not migrating from the fly ash to residential wells; and (iii) there are no adverse health effects expected from human exposure to surface water or sediments on the Ba ttlefield Golf Course site as the metal concentrations were below the ATSDR standard s for drinking water and soil. Additionally, the sediment samples in the ponds were below EPA Biological Techni cal Assistance Group screening levels and are not expected to pose a threat to ecological receptors. Based on these findings, EPA has categorized the Ba ttlefield Golf Club site as a potential damage case, as there is a possibility that leaching could cause levels of toxic constituents to increase over time and

175 http://www.epa.gov/reg3hwmd/CurrentIssues/finalrbattlefield_golf_club_site/redacted_DTN_0978_Final_Battlefield_SI_Report.pdfDRAFT DO NOT CITE OR QUOTE 429 of 563 5/03/10 that groundwater could become contaminated at off-site locations if due diligence is not practiced.

Martins Creek Power Plant – Martins Creek, Pennsylvania

In August 2005, a dam confining a 40 acre CCR surface impoundment in eastern Pennsylvania failed. The dam failure, a violati on of the State’s solid waste disposal permit, resulted in the discharge of 0.5 million cubic ya rds of coal-ash and contaminated water into the Oughoughton Creek and the Delaware River.

Ground-water monitoring results from appr oximately 20 on-site monitoring wells found selenium concentrations exceeding Pennsylvani a’s Statewide Health Standards and Federal primary drinking water standards. There was also one exceedance of the primary MCL for chromium and two exceedances of the secondary MCL for iron.

Surface water samples were also taken from a number of locations along the Delaware River upstream and downstream of the spill. Sampli ng began soon after the spill in August 2005 and continued through November 2005. Several samp les exceeded the Federal Water Quality Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see www.epa.gov/waterscience/criteria/wqctable/index.ht ml). Four samples also exceeded the WQC for arsenic – three of which were taken near the ou tfall to the river. Lead , nickel and zinc were also detected above the WQC in samples taken near the outfall to the river. Sampling results areDRAFT DO NOT CITE OR QUOTE 430 of 563 5/03/10 available from the Pennsylvania Department of Environmental Pr otection (PADEP) at www.depweb.state.pa.us/northeastro/cwp/ view.asp?a=1226&q=478264&northeastroNav=|

As a result of the exceedances of primary and secondary MCLs in on-site ground water, and exceedances of federal water quality criteria in off-site surface water, in addition to a PADEP consent order for clean up, the Agency consid ers this site to be a proven damage case.

TVA Kingston – Harriman, Tennessee

On December 22, 2008, a failure of the northeastern dike used to contain fly ash occurred at the dewatering area of the Tennessee Valley Auth ority’s (TVA’s) Kingston Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4 million cubic yards of fly ash sludge was released over an approximately 300 acre area a nd into a branch of the Emory River. The ash slide disrupted power, ruptured a gas line, knocked one home off its foundation and damaged others. The state-issued NPDES permit require s that TVA properly operate and maintain all facilities and systems for collecti on and treatment, and expressly pr ohibits overflows of wastes to land or water from any portion of the collecti on, transmission, or treatment system other than through permitted outfalls. Therefore, the release was a violation of the NPDES permit. A rootcause analysis report developed for TVA, accessible at http://www.tva.gov/kingston/rca/index.htm, estab lished that the dike failed because it was expanded by successive vertical additions, to a po int where a thin, weak layer of fly ash (‘slime’) on which it had been founded, failed by sliding. Additional information on the TVA Kingston incident is available at www. epa.gov/region4/kingston/index.html and www.tva.gov/kingston/.DRAFT DO NOT CITE OR QUOTE 431 of 563 5/03/10 EPA joined TVA, the Tennessee Department of Environment and Conservation (TDEC), and other state and local agencies in a coordinated response. EPA provided oversight and technical advice to TVA, and conducted independent water sampling and air monitoring to evaluate public health and environmental threats.

Following the incident, EPA sampled the coal ash a nd residential soil to determine if the release posed an immediate threat to human health. Sa mpling results for the contaminated residential soil showed arsenic, cobalt, iron, and thalliu m levels above the re sidential Superfund soil screening levels. 176 Sampling results also showed average arsenic levels above the EPA Region 4 Residential Removal Action Level (RAL) 177 of 39 mg/L, but below EPA Region 4’s Industrial RAL of 177 mg/L. All reside ntial soil results were be low the Residential RAL.

Shortly after the release, sample s were also collected of untreat ed river water, which showed elevated levels of suspended ash and heavy metals known to be associated with coal ash. Nearly 800 surface water samples were taken by TVA and TDEC, ranging from two miles upstream of the release on the Emory River to approximately eight miles downstream on the Clinch River. Sampling results of untreated river water showed elevated levels of arsenic, cadmium,

176 Soil screening levels (SSLs) for contaminants in soil ar e used to identify sites needing further investigation. SSLs alone do not trigger the need for a response action or define “unacceptable” levels of contaminants in soil. Generally, at sites where contaminant concentrations fall below the SSLs, no further action or study is warranted under CERCLA. However, where contaminant concentr ations equal or exceed the SSLs, further study or investigation, but not necessa rily cleanup, is warranted.

177 RALs are used to trigge r time-critical removal actions.DRAFT DO NOT CITE OR QUOTE 432 of 563 5/03/10 chromium, and lead just after the incident. This was also observe d again after a heavy rainfall. In early January 2009, the Tennessee Wildlife Resour ces Agency (TWRA) issued a fish advisory stating that until further notice, fishing should be avoided in the lower section of the Emory River. TWRA plans to resample fish tissu e on a semiannual basis and expects that the assessment of the impact of this release on wild life resources and habitat will require repeated sampling and evaluation over the next three to five years.

Constituent concentrations measured in drinki ng water on December 23, 2008, near the intake of the Kingston Water Treatment Plant, located down stream of the release, were below federal MCLs for drinking water, with the exception of elevated thallium levels. Subsequent EPA testing on December 30, 2008, of samples at the same intake found that concentration levels for thallium had fallen below the MCL. Subsequent testing of treated drinking water from the Kingston Water Treatment Plant showed that the drinking water from the treatment plant met all federal drinking water standards.

Additionally, EPA and TDEC identif ied and sampled potentially impacted private wells that are used as a source for drinking water. More than 1 00 wells have been tested to date and all have met drinking water standards.

To address potential risks from windblow n ash, TVA, under EPA oversight, began air monitoring for coarse and fine particles. EPA also conducted independent monitoring to validate TVA’s findings. To date, all of the more than 25,000 air samples from this area have measured levels below the NAAQS for particulates.DRAFT DO NOT CITE OR QUOTE 433 of 563 5/03/10 On January 12, 2009, TDEC issued an order to TVA to, among other things, continue to implement measures to prevent the movement of c ontaminated materials into waters of the state and, where feasible, minimize further down-stre am migration of contaminated sediments. Than on May 11, 2009, TVA agreed to clean up more than 5 million tons of coal ash spilled from its Kingston Fossil Fuel Plant under an ad ministrative order and ag reement on consent. TVA and EPA entered into the agreement under CERCLA. The order requires TVA to perform a thorough cleanup of coal ash from the Em ory River and surrounding areas and EPA will oversee the removal. Based on the consent order, EPA has identified this site as a proven damage case.

TVA Widows Creek – Stevenson, Alabama

On Friday, January 9, 2009, a cap in an unused discharge pipe became dislodged, resulting in a discharge from an FGD pond at a Tennessee Valley Authority (T VA) coal-burning power plant in Stevenson, Alabama. FGD is a residual of a process that reduces su lfur dioxide emissions from coal-fired boilers Some 5,000 cubic yards of FGD material contai ning water and a mixture of predominantly gypsum and some fly ash, wa s released from the pond into Widows Creek which flows into the Tennessee River. 178 Information on the TVA Widows Creek incident is available at www.epa.gov/re gion4/stevenson/index.html.

178 http://www.tva.gov/emergency/wc_1-29-09.htmDRAFT DO NOT CITE OR QUOTE 434 of 563 5/03/10 EPA joined TVA and the Alabama Department of Environmental Management (ADEM) in a coordinated response. EPA is supporting the response by coordinating environmental sampling and monitoring response operations by TVA. EP A has also collected surface water samples from both Widows Creek and the Tennessee River to determine if there have been any environmental impacts. Samples have also be en taken from the FGD pond to characterize the material that was released into the creek fully. The drinking water intake for Scottsboro, Alabama, about 20 miles downstream, has also been sampled.

EPA Region 4 has received final results of its independent environmental sampling activities for the TVA Widows Creek Fossil Plant FGD pond releas e. Specifically, the concentrations of metals, solids and nutrients detected in samp les drawn from the drinking water intake for Scottsboro, Alabama, along with samples collec ted from two locations in Widows Creek and three other locations in the Tennessee River, are all below national primary drinking water standards and/or other health-bas ed levels. The pH of all these samples also fell within the standard range and no oil or grease was detected in any of the samples.

Four waste samples and one water sample colle cted from the bank along the ditch connecting TVA’s permitted discharge outfall and the Tennessee River, and from TVA’s permitted discharge outfall showed elevated pH and elevated concen trations of metals, nutrients, and suspended and dissolved solids. However, b ecause samples drawn downstream at the drinking water intake and from locations where individuals would likely come into contact with the water were below the primary drinking water standards, EPA does not expect the release to pose a threat to the public. On July 7, 2009, TVA issued a finding of no significant impact and finalDRAFT DO NOT CITE OR QUOTE 435 of 563 5/03/10 environmental assessment for the Gypsum Removal Project from Widows Creek. 179 Therefore, EPA has not classified the TVA Widows Cr eek fly ash release as a damage case.

Summary In summary, as discussed above, the Agency has documented evidence of proven damages to ground water or surface water in 27 cases 180 - 17 cases of damage to ground water, and ten cases of damage to surface water, including ecological damages in seven of the ten. Sixteen of the 17 proven damages to ground water involved disposal in unlined units (f or the remaining unit, it is unclear whether a liner was presen t). We have also identified 40 cases of potential damage to ground water or surface water. 181 Another two cases were determined to be potential ecological damage cases. Finally, the more recently documented damage cases also provide evidence that current management practices can pose additional risks that EPA had not previously studied--that is, from catastrophic releases due to the stru ctural failure of CCR surface impoundments.

Table of EPA’s Proven Damage Cases

179 http://www.tva.gov/environm ent/reports/widows_creek/wcf_gypsum_removal_fonsi.pdf

180 The 24 cases identified in the Damage Cases Assessm ent report, plus Martin Creek, PA; Gambrills, MD; and Kingston/TVA, TN.

181 The 39 cases of potential damages from CCR identified in the Damage Cases Assessment report (excludes the 4 damage cases from oil combustion wastes), plus the Battlefield Golf Course, Chesapeake, Virginia.DRAFT DO NOT CITE OR QUOTE 436 of 563 5/03/10 Damage Case, State Affected Media Constituents of Concern Brief Description Basis for Consideration as a Proven Damage Case

Alliant Nelson Dewey Ash Landfill, WI Groundwater Arsenic, Selenium, Sulfate, Boron, Flourine The LF 182 was originally constructed in the early 1960’s as a series of settling basins for sluiced ash and permitted by the State in 1979. Scientific - Although the boron standard was not health-based at the time of the exceedances, the boron levels reported for the facility would have exceeded the State’s recently promulgated health-based ES for boron, and Administrative - The State required a ground water investigation, and the facility took action to remediate ground water contamination and prevent further contamination.

Dairyland Power E.J. Stoneman,
WI Groundwater Cadmium, Chromium, Sulfate, Manganese, Iron, Zinc Unlined SI 183 , on permeable substrate, that managed ash, demineralizer regenerant, and sand filter backwash between the 1950’and 1987. Scientific - Cadmium and chromium exceeded (health-based) primary MCLs, and contamination migrated to nearby, private drinking water wells, and Administrative - The State required closure of the facility.

WEPCO Cedar Groundwater Selenium, An abandoned sand and Scientific - Selenium in ground waterDRAFT DO NOT CITE OR QUOTE 437 of 563 5/03/10 Sauk Ash Landfill/WEPC O, WI Boron, Sulfate gravel pit that received CCW from the
WEPCO Port Washington Power Plant from 1969 to 1979. exceeded the (health-based) primary MCL, and there was clear evidence of vegetative damage, and Administrative - The State required remedial action.

WEPCO Highway 59 Landfill/We Energies 59, WI Groundwater Arsenic, Boron, Chlorides, Iron, Manganese, Sulfate Located in an old sand and gravel pit that received fly ash and bottom ash between 1969 and 1978. Scientifi c - Although the boron standard was not health-based at the time of the exceedances, the boron levels reported for the facility would have exceeded the State’s recently promulgated health-based ES for boron; and contamination from the facility appears to have migrated to off-site private wells, and Administrative - As a result of the various PAL 184 and ES 185 exceedances, the State required a ground water investigation.
WEPCO Port Washington Facility/ Druecker Quarry Fly Ash Site, WI Groundwater Boron, Selenium The power company placed 40-60 feet deep column of fly ash in a sand & gravel pit from 1948-1971. A well located ~ 250’ south of Scientific - The off-site exceedance of a health-based standard for selenium.DRAFT DO NOT CITE OR QUOTE 438 of 563 5/03/10 the old quarry was impacted.

SC Electric & Gas Canadys Plant, SC Groundwater Arsenic, Nickel Ash from the Canadys power plant was mixed with water and managed in a SI. The facility operated an unlined, 80-acre SI from 1974 to 1989. Scientific - There are exceedances of the health-based standard for arsenic at this site. While there are no known human exposure points nearby, some recent exceedances have been detected outside an established regulatory boundary.
PEPCO Morgantown Generating Station Faulkner Off-site Disposal Facility, MD Groundwater Iron, pH LFs at this shallow groundwater site manage fly ash, bottom ash, and pyrites from the Morgantown Generating Station starting in 1970. Unlined settling ponds also are used at the site to manage stormwater runoff and leachate from the ash disposal

area. Scientific - Ground water contamination migrated off-site, and Administrative - The State required remedial action.

Don Frame Trucking, Inc., Groundwater Lead, Manganese This LF has been used for disposal of fly ash, Scientific - The lead levels found in down-gradient wells exceed theDRAFT DO NOT CITE OR QUOTE 439 of 563 5/03/10 Fly Ash Landfill, NY bottom ash, and other material including yard sweepings generated by the Niagara Mohawk Power Corporation’s Dunkirk Steam Station. The age of the facility is unknown. primary MCL Action Level Administrative - The State has required remedial action as a result of the contamination, and the owner was directed, by the Supreme Court of the State of New York County of Chautauqua (July 22, 1988), to cease receiving the aforementioned wastes at the facility no later than October 15, 1988. Salem Acres,
MA Groundwater Antimony, Arsenic, Manganese Fly ash disposal occurred at this site - a LF and SI, from at least 1952 to 1969. Scientific - Arsenic and chromium exceeded (health-based) primary MCLs, and Administrative - The site was placed on the NPL list, and EPA signed a Consent Order with the owner to clean up the lagoons.

Vitale Fly Ash Pit, MA Groundwater Aluminum, Arsenic, Iron, Manganese, Selenium An abandoned gravel and sand pit that was used as an unpermitted LF between the 1950’s and the mid-1970s. The Vitale Brothers, the site owners until This case was not counted as a proven damage case in the 1999 RTC 186 because it was a case of illegal disposal not representative of historical or current disposal practices. However, it otherwise meets the criteria for a proven damageDRAFT DO NOT CITE OR QUOTE 440 of 563 5/03/10 1980, accepted anddisposed saltwaterquenched fly ash from New England Power Company along with other wastes. case for the following reasons: Scientific – (i) Selenium and arsenic exceeded (health-based) primary MCLs, and (ii) there is evidence of contamination of nearby wetlands and surface waters, and Administrative - the facility was the subject of several citations and the State has enforced remedial actions. Town of Pines,
IN Groundwater Boron, Molybdenum NIPSCO’s Bailly and Michigan City power plants have deposited ~1 million tons of fly ash in the Town of Pines since 1983. Fly ash was buried in the LF and used as construction fill in the town. The ash is pervasive on site, visible in roads and driveways Scientific - Evidence for boron, molybdenum, arsenic and lead exceeding health-based standards in water wells away from the Pines Yard 520 Landfill site, and Administrative - Orders of consent signed between the EPA and IDEM with responsible parties for continued work at the site.

North Lansing Landfill, MI Groundwater Lithium, Selenium The North Lansing Landfill (NLL), an unlined, former gravel Scientific - Observation of off-siteexceedances of the State’s healthbased standard for lithium.DRAFT DO NOT CITE OR QUOTE 441 of 563 5/03/10 quarry pit with an elevated ground water table, was licensed in 1974 for disposal of inert fill materials including soil, concrete, and brick. From 1980 to 1997, the NLL was used for disposal of coal ash from the Lansing Board of Water and Light electric and steam generating plants. Basin Electric, W. J. Neal Plant,
ND Groundwater Aluminum, Arsenic, Barium, Copper, Manganese, Zinc An unlined, 44-acre SI that received fly ash and scrubber sludge from a coal-fired power plant, along with other wastes (including ash from the combustion of sunflower seed hulls), between the 1950’s and the late 1980’s. Scientific - Several constituents have exceeded their (health-based) primary MCLs in down-gradient ground water, and the site inspection found documentation of releases to ground water and surface water from the site, and Administrative - The State required closure of the facility.

Great River Groundwater Arsenic, This site includes a Scientific - Arsenic and seleniumDRAFT DO NOT CITE OR QUOTE 442 of 563 5/03/10 Energy (GRE) - (formerly Cooperative
Power Association/ United Power) Coal Creek Station, ND Selenium number of evaporation ponds and SIs that were constructed in 1978 and 1979. Both the SIs and the evaporation ponds leaked significantly upon plant start-up. A ND DOH regulator was uncertain as to whether a liner was initially installed, ‘although the plant may have thought they were placing some sort of liner’. The surficial soils were mostly sandy materials with a high water table. exceeded (health-based) primary MCLs, and Administrative - The State required remedial action.

VEPCO Chisman Creek,
VA Groundwater Selenium, Sulfate, Vanadium Between 1957 and 1974, abandoned sand and gravel pits at the site received fly ash from the combustion of coal and petroleum coke at the Yorktown Power Station. Designated as a proven damage case in the 1999 RTC. Scientific – (i) Drinking water wellscontained selenium above the (healthbased) primary MCL and (ii) There is evidence of surface water and sediment contamination, and Administrative - The site wasDRAFT DO NOT CITE OR QUOTE 443 of 563 5/03/10 Disposal at the site ended in 1974 when Virginia Power began burning oil at the Yorktown plant. In 1980, nearby shallow residential wells became contaminated with vanadium and selenium. remediated under CERCLA.

VEPCO Possum Point, VA Groundwater Cadmium, Nickel At this site, oil ash, pyrites, boiler chemical cleaning wastes, coal fly ash, and coal bottom ash were co-managed in an unlined SI, with solids dredged to a second pond. Damage case described in the 1999
RTC. Administrative - Action pursued by the State based on evidence on exceedances of cadmium and nickel, by requiring the removal of the waste.

BBBS Sand and Gravel Quarries, Gambrills, MD Groundwater Aluminum, Arsenic, Beryllium, Cadmium, Lead, Manganese, Sulfate, As of 1995, the defendants used fly ash and bottom ash from two Maryland power plants to fill excavated portions of two unlined sand and gravel Scientific – documented exceedances of MCLs in numerous off-site drinking water wells Administrative - On October 1, 2007, the Maryland Department of the Environment (MDE) filed a consent order in Anne Arundel County,DRAFT DO NOT CITE OR QUOTE 444 of 563 5/03/10 Thallium quarries. GW samples collected in 2006/07 from residential drinking water wells near the site indicated contaminants at or above GW quality standards. Testing of private wells in 83 homes and businesses in areas around the disposal site revealed MCL exceedances in 34 wells, and SMCLs exceedances in 63 wells Maryland Circuit Court to settle an environmental enforcement action against the owner of a sand and gravel quarry and the owner of coal fired power plants for contamination of public drinking water wells in the vicinity of the sand and gravel quarry

Hyco Lake, Roxboro, NC Surface Water Selenium Hyco Lake was constructed in 1964 as a cooling water source for the Electric Plant. The lake received discharges from the plant’s ash-settling ponds containing high levels of selenium. The selenium accumulated Scientific - Declines in fish populations were observed (1970s & 1980s). Administrative - The State concluded that the impacts were attributable to the ash ponds, and issued a fish consumption advisory as a result of the contamination.DRAFT DO NOT CITE OR QUOTE 445 of 563 5/03/10 in the fish in the lake, affecting reproduction and causing declines in fish populations in the late 1970s and 1980s. Georgia Power Company, Plant Bowen, Cartersville, GA Surface Water Ash Slurry This unlined SI was put in service in 1968. On July 28, 2002, a sinkhole developed in the SI that ultimately reached four acres in area. An estimated 2.25 million gallons of ash/water mixture was released to a tributary of the Euharlee Creek, containing 281 tons of ash. Scientific - Unpermitted discharge of water containing ash slurry into the Euharlee Creek resulting in a temporary degradation of public

waters. Administrative - Georgia Department of Natural Resources issued a consent order requiring, among others, a fine and corrective action.

Department of Energy - Oak Ridge Y-12 Plant Chestnut Ridge Operable Unit 2, DOE Oak Ridge Surface Water Aluminum, Arsenic, Iron, Manganese The Filled Coal Ash Pond (FCAP) is an ash retention SI used to dispose of coal ash slurry from the Y-12 steam plant. It was constructed in 1955 by Scientific - Exceedances of primary and secondary MCLs were detected in on-site monitoring locations. Administrative - Federal RCRA and the Tennessee Department of Environmental Conservation (TDEC) requirements, including placement ofDRAFT DO NOT CITE OR QUOTE 446 of 563 5/03/10 Reservation, Oak Ridge, TN building an earthen dam across a northern tributary of Upper McCoy Branch. After the SI was filled to capacity, the slurry was released directly into Upper McCoy Branch. Erosion of both the spillway and the ash itself resulted in releases of ash into Upper McCoy Branch. the entire Oak Ridge Reservation on the NPL.

Belews Lake,
NC Surface Water Selenium This Lake was impounded in the early 1970s to serve as a cooling reservoir for a large coal-fired power plant. Fly ash was disposed in a settling basin, which released selenium-laden effluent in return flows to the Lake. Sixteen of the 20 fish species originally Scientific - Evidence of extensive impacts on fish populations due to direct discharge to a surface water body. Administrative - The State required changes in operating practices to mitigate the contamination.DRAFT DO NOT CITE OR QUOTE 447 of 563 5/03/10 present in the reservoir were entirely eliminated. U.S. Department of Energy Savannah River Project, SC Surface Water Not cited A coal-fired power plant sluices fly ash to a series of open settling basins. A continuous flow of sluice water exits the basins, overflows, and enters a swamp that in turn discharges to Beaver Dam Creek. Bullfrog tadpoles inhabiting the site have oral deformities and impaired swimming and predator avoidance abilities, and there also is evidence of metabolic impacts on water snakes inhabiting the site. Scientific - Evidence of impacts on several species in a nearby wetland caused by releases from the ash settling ponds.

Brandy Branch Surface Water Selenium A power plant cooling Scientific - Observations of impactsDRAFT DO NOT CITE OR QUOTE 448 of 563 5/03/10 Reservoir, TX reservoir built in 1983 for Southwestern Electric Power Company’s Pirkey Power Plant. The cooling reservoir received discharges from SIs containing elevated levels of selenium. on fish populations were confirmed by scientific study, based on which the State concluded that the impacts were attributable to the ash ponds. Administrative - The State issued a fish consumption advisory as a result of the contamination.

Southwestern Electric Power Company Welsh Reservoir, TX Surface Water Selenium This Lake was constructed in 1976 to serve as a cooling reservoir for a power plant and receives discharges from an open SI. The Texas Parks and Wildlife Department’s monitoring documents elevated levels of selenium and other metals in fish. Scientific - Selenium accumulation in fish may be attributable to the ash settling ponds. Administrative - The State has issued a fish consumption advisory as a result of the contamination.

Texas Utilities Electric Martin Surface Water Selenium This Lake was constructed in 1974 to Scientific - Evidence of adverse effects on wildlife - impacts on fishDRAFT DO NOT CITE OR QUOTE 449 of 563 5/03/10 Lake Reservoir,
TX serve as a cooling reservoir for a power plant and was the site of a series of major fish kills in 1978 and 1979. Investigations determined that unpermitted discharges from ash settling ponds resulted in elevated levels of selenium in the water and fish. populations were observed, and the State concluded that the impacts were attributable to the ash setting ponds. Administrative - The State has issued a fish consumption advisory as a result of the contamination.

Martins Creek Power Plant, Martins Creek,
PA Groundwater and Surface
Water Aluminum, Arsenic, Chromium, Copper, Iron, Lead, Manganese, Nickel, Selenium, Silver, Zinc In August 2005, a dam confining a 40 acre CCR SI failed. The dam failure, a violation of the State’s solid waste disposal permit, resulted in the discharge of 100million gallons of coalash and contaminated water into the Oughoughton Creek and the Delaware Scientific - Exceedances of primary and secondary MCLs in on-site ground water, and exceedances offederal water quality criteria in offsite surface water, and Administrative - PA DEP issued a consent order for clean up.DRAFT DO NOT CITE OR QUOTE 450 of 563 5/03/10 River.

Ground-water monitoring found Se and Cr concentrations exceeding Pennsylvania’s Statewide Health Standards and Federal primary drinking water standards, and there were also exceedances of the secondary MCL for iron.

TVA Kingston, Harriman, TN Surface Water Arsenic, Cobalt, Iron, Thallium On December 22, 2008, the northeastern dike of a SI failed. About 5.4 million cubic yards of fly ash sludge was released over about a 300 acre area and into a branch of the Emory River, disrupting power, rupturing a gas Administrative - On May 11, 2009, TVA agreed to clean up more than 5 million tons of spilled coal ash under an administrative order and agreement on consent under CERCLA issued by the USEPA, and In early January 2009, the Tennessee Wildlife Resources Agency (TWRA) issued a fish advisory stating that until further notice, fishing should beDRAFT DO NOT CITE OR QUOTE 451 of 563 5/03/10 Abbreviations key: 1 LF - Landfill 2 SI – Surface Impoundment 3 PAL – Prevention Action Level 4 ES – Enforcement Standard 5 RTC – Report to Congress line, and destroying or damaging scores of homes.

Sampling results for the contaminated residential soil showed arsenic, cobalt, iron, and thallium levels above the residential Superfund soil screening levels. avoided in the lower section of the Emory River.DRAFT DO NOT CITE OR QUOTE 452 of 563 5/03/10 List of Subjects

40 CFR Part 257 Environmental Protection, coal combustion pr oducts, coal combus tion residuals, coal combustion waste, beneficial use, disposal, hazardous waste, landfill, surface impoundment.

40 CFR Parts 261, 264, 268, 271, and 302 Environmental Protection, coal combustion pr oducts, coal combus tion residuals, coal combustion waste, beneficial use, disposal, hazardous waste, landfill, surface impoundment.

40 CFR Part 261 Hazardous waste, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 264 Air pollution control, Hazardous waste, Insura nce, Packaging and containers, Reporting and recordkeeping requirements, S ecurity measures, Surety bonds

40 CFR Part 268 Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271DRAFT DO NOT CITE OR QUOTE 453 of 563 5/03/10 Administrative practice and pro cedure, Confidential business in formation, Hazardous materials transportation, Hazardous waste, Indians-lands, In tergovernmental relations, Penalties, Reporting and recordkeeping requirements, Wate r pollution contro l, Water supply.

40 CFR Part 302

Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

Dated:

_______________________________________ Lisa P. Jackson, Administrator.DRAFT DO NOT CITE OR QUOTE 454 of 563 5/03/10 

# ****Co-proposal Under Authority of Subtitle D****

For the reasons set out in the pr eamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 257—CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL FACILITIES AND PRACTICES

1. The authority citation for part 257 continues to read as follows: Authority: 42 U.S.C., 6907(a)(3), 6912(a)(1), 6944(a), and 6949a(c ); 33 U.S.C. 1345(d) and (e).

2. Part 257.1 is amended by revising paragra phs (a), (a)(1) and (a )(2) and by adding new paragraph (c)(12) as follows:

§ 257.1 Scope and Purpose.

(a) * * * Unless otherwise provided, the criteria §§ 257.51 through 257.101 are adopted for determining which CCR Landfills and CCR Surface impoundments pose a reasonable probability of adverse effects on health or the environment under sections 1008(a)(3) and 4004(a) of the Act. (1) Facilities failing to satis fy either the criteria in §§ 257.1 through 257.4 or §§ 257.5 through 257.30 or §§ 257.51 through 257.101 are considered open dumps, which are prohibited under section 4005 of the Act.DRAFT DO NOT CITE OR QUOTE 455 of 563 5/03/10 (2) Practices failing to satis fy either the criteria in §§ 257.1 through 257.4 or §§ 257.5 through 257.30 or §§ 257.51 through 257.101 constitute open dumping, which is prohibited under section 4005 of the Act.
* * * * * (c) * * * (12) Except as otherwise provided in subpart C, the criteria in subpa rt A of this part do not apply to CCR landfills and CCR surface impoundments s ubject to subpart C of this part.

3. Part 257.2 is amended as follows:

257.2 Definitions.
* * * * * CCR Landfill means a disposal facility or part of a facility where CCRs are placed in or on land and which is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed forma tion, an underground mine, a cave, or a corrective action management unit. For purposes of this proposed rule, landfills also include piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills.
* * * * * CCR Surface Impoundment or impoundment means a facility or part of a facility which is a natural topographic depression, man-made excavati on, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and wh ich is not an injection well. Examples ofDRAFT DO NOT CITE OR QUOTE 456 of 563 5/03/10 CCR surface impoundments are holding, storage, se ttling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes.
* * * * *

4. Part 257 is amended by adding and reserving Subpart C:

Subpart C - Reserved

5. Part 257 is amended by adding Subpart D to read as follows:



### Subpart D – Standards for the Receipt of Coal Combustion Residuals in Landfills and Surface Impoundments

General Provisions
Sec. 257.40 Disposal standards for owners/ operators of CCR landfills and CCR surface impoundments 257.42 - 257.49 [Reserved] General Requirements 257.50 Applicability of Other Regulations. 257.51 - 257.59 [Reserved]DRAFT DO NOT CITE OR QUOTE 457 of 563 5/03/10 Location Restrictions 257.60 Placement above the natural water table. 257.61 Wetlands. 257.62 Fault areas. 257.63 Seismic impact zones. 257.64 Unstable areas. 257.65 Closure of existing CCR landfills and surface impoundments. 257.66 - 257.69 [Reserved] Design Criteria 257.70 Design Criteria for New CCR Landfills and Lateral Expansions. 257.71 Design Criteria for Ex isting CCR Surface Impoundments. 257.72 Design Criteria for New CCR Surface Impoundments and Lateral Expansions. 257.73 - 257.79 [Reserved] Operating Criteria 257.80 Air Criteria. 257.81 Run-on and Run-off Controls. 257.82 Surface Water Requirements. 257.83 Surface Impoundment Inspection Requirements. 257.84 Recordkeeping Requirements. 257.85 - 257.89 [Reserved] Groundwater Monitoring and Corrective Action 257.90 Applicability. 257.91 Groundwater monitoring systems.DRAFT DO NOT CITE OR QUOTE 458 of 563 5/03/10 257.92 [Reserved] 257.93 Groundwater sampling and analysis requirements. 257.94 Detection monitoring program. 257.95 Assessment monitoring program. 257.96 Assessment of corrective measures. 257.97 Selection of remedy. 257.98 Implementation of the corrective action program. 257.99 [Reserved] Closure and Post-Closure Care 257.100 Closure criteria. 257.101 Post-closure care requirements. 257.102 - 257.109 [Reserved] Appendix III to Part 257 – Constituents for Detection Monitoring Appendix IV to Part 257 – Constituents for Assessment Monitoring

Subpart D
− General Provisions

§ 257.40 Disposal standards for owners/o perators of CCR landfills and CCR surface impoundments (a) Applicability . (1) The requirements of this subpart apply to owners or operators of CCR landfills and CCR surface impoundments. Any CCR landfill and surface impoundment continues to be subject to the requirements in §§ 257.3-1, 257.3-2, and 257.3-3.DRAFT DO NOT CITE OR QUOTE 459 of 563 5/03/10 (2) Except as otherwise specified in this Subpart, all of the re quirements in this Subpart are applicable [date 180 days after the effect ive date of the final rule]

.

(b) Definitions

. Active life means the period of operation beginning w ith the initial placem ent of CCRs in the landfill or surface impoundment and ending at comp letion of closure activities in accordance with § 257.110. Acre-foot means the volume of one acre of surface area to a depth of one foot. Aquifer means a geological formation, group of forma tions, or portion of a formation capable of yielding significant quantitie s of groundwater to wells. Area-capacity curves means graphic curves which readily sh ow the reservoir water surface area, in acres, at different elevations from the bottom of the reservoir to the maximum water surface, and the capacity or volume, in acre-feet, of th e water contained in th e reservoir at various elevations. Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes. CCR Landfill means a disposal facility or part of a facility where CCRs are placed in or on land and which is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed forma tion, an underground mine, a cave, or a corrective action management unit. For purposes of this proposed rule, landfills also include piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills.DRAFT DO NOT CITE OR QUOTE 460 of 563 5/03/10 CCR Surface Impoundment or impoundment means a facility or part of a facility which is a natural topographic depression, man-made excavati on, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and wh ich is not an injection well. Examples of CCR surface impoundments are holding, storage, se ttling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes. Existing CCR Landfill means a CCR landfill which was in operation on, or for which construction commenced prior to [the effective date of the final rule] . A CCR landfill has commenced construction if the owner or operato r has obtained the Fede ral, State and local approvals or permits necessary to be gin physical construction; and either (1) A continuous on-site, physical cons truction program has begun; or (2) The owner or operator has entered into c ontractual obligations —which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time. Existing CCR Surface Impoundment means a surface impoundment which was in operation on, or for which construction commenced prior to [the effective date of the final rule] . A CCR surface impoundment has commenced construction if the owner or operator has obtained the Federal, State and local approvals or permits nece ssary to begin physical construction; and either (1) A continuous on-site, physical cons truction program has begun; orDRAFT DO NOT CITE OR QUOTE 461 of 563 5/03/10 (2) The owner or operator has entered into c ontractual obligations—which can not be cancelled or modified without substantial loss—for physic al construction of the CCR surface impoundment to be comple ted within a reasonable time. Facility means all contiguous land and structures, other appurtenances, and improvements on the land used for the disposal of CCRs Factor of safety (Safety factor) means the ratio of the forces te nding to resist the failure of a structure to the forces tending to cause such failure as determined by accepted engineering practice. Freeboard means the vertical distance between the slurry or liquid el evation in an impoundment and the lowest point on the crest of the impoundment embankment. Groundwater means water below the land surface in a zone of saturation. Hazard potential classification means the possible adverse increm ental consequences that result from the release of water or stored contents due to failure of a dam (or impoundment) or misoperation of the dam or appurtenances. (Note: The Hazard Potential Classification System for Dams was developed by the U.S. Army Corps of Engineers for the National Inventory of Dams.) High hazard potential surface impoundment means a surface impoundment where failure or mis-operation will probably cause loss of human life. Significant hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of huma n life, but can cause economic loss, environmental damage, disruption of life line facilities, or impa ct other concerns. Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/orDRAFT DO NOT CITE OR QUOTE 462 of 563 5/03/10 environmental losses. Losses are principall y limited to the surface impoundment owner’s property. Independent registered profes sional engineer or hydrologist means a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or surf ace impoundment who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training and experience in groundwat er hydrology and related fields as may be demonstrated by state registration, professiona l certifications, or completion of accredited university programs that enable that individual to make sound pr ofessional judgments regarding the technical information for which a certi fication under this su bpart is necessary. Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or existing CCR surface impoundment made after [the effective date of the final rule]

. New CCR landfill means a CCR landfill in which there is placement of CCRs without the presence of free liquids, which began operation, or for which th e construction commenced after [the effective date of the rule]

. New CCR surface impoundment means a CCR surface impoundment from which there is placement of CCRs with the presence of free liquids, which began operation, or for which the construction commenced after [the effective date of the rule]

. Operator means the person(s) responsible for the overall operati on of a facility.
Owner means the person(s) who owns a f acility or part of a facility. Probable maximum precipitation means the value for a particular area which represents an envelopment of depth-duration-ar ea rainfall relations for all st orm types affecting that area adjusted meteorologically to maximum conditions.DRAFT DO NOT CITE OR QUOTE 463 of 563 5/03/10 Recognized and generally accepte d good engineering practices means engineering maintenance or operation activities ba sed on established codes, standard s, published technical reports, recommended practice, or similar document. Such practices detail gene rally approved ways to perform specific engineering, inspection, or mechanical integrity activities. Representative sample means a sample of a universe or whole (e.g., waste pile, lagoon, groundwater) which can be expected to exhibit the aver age properties of the universe or whole. Run-off means any rainwater, leachate, or other liquid that drains over land from any part of a CCR landfill or surface impoundment.
Run-on means any rainwater, leachate, or other liqui d that drains over land onto any part of a CCR landfill or surface impoundment. Sand and gravel pit or quarry means an excavation for the co mmercial extraction of aggregate for use in construction projects.
State means any of the several States, the Distri ct of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samo a, and the Commonwealth of the Northern Mariana Islands Surface Water means all water naturally open to the atmo sphere (rivers, lakes, reservoirs, ponds, streams, impoundments, seas, estuaries, etc.). Uppermost aquifer means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquife rs that are hydraulically interconnected with this aquifer within the facility's property boundary. Waste boundary means a vertical surface lo cated at the hydraulically downgradient limit of the CCR landfill or CCR surface impoundment, or latera l expansion. The vertical surface extends down into the uppermost aquifer.DRAFT DO NOT CITE OR QUOTE 464 of 563 5/03/10 §§ 257.42 - 257.49 [Reserved]

General Requirements

§ 257.50 Applicability of Other Regulations.

(a) The owner or operator of a CCR landfill or CCR surface impoundment must comply with any other applicable federal, state, tribal , or local laws or other requirements.

§§ 257.51 - 257.59 [Reserved]

Location Restrictions

§ 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impound ments and lateral expansions must be constructed with a base that is located a minimum of two feet a bove the upper limit of the natural water table. (b) For purposes of this section, natural water tabl e means the natural level at which water stands in a shallow well open along its length and penetra ting the surficial deposits just deeply enough to encounter standing water at the bottom. Th is level is uninfluenced by groundwater pumping or other engineered activities.DRAFT DO NOT CITE OR QUOTE 465 of 563 5/03/10 § 257.61 Wetlands.

(a) New CCR landfills, new CCR surf ace impoundments, and lateral expansions shall not be located in wetlands, unless the owner or ope rator can make the following demonstrations, certified by an independent regi stered professional engineer or hydrologist. The owner or operator must place the demonstrations in the op erating record and the owner’s or operator’s publicly accessible intern et site, and notify the state of this action. (1) Where applicable under secti on 404 of the Clean Water Act or applicable state wetlands laws, the presumption that a practicable alternativ e to the proposed landfill, surface impoundment, or lateral expansion is availabl e which does not involve wetlan ds is clearly rebutted; and (2) The construction and operation of the ne w CCR landfill, new CCR surface impoundment, or lateral expansion will not: (i) Cause or contribute to vi olations of any applicable state water quality standard, (ii) Violate any applicable toxi c effluent standard or prohibition under Section 307 of the Clean Water Act; (iii) Jeopardize the continued ex istence of endangered or threat ened species or result in the destruction or adverse modificatio n of a critical habitat, prot ected under the Endangered Species Act of 1973; and (iv) Violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary; and (3) The new CCR landfill, new CCR surface impoundment, or lateral expansion will not cause or contribute to significant degrada tion of wetlands. The owner or operator must demonstrate theDRAFT DO NOT CITE OR QUOTE 466 of 563 5/03/10 integrity of the new CCR landfill, new CCR su rface impoundment, or lateral expansion and its ability to protect ecological resource s by addressing the following factors: (i) Erosion, stability, and migrati on potential of native wetland soils , muds and deposits used to support the new CCR landfill, new CCR surfac e impoundment, or la teral expansion; (ii) Erosion, stability, and migra tion potential of dredged and f ill materials used to support the landfill or surface impoundment. (iii) The volume and chemical nature of the CCRs. (iv) Impacts on fish, wildlife, and other aquatic re sources and their habitat from release of CCRs. (v) The potential effects of catastr ophic release of CCRs to the wetland and the resulting impacts on the environment; and (vi) Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected; and (4) To the extent required under section 404 of the Clean Water Ac t or applicable state wetlands laws, steps have been taken to attempt to achie ve no net loss of wetlands (as defined by acreage and function) by first avoiding impacts to wetla nds to the maximum extent practicable as required by paragraph (a)(1) of this section, then minimizing unavoidable impacts to the maximum extent practicable, and finally offs etting remaining unavoidable wetland impacts through all appropriate and pract icable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or cr eation of man-made wetlands); and (5) Sufficient information is available to make a reasonable determination with respect to these demonstrations. (b) For purposes of this section, wetlands means those areas defined in 40 CFR 232.2.DRAFT DO NOT CITE OR QUOTE 467 of 563 5/03/10 § 257.62 Fault areas.

(a) New CCR landfills, new CCR surf ace impoundments and lateral expansions shall not be located within 200 feet (60 meters) of a fault that has had displacement in Holocene time unless the owner or operator demonstrates that an alternative setback di stance of less than 200 feet (60 meters) will prevent damage to the structural integrity of the new CCR landfill, new CCR surface impoundment and lateral expansion and will be prot ective of human health and the environment. The demonstration must be certified by an indepe ndent registered professional engineer and the owner or operator must notify the state that th e demonstration has been placed in the operating record and on the owner’s or operato r’s publicly accessible internet site. (b) For the purposes of this section: (1) Fault means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side. (2) Displacement means the relative movement of any tw o sides of a fault measured in any direction. (3) Holocene means the most recent epoch of the Quat ernary period, extending from the end of the Pleistocene Epoch to the present.

§ 257.63 Seismic impact zones.

(a) New CCR landfills, new CCR surf ace impoundments and lateral expansions shall not be located in seismic impact zones, unless the owner or operator dem onstrates that all containment structures, including liners, leach ate collection systems, and surface water control systems, areDRAFT DO NOT CITE OR QUOTE 468 of 563 5/03/10 designed to resist the maximum hor izontal acceleration in lithified earth material for the site. The demonstration must be certified by an indepe ndent registered professional engineer and the owner or operator must notify the state that th e demonstration has been placed in the operating record and on the owner’s or operato r’ publicly accessible internet site. (b) For the purposes of this section: (1) Seismic impact zone means an area with a ten percent or greater probability that the maximum horizontal acceleration in lithified eart h material, expressed as a percentage of the earth's gravitational pull (g), will exceed 0.10g in 250 years. (2) Maximum horizontal acceleration in lithified earth material means the maximum expected horizontal acceleration depicted on a seismi c hazard map, with a 98 percent or greater probability that the acceleration wi ll not be exceeded in 50 year s, or the maximum expected horizontal acceleration based on a site -specific seismic risk assessment. (3) Lithified earth material means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particle s of older rock that formed by crystallization of magma or by induration of loose sediments. Th is term does not include man-made materials, such as fill, concrete, and asphalt , or unconsolidated earth materials, soil, or regolith lying at or near the earth surface.

§ 257.64 Unstable areas.

(a) Owners or operators of new or existi ng CCR landfills, new or existing CCR surface impoundments and lateral expansions located in an unstable area must demonstrate that engineering measures have been incorporated into the landfill, surface impoundment, or lateralDRAFT DO NOT CITE OR QUOTE 469 of 563 5/03/10 expansion design to ensure that the integrity of the structural components of the landfill or surface impoundment will not be disrupted. Th e demonstration must be certified by an independent registered professiona l engineer. The owner or operat or must notify the state that the demonstration has been placed in the opera ting record and on the owner’s or operator’s publicly accessible internet site. The owner or operator must cons ider the following factors, at a minimum, when determining whether an area is unstable: (1) On-site or local soil conditions that may result in significant differential settling; (2) On-site or local geologic or geomorphologic features; and (3) On-site or local human-made features or events (both surface and subsurface). (b) For purposes of this section: (1) Unstable area means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the CCR landfill or CCR surface impoundment or lateral expansion structural co mponents responsible for preventing releases from a landfill or surface impoundment. Unstab le areas can include poor foundation conditions, areas susceptible to mass move ments, and Karst terrains. (2) Structural components means liners, leachate co llection systems, final covers, run-on/run-off systems, and any other component used in the construction and operation of the CCR landfill or CCR surface impoundment or lateral expansion that is necessary fo r protection of human health and the environment. (3) Poor foundation conditions means those areas where features exist which indicate that a natural or man-induced event ma y result in inadequate foundati on support for the structural components of a CCR landfill, CCR surf ace impoundment, or lateral expansion.DRAFT DO NOT CITE OR QUOTE 470 of 563 5/03/10 (4) Areas susceptible to mass movement means those areas of influence (i.e., areas characterized as having an active or substant ial possibility of mass movement ) where the movement of earth material at, beneath, or adjacent to the CCR landfill, CCR surface impoundment, or lateral expansion, because of natural or man-induced even ts, results in the downs lope transport of soil and rock material by means of gravitational infl uence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slid es and flows, soil fluction, block sliding, and rock fall. (5) Karst terranes means areas where karst topography, with its characteristic surface and subterranean features, has deve loped as a result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physio graphic features present in kars t terranes include, but are not limited to, sinkholes, sinking streams, cav es, large springs, and blind valleys.

§ 257.65 Closure of existing CCR landfills and surface impoundments.

(a) Existing CCR landfills and surface impoundme nts that cannot make the demonstration specified in §257.64 (a) pertaining to unstable areas, must close by [date five years after the effective date of the rule] , in accordance with §257.100 and c onduct post-closure activities in accordance with §257.101. (b) The deadline for closure requir ed by paragraph (a) of this s ection may be extended up to two years if the owner or operator can demonstrate that: (1) There is no available a lternative disposal capacity; (2) There is no immediate threat to human health and the environment.DRAFT DO NOT CITE OR QUOTE 471 of 563 5/03/10 (c) The demonstration in paragr aph (b) of this section must be certified by an independent registered professional e ngineer or hydrologist. (d) The owner or operator must place the demonstr ation in paragraph (b) of this section in the operating record and on the owner’s or operator’s publicly accessible internet site and notify the state that this action was taken.

§§ 257.66 - 257.69 [Reserved]
Design Criteria

§ 257.70 Design Criteria for New CCR Landfills and Lateral Expansions.

(a) New CCR landfills and lateral expansions of CCR landfills shall be constructed: (1) With a composite liner, as defined in paragra ph (a)(2) of this section and a leachate collection system that is designed and constructed to main tain less than a 30-cm de pth of leachate over the liner. The design of the composite liner and leac hate collection system must be prepared by, or under the direction of, and certified by an i ndependent registered, professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component.DRAFT DO NOT CITE OR QUOTE 472 of 563 5/03/10 (3) For purpose of this section, hydraulic conductivity means the rate at which water can move through a permeable medium. (i.e., th e coefficient of permeability). (b) [Reserved]

§ 257.71 Design Criteria for Exis ting CCR Surface Impoundments.

(a) No later than [five years after effectiv e date of final rule] existing CCR surface impoundments shall be constructed: (1) With a composite liner, as defined in pa ragraph (a)(2) of this section and a leachate collection system between the upper and lower components of th e composite liner. The design shall be in accordance with a design prepared by, or under the direction of, and certified by an independent registered professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30-mil flexible membrane line (FML), and the lower component must consist of at least two- foot layer of compacted soil with a hydraulic conductivity of no more than 1x 10 -7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purposes of this section, hydraulic conductivity means the rate at which water can move through a permeable medium (i.e., the coefficient of permeability). (b) The owner or operator of an existing CCR surface impoundment shall place in the operating record and on the owner’s or operator’s publicly a ccessible internet site, and provide to the stateDRAFT DO NOT CITE OR QUOTE 473 of 563 5/03/10 a history of construction, and any record or know ledge of structural inst ability if the existing surface impoundment can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or (2) Impound CCRs to an elevation of 20 feet or more above the upstream toe of the structure. (c) For purposes of this subpart, upstream toe means, for an embankment dam, the junction of the upstream slope of the dam with the ground su rface. (Federal Guidelines for Dam Safety, Glossary of Terms, Federal Emergency Management Agency, April 2004.) (d) The history of construction specified in pa ragraph (b) shall contain, at a minimum, the following information as may be available: (1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment if one has been assigned by the state. (2) The location of the CCR surface impoundme nt indicated on the most recent USGS 71/2minute or 15 minute topographi c quadrangle map, or a topographi c map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment. (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site preparation and construction of each zone of the CCR surface impoundment; and theDRAFT DO NOT CITE OR QUOTE 474 of 563 5/03/10 approximate dates of construction, and each successi ve stage of construction of the CCR surface impoundment. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensiona l drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level and CCR waste water level, and any identifi able natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) The hazard potential classification for wh ich the facility is designed and a detailed explanation of the basis for this classification. (11) A description of the spillway and diversion design features and capacities and calculations used in their determination. (12) The computed minimum factor of safety for slope stability of the CCR retaining structure(s) and the analyses used in their determinations. (13) A certification by an independe nt registered professional engi neer that the design of the CCR surface impoundment is in accordance with cu rrent, prudent engineering practices for the maximum volume of CCR slurry and CCR waste water which can be impounded therein and for the passage of runoff from the design stor m which exceeds the capac ity of the CCR surface impoundment; or, in lieu of the certification, a re port indicating what additional investigations,DRAFT DO NOT CITE OR QUOTE 475 of 563 5/03/10 analyses, or improvement work are necessary be fore such a certification can be made by an independent registered professiona l engineer, including what provisi ons have been made to carry out such work in addition to a schedule for completion of such work. Upon completion of such work, the owner or operator shall place the certi fication in the operating record and on the owner’s or operator’s publicly accessible internet site and prov ide to the state notice of such certification. (14) The construction specifications and provisions for surveillance, maintenance, and repair of the CCR surface impoundment. (15) General provisions for closure. (e) A permanent identification marker, at leas t six feet high and show ing the identification number of the existing CCR surface impoundment, if one has been assigned by the state, the name associated with the CCR surface impoundme nt and the name of the person owning or operating the structure, shall be located on or immediately adjacent to each existing CCR surface impoundment. This requirement becomes effective [ insert date 60 days after the effective date of the final rule ]. (f) For existing CCR surface impoundments classifi ed as having a high or significant hazard potential, as certified by an independent registered profession al engineer, the owner or operator shall develop and maintain in the operating re cord, and on the owner’s or operator’ publicly accessible internet site, an Emergency Action Plan which: defines responsible persons and the actions to be taken in the event of a dam-safe ty emergency; provides contact information for emergency responders; includes a map which delineates the downstream area which would be affected in the event of a dam failure; and incl udes provisions for an annual face-to-face meeting or exercise between representatives of the f acility owner and the local emergency responders.DRAFT DO NOT CITE OR QUOTE 476 of 563 5/03/10 (g) CCR surface impoundments shall be dredged of CCRs and lined with a composite liner system, as defined in paragraph (d) (2) of this section, by [insert date five years after the effective date of the final rule] or closed in accordance with § 257.100.

§ 257.72 Design Criteria for New CCR Surface Impoundments and Lateral Expansions.

(a) New CCR surface impoundments and lateral expansions of CCR landfills or surface impoundments shall be constructed: (1) With a composite liner, as defined in paragra ph (a)(2) of this section and a leachate collection system between the upper and lower components of the composite liner. The design of the composite liner and leachate colle ction system must be prepared by, or under the direction of, and certified by an independent re gistered, professional engineer. (2) For purposes of this section, composite liner means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purpose of this section, hydraulic conductivity means the rate at which water can move through a permeable medium (i.e., th e coefficient of permeability). (b) Plans for the design, construction, and ma intenance of new CCR surface impoundments and lateral expansions shall be pl aced in the operating record and be submitted to the state upon certification by an independent regi stered professional engineer, a nd a notice shall be placed onDRAFT DO NOT CITE OR QUOTE 477 of 563 5/03/10 the owner’s or operator’s publicly ac cessible internet site that such plans have been placed in the operating record and submitted to the state, if such proposed surface impoundment or lateral expansion can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or (2) Impound CCRs to an elevation of 20 feet or mo re above the upstream toe of the structure. (c) A permanent identification marker, at leas t six feet high and show ing the identification number of the CCR surface impoundment, if one has been assigned by the state, the name associated with the CCR surface impoundment and the name of the person owning or operating the structure, shall be located on or immediat ely adjacent to each CCR surface impoundment. This requirement becomes effective [ insert date 60 days after the effective date of the final
rule ]. (d) The plan specified in paragr aph (b) of this section, shall c ontain at a minimum the following information: (1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment if one has been assigned by the state. (2) The location of the CCR surface impoundme nt indicated on the most recent USGS 71/2minute or 15 minute topographi c quadrangle map, or a topographi c map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment.DRAFT DO NOT CITE OR QUOTE 478 of 563 5/03/10 (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site preparation and construction of each zone of the CCR surface impoundment; and the approximate dates of construction, and each succe ssive stage of construction of the CCR surface impoundment. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensional drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level and CCR waste water level, and any identifi able natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) The hazard potential classification for wh ich the facility is designed and a detailed explanation of the basis for this classification. (11) A description of the spillway and diversion design features and capacities and calculations used in their determination. (12) The computed minimum factor of safety for slope stability of the CCR retaining structure(s) and the analyses used in their determinations.DRAFT DO NOT CITE OR QUOTE 479 of 563 5/03/10 (13) The construction specifications and provisions for surveillance, maintenance, and repair of the CCR surface impoundment. (14) General provisions for closure. (15) A certification by an independe nt registered professional engi neer that the design of the CCR surface impoundment is in accordance with generally accepted engi neering standards for the maximum volume of CCR slurry and CCR wast e water which can be impounded therein and for the passage of runoff from the design storm which exceeds the capacity of the CCR surface impoundment. The owner or operato r shall place the cer tification in the oper ating record and on the owner’s or operator’s publicly accessible internet site and notif y the state that these actions have been taken. (e) Any changes or modifications to the plan s for CCR surface impoundments shall be certified by an independent registered professional engineer and provided to the state prior to the initiation of such changes or modifications . The certification required in th is paragraph shall be placed on the owner’s or operator’s public ly accessible internet site. (f) For CCR surface impoundments classified by as having a high or significant hazard potential, as certified by an independent registered prof essional engineer, the owner or operator shall develop and maintain in the operating record and on the owner’s or operator’s publicly accessible internet site, an Emergency Action Plan which: defines responsible persons and the actions to be taken in the event of a dam-safe ty emergency; provides contact information for emergency responders; includes a map which delineates the downstream area which would be affected in the event of a dam failure; and incl udes provisions for an annual face-to-face meeting or exercise between representatives of the f acility owner and the local emergency responders.DRAFT DO NOT CITE OR QUOTE 480 of 563 5/03/10 §§ 257.73 - 257.79 [Reserved]

Operating Criteria

§ 257.80 Air Criteria.

(a) CCR surface impoundments and CCR landfills must be managed in a manner that fugitive dusts do not exceed 35 μg/m 3 , unless some alternative standard has been established pursuant to applicable requirements developed under a St ate Implementation Plan (SIP) approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended. (b) CCR surface impoundments must be managed to control wind dispersal of dusts, consistent with the standard in paragr aph (a) of this section. (c) CCR landfills must be managed to control wind dispersal of dusts, consistent with the standard in paragraph (a). CCRs must be empl aced as conditioned CCRs as defied in paragraph (d) of this section. (d) For purposes of this section, conditioning me ans wetting CCRs with water to a moisture content that will prevent wind dispersal, but will not result in free liquids. (e) Documentation of the measures taken to comply with the requirements of this section must be certified by an independent regist ered professional engineer and notification provided to the state that the documentation has been pl aced in the operating record and on the owner’s or operator’s publicly accessible internet site.

§ 257.81 Run-on and Run-off Controls.DRAFT DO NOT CITE OR QUOTE 481 of 563 5/03/10 (a) Owners or operators of all CCR landfills a nd surface impoundments must design, construct, and maintain: (1) A run-on control system to prevent flow ont o the active portion of the CCR landfill or surface impoundment during the peak discharg e from a 24-hour, 25-year storm; (2) A run-off control system from the activ e portion of the CCR landf ill or surface impoundment to collect and control at l east the water volume resulting from a 24-hour, 25-year storm. (b) The design required in paragraph (a) of this section must be certified by an independent registered professional engineer that the design meets the requir ements of this section. The owner or operator must notify th e state that the design has been placed in the operating record and on the owner’s or operator’s publicly accessible internet site. (c) The owner or operator must prepare a repor t, certified by an i ndependent registered professional engineer, that documents how releva nt calculations were ma de, and how the control systems meet the requirements of this subpart and notify the state that the report has been placed in the operating record and made available to the public on the owner’s or operator’s publicly accessible internet site. (d) Run-off from the active portion of the CCR landfill or surface impoundment must be handled in accordance with § 257.3-3.

§ 257.82 Surface Water Requirements.

(a) CCR landfills and surface impoundments shall not:DRAFT DO NOT CITE OR QUOTE 482 of 563 5/03/10 (1) Cause a discharge of pollutants into waters of the United States, including wetlands, that violates any requirements of the Clean Water Ac t, including, but not limited to, the National Pollutant Discharge Elimination System (NPDES ) requirements, pursuant to section 402 of the Clean Water Act. (2) Cause the discharge of a nonpoint source of pollution to waters of the United States, including wetlands, that violates any requirement of an area-wide or State-wide water quality management plan that has been approved under section 208 or 319 of the Clean Water Act, as amended. (b) [Reserved]

§ 257.83 Surface Impoundment Inspection Requirements.

(a) All existing CCR surface impoundments shall be examined as follows: (1) At intervals not exceeding 7 days for appearances of structur al weakness and other hazardous conditions. (2) At intervals not exceeding 7 days all instruments shall be monitored. (3) All inspections required by para graphs (a)(1) and (2) of this section shall be performed by a qualified person, as defined in paragraph (e) of this section, designated by the person owning or operating the CCR surface impoundment. (4) All existing CCR surface impoundments shall be inspected annually by an independent registered professional engineer to assure that the design, ope ration, and maintenance of the surface impoundment is in accordance with gene rally accepted engineering standards. The owner or operator must notify the state that a certification by the independent registeredDRAFT DO NOT CITE OR QUOTE 483 of 563 5/03/10 professional engineer that the design, operation, and maintenance of the surface impoundment is in accordance with generally accepted engineerin g standards has been placed in the operating record and on the owner’s or operato r’s publicly accessible internet site. (b) When a potentially hazardous condition de velops, the person owning or operating the CCR surface impoundment shall immediately: (1) Take action to eliminate th e potentially hazardous condition; (2) Notify potentially affected persons and state and local first responders; (3) Notify and prepare to evacuate, if necessa ry, all personnel from th e owner or operator’s property which may be affected by th e potentially hazardous conditions; and (4) Direct a qualified person to monitor all instruments and examine the structure at least once every eight hours, or more ofte n as required by an authorized representative of the state. (c) After each inspection and instrumentation mon itoring referred to in para graphs (a) and (b) of this section, each qualified person who conducte d all or any part of the inspection or instrumentation monitoring shall promptly r ecord the results of such inspection or instrumentation monitoring in a book which shall be available in the ope rating record and such qualified person shall also promptly report the results of the inspecti on or monitoring to the state. A report of each inspection and instrumentation monitoring shall also be placed on the owner’s or operator’s publicly accessible internet site. (d) All inspection and instrumentation monitoring reports recorded in accordance with paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be promptly signed by the person designate d by the owner or operator as responsible for health and safety at the ow ner or operator’s facility.DRAFT DO NOT CITE OR QUOTE 484 of 563 5/03/10 (e) The qualified person or persons referred to in this section shall be trained to recognize specific signs of structural instability and ot her hazardous conditions by visual observation and, if applicable, to monitor instrumentation.

§ 257.84 Recordkeeping Requirements.

(a) The owner or operator of a CCR landfill or surf ace impoundment must record and retain near the facility in an operating reco rd and on the owner’s or operato r’s publicly accessible internet site, all records, reports, studi es or other documentation required to demonstrate compliance with §§257.60 through 257.83 and 257.90 through 257.101. (b) Except as provided in paragraph (c) of this section, every tw elfth month following [the effective date of the rule] for CCR surface impoundments addressed under § 257.71, and every twelfth month following the date of the initial pl an for the design (including lateral expansions), construction, and maintenance of the surface impoundments addressed under § 257.72(b), the owner or operator of such CCR surface impoundment s that have not been closed in accordance with §§ 257.100 shall place in the operating record and on the owner’s or operator’s publicly accessible internet site, a report containing the following information. The owner or operator shall notify the state that the repo rt has been placed in the opera ting record and on the owner’s or operator’s publicly accessible internet site. (1) Changes in the geometry of the im pounding structure for the reporting period. (2) Location and type of insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period.DRAFT DO NOT CITE OR QUOTE 485 of 563 5/03/10 (3) The minimum, maximum, and present depth a nd elevation of the impounded water, sediment, or slurry for th e reporting period. (4) Storage capacity of the impounding structure. (5) The volume of the impounded water, sediment, or slurry at the end of the reporting period. (6) Any other change which may have affect ed the stability or operation of the impounding structure that has occurre d during the reporting period. (7) A certification by an independe nt registered prof essional engineer that all construction, operation, and maintenance were in accordance with the approved plan. (c) A report is not required under this section when the owner or operator provides the state with a certification by an independent registered professional engin eer that there have been no changes under paragraphs (b)(1) through (b)(6) of this section to the surface impoundment. However, a report containing the information set out in paragraph (b) of this section shall be placed in the operating record and on the owner’s or operator’s publicly ac cessible internet site and notification submitted to the state at least every 5 years.

§§ 257.85 - 257.89 [Reserved]

Groundwater Monitoring and Corrective Action
§ 257.90 Applicability.

(a) Owners and operators of all CCR landfills, surface impoundments subj ect to this subpart must comply with the groundwater monito ring requirements according to the following schedule:DRAFT DO NOT CITE OR QUOTE 486 of 563 5/03/10 (1) Existing CCR landfills and surface impoundments must comply with the groundwater monitoring requirements specifi ed in §§257.91 through 257.95 within [one year after the effective date of the rule] ; (2) New CCR landfills and surface impoundment s must comply with the groundwater monitoring requirements specified in §§257.91 th rough 257.95 before CCR can disposed of in the CCR landfill or surface impoundment. (b) The owner or operator must notify the stat e once each year throughout the active life and post-closure care period that the CCR landfill or surface impoundment is in compliance with the groundwater monitoring and corrective action provisions of this subpart. (c) Once established at a CCR landfill or surfac e impoundment, groundwater monitoring shall be conducted throughout the active life and post-closur e care period of that CCR landfill or surface impoundment as specified in §257.101.

§ 257.91 Groundwater monitoring systems.

(a) A groundwater monitoring system must be installed that consis ts of a sufficient number of wells, installed at appropriate locations and depths, to yiel d groundwater samples from the uppermost aquifer (as defined in §257.41) that: (1) Represent the quality of background groundwater that has not been affected by leakage from a CCR landfill or surface impoundment. A determ ination of background quality may include sampling of wells that are not hydraulically upgradi ent of the CCR management area where: (i) Hydrogeologic conditions do no t allow the owner or operator to determine what wells are hydraulically upgradient; orDRAFT DO NOT CITE OR QUOTE 487 of 563 5/03/10 (ii) Sampling at other wells will provide an in dication of background groundwater quality that is as representative or more representative than that provided by the upgradient wells; and (2) Represent the quality of groundwater pa ssing the waste boundary. The downgradient monitoring system must be installed at the wa ste boundary that ensures detection of groundwater contamination in the uppermost aquifer. (b) The groundwater monitoring system must in clude at a minimum one up gradient and three downgradient wells. (c) A multiunit groundwater monitoring system may be installed instead of separate groundwater monitoring systems for each CCR landfill or surf ace impoundment when the facility has several units, provided the multi-unit groundwater mon itoring system meets the requirement of §257.91(a) and will be as protective of human health and the environment as individual monitoring systems for each CCR landfill or surface impoundment, based on the following factors: (1) Number, spacing, and orientation of the CCR landfill or surface impoundment; (2) Hydrogeologic setting; (3) Site history; (4) Engineering design of the CCR landfill or surface impoundment, and (d) Monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well cas ing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.DRAFT DO NOT CITE OR QUOTE 488 of 563 5/03/10 (1) The owner or operator of the CCR landfill or surface impoundment must notify the state that the design, installation, development, and deco mmission of any monitoring wells, piezometers and other measurement, sampling, and analytical devices documentation ha s been placed in the operating record and on the owner’s or operato r’s publicly accessible internet site; and (2) The monitoring wells, piezometers, and other measurement, sampling, and analytical devices must be operated and maintained so that they perform to design specifica tions throughout the life of the monitoring program. (e) The number, spacing, and depths of monitoring systems shall be: (1) Determined based upon site -specific technical informati on that must include thorough characterization of: (i) Aquifer thickness, groundwater flow rate, gr oundwater flow directi on including seasonal and temporal fluctuations in groundwater flow; and (ii) Saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials comprising the uppermost aquifer, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer; including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic conductivities , porosities and effective porosities. (2) Certified by an independent registered profes sional engineer or hydrol ogist. Within 14 days of this certification, the owner or operator must notify the state that the certifi cation has been placed in the operating record and on the owner’s or operator’s publicly ac cessible internet site.

§ 257.92 [Reserved]

§ 257.93 Groundwater sampling and analysis requirements.DRAFT DO NOT CITE OR QUOTE 489 of 563 5/03/10 (a) The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitori ng results that provide an accurate representation of groundwater quality at the background and dow ngradient wells installed in compliance with §257.91. The owner or operator of the CCR landfill or surface impoundment must notify the state that the sampling and analysis program doc umentation has been plac ed in the operating record and on the owner’s or operator’s publicly accessible internet site and the program must include procedures and techniques for: (1) Sample collection; (2) Sample preservation and shipment; (3) Analytical procedures; (4) Chain of custody control; and (5) Quality assurance and quality control. (b) The groundwater monitoring program must incl ude sampling and analytical methods that are appropriate for groundwater sampli ng and that accurately measur e hazardous constituents and other monitoring parameters in groundwater samp les. Groundwater samp les shall not be fieldfiltered prior to laboratory analysis. (c) The sampling procedures and frequency mu st be protective of human health and the environment. (d) Groundwater elevations must be measured in each well immediately prior to purging, each time groundwater is sampled. The owner or operator of the CCR landfill or surface impoundment must determine the rate and direc tion of groundwater flow each time groundwater is sampled. Groundwater elevations in wells which monitor the same CCR management areaDRAFT DO NOT CITE OR QUOTE 490 of 563 5/03/10 must be measured within a period of time short enough to avoid temporal variations in groundwater flow which could preclude accurate determination of groundwater flow rate and direction. (e) The owner or operator of the CCR landf ill or surface impoundment must establish background groundwater quality in a hydraulically upgr adient or background well(s) for each of the monitoring parameters or constituents requ ired in the particular groundwater monitoring program that applies to the CCR landfill or surface impoundment, as determined under §257.94(a) or §257.95(a). Background groundwater qualit y may be established at wells that are not located hydraulically upgradient from th e CCR landfill or surface im poundment if it meets the requirements of §257.91(a)(1). (f) The number of samples collected to establis h groundwater quality data must be consistent with the appropriate statistical procedures determined pursuant to paragraph (g) of this section. The sampling procedures shall be those speci fied under §257.94(b) for detection monitoring, §257.95(b) and (c) for assessment monito ring, and §257.96(b) of corrective action. (g) The owner or operator of the CCR landfill or surface impoundment must specify in the operating record and on the owner’s or operator’s publicly accessible internet site, one of the following statistical methods to be used in evaluating groundwater monitoring data for each hazardous constituent. The statistic al test chosen shall be conducted separately for each hazardous constituent in each well. (1) A parametric analysis of variance (ANOVA) followed by multiple comparison procedures to identify statistically significant evidence of c ontamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.DRAFT DO NOT CITE OR QUOTE 491 of 563 5/03/10 (2) An analysis of variance (ANOVA) based on ranks followed by multiple comparison procedures to identify statis tically significant evidence of c ontamination. The method must include estimation and testing of the contrast s between each compliance well's median and the background median levels for each constituent. (3) A tolerance or prediction inte rval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit. (4) A control chart approach that gives control limits for each constituent. (5) Another statistical test met hod that meets the performance sta ndards of paragraph (h) of this section. The owner or operator of the CCR landfill or surface impoundment must place a justification for this alternative in the operati ng record and on the owner’s or operator’s publicly accessible internet site and notify th e state of the use of this alternative test . The justification must demonstrate that the alternative method me ets the performance standards of paragraph (h) of this section. (h) Any statistical method chosen under paragrap h (g) of this section shall comply with the following performance standards, as appropriate: (1) The statistical method used to evaluate groun dwater monitoring data shall be appropriate for the distribution of chemical parameters or haza rdous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator of the CCR landfill or surface impoundment to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.DRAFT DO NOT CITE OR QUOTE 492 of 563 5/03/10 (2) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background c onstituent concentrations or a ground-water protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparison procedure is use d, the Type I experiment wise error rate for each testing period shall be no le ss than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals, or control charts. (3) If a control chart approach is used to eval uate groundwater monitoring data, the specific type of control chart and its associat ed parameter values shall be pr otective of human health and the environment. The parameters shall be determined after considering the number of samples in the background data base, the data di stribution, and the range of the concentration values for each constituent of concern. (4) If a tolerance interval or a predictional inte rval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be protective of human health and the environment. These parameters shall be determined after consider ing the number of samples in the background data base, the data distribution, and th e range of the concentration va lues for each constituent of

concern. (5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantitation limit (pql) that is us ed in the statistical method sha ll be the lowest concentration level that can be reliably achieved within sp ecified limits of precisi on and accuracy during routine laboratory operating conditions that are available to the facility.DRAFT DO NOT CITE OR QUOTE 493 of 563 5/03/10 (6) If necessary, the statistical method shall includ e procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data. (i) The owner or operator of the CCR landfill or surface impoundment must determine whether or not there is a statistically significant incr ease over background values for each parameter or constituent required in the part icular groundwater monitoring pr ogram that applies to the CCR landfill or surface impoundment, as determined under §§257.94(a) or 257.95(a). (1) In determining whether a stat istically significant increase has occurred, the owner or operator must compare the groundwater quality of each pa rameter or constituent at each monitoring well designated pursuant to §257.91(a)(2) to the back ground value of that constituent, according to the statistical procedures and performance standards specified under paragraphs (g) and (h) of this section. (2) Within a reasonable period of time after completing sampling and an alysis, the owner or operator of the CCR landfill or surface impoundment must determine whether there has been a statistically significant increase over background at each monitoring well.

§ 257.94 Detection monitoring program.

(a) Detection monitoring is required at CCR landfills and surface impoundments at all groundwater monitoring wells. At a minimum, a detection monitoring program must include monitoring for the parameters list ed in Appendix III to this part. (b) The monitoring frequency for all parameters list ed in Appendix III to th is part shall be at least semiannual during the active life of th e CCR landfill or surface impoundment (including closure) and the post-closure period. A minimu m of four independent samples from eachDRAFT DO NOT CITE OR QUOTE 494 of 563 5/03/10 background and downgradient well must be co llected and analyzed for the Appendix III parameters during the first semiannual sampling event. (c) At least one sample from each background an d downgradient well must be collected and analyzed during subsequent semiannual sampling events. (d) If the owner or operator of the CCR landfill or surface impoundment determines, pursuant to §257.93(g) that there is a statisti cally significant increase over bac kground for one or more of the parameters listed in Appendix III to this pa rt at any monitoring we ll at the waste boundary specified under §257.91(a)(2), the owner or operator: (1) Must, within 14 days of this finding, place a notice in the operating record and on the owner’s or operator’s publicly accessibl e internet site indicating wh ich parameters have shown statistically significant changes fr om background levels, and notify the state that this notice was placed in the operating record and on the owner’s or operator’s publicly ac cessible internet site; and (2) Must establish an assessment monitoring pr ogram meeting the requirements of §257.95 of this part within 90 days except as provide d for in paragraph (c )(3) of this section. (3) The owner/operator may demonstrate that a source other than the CCR landfill or surface impoundment caused the statistically significant increase or that the statistically significant increase resulted from error in sampling, analysis , statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by an independent registered professional engineer or hydrologist and be placed in the operating record and on the owner’s or operator’s publicly accessibl e internet site and the state notified of this finding. If a successful demonstration is made and documented, the owner or operator of the CCR landfill or surface impoundment may continue detection monitoring as specified in thisDRAFT DO NOT CITE OR QUOTE 495 of 563 5/03/10 section. If, after 90 days, a successful demonstra tion is not made, the owner or operator of the CCR landfill or surface impoundment must initiate an assessment monitoring program as required in §257.95.

§ 257.95 Assessment monitoring program.

(a) Assessment monitoring is required whenev er a statistically significant increase over background has been detected for one or more of the constituents listed in the Appendix III to this part. (b) Within 90 days of triggering an assessment monitoring program, and annually thereafter, the owner or operator of the CCR landfill or surf ace impoundment must sample and analyze the groundwater for all constituents identified in Appendix IV to this part. A minimum of one sample from each downgradient well must be collected and analyzed during each sampling event. For any constituent detected in the downgradient wells as a result of the complete Appendix IV analysis, a minimum of four i ndependent samples from each well (background and downgradient) must be collected and analyzed to establish bac kground for the constituents. (c) After obtaining the results from the initia l or subsequent sampling events required in paragraph (b) of this section, the owner or operator of the CCR landfill or surface impoundment

must: (1) Within 14 days, place a notice in the opera ting record and on the owner’s or operator’s publicly accessible internet site identifying the A ppendix IV constituents th at have been detected and notify the state that this notice has been plac ed in the operating record and on the owner’s or operator’s publicly accessible internet site;DRAFT DO NOT CITE OR QUOTE 496 of 563 5/03/10 (2) Within 90 days, and on at least a semiannual ba sis thereafter, resample all wells specified by §257.91(a), conduct analyses for all parameters in Appendix III to this part and for those constituents in Appendix IV to th is part that are detected in re sponse to paragraph (b) of this section, and record their concentr ations in the facility operati ng record and place the results on the owner’s or operator’s publicly accessible internet site. At least one sample from each well (background and downgradient) must be collected and analyzed during these sampling events. (3) Establish background concentrations for any c onstituents detected pursuant to paragraph (b) or (c)(2) of this section; and (4) Establish groundwater protection standards for all constituents detected pursuant to paragraph (b) or (c) of this section. The groundwater protection standa rds shall be established in accordance with paragraphs (g ) or (h) of this section. (d) If the concentrations of a ll Appendix IV constituents are show n to be at or below background values, using the statistical pr ocedures in §257.93(g), for two c onsecutive sampling events, the owner or operator of the CCR landfill or surface impoundment must place that information in the operating record and on the owner’s or operator’s publicly accessible internet site and notify the state of this finding and may re turn to detection monitoring. (e) If the concentrations of any Appendix IV constituents are above background values, but all concentrations are below the groundwater protec tion standard establishe d under paragraphs (g) or (h) of this section, using the statistical pr ocedures in §257.93(g), the owner or operator must continue assessment monitoring in accordance with this section. (f) If one or more Appendix IV c onstituents are detected at statis tically significant levels above the groundwater protection standard established under paragraphs (g) or (h) of this section in any sampling event, the owner or operator must, within 14 days of this finding, place a notice in theDRAFT DO NOT CITE OR QUOTE 497 of 563 5/03/10 operating record and on the owner’s or operator’s publicly accessible internet site identifying the Appendix IV constituents that have exceeded th e groundwater protection st andard and notify the state and all appropriate local government officials that the notice has been placed in the operating record and on the owner’s or operator’s pub licly accessible internet site. The owner or operator of the CCR landfill or surface impoundment also must: (1)(i) Characterize the nature and extent of th e release by installing a dditional monitoring wells
as necessary; (ii) Install at least one additional monitoring we ll at the facility boundary in the direction of contaminant migration and sample this well in ac cordance with paragraph (c)(2) of this section; (iii) Notify all persons who own the land or reside on the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with paragra ph (f)(1) of this section; and (iv) Initiate an assessment of corrective measures as required by §257.96 of this part within 90 days; or (2) May demonstrate that a s ource other than the CCR landfill or surface impoundment caused the contamination, or that the st atistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natura l variation in groundwa ter quality. A report documenting this demonstration must be certif ied by an independent registered professional engineer or hydrologist and pl aced in the operating record and on the owner’s or operator’s publicly accessible internet site , and the state notified of this action. If a successful demonstration is made the owner or operato r of the CCR landfill or surface impoundment must continue monitoring in accordance with the a ssessment monitoring program pursuant to this section, and may return to detec tion monitoring if the Appendix IV constituents are at or belowDRAFT DO NOT CITE OR QUOTE 498 of 563 5/03/10 background as specified in paragraph (d) of this section. Until a successful demonstration is made, the owner or operator of the CCR landf ill or surface impoundment must comply with paragraph (f) of this section including init iating an assessment of corrective measures. (g) The owner or operator of the CCR landf ill or surface impoundment must establish a groundwater protection standard for each Appendix IV constituent detected in the groundwater. The groundwater protection standard shall be: (1) For constituents for which a maximum contam inant level (MCL) has been promulgated under section 1412 of the Safe Drinking Water Act (c odified) under 40 CFR part 141, the MCL for that constituent; (2) For constituents for which MCLs have not been promulgated, the background concentration for the constituent established from we lls in accordance with §257.91(a)(1); or (3) For constituents for which the background le vel is higher than the MCL identified under paragraph (g)(1) of this section or health based levels identifie d under paragraph (h)(1) of this section, the background concentration. (h) The owner or operator may establish an a lternative groundwater pr otection standard for constituents for which MCLs have not been es tablished provided thatthe alternative groundwater protection standard has been certified by an independent registered professional engineer and the state has been notified that the altern ative ground-water protection standard has been placed in the operating record and on the owner’s or operator’s publicly acce ssible internet site. These groundwater protection standa rds shall be appropriate health based levels that satisfy the following criteria: (1) The level is derived in a manner consistent with Agency guidelines for assessing the health risks of environmental pollutants;DRAFT DO NOT CITE OR QUOTE 499 of 563 5/03/10 (2) The level is based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Labor atory Practice Standards (40 CFR part 792) or equivalent; (3) For carcinogens, the level re presents a concentration associ ated with an excess lifetime cancer risk level (due to continuous lifetime exposure) within the 1×10 − 4 to 1×10 − 6 range; and (4) For systemic toxicants, the level represents a concentration to which the human population (including sensitive subgroups) could be exposed to on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime. For purposes of this subpart, systemic
toxicants include toxic chemicals that cause e ffects other than cancer or mutation. (ii) [Reserved] (i) In establishing groundwater protection standards under paragr aph (h) of this section, the owner or operator of the CCR landfill or surf ace impoundment may consider the following: (1) Multiple contaminants in the groundwater; (2) Exposure threats to sensitiv e environmental receptors; and (3) Other site-specific exposure or potential exposure to groundwater.

§ 257.96 Assessment of corrective measures.

(a) Within 90 days of finding that any of the constituents listed in Appendix IV to this part have been detected at a statistically significant le vel exceeding the groundwater protection standards defined under §257.95 (g) or (h) of this part, the ow ner or operator of the CCR landfill or surface impoundment must initiate an assessment of corr ective measures. Such an assessment must be completed within 90 days.DRAFT DO NOT CITE OR QUOTE 500 of 563 5/03/10 (b) The owner or operator of the CCR landfill or surface impoundment must continue to monitor in accordance with the assessment mon itoring program as specified in §257.95. (c) The assessment shall include an analysis of th e effectiveness of potential corrective measures in meeting all of the requirements and obj ectives of the remedy as described under §257.97, addressing at least the following: (1) The performance, reliability, ease of implem entation, and potential im pacts of appropriate potential remedies, including safety impacts, cr oss-media impacts, and control of exposure to any residual contamination; (2) The time required to begi n and complete the remedy; (3) The costs of remedy implementation; and (4) The institutional requirements such as state or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy(s). (d) The owner or operator of the CCR landfill or surface impoundment must provide notification of the corrective measures assessm ent to the state and the public. (e) The owner or operator must discuss the results of the corrective measures assessment, prior to the selection of remedy, in a public meeting with interested and affected parties.

§ 257.97 Selection of remedy.

(a) Based on the results of the corrective measures assessment conducted under §257.96, the owner or operator of the CCR landfill or surfac e impoundment must select a remedy that, at a minimum, meets the standards listed in paragraph (b) of this section. Th e owner or operator ofDRAFT DO NOT CITE OR QUOTE 501 of 563 5/03/10 the CCR landfill or surface impoundment must notify th e state and the public within 14 days of selecting a remedy, that a report ce rtified by an independent regist ered professional engineer or hydrologist describing the selected remedy, has been placed in the operating record and on the owner’s or operator’s publicly accessible inte rnet site, and how it meets the standards in paragraph (b) of this section. (b) Remedies must: (1) Be protective of human health and the environment; (2) Attain the groundwater protection standard as specified pursuant to §§257.95 (g) or (h); (3) Control the source(s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of Appendix IV of th is part constituents into the environment that may pose a threat to human health or the environment; and (4) Comply with standards for management of wastes as sp ecified in §257.98(d). (c) In selecting a remedy that meets the standards of paragraph (b) of this section, the owner or operator of the CCR landfill or surface impoundment shall consider the following evaluation factors: (1) The long- and short-term effectiveness a nd protectiveness of the potential remedy(s), along with the degree of certainty that the remedy will prove successful based on consideration of the following: (i) Magnitude of reduction of existing risks; (ii) Magnitude of residual risk s in terms of likelihood of furthe r releases due to CCRs remaining following implementation of a remedy; (iii) The type and degree of l ong-term management required, including monitoring, operation, and maintenance;DRAFT DO NOT CITE OR QUOTE 502 of 563 5/03/10 (iv) Short-term risks th at might be posed to th e community, workers, or the environment during implementation of such a remedy, including po tential threats to hum an health and the environment associated with excavation, tran sportation, and redisposal of containment; (v) Time until full protection is achieved; (vi) Potential for exposure of humans and e nvironmental receptors to remaining wastes, considering the potential threat to human health and the environm ent associated with excavation, transportation, redisposal, or containment; (vii) Long-term reliability of the engi neering and institutional controls; and (viii) Potential need for replacement of the remedy. (2) The effectiveness of the remedy in controlling the source to reduce further releases based on consideration of th e following factors: (i) The extent to which containment practices will reduce further releases; (ii) The extent to which treat ment technologies may be used. (3) The ease or difficulty of implementing a po tential remedy(s) based on consideration of the following types of factors: (i) Degree of difficulty associated with constructing the technology; (ii) Expected operational relia bility of the technologies; (iii) Need to coordinate with and obtain necessary approvals and permits from other agencies; (iv) Availability of necessary equipment and specialists; and (v) Available capacity and locat ion of needed treatment, stor age, and disposal services. (4) The degree to which community concerns are addressed by a potential remedy(s). (d) The owner or operator of the CCR landfill or surface impoundment shall specify as part of the selected remedy a schedule(s) for initiating and completing remedial activities. Such aDRAFT DO NOT CITE OR QUOTE 503 of 563 5/03/10 schedule must require the initia tion of remedial activities with in a reasonable period of time taking into consideration the factor s set forth in paragraphs (d) (1 ) through (8) of this section. The owner or operator of the CCR landfill or su rface impoundment must consider the following factors in determining the schedule of remedial activities: (1) Extent and nature of contamination; (2) Reasonable probabilities of remedial t echnologies in achieving compliance with the groundwater protection standards es tablished under §257.95 (f) or (g) and other objectives of the remedy; (3) Availability of treatment or disposal cap acity for CCRs managed during implementation of the remedy; (4) Desirability of utilizing t echnologies that are not currently available, but which may offer significant advantages over alrea dy available technologies in terms of effectiveness, reliability, safety, or ability to ac hieve remedial objectives; (5) Potential risks to human hea lth and the environment from exposure to contamination prior to completion of the remedy; (6) Resource value of the aquifer including: (i) Current and future uses; (ii) Proximity and withdrawal rate of users; (iii) Groundwater quantity and quality; (iv) The potential damage to wildlife, crops, vegetation, a nd physical structures caused by exposure to CCR constituents; (v) The hydrogeologic characteristic of the facility and surrounding land; (vi) Groundwater removal and treatment costs; andDRAFT DO NOT CITE OR QUOTE 504 of 563 5/03/10 (vii) The cost and availability of alternative water supplies. (7) Other relevant factors. (e) The owner or operator of the CCR landfill or surface impoundment may determine that remediation of a release of an Appendix IV constituent from a CCR landfill or surface impoundment is not necessary if the owner or operator of the CCR landfill or surface impoundment demonstrates the following, and notifie s the state that the demonstration, certified by an independent registered professional engi neer or hydrologist, has been placed in the operating record and on the owner’s or opera tor’s publicly accessible internet site: (1) The groundwater is additionally contaminated by substances that have originated from a source other than a CCR landfill or surface impound ment and those substances are present in concentrations such that cleanup of the rel ease from the CCR landfill or surface impoundment would provide no significant reduction in ri sk to actual or potential receptors; or (2) The constituent(s) is pr esent in groundwater that: (i) Is not currently or reasonably expected to be a source of drinking water; and (ii) Is not hydraulically connected with waters to which the hazardous constituents are migrating or are likely to migrate in a concentration( s) that would exceed the ground-water protection standards established un der §257.95 (g) or (h); or (3) Remediation of the release(s) is technically impracticable; or (4) Remediation results in unacceptable cross-media impacts. (f) A determination by the owner or operator pursu ant to paragraph (e) of this section shall not affect the obligation of the ow ner or operator to u ndertake source control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, toDRAFT DO NOT CITE OR QUOTE 505 of 563 5/03/10 prevent exposure to the groundwater, or to remedi ate the groundwater to c oncentrations that are reasonable and significantly reduce threats to human health or the environment.

§ 257.98 Implementation of the corrective action program.

(a) Based on the schedule esta blished under §257.97(d) for initiati on and completion of remedial activities the owner or operator must: (1) Establish and implement a corrective action groundwater mon itoring program that: (i) At a minimum, meets the requirements of an assessment monitoring program under §257.95; (ii) Indicates the effectiveness of the corrective action remedy; and (iii) Demonstrates compliance with ground-water pr otection standard pursua nt to paragraph (e) of this section. (2) Implement the corrective acti on remedy selected under §257.97; and (3) Take any interim measures necessary to en sure the protection of human health and the environment. Interim measures s hould, to the greatest extent pract icable, be consistent with the objectives of and contribute to the performance of any remedy th at may be required pursuant to §257.97. The following factors must be considered by an owner or operator in determining whether interim measures are necessary: (i) Time required to develop and implement a final remedy; (ii) Actual or potential exposure of nearby populati ons or environmental receptors to any of the Appendix IV constituents; (iii) Actual or potential contamination of dr inking water supplies or sensitive ecosystems;DRAFT DO NOT CITE OR QUOTE 506 of 563 5/03/10 (iv) Further degradation of the groundwater that may occur if re medial action is not initiated expeditiously; (v) Weather conditions that may cause any of th e Appendix IV of this part constituents to migrate or be released; (vi) Potential for exposure to any of the Appendix IV of this part constitu ents as a result of an accident or failure of a container or handling system; and (vii) Other situations that may pose threat s to human health and the environment. (b) An owner or operator of the CCR landfill or surface impoundment may determine, based on information developed after implementation of the remedy has begun or other information, that compliance with requirements of §257.97(b) are not being achieved through the remedy selected. In such cases, the owner or operator of the CCR landfill or surface impoundment must implement other methods or techniques that could reasonably achieve compliance with the requirements, unless the owner or operator makes the determinat ion under paragraph (c) of this section. (c) If the owner or operator determines that compliance with requirements under §257.97(b) cannot be reasonably achieved with any currently available methods, the owner or operator of the CCR landfill or surface impoundment must: (1) Obtain certification of an independent registered professiona l engineer or hydrologist that compliance with requirements under §257.97(b) cannot be reasonably achieved with any currently available methods; (2) Implement alternate measures to control expo sure of humans or the environment to residual contamination, as necessary to protect human health and the environment; andDRAFT DO NOT CITE OR QUOTE 507 of 563 5/03/10 (3) Implement alternate measures for control of the sources of contamination or for removal or decontamination of equipment, units, devices, or st ructures that are consis tent with the overall objective of the remedy. (4) Notify the state within 14 days that a report, including the cer tification required in paragraph (c)(1) of this section, ju stifying the alternative measures pr ior to implementing the alternative measures has been placed in the operating reco rd and on the owner’s or operator’s publicly accessible internet site. (d) All CCRs that are managed pursuant to a remedy required under §257.97, or an interim measure required under paragraph (a)(3) of this section, shal l be managed in a manner: (1) That is protective of human health and the environment; and (2) That complies with applicable RCRA requirements. (e) Remedies selected pursuant to §2 57.97 shall be considered complete when: (1) The owner or operator of the CCR landf ill or surface impoundment complies with the groundwater protection standards established und er §§257.95 (h) or (i) at all points within the plume of contamination that lie beyond the gr oundwater monitoring well system established under §257.91(a). (2) Compliance with the groundwater protection standards established under §§257.95 (h) or (h) has been achieved by demonstrati ng that concentrations of Appe ndix IV constituents have not exceeded the groundwater protection standard(s) for a period of thr ee consecutive years using the statistical procedures and performance standards in §257.93 (g) and (h). (3) All actions required to complete the remedy have been satisfied. (f) Upon completion of the remedy, the owner or operator of the CCR landfill or surface impoundment must notify the state within 14 days that a certification that the remedy has beenDRAFT DO NOT CITE OR QUOTE 508 of 563 5/03/10 completed in compliance with the requirements of paragraph (e) of this s ection has been placed in the operating record and on the owner’s or oper ator’s publicly accessible internet site. The certification must be signed by the owner or operator and by an independent registered professional engine er or hydrologist.

§ 257.99 [Reserved]

Closure and Post-Closure Care

§ 257.100 Closure criteria.

(a) Prior to closure of any CCR landfill or surf ace impoundment covered by this subpart, the owner or operator shall submit to the state, a plan for closure of the unit based on recognized and generally accepted good engineering practices an d certified by an independent registered professional engineer. The closure plan shall be c onsistent with paragraph (g) of this section and provide for major slope stabilit y, include a schedule for the plan's implementation and contain provisions to preclude the probability of future impoundment of water, sediment, or slurry. The closure plan shall be placed in the operating record and on the owner’s or operator’s publicly accessible internet site. (b) Closure of a CCR landfill or surface impoundme nt may be accomplished with CCRs in place or through CCR removal and decontamination of all areas affected by releases from the CCR landfill or surface impoundment. CCR removal and decontamination are complete when constituent concentrations throughout the CCR landfill or surface impoundment and any areasDRAFT DO NOT CITE OR QUOTE 509 of 563 5/03/10 affected by releases from the CCR landfill or surface impoundment do not exceed numeric cleanup levels for those constituents found in the CCRs established by th e state in which the CCR landfill or surface impoundment is located. (c) At closure, the owner or ope rator of a surface impoundment must: (1) Eliminate free liquids by removing liquid wast es or solidifying the remaining wastes and waste residues; (2) Stabilize remaining wastes to a bearing cap acity sufficient to support the final cover; and (3) Cover the surface impoundment with a fi nal cover designed and constructed to: (i) Provide long-term minimization of the migra tion of liquids through th e closed impoundment; (ii) Function with minimum maintenance; and (iii) Promote drainage and minimize erosion or abrasion of the cover; (iv)Accommodate settling and s ubsidence so that the cover's integrity is maintained; and (v) Have a final cover system that meet s the requirements of subsection (d). (d) For closure with CCRs in place, a final cove r system must be installed at all CCR landfills and surface impoundments that is designed to mini mize infiltration and erosion. The final cover system must be designed and constructed to: (1) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils pres ent, or a permeability no greater than 1×10 − 5 cm/sec, whichever is less, and (2) Minimize infiltration through the closed CCR landfill or surface impoundment by the use of an infiltration layer that contains a mi nimum 18-inches of earthen material, and (3) Minimize erosion of the final cover by the use of an erosion layer that contains a minimum 6- inches of earthen material that is capa ble of sustaining nati ve plant growth, andDRAFT DO NOT CITE OR QUOTE 510 of 563 5/03/10 (4) Minimize the disruption of the final cover through a design that accommodates settling and subsidence. (e) The owner or operator of the CCR landfill or surface impoundment may se lect an alternative final cover design, provided the alternative cover design is certified by an independent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternativ e cover design has been placed in the operating record and on the owner’s or operator’s publicly acce ssible internet site. The alte rnative final cover design must include: (1) An infiltration layer that achieves an equiva lent reduction in infiltration as the infiltration layer specified in paragraphs (d)( 1) and (d)(2) of this section, and (2) An erosion layer that provi des equivalent protection from wind and water erosion as the erosion layer specified in para graph (d)(3) of this section. (f) The design of the final cover system shall be placed on the owner’s or operator’s publicly accessible internet site. (g) The owner or operator of the CCR landfill or surface impoundment must prepare a written closure plan that describes th e steps necessary to close the CCR landfill or surface impoundment at any point during the active life in accordance w ith the cover design requirements in paragraph (d) or (e) of this section, as applicable. The closure plan, at a minimum, must include the following information: (1) A description of the final cover, designed in accordance with paragra ph (d) or (e) of this section and the methods and procedures to be used to install the cover; (2) An estimate of the largest area of the CCR landfill or surface impoundment ever requiring a final cover as required under paragr aph (d) or (e) of this section at any time during the active life;DRAFT DO NOT CITE OR QUOTE 511 of 563 5/03/10 (3) An estimate of the maximum inventory of CCRs ever on-site over the active life of the CCR landfill or surface impoundment; and (4) A schedule for completing all activities necessary to satisfy the closure cr iteria in this section. (h) The owner or operator of the CCR landfill or surface impoundment must notify the state that a closure plan, certified by an independent regist ered professional engineer, has been prepared and placed in the operating record and on the ow ner’s or operator’s publicly accessible internet site no later than the effective date of this pa rt, or by the initial rece ipt of CCRs, whichever is later. (i) Prior to beginning closure of each CCR landf ill or surface impoundment as specified in paragraph (j) of this section, an owner or operator of a CCR landfill or surface impoundment must notify the state that a notice of the intent to close the unit has been placed in the operating record and on the owner’s or operato r’s publicly accessible internet site. (j) The owner or operator of the CCR landfill or surface impoundment must begin closure activities no later than 30 days after the date on which the CCR landfill or surface impoundment receives the known final receipt of CCR or, if the CCR landfill or surface impoundment has remaining capacity and there is a reasonabl e likelihood that the CCR landfill or surface impoundment will receive additional CCRs, no later th an one year after the most recent receipt of CCRs. (k) The owner or operator of the CCR landfill or surface impoundment must complete closure activities in accordance with the closure plan within 180 days following the beginning of closure as specified in paragraph (j) of this section. (l) Following closure of each CCR landfill or su rface impoundment, the owner or operator of the CCR landfill or surface impoundment must notify th e state that a certif ication, signed by anDRAFT DO NOT CITE OR QUOTE 512 of 563 5/03/10 independent registered professi onal engineer, verifying that cl osure has been completed in accordance with the closure plan and the requirements of this subpart that has been placed in the operating record and on the owner’s or opera tor’s publicly accessible internet site. (m)(1) Following closure of all CCR landfills or surface impoundments, the owner or operator of the CCR landfill or surface impoundment must record a notation on the deed to the property, or some other instrument that is normally examined during title search, and notify the state that the notation has been recorded and a copy has b een placed in the operating record and on the owner’s or operator’s public ly accessible internet site. (2) The notation on the deed must in perpetuity notify any poten tial purchaser of the property that: (i) the land has been used as a CCR landfill or surface impoundment; and (ii) its use is restrict ed under § 257.101(c)(3).

§ 257.101 Post-closure care requirements.

(a) Following closure of each CCR landfill or su rface impoundment, the owner or operator must conduct post-closure care. Post-closure care must be conducted for 30 years, except as provided under paragraph (b) of this section, a nd consist of at least the following: (1) Maintaining the integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of set tlement, subsidence, erosion, or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover; (2) Maintaining the integrity and effectiveness of the leachate collection and removal system and operating the leachate collection and removal syst em in accordance with the requirements ofDRAFT DO NOT CITE OR QUOTE 513 of 563 5/03/10 §§ 257.70, 257.71, and 257.72. (3) Maintaining the groundwat er monitoring system and mo nitoring the groundwater in accordance with the requirements of §§ 257.91 through 257.98 of this part. (b) The length of the post- closure care period may be: (1) Decreased if the owner or operator of the CCR landfill or surface impoundment demonstrates that the reduced period is suffi cient to protect human health and the environment and this demonstration is certified by an independent re gistered professional e ngineer and notice is provided to the state that the demonstration has been placed in the operating record and on the owner’s or operator’s publicly accessible inte rnet site; or (2) Increased if the owner or operator of the CCR landfill or surface impoundment determines that a lengthened period is necessary to pr otect human health and the environment. (c) The owner or operator of the CCR landfill or surface impoundment must prepare a written post-closure plan, certified by an independent registered professiona l engineer that includes, at a minimum, the following information: (1) A description of the monitoring and maintenan ce activities required in paragraph (a) of this section for each CCR landfill or surface impound ment, and the frequency at which these activities will be performed; (2) Name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and (3) A description of the planned uses of the prop erty during the post-closur e period. Post-closure use of the property shall not disturb the integrit y of the final cover, liner(s), or any other components of the containment system, or th e function of the monitoring systems unless necessary to comply with the requ irements in this subpart. Any other disturbance is allowed ifDRAFT DO NOT CITE OR QUOTE 514 of 563 5/03/10 the owner or operator of the CCR landfill or surf ace impoundment demonstrates that disturbance of the final cover, liner or other component of the containment system, including any removal of CCRs, will not increase the potential threat to human health or the environment. The demonstration must be certified by an indepe ndent registered prof essional engineer, and notification shall be provided to the state that the demonstration has been placed in the operating record and on the owner’s or operato r’s publicly accessible internet site. (d) The owner or operator of the CCR landfill or surface impoundment must notify the state that a post-closure plan has been prepared and placed in the operating record and on the owner’s or operator’s publicly accessible internet site no later than the effective date of this rule, or by the initial receipt of CCRs, whichever is later. (e) Following completion of the post-closur e care period for the CCR landfill or surface impoundment, the owner or operator of the CCR la ndfill or surface impoundment must notify the state that a certification, signed by an independent regist ered professional engi neer, verifying that post-closure care has been completed in accordance w ith the post-closure plan has been placed in the operating record and on the owner’s or operator’s publicly accessi ble internet site.

§§ 257.102 - 257.109 [Reserved]

APPENDIX III to Part 257 – CONSTITU ENTS FOR DETECT ION MONITORING
Common Name 1
Boron Chloride ConductivityDRAFT DO NOT CITE OR QUOTE 515 of 563 5/03/10 Flouride pH Sulphate Sulfide Total Dissolved Solids

1 Common names are those widely used in governme nt regulations, scient ific publications, and commerce; synonyms exist for many chemicals.

APPENDIX IV to Part 257 – CONSTITU ENTS FOR ASSESSM ENT MONITORING
Common Name 1
Aluminum Antimony Arsenic Barium Beryllium
Boron Cadmium Chloride Chromium (total) Copper Flouride
IronDRAFT DO NOT CITE OR QUOTE 516 of 563 5/03/10 Lead Manganese Mercury Molybdenum pH Selenium Sulphate Sulfide Thallium Total Dissolved Solids

1 Common names are those widely used in governme nt regulations, scient ific publications, and commerce; synonyms exist for many chemicals.DRAFT DO NOT CITE OR QUOTE 517 of 563 5/03/10 

# ****Co-proposal Under Authority of Subtitle C****

For the reasons set out in the pr eamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 261—IDENTIFICATION AND LI STING OF HAZARDOUS WASTE

6. The authority citation for part 261 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938.

7. Section 261.4 is amended by revising pa ragraph (b)(4) to read as follows. § 261.4 Exclusions.
* * * * * (b)(4)(i) Fly ash, bottom ash, boiler slag, and flue gas emission control wastes, generated primarily from the combustion of coal for the pu rpose of generating elec tricity by the electric power sector if the fly ash, bottom ash, boiler sl ag, and flue gas emission control wastes are beneficially used or placed in minefilling opera tions. Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provid es a functional benefit; replaces the use of an alternative material, conserving natural resources that would otherwise need to be obtained through practices such as extraction; and meets re levant product specifi cations and regulatory standards (where these are available). CCPs that are used in excess quanti ties, placed as fill in sand and gravel pits, or used in large scale fill pr ojects, such as for restructuring the landscape, are not considered beneficial uses.DRAFT DO NOT CITE OR QUOTE 518 of 563 5/03/10 (ii) Fly ash, bottom ash, boiler slag, and fl ue gas emission control wastes generated primarily from the combustion of coal for the pu rpose of generating electricity by facilities outside of the electric power sector (i .e., not included in NAICS code 221112). (iii) Fly ash, bottom ash, boiler slag, and fl ue gas emission control wastes, generated primarily from the combustion of fossil fuels ot her than coal, for the purpose of generating electricity, except as provided by § 266.112 of this chapter for facilities that burn or process hazardous waste.

* * * * *

8. Part 261 is amended by adding Subpart F to read as follows. Subpart F – Special Wastes Subjec t to Subtitle C Regulations

Sec. 261.50 General

Subpart F – Special Wastes Subjec t to Subtitle C Regulations

§ 261.50 General

(a) The following solid wastes are special wast es subject to regulati on under parts 262 through 268, and parts 270, 271, and 124 of this chapter, and to the notification requirements of section 3010 of RCRA,DRAFT DO NOT CITE OR QUOTE 519 of 563 5/03/10 Industry and EPA special waste No. Special waste Hazard code

Coal Combustion Residuals:
*
S001 .......... * * * * * Coal combustion residuals ge nerated by the electric power sector (Electric Utilitie s and Independent Power Producers). * (T)

(b) For the purposes of this lis ting, the electric power sector is defined as electricity-only and combined-heat-and-power (CHP) plants whose pr imary business is to sell electricity, or electricity and heat, to the pub lic; i.e., NAICS code 221112 plants. Coal combustion residuals are defined to include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated by the electric utility industry. This listing does not apply to coal combustion residuals that are: (1) uniquely associated wastes as define d in paragraph (c) of this section; (2) beneficially used as de fined in paragraph (d); (3) placed in minefilling operations; (4) generated by facilities outside the electric power sector (i.e ., not included in NAICS code 22112); orDRAFT DO NOT CITE OR QUOTE 520 of 563 5/03/10 (5) generated from clean-up activi ties that are conducted as part of a state or federally required clean-up that commenced prior to the effective date of this rule. (c) Uniquely associated wastes are low-volum e wastes other than t hose defined as coal combustion residuals in paragraph (a) of this section that are related to the coal combustion process. Examples of uniquely associated wastes are precipitation runoff from coal storage piles at the facility, waste coal or coal mill rejects th at are not of sufficient quality to burn as fuel, and wastes from cleaning the boile rs used to generate steam. (d) Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an altern ative material, conserving natural resources that would otherwise need to be obtained through prac tices such as extraction; and meets relevant product specifications and regulator y standards (where these are av ailable). CCPs that are used in excess quantities, placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, ar e not considered beneficial uses.

9. Part 261 is amended by adding A ppendix X to read as follows.

APPENDIX X TO PART 261—BASIS FOR LISTING SPECIAL WASTES EPA special

waste No. Hazardous constituents for which listed

S001.......... Antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, thallium.DRAFT DO NOT CITE OR QUOTE 521 of 563 5/03/10 PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

10. The authority citation for part 26 4 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

11. Section 264.1 is amended by adding pa ragraph (k) to read as follows:

§ 264.1 Purpose, scope and applicability
* * * * * (k) Owners or operators who treat, store or di spose of EPA Special Waste Number S001, also referred to as coal combustion residuals are subject to the requirements of this part, except as specifically provided otherwise in this part. In addition, subp art FF of this part includes additional requirements for the tr eatment, storage or disposal of EPA Special Waste Number
S001.

12. Section 264.140 is amended by revising pa ragraph (a) to read as follows:

§ 264.140 Applicability (a) The requirements of §§ 264.142, 264.143, and 264.147 through 264.151 apply to owners and operators of all hazardous waste f acilities and facilities that trea t, store or dispose of special wastes, except as provided othe rwise in this section, or in § 264.1.DRAFT DO NOT CITE OR QUOTE 522 of 563 5/03/10 * * * * *

13. Part 264 is amended by adding subpart FF to read as follows:

Subpart FF – Special Requirements for C oal Combustion Re sidual (S001) Wastes
Sec. 264.1300 Applicability. 264.1301 Definitions. 264.1302 Reporting. 264.1303 Surface Impoundments. 264.1304 Inspection Requirements for Surface Impoundments. 264.1305 Requirements for Surface Impoundment Closure. 264.1306 Landfills. 264.1307 Surface Water Requirements. 264.1308 Air Requirements.

Subpart FF – Special Requirements for C oal Combustion Re sidual (S001) Wastes

§ 264.1300 Applicability. The regulations in this subpart apply to owners or operators of facilities that treat, store or dispose of EPA Special Wa ste Number S001. Owners or operators of surface impoundments that cease receiving EPA Special Waste Number S001, must comply with the closure re quirements in 40 CFR 265.111 and 40 CFR 265.228.DRAFT DO NOT CITE OR QUOTE 523 of 563 5/03/10 Facilities that have not met these closure requir ements by the effective date of this regulation would be subject to the requirement s in Parts 260-268, and 270-272.

§ 264.1301 Definitions. This section contains definitions for terms th at appear throughout th is subpart; additional definitions appear in 40 CFR 260.10 or the specific sections to which they apply. Area-capacity curves means graphic curves which readily sh ow the reservoir water surface area, in acres, at different elevations from the bottom of the reservoir to the maximum water surface, and the capacity or volume, in acre-feet, of th e water contained in th e reservoir at various elevations. CCR Landfill means a disposal facility or part of a facility where CCRs are placed in or on land and which is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed forma tion, an underground mine, a cave, or a corrective action management unit. For purposes of this su bpart, landfills also include piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills. CCR Surface Impoundment or impoundment means a facility or part of a facility which is a natural topographic depression, man-made excavati on, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and wh ich is not an injection well. Examples of CCR surface impoundments are holding, storage, se ttling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixedDRAFT DO NOT CITE OR QUOTE 524 of 563 5/03/10 with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes. Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, destined for disposal . CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes, when destined for disposal. Existing CCR Landfill means a landfill which was in operation or for which construction commenced prior to the effective date of the final rule. A CCR landfill has commenced construction if the owner or operator has obtaine d the Federal, State a nd local approvals or permits necessary to begin physic al construction; and either (1) A continuous on-site, physical construction program has begun; or (2) The owner or operator has entered into contractual obligations—which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time. Existing CCR Surface Impoundment means a surface impoundment which was in operation or for which construction commenced prior to the e ffective date of the final rule. A CCR surface impoundment has commenced construction if the ow ner or operator has obtained the Federal, State and local approvals or permits necessary to begin physical cons truction; and either (1) A continuous on-site, physical construction program has begun; or (2) The owner or operator has entered into contractual obligations—which can not be cancelled or modified without substantial loss—for physic al construction of the CCR surface impoundment to be comple ted within a reasonable time.DRAFT DO NOT CITE OR QUOTE 525 of 563 5/03/10 Factor of safety (Safety factor) means the ratio of the forces te nding to resist the failure of a structure to the forces tending to cause such failure as determined by recognized and generally accepted good engineering practices. Hazard potential means the possible adverse incrementa l consequences that result from the release of water or stored contents due to failu re of a dam (or impoundment) or mis-operation of the dam or appurtenances. High hazard potential surface impoundment means a surface impoundment where failure or mis-operation will probably cause loss of human life. Significant hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of huma n life, but can cause economic loss, environment damage, disruption of life line facilities, or imp act other concerns. Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/or environmental losses. Losses are principall y limited to the surface impoundment owner’s property. Less than low hazard potential surface impoundment means a surface impoundment not meeting the definitions for High, Significant, or Low Hazard Potential. Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or CCR surface impoundment made afte r the effective date of the final rule. New CCR landfill means a landfill, including lateral expansions, or installation from which there is or may be placement of CCRs without the pr esence of free liquids, which began operation, or for which the construction commenced after the effective date of the final rule.DRAFT DO NOT CITE OR QUOTE 526 of 563 5/03/10 New CCR surface impoundment means a surface impoundment, incl uding lateral expansions, or installation from which there is or may be placem ent of CCRs with the presence of free liquids, which began operation, or for which the constructi on commenced after the effective date of the final rule. Probable maximum precipitation means the value for a particular area which represents an envelopment of depth-duration-ar ea rainfall relations for all st orm types affecting that area adjusted meteorologically to maximum conditions. Recognized and generally accepted good engineering practices (RAGAGEPs) means engineering, operation, or maintenance activi ties based on established codes, standards, published technical reports or r ecommended practices (RP) or a similar document. RAGAGEPs detail generally approved ways to perform sp ecific engineering, insp ection or mechanical integrity activities.

§ 264.1302 Reporting. (a) Except as provided in paragra ph (b) of this section, every twelfth month fo llowing the date of the initial plan approval required in § 264.1303, the person owning or operating a CCR surface impoundment that has not been properly closed in accordance with an approved plan shall submit to the Regional Administrator a repo rt containing the following information: (1) Changes in the geometry of the CCR surface impoundment for the reporting period. (2) Location and type of insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period. (3) The minimum, maximum, and present dept h and elevation of the CCR slurry and CCR wastewater in the CCR surface impoundment for the reporting period.DRAFT DO NOT CITE OR QUOTE 527 of 563 5/03/10 (4) The storage capacity of the CCR surface impoundment. (5) The volume of the CCR slurry and CCR wast ewater in the CCR surface impoundment at the end of the reporting period. (6) Any other change which may have affected the stability or ope ration of the CCR surface impoundment that has occurred during the reporting period. (7) A certification by an independe nt registered prof essional engineer that all construction, operation, and maintenance are in accordance with the approved plan prepared in accordance with § 264.1303. (b) A report is not required under this secti on when the person owning or operating the CCR surface impoundment provides the Regional Administra tor with a certifica tion by an independent registered professional engineer that there have been no chan ges in the operation of the CCR surface impoundment or to any of the parameters previously reported under paragraphs (a)(1) through (a)(6) of this section. However, a report containing the in formation set out in paragraph (a) of this section shall be submitted to the Regional Administrator at least every 5 years.

§ 264.1303 Surface Impoundments. (a) In addition to the requiremen ts in subpart K of this part , EPA Special Waste No. S001 is subject to the requireme nts in this section. (b) Plans for the design, construction, and maintenance of existing CCR surface impoundments shall be required if such a unit can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or (2) Impound CCRs to an elevation of 20 feet or mo re above the upstream toe of the structure.DRAFT DO NOT CITE OR QUOTE 528 of 563 5/03/10 (c) Plans required under paragraph (b) of this section shall be submitte d in triplicate to the Regional Administrator on or before [ insert date one year after th e effective date of the final
rule ]. (d) A permanent identification marker, at leas t six feet high and show ing the identification number of the CCR surface impoundment as assigned by the Regional Administrator, the name associated with the CCR surface impoundment and the name of the person owning or operating the structure, shall be located on or immediat ely adjacent to each CCR surface impoundment by [ insert date 60 days after the effective date of the final rule ]. (e) The plan specified in paragr aph (b) of this section, shall c ontain at a minimum the following information: (1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment as assigned by the Regional Administrator. (2) The location of the CCR surface impoundment indicated on the most recent USGS 71⁄2 minute or 15 minute topographic quadrangle map, or a topographic map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment. (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site preparation and construction of each zone of the CCR surface impoundment; the approximateDRAFT DO NOT CITE OR QUOTE 529 of 563 5/03/10 dates of construction, and each successive st age of construction of the CCR surface impoundment; and for existing CCR surface impoundments, such history of construction as may be available, and any record or knowledge of structural instability. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensional drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level and CCR wastewater leve l, and other information pe rtinent to the CCR surface impoundment itself, including any id entifiable natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) The hazard potential classification for wh ich the facility is designed and a detailed explanation of the basis for this classification. (11) A statement of the runoff attributable to the storm for which the CCR surface impoundment is designed and the calculati ons used in determining such runoff and the minimum freeboard during the design storm. (12) A description of the spillway and diversion design features and capacities and calculations used in their determination. (13) The computed minimum factor of safety for slope stability of the CCR retaining structure(s) and the analyses used in their determinations.DRAFT DO NOT CITE OR QUOTE 530 of 563 5/03/10 (14) The construction specifications and provisions for surveillance, maintenance, and repair of the CCR surface impoundment. (15) General provisions for closure. (16) Such other information pertaining to the CCR surface impoundment which may be requested by the Regional Administrator. (17) A certification by an independe nt registered professional engi neer that the design of the CCR surface impoundment is in accordance w ith recognized and generally accepted good engineering practices for the maximum volume of CCR slurry and CCR wastewater which can be impounded therein and for the passage of ru noff from the design storm which exceeds the capacity of the CCR surface impoundment; or, in lie u of the certification, a report indicating what additional investigations , analyses, or improvement work are necessary before such a certification can be made by an independent registered professi onal engineer, including what provisions have been made to carry out such wo rk in addition to a schedule for completion of such work. (f) Any changes or modifications to the plan s for CCR surface impoundments shall be approved by the Regional Administrator prior to the in itiation of such changes or modifications. (g) Effective [ insert date two years after the effective date of the final rule ], all existing CCR surface impoundments that receive CCRs sha ll be operated and maintained with: (1) A run-on control system to prevent fl ow onto the active portion of the CCR surface impoundment during the peak discharg e from a 24-hour, 25-year storm; (2) A run-off control system from the active portion of the CCR surface impoundment to collect and control at least the water volume resulting from a 24-hour, 25-ye ar storm. Run-off from the active portion of the CCR surface impoundment mu st be handled in accordance with § 264.1307.DRAFT DO NOT CITE OR QUOTE 531 of 563 5/03/10 (h) For CCR surface impoundments classified as ha ving high or significant hazard potential, the owner or operator shall develop and maintain in the operating record an Emergency Action Plan which: defines responsible person s and the actions to be taken in the event of a dam-safety emergency; provides contact information for emergency re sponders; includes a map which delineates the downstream area wh ich would be affected in the event of a dam failure; and includes provisions for an annual face-to-face mee ting or exercise between representatives of the facility owner and the lo cal emergency responders.

§ 264.1304 Inspection Requirements for Surface Impoundments. (a) In addition to the inspec tion requirements in § 264.226 of this part, all CCR surface impoundments that meet the requirements of § 2 64.1303(b) of this subpart shall be inspected by the owner or operator as follows: (1) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, for appearances of structural w eakness and other hazardous conditions. (2) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, all instruments shall be monitored. (3) Longer inspection or monitori ng intervals approved under this pa ragraph shall be justified by the owner or operator of the CCR surface im poundment based on the hazard potential and performance of the CCR surface impoundment, and shall include a requir ement for inspection immediately after a specified event a pproved by the Regional Administrator. (4) All inspections required by paragraphs (a)( 1) and (2) shall be performed by a qualified person, as defined in paragraph (e) of this sec tion, designated by the person owning or operating the CCR surface impoundment.DRAFT DO NOT CITE OR QUOTE 532 of 563 5/03/10 (5) All CCR surface impoundments that meet the requirements of § 264.1303(b) of this subpart shall be inspected annually by an independent registered professiona l engineer to assure that the design, operation, and maintenance of the surface impoundment is in accordance with recognized and generally accepted good engineering standards. The owner or operator must notify the state and the EPA Regional Administrator that a certifi cation by the registered professional engineer that the design, operation, and maintenance of the surface impoundment is in accordance with recognized and generally accepted good engineering standards has been placed in the operating record. (b) When a potentially hazardous condition de velops, the person owning or operating the CCR surface impoundment shall immediately: (1) Take action to eliminate th e potentially hazardous condition; (2) Notify the Regional Administrator a nd State and local first responders; (3) Notify and prepare to evacuate, if necessa ry, all personnel from th e owner or operator’s property which may be affected by th e potentially hazardous conditions; and (4) Direct a qualified person to monitor all instruments and examine the structure at least once every eight hours, or more ofte n as required by an authorized representative of the Regional Administrator. (c) After each inspection and instrumentation mon itoring referred to in para graphs (a) and (b) of this section, each qualified person who conducte d all or any part of the inspection or instrumentation monitoring shall promptly r ecord the results of such inspection or instrumentation monitoring in a book which shal l be available in th e operating record for inspection by an authorized representative of the Regional Administrator and such qualifiedDRAFT DO NOT CITE OR QUOTE 533 of 563 5/03/10 person shall also promptly report th e results of the inspec tion or monitoring to one of the persons specified in paragraph (d) of this section. (d) All inspection and instrumentation monitoring reports recorded in accordance with paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be promptly signed or countersigned by th e person designated by the owner or operator as responsible for health and safety at the owner or operator’s facility. (e) The qualified person or persons referred to in this section shall be trained to recognize specific signs of structural instability and ot her hazardous conditions by visual observation and, if applicable, to monitor instrumentation.

§ 264.1305 Requirements for Surface Impoundment Closure. (a) Prior to the closure of any CCR surface im poundment which meets the requirements of § 264.1303(b) of this subpart, th e person owning or operating such CCR surface impoundment shall submit to and obtain approval from the Re gional Administrator, a plan for closure in accordance with the requirements of § 264.228 and s ubpart G of this part. This plan shall provide for major slope stability, include a schedule for the plan's implementation and, contain provisions to preclude the probability of future impoundment of water.

§ 264.1306 Landfills. (a) Owners or operators of new CCR landfills an d lateral expansions of existing landfills are exempt from the double liner and leachate coll ection system requirements of § 264.301(c), and the requirements of § 264.302, provided the owne r or operator is in compliance with the requirements of paragraph (b) of this section. Own ers or operators of exis ting landfills are alsoDRAFT DO NOT CITE OR QUOTE 534 of 563 5/03/10 exempt from the liner requirements of paragrap h (b)(1) of this secti on, provided they comply with the requirements of paragraph (c) of this section and the require ments at 40 CFR part 264 subparts F, G, H, and N. (b) Prior to placement of CCRs in new landfills and lateral expansions of new and existing landfills, new landfills and lateral expansions shall be constructed: (1) With a composite liner, as defined in pa ragraph (b)(2) of this section, and a leachate collection and removal system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. (2) For purposes of this subpart, composite line r means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purpose of this subpart, hydraulic conductivity means the rate at which water can move through a permeable medium (i.e., th e coefficient of permeability). (c) Effective [ insert date two years after the effective date of the final rule ], all existing landfills that receive CCRs shall be operated and maintained with: (1) A run-on control system to prevent flow onto the active portion of the CCR landfill during the peak discharge from a 24-hour, 25-year storm; (2) A run-off control system from the active por tion of the CCR landfill to collect and control at least the water volume resulting from a 24-hour, 25 -year storm. Run-off from the active portion of the CCR landfill must be handled in accordance with § 264.1307 of this subpart.DRAFT DO NOT CITE OR QUOTE 535 of 563 5/03/10 § 264.1307 Surface Water Requirements. (a) Permits for CCR surface impoundments and CCR landfills shall include conditions to ensure that: (1) the operation of the unit will not cause any violation of any requirements of the Clean Water Act, including, but not limited to, the National Po llutant Discharge Elimination System (NPDES) requirements, pursuant to secti on 402 of the Clean Water Act. (2) the operation of the unit will not cause any vi olation of any requirement of an area-wide or state-wide water quality management plan that has been approved under section 208 or 319 of the Clean Water Act, as amended. (b) [Reserved]

§ 264.1308 Air Requirements. (a) CCR surface impoundments and CCR landfills must be managed in a manner that fugitive dusts do not exceed 35 μ g/m 3 , unless an alternative standard has been established by the Regional Administrator. (b) CCR surface impoundments must be managed to control wind dispersal of dusts consistent with the standard in paragraph (a) of this section unless an alternative standard has been established by the Regional Administrator. (c) CCR landfills must be managed to control wind dispersal of dusts consistent with the standard in paragraph (a) of th is section unless an alternative standard has been established by the Regional Administrator. CCRs placed in la ndfills as wet conditioned CCRs shall not result in the formation of free liquids.DRAFT DO NOT CITE OR QUOTE 536 of 563 5/03/10 (d) Tanks, containers, buildings and pads used fo r the storage must be managed to control the dispersal of dust. Pads must ha ve wind protection that will ensure comparable levels of control. (e) CCRs transported in trucks or other vehicl es must be covered or otherwise managed to control the wind dispersal of dust consistent with the standard in paragraph (a) of this section unless an alternative standard has been established by the Regional Administrator.

PART 265 - INTERIM STATUS STANDARD S FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STO RAGE, AND DISPOSAL FACILITIES

14. The authority citation for part 265 continues to read as follows: Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.

15. Section 265.1 is amended by adding pa ragraph (g) to read as follows:

§ 265.1 Purpose, scope, and applicability.
* * * * * (g) Owners or operators who treat, store or di spose of EPA Special Waste Number S001, also referred to as coal combustion residuals (CCRs) ar e subject to the requirements of this part, except as specifically provided othe rwise in this part. In addi tion, subpart FF of this part includes additional requirements for the treatment storage or disposal of EPA Special Waste No.
S001.
* * * * *DRAFT DO NOT CITE OR QUOTE 537 of 563 5/03/10 16. Section 265.140 is amended by revising pa ragraph (a) to read as follows:

§ 265.140 Applicability. (a) The requirements of §§ 265.142, 265.143 and 265.147 through 265.150 apply to owners or operators of all hazardous and sp ecial waste facilities, except as provided otherwise in this section, or in § 265.1.
* * * * *

17. Part 265 is amended by adding Subpart FF to read as follows:

Subpart FF – Special Requirements for S001 Wastes
Sec. 265.1300 Applicability. 265.1301 Definitions. 265.1302 Reporting. 265.1303 Surface Impoundments. 265.1304 Inspection Requirements for Surface Impoundments. 265.1305 Requirements for Surface Impoundment Closure. 265.1306 Landfills. 265.1307 Surface Water Requirements. 265.1308 Air Requirements.

Subpart FF – Special Requirements for S001 WastesDRAFT DO NOT CITE OR QUOTE 538 of 563 5/03/10 § 265.1300 Applicability. The regulations in this subpart apply to owners or operators of hazardous waste facilities that treat, store or dispose of EPA Hazardous Waste Number S001. Owners or operators of surface impoundments that cease receiving EPA Special Waste Number S001,must comply with the closure require ments in 40 CFR Part 265.111 and 40 CFR 265.228. Facilities that have not met these closure requir ements by the effective date of this regulation would be subject to the requirement s in Parts 260-268, and 270-272.

§ 265.1301 Definitions. This section contains definitions for terms th at appear throughout th is subpart; additional definitions appear in 40 CFR 260.10 or the specific sections to which they apply. Area-capacity curves means graphic curves which readily sh ow the reservoir water surface area, in acres, at different elevations from the bottom of the reservoir to the maximum water surface, and the capacity or volume, in acre-feet, of th e water contained in th e reservoir at various elevations. Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, destined for disposal . CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes , when destined for disposal, and as coal combustion products (CCPs) when beneficially used. CCR Landfill means a disposal facility or part of a facility where CCRs are placed in or on land and which is not a land treatment facility, a surface impoundment, an underground injection well, a salt dome formation, a salt bed forma tion, an underground mine, a cave, or a correctiveDRAFT DO NOT CITE OR QUOTE 539 of 563 5/03/10 action management unit. For purposes of this proposed rule, landfills also include piles, sand and gravel pits, quarries, and/or large scale fill operations. Sites that are excavated so that more coal ash can be used as fill are also considered CCR landfills. CCR Surface Impoundment or impoundment means a facility or part of a facility which is a natural topographic depression, man-made excavati on, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of CCRs containing free liquids, and wh ich is not an injection well. Examples of CCR surface impoundments are holding, storage, se ttling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes. Existing CCR Landfill means a landfill which was in operation or for which construction commenced prior to the effective date of the final rule A CCR landfill has commenced construction if the owner or operator has obtaine d the Federal, State a nd local approvals or permits necessary to begin physic al construction; and either (1) A continuous on-site, physical cons truction program has begun; or (2) The owner or operator has entered into c ontractual obligations —which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time. Existing CCR Surface Impoundment means a surface impoundment which was in operation or for which construction commenced prior to the eff ective date of the final rule . A CCR surface impoundment has commenced construction if the ow ner or operator has obtained the Federal, State and local approvals or permits necessary to begin physical cons truction; and eitherDRAFT DO NOT CITE OR QUOTE 540 of 563 5/03/10 (1) A continuous on-site, physical cons truction program has begun; or (2) The owner or operator has entered into c ontractual obligations—which can not be cancelled or modified without substantial loss—for physic al construction of the CCR surface impoundment to be comple ted within a reasonable time. Factor of safety (Safety factor) means the ratio of the forces te nding to resist the failure of a structure to the forces tending to cause such failure as determined by recognized and accepted good engineering practices. Hazard potential means the possible adverse incrementa l consequences that result from the release of water or stored contents due to failu re of a dam (or impoundment) or mis-operation of the dam or appurtenances. High hazard potential surface impoundment means a surface impoundment where failure or mis-operation will probably cause loss of human life. Significant hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of huma n life, but can cause economic loss, environment damage, disruption of life line facilities, or impact other concerns. Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/or environmental losses. Losses are principally limited to the surface impoundment owner’s property. Less than low hazard potential surface impoundment means a surface impoundment not meeting the definitions for High, Significant, or Low Hazard Potential. Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or CCR surface impoundment made afte r the effective date of the final rule.DRAFT DO NOT CITE OR QUOTE 541 of 563 5/03/10 New CCR landfill means a landfill, including lateral expansions, or installation from which there is or may be placement of CCRs without the pr esence of free liquids, which began operation, or for which the construction commenced after the effective date of the final rule New CCR surface impoundment means a surface impoundment, incl uding lateral expansion, or installation from which there is or may be placem ent of CCRs with the presence of free liquids, which began operation, or for which the constructi on commenced after the effective date of the final rule. . Probable maximum precipitation means the value for a particular area which represents an envelopment of depth-duration-ar ea rainfall relations for all st orm types affecting that area adjusted meteorologically to maximum conditions. Recognized and generally accepted good engineering practices (RAGAGEPs) means engineering, operation, or maintenance activi ties based on established codes, standards, published technical reports or r ecommended practices (RP) or a similar document. RAGAGEPs detail generally approved ways to perform sp ecific engineering, insp ection or mechanical integrity activities.

§ 265.1302 Reporting

. (a) Except as provided in paragra ph (b) of this section, every twelfth month fo llowing the date of the initial plan approval required in § 265.1303 of this subpart, the person owning or operating a CCR surface impoundment that has not been proper ly closed in accordance with an approved plan shall submit to the Regional Administrato r a report containing the following information: (1) Changes in the geometry of the CCR surface impoundment for the reporting period.DRAFT DO NOT CITE OR QUOTE 542 of 563 5/03/10 (2) Location and type of insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period. (3) The minimum, maximum, and present depth and elevation of the CCR slurry and CCR waste water in the CCR surface impound ment for the reporting period. (4) The storage capacity of the CCR surface impoundment. (5) The volume of the CCR slurry and CCR wast e water in the CCR surface impoundment at the end of the reporting period. (6) Any other change which may have affected the stability or ope ration of the CCR surface impoundment that has occurred during the reporting period. (7) A certification by an independe nt registered prof essional engineer that all construction, operation, and maintenance are in accordance with the approved plan prepared in accordance with § 265.1303. (b) A report is not required under this secti on when the person owning or operating the CCR surface impoundment provides the Regional Administra tor with a certifica tion by an independent registered professional engineer that there have been no chan ges in the operation of the CCR surface impoundment or to any of the parameters previously reported under paragraphs (a)(1) through (a)(6) of this section. However, a report containing the in formation set out in paragraph (a) of this section shall be submitted to the Regional Administrator at least every 5 years.

§ 265.1303 Surface Impoundments. (a) In addition to the requiremen ts in subpart K of this part , EPA Special Waste No. S001 is subject to the requireme nts in this section.DRAFT DO NOT CITE OR QUOTE 543 of 563 5/03/10 (b) Plans for the design, construction, and maintenance of existing CCR surface impoundments shall be required if such a unit can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or (2) Impound CCRs to an elevation of 20 feet or mo re above the upstream toe of the structure. (c) Plans required under paragraph (b) of this section shall be submitte d in triplicate to the Regional Administrator on or before [ insert date one year after th e effective date of the final
rule ]. (d) A marker, at least six feet high and show ing the identification number of the CCR surface impoundment as assigned by the Regional Administ rator, the name associated with the CCR surface impoundment and the name of the person owning or operating the structure, shall be located on or immediately adjacent to each CCR surface impoundment permanent identification by [ insert date 60 days after the e ffective date of the final rule ]. (e) The plan specified in paragr aph (b) of this section, shall c ontain at a minimum the following information: (1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment as assigned by the Regional Administrator. (2) The location of the CCR surface impoundme nt indicated on the most recent USGS 71/2minute or 15 minute topographi c quadrangle map, or a topographi c map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment.DRAFT DO NOT CITE OR QUOTE 544 of 563 5/03/10 (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site preparation and construction of each zone of the CCR surface impoundment; the approximate dates of construction, and each successive st age of construction of the CCR surface impoundment; and for existing CCR surface impoundments, such history of construction as may be available, and any record or knowledge of structural instability. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensional drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level or CCR waste water level, and other information pertinent to the CCR surface impoundment itself, including any id entifiable natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) The hazard potential classification for wh ich the facility is de signed and a detailed explanation of the basis for this classification.DRAFT DO NOT CITE OR QUOTE 545 of 563 5/03/10 (11) A statement of the runoff attributable to the storm for which the CCR surface impoundment is designed and the calculati ons used in determining such runoff and the minimum freeboard during the design storm. (12) A description of the spillway and diversion design features and capacities and calculations used in their determination. (13) The computed minimum factor of safe ty for slope stability of the CCR retaining structure(s) and the analyses used in their determinations. (14) The construction specifications and provisions for surveillance, maintenance, and repair of the CCR surface impoundment. (15) General provisions for closure. (16) Such other information pertaining to th e stability of the CCR surface impoundment which may be requested by the Regional Administrator. (17) A certification by an independe nt registered professional engi neer that the design of the CCR surface impoundment is in accordance w ith recognized and generally accepted good engineering practices for the maximum volume of CCR slurry and CCR waste water which can be impounded therein and for the passage of ru noff from the design storm which exceeds the capacity of the CCR surface impoundment; or, in lie u of the certification, a report indicating what additional investigations , analyses, or improvement work are necessary before such a certification can be made by an independent registered professi onal engineer, including what provisions have been made to carry out such wo rk in addition to a schedule for completion of such work. (f) Any changes or modifications to the plan s for CCR surface impoundments shall be approved by the Regional Administrator prior to the in itiation of such changes or modifications.DRAFT DO NOT CITE OR QUOTE 546 of 563 5/03/10 (g) Effective [ insert date two years after the effective date of the final rule ], all existing surface impoundments that receive CCRs sha ll be operated and maintained with: (1) A run-on control system to prevent fl ow onto the active portion of the CCR surface impoundment during the peak discharg e from a 24-hour, 25-year storm; (2) A run-off control system from the active portion of the CCR surface impoundment to collect and control at least the water volume resulting from a 24-hour, 25-ye ar storm. Run-off from the active portion of the CCR surface impoundment mu st be handled in accordance with § 265.1307 of this subpart. (h) For CCR surface impoundments classified as ha ving high or significant hazard potential, the owner or operator shall develop and maintain in the operating record an Emergency Action Plan which: defines responsible person s and the actions to be taken in the event of a dam-safety emergency; provides contact information for emergency re sponders; includes a map which delineates the downstream area wh ich would be affected in the event of a dam failure; and includes provisions for an annual face-to-face mee ting or exercise between representatives of the facility owner and the lo cal emergency responders.

§ 265.1304 Inspection Requirements for Surface Impoundments. (a) In addition to the inspec tion requirements in § 265.226, all CCR surface impoundments that meet the requirements of § 265.1303(b) of this subpart shall be insp ected by the owner or operator as follows: (1) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, for appearances of structural w eakness and other hazardous conditions.DRAFT DO NOT CITE OR QUOTE 547 of 563 5/03/10 (2) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, all instruments shall be monitored. (3) Longer inspection or monitori ng intervals approved under this pa ragraph shall be justified by the owner or operator of the CCR surface im poundment based on the hazard potential and performance of the CCR surface impoundment, and shall include a requir ement for inspection immediately after a specified event a pproved by the Regional Administrator. (4) All inspections required by paragraphs (a) (1) and (2) of this section shall be performed by a qualified person, as defined in paragraph (e) of this section, designated by the person owning or operating the CCR surface impoundment. (5) All CCR surface impoundments that meet the requirements of § 265.1303(b) of this subpart shall be inspected annually by an independent registered professiona l engineer to assure that the design, operation, and maintenance of the surface impoundment is in accordance with recognized and generally accepted good engineering practices. The owner or operator must notify the state and the EPA Regional Administrator that a certification by the inde pendent registered professional engineer that the design, operation, and maintenance of the surface impoundment is in accordance with recognized and generall y accepted good engineering practices has been placed in the operating record. (b) When a potentially hazardous condition de velops, the person owning or operating the CCR surface impoundment shall immediately: (1) Take action to eliminate th e potentially hazardous condition; (2) Notify the Regional Administrator a nd State and local first responders; (3) Notify and prepare to evacuate, if necessa ry, all personnel from th e owner or operator’s property which may be affected by th e potentially hazardous conditions; andDRAFT DO NOT CITE OR QUOTE 548 of 563 5/03/10 (4) Direct a qualified person to monitor all instruments and examine the structure at least once every eight hours, or more ofte n as required by an authorized representative of the Regional Administrator. (c) After each inspection and instrumentation mon itoring referred to in para graphs (a) and (b) of this section, each qualified person who conducte d all or any part of the inspection or instrumentation monitoring shall promptly r ecord the results of such inspection or instrumentation monitoring in a book which shal l be available in th e operating record for inspection by an authorized representative of the Regional Administrator and such qualified person shall also promptly report th e results of the inspec tion or monitoring to one of the persons specified in paragraph (d) of this section. (d) All inspection and instrumentation monitoring reports recorded in accordance with paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be promptly signed or countersigned by th e person designated by the owner or operator as responsible for health and safety at the owner or operator’s facility. (e) The qualified person or persons referred to in this section shall be trained to recognize specific signs of structural instability and ot her hazardous conditions by visual observation and, if applicable, to monitor instrumentation.

§ 265.1305 Requirements for Surface Impoundment Closure. (a) Prior to the closure of any CCR surface im poundment which meets the requirements of § 264.1303(b) of this subpart, th e person owning or operating such CCR surface impoundment shall submit to and obtain approval from the Re gional Administrator, a plan for closure in accordance with the requirements of § 265.228 and pa rt 265 subpart G. This plan shall provideDRAFT DO NOT CITE OR QUOTE 549 of 563 5/03/10 for major slope stability , include a schedule for the plan's implementation and, contain provisions to preclude the probability of future impoundment of water.

§ 265.1306 Landfills. (a) Owners or operators of new CCR landfills an d lateral expansions of existing landfills are exempt from the double liner and leachate coll ection system requirements of § 265.301(c), and the requirements of § 265.302, provided the owne r or operator is in compliance with the requirements of paragraph (b) of this section. Own ers or operators of exis ting landfills are also exempt from the liner requirements of paragrap h (b)(1) of this secti on, provided they comply with the requirements of paragraph (c) of this section and the require ments at 40 CFR part 265 subparts F, G, H, and N. (b) Prior to placement of CCRs in new landfills and lateral expansions, new landfills and lateral expansions shall be constructed: (1) With a composite liner, as defined in pa ragraph (b)(2) of this section, and a leachate collection and removal system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. (2) For purposes of this subpart, composite line r means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component.DRAFT DO NOT CITE OR QUOTE 550 of 563 5/03/10 (3) For purpose of this subpart, hydraulic conductivity means the rate at which water can move through a permeable medium. (i.e., the coefficient of permeability.) (c) Effective [ insert date two years after the effective date of the final rule ], all existing landfills that receive CCRs shall be operated and maintained with: (1) A run-on control system to prevent flow onto the active portion of the CCR landfill during the peak discharge from a 24-hour, 25-year storm; (2) A run-off control system from the active por tion of the CCR landfill to collect and control at least the water volume resulting from a 24-hour, 25 -year storm. Run-off from the active portion of the CCR landfill must be handled in accordance with § 265.1307 of this subpart.

§ 265.1307 Surface Water Requirements. (a) Permits for CCR surface impoundments and CCR landfills shall include conditions to ensure that: (1) the operation of the unit will not cause any violation of any requirements of the Clean Water Act, including, but not limited to, the National Po llutant Discharge Elimination System (NPDES) requirements, pursuant to secti on 402 of the Clean Water Act. (2) the operation of the unit will not cause any vi olation of any requirement of an area-wide or state-wide water quality management plan that has been approved under section 208 or 319 of the Clean Water Act, as amended. (b) [Reserved]

§ 265.1308 Air Requirements.DRAFT DO NOT CITE OR QUOTE 551 of 563 5/03/10 (a) CCR surface impoundments and CCR landfills must be managed in a manner that fugitive dusts do not exceed 35 μ g/m 3 , unless an alternative standard has been established by the Regional Administrator. (b) CCR surface impoundments must be managed to control wind dispersal of dusts consistent with the standard in paragraph (a) of this section unless an alternative standard has been established by the Regional Administrator. (c) CCR landfills must be managed to control wind dispersal of dusts consistent with the standard in paragraph (a) of th is section unless an alternative standard has been established by the Regional Administrator. CCRs placed in la ndfills as wet conditioned CCRs shall not result in the formation of free liquids. (d) Tanks, containers, buildings and pads used fo r the storage must be managed to control the dispersal of dust. Pads must ha ve wind protection that will ensure comparable levels of control. (e) CCRs transported in trucks or other vehicl es must be covered or otherwise managed to control the wind dispersal of dust consistent with the standard in paragraph (a) of this section unless an alternative standard has been established by the Regional Administrator.

18. Part 268 is amended to Read as follows:

PART 268 - LAND DISPOSAL RESTRICTIONS

19. The authority citation for part 26 8 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.DRAFT DO NOT CITE OR QUOTE 552 of 563 5/03/10 Subpart C - Prohibitions on Land Disposal

20. Section 268.12 is amended by revising pa ragraph (f) to read as follows:

§ 268.2 Definitions applicable in this part. * * * * * (f) Wastewaters are wastes that contain less th an 1% by weight total organic carbon (TOC) and less than 1% by weight total suspended solid s (TSS), except for coal combustion residuals, [waste code S001], which are wastewater s if the moisture content exceeds 50%.
* * * * *

21. Section 268.14 is amended by adding paragraph (d) to read as follows:

§ 268.14 Surface impoundment exemptions.
* * * * * (d) The waste specified in 40 CFR Part 261 as EPA Special Waste Numb er S001 may continue to be placed in an existing CCR surface impoundme nt of this subpart for 60 months after the promulgation date of listing the waste provide d the existing CCR surface impoundment is in compliance with the requirements of subpart F of part 265 of this chapter within 12 months after the promulgation of the new listing. Closure in accordance with subpart G of part 264 must be completed within two years af ter placement of waste in th e existing CCR surface impoundment

ceases.DRAFT DO NOT CITE OR QUOTE 553 of 563 5/03/10 22. Section 268.21 is added to Subpa rt C to read as follows:

§ 268.21 Waste specific prohibitions – Coal combustion residuals. (a) Effective [ insert date six months after the effective date of the final rule ], nonwastewaters specified in 40 CFR Part 261 as EPA Special Waste Number S001 are prohibited from land disposal. (b) Effective [ insert date 60 months after the effective date of the final rule ], wastewaters specified in 40 CFR Part 261 as EPA Special Waste Number S001 are prohibited from land disposal. (c) The requirements of paragraphs (a) and (b) of this subpa rt do not apply if: (1) The wastes meet the applicable treatment st andards specified in subpart D of this Part; (2) Persons have been granted an exemption from a prohibition pursuant to a petition under § 268.6, with respect to those wastes and units covered by the petition; (3) The wastes meet the applicable treatment st andards established pursuant to a petition granted under § 268.44; (4) Persons have been granted an extension to the effective date of a prohibition pursuant to § 268.5, with respect to these wa stes covered by the extension.

22. Subpart C is amended by addi ng and reserving §§ 268.22 through 268.29.

§§ 268.22

− 268.29 [Reserved]DRAFT DO NOT CITE OR QUOTE 554 of 563 5/03/10 23. The Table of Treatment Standards is amende d by adding in alphanumeric order the new entry for S001 to read as follows:

§ 268.40 Applicability of treatment standards.
* * * * *
TREATMENT STANDARDS FOR HAZARDOUS WASTES [Note: NA means not applicable] Regulated hazardous constituent Wastewaters Nonwastewaters
Waste code Waste description and
treatment/ regulatory subcategory 1 Common

name CAS 2 number Concentration in mg/L 3 , or technology code 4 Concentration in mg/kg 5 unless noted as ‘‘mg/L TCLP’’, or technology code

* * * * * *
S001 Coal combustion wastes generated by the electric power sector. For purposes of this listing, the electric power sector Antimony.... Arsenic...... Barium...... Beryllium.... Cadmium.... Chromium.... 7440-36-0
7440-38-2 7440-39-3
7440-41-7 7440-43-9
7440-47-3 TSS of 100mg/l and meet § 268.48. Meet § 268.48DRAFT DO NOT CITE OR QUOTE 555 of 563 5/03/10 is defined as electricity-only andcombined-heat-andpower (CHP) plants whose primary business is to sell electricity, or electricity and heat, to the public; i.e., NAICS code 221112 plants. For the purposes of this listing, coal combustion wastes are defined as fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated by the electric power sector. This listing does not apply to coal combustion residuals Lead.... Mercury.... Nickel.... Selenium.... Silver.... Thallium.... 7439-92-1 7439-97-6
7440-02-0 7782-49-2
7440-22-4
7440-28-0DRAFT DO NOT CITE OR QUOTE 556 of 563 5/03/10 that are: (1) uniquely associated wastes with wastes from the burning of coal; (2) beneficially used; (3) placed in minefilling operations; (4) generated by facilities that are outside the electric power sector; or (5) generated from clean-up activities that are conducted as part of a state or federally required clean-up that commenced prior to the effective date of this rule.

* * * * * *

Footnotes to Treatment Standard Table 268.40DRAFT DO NOT CITE OR QUOTE 557 of 563 5/03/10 1 The waste descriptions provided in this table do not replace waste descriptions in 40 CFR 261. Descriptions of Treatment/Regulatory S ubcategories are provided, as needed, to distinguish between applicability of different standards.

2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical w ith its salts and/or esters, the CAS number is given for the parent compound only.

3 Concentration standards for wastewaters are ex pressed in mg/L and are based on analysis of composite samples.

4 All treatment standards expressed as a T echnology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1—Technology Codes and Descriptions of Technology-Based Standards.

5 Except for Metals (EP or TCLP) and Cyanid es (Total and Amenable) the nonwastewater treatment standards expressed as a concentr ation were established, in part, based upon incineration in units operated in accordance w ith the technical requirements of 40 CFR Part 264 Subpart O or Part 265 Subpart O, or ba sed upon combustion in fuel substitution units operating in accordance with applicable technica l requirements. A facility may comply with these treatment standards according to provi sions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are base d on analysis of grab samples.DRAFT DO NOT CITE OR QUOTE 558 of 563 5/03/10 * * * * *

24. In § 268.42, Table 1 is amended to read as follows:

§ 268.42 Treatment standards expresse d as specified technologies.
* ****

Table 1—Technology Codes and Descrip tion of Technology-Based Standards Technology code Description of technology-based standards
RSLDS: Removal of solids and meet § 268.48 treatment levels.

PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS

25. The authority citation for part 271 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), and 6926.

26. Section 271.1(j) is amended by adding the foll owing entries to Table 1 and Table 2 in chronological order by date of publication to read as follows.

§ 271.1 Purpose and scope.
* * * * *DRAFT DO NOT CITE OR QUOTE 559 of 563 5/03/10 (j) * * *

TABLE 1.—REGULATIONS IMPLEMENTI NG THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 Promulgation date Title of regulation Federal Register reference Effective date
* * [insert date of signature of final rule]
* * * * Listing of Special Waste
S001

* * * * [insert federal register page numbers for final rule]

* * * [insert effective date of final rule]

*

TABLE 2.—SELF-IMPLEMENTING PROVI SIONS OF THE SOLID WASTE AMENDMENTS OF 1984 Effective date Self-implementing provision RCRA citation Federal Register reference
* *

[insert effective date of final rule] * *

Prohibition on land disposal of S001 waste with free liquids and prohibition on the disposal of S001 waste below the natural water * *

3001(b)(3)(A) and 3004(g)(4)(C) *

[insert date of publication date of final rule Federal Register page numbers] [FR pageDRAFT DO NOT CITE OR QUOTE 560 of 563 5/03/10 * * table. For purposes of this provision, free liquids means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.

* * * * numbers].

*

PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

27. The authority citation for part 30 2 continues to read as follows: Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.

28. In § 302.4, Table 302.4 is amended by adding the follo wing new entry in alphanumeric order to the table to read as follows:

§ 302.4 Designation of hazardous substances.
* * * * *
TABLE 302.4.—LIST OF HAZARDOUS SUBS TANCES AND REPORTABLE QUANTITIES [Note: All comments/notes are located at the end of this table]DRAFT DO NOT CITE OR QUOTE 561 of 563 5/03/10 Hazardous substance CASRN Statutory code† RCRA
waste No. Final RQ pounds (Kg)
*
S001 f

........................................ Coal combustion residuals generated by the electric power sector (Electric Utilities and Independent Power Producers)
* *

...........

* *
4

* *
S001 ........

* * 1 (0. 4536)

* † - Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding

f See 40 CFR 302.6(b)(1) for application of th e mixture rule to th is hazardous waste.

29. Section 302.6 is amended by amending paragr aph (b)(1)(iii) and adding entries in alphanumerical order to the Table in para graph (b)(1)(iii) to read as follows:

§ 302.6 Notification requirements.
* * * * * (b) * * * (1) * * * (iii) For waste streams K169, K170, K171, K172, K174, K175, and S001, knowledge of the quantity of all of the hazardous constituent(s) may be assumed, based on the following maximum observed constituent concentrations identified by EPA:DRAFT DO NOT CITE OR QUOTE 562 of 563 5/03/10 Waste Constituent Max ppm
K169................................ Benzene ...................................... 220.0
K170................................ Benzene ...................................... 1.2 Benzo (a) pyrene ............................ 230.0 Dibenz (a,h) anthracene .................... 49.0 Benzo (a) anthracene ........................ 390.0 Benzo (b) fluoranthene ..................... 110.0 Benzo (k) fluoranthene ..................... 110.0 3-Methylcholanthrene ...................... 27.0 7,12-Dimethylbenz (a) anthracene ........ 1,200.0 K171............................... Benzene ....................................... 500.0 Arsenic ....................................... 1,600.0
K172 ............................... Benzene ....................................... 100.0 Arsenic....................................... 730.0 K174............................... 2,3,7,8TCDD.................................. 0.000039 1,2,3,7,8-PeCDD ........................... 0.0000108 1,2,3,4,7,8-HxCDD ........................ 0.0000241 1,2,3,6,7,8-HxCDD ........................... 0.000083 1,2,3,7,8,9-HxCDD ........................... 0.000062 1,2,3,4,6,7,8-HpCDD ......................... 0.00123 OCDD .......................................... 0.0129 2,3,7,8-TCDF .................................. 0.000145DRAFT DO NOT CITE OR QUOTE 563 of 563 5/03/10 1,2,3,7,8-PeCDF .............................. 0.0000777 2,3,4,7,8-PeCDF .............................. 0.000127 1,2,3,4,7,8-HxCDF ........................... 0.001425 1,2,3,6,7,8-HxCDF ........................... 0.000281 1,2,3,7,8,9-HxCDF ........................... 0.00014 2,3,4,6,7,8-HxCDF ........................... 0.000648 1,2,3,4,6,7,8-HpCDF ......................... 0.0207 1,2,3,4,7,8,9-HpCDF ......................... 0.0135
OCDF ........................................... 0.212 K175 .................................. Mercury .......................................... 9,200 S001................................... Antimony....................................... 3,100 Arsenic.......................................... 773 Barium.......................................... 7,230 Beryllium....................................... 31 Cadmium........................................ 760 Chromium....................................... 5,970 Lead.............................................. 1,453 Mercury.......................................... 384 Nickel............................................. 6,301 Selenium.......................................... 673 Silver............................................. 338 Thallium.......................................... 100