DRAFT DO NOT CITE OR QUOTE 1 of 563 5/03/10 

ENVIRONMENTAL PROTECTION 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 MANAGEMENT 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 Resource Conservation and 

Recovery Act (RCRA) to address the risks from the disposal of CCRs generated from the 

combustion of coal at electric utilities and independent power producers. However, the Agency 

is considering two options in this proposal and, thus, is proposing two alternative regulations. 

Under the first proposal, EPA would reverse its August 1993 and May 2000 Bevill Regulatory 

Determinations regarding coal combustion residuals (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 the 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DRAFT DO NOT CITE OR QUOTE 2 of 563 5/03/10 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 Regulatory Determination for beneficially used 

CCRs, which are currently exempt from the hazardous waste regulations under Section 

3001(b)(3)(A) of RCRA. However, EPA is clarifying 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 received 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 automatically captures your e-mail address. E-mail 

addresses that are automatically captured by EPA’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 202–566–0272; 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 Combustion Residuals From Electric 
DRAFT 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 Pennsylvania 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 Listing of Special Wastes; Disposal of Coal 

Combustion Residuals From Electric Utilities 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 included 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 information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. 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 information 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 automatically captured and included as part of 

the comment that is placed in the public docket and made available on the Internet. If you 

submit an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 
DRAFT 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 avoid the use of special 

characters, any form of encryption, and be free of any defects or viruses. For additional 

information about EPA’s public docket, visit 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 publicly 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. Publicly 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; Disposal of Coal Combustion 

Residuals From Electric Utilities 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 Protection Agency, 5304P; telephone number: (703) 

308-7251; fax number: (703) 605-0595; email address: 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 Agency, 1200 Pennsylvania Avenue, NW, Washington, 

D.C. 20460, [E-mail address and telephone number: Beasley.lynn@epa.gov (202-564-1965).] 

For more information on this rulemaking please visit 

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/index.htm. 

SUPPLEMENTARY INFORMATION: 

A. Does this Action Apply to Me? 

The proposed rule would apply to all coal combustion residuals (CCRs) generated by electric 

utilities and independent power producers. However, this proposed rule does not address the 

placement of CCRs in minefills. The U. S. Department of Interior (DOI) and EPA will address 

the management of CCRs in minefills in a separate regulatory action(s), consistent with the 

approach recommended by the National Academy of Sciences, recognizing 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 burning 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 entities: electric utility facilities and independent 

power producers that fall under the North American Industry Classification System (NAICS) 

code 221112, and hazardous waste treatment and disposal facilities that fall under NAICS code 

562211. The industry sector(s) identified above may 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 potentially could be affected by this action. To determine whether your 

facility, company, business, organization, 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 following address: RCRA CBI Document Control 

 

2

 The NRC committee recommended “that secondary uses of CCRs that pose minimal risks to human health and the 

environment be strongly encouraged.” Ibid 
DRAFT DO NOT CITE OR QUOTE 7 of 563 5/03/10 

Officer, Office of Resource Conservation and Recovery (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). Information 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 claimed as CBI, a copy of the comment that does not 

contain the information claimed as CBI must be submitted for inclusion in the public docket. If 

you submit the copy that does not contain CBI on disk or CD ROM, mark the 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 electronic public docket without prior notice. If you 

have questions about CBI or the procedures for claiming CBI, please contact: LaShan Haynes, 

Office of Resource Conservation and Recovery (5305P), U.S. Environmental Protection Agency, 

1200 Pennsylvania Avenue, NW., Washington 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 Register 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 Regulations (CFR) part or 
DRAFT 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 explain 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 burdens, 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 suggest 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 materials is 15 cents per page. 

C. Definitions, Abbreviations and Acronyms Used in this Notice. (Note: 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 alternative material, conserving natural resources that 
DRAFT DO NOT CITE OR QUOTE 9 of 563 5/03/10 

would otherwise need to be obtained through practices such as extraction; and meets relevant 

product specifications and regulatory standards (where these are available). 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 properties 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 excluded 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 particles, 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 formation, 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 excavation, 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 which is not an injection well. Examples of 

CCR surface impoundments are holding, storage, settling, 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 comprised largely of silica and alumina glass.

Coal Combustion Products (CCPs) means fly ash, bottom ash, boiler slag, or flue gas 

desulfurization materials, that 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 Utilities and Independent Power Producers) means that sector of 

the power generating industry that comprises electricity-only and combined-heat-and-power 

(CHP) plants whose primary business is to sell electricity, 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 obtained the Federal, State and local approvals or 

permits necessary to begin physical 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 physical 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 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 necessary to begin physical 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 can not be 

cancelled or modified without substantial loss—for physical construction of the CCR 

surface impoundment to be completed within a reasonable time. 

Flue Gas Desulfurization (FGD) material means the material produced through a process used to 

reduce sulfur dioxide (SO2) 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, and their composition comprises 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 incremental consequences that result from the 

release of water or stored contents due to failure 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 human life, but can cause economic 

loss, environment damage, disruption of lifeline 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. 

 

3

 The Hazard Potential Classification System for Dams was developed by the U.S. Army Corps of Engineers for the 

National Inventory of Dams (see https://rsgis.crrel.usace.army.mil/apex/f?p=397:1:913698079375545). Hazard 

potential ratings do not provide an estimate of the probability 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 professional engineer or hydrologist means 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 baccalaureate or post-graduate degree in the natural sciences or engineering and has 

sufficient training and experience in groundwater hydrology and related fields as may be 

demonstrated by state registration, professional certifications, 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. 

Lateral expansion means a horizontal expansion of the waste boundaries of an existing CCR 

landfill, or existing CCR surface impoundment made after the effective date of the final rule. 

Maximum Contaminant Level (MCL) means the highest level of a contaminant that is allowed in 

drinking water under the Safe Drinking 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 CCRs in coal mine voids for use as fill, 

grouting, subsidence control, capping, mine sealing, and treating acid 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 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 level is uninfluenced by groundwater pumping or other engineered activities. 

Organosilanes are organic compounds containing at least one carbon to silicon bond, and are 

typically used to promote adhesion. 

Potential damage case means those cases with documented MCL exceedances that were 

measured in ground water beneath or close to the waste source. In these cases, while the 

association with CCRs has been established, 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 that they could cause human 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-based standards measured 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 the 
DRAFT 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 the 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 known to be used to fill metal mines. 

Secondary Drinking Water Standards are non-enforceable federal guidelines regarding cosmetic 

effects (such as tooth or skin discoloration) 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 atmosphere (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 precipitation 
DRAFT DO NOT CITE OR QUOTE 16 of 563 5/03/10 

runoff from coal storage piles at the electric utility, 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 Response, 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 and Enforcement, U.S. Department of the 

Interior 

RCRA Resource Conservation and Recovery Act (42 USCA 6901) 

RQ Reportable Quantity 

SDWS Secondary Drinking Water Standard 

SMCRA Surface Mining Control and Reclamation Act 

μg/L micrograms per liter 

WQC Federal water quality criteria 
DRAFT DO NOT CITE OR QUOTE 17 of 563 5/03/10 

D. The contents of this notice are listed in the following outline: 

I. Background.

A. Why is EPA Proposing Two Options? 

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

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

3. Summary of Estimated Regulatory 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 Regulatory Determination and the Proposed 

Subtitle C and Subtitle D Regulatory Options

A. Summary of Subtitle C proposal 
DRAFT DO NOT CITE OR QUOTE 18 of 563 5/03/10 

B. Summary of Subtitle D proposal 

IV. Bevill Regulatory Determination Relating 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 Pits 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 Bevill Determination for CCRs Generated by NonUtilities. 

V. Co-Proposed Listing of CCRs as a Special 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 Individual Listing Criteria. 

1. Toxicity – Factor (i) 

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

3. Migration, Persistence, Degradation, and Bioaccumulation—Factors (iii), (iv), (v), and 

(vi) 

4. Plausible Types of Mismanagement, Quantities of the Waste Generated, Nature and 

Severity of Effects from Mismanagement– Factors (vii), (viii) and (ix) 

5. Action Taken by Other Governmental Agencies or Regulatory Programs Based on the 

Health or Environmental Hazard Posed by the 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 Technical Standards Under 3004(x)

i. Modification of CCR Landfills and Surface Impoundments from the section 3004(o) 

Liner and Leak Detection Requirements. 

ii. Fugitive Dust Controls. 

iii. Special Requirements for Stability 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 Mixture 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 Subtitle 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 Disposal 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 Rule in Authorized States 

B. Effect on State Authorization 

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

A. Overview and General Issues 
DRAFT 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 Regulation 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 Benefits 
DRAFT 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 and 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 Comments on Specific Issues?

XV. Executive Orders and Laws Addressed in This Action.

A. Executive Order 12866: Regulatory 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: Consultation and Coordination with Indian Tribal Governments. 

G. Executive Order 13045: Protection of Children from Environmental Health & Safety 

Risks. 

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or 

Use. 

I. National Technology Transfer and Advancement Act. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations. 

APPENDIX to the Preamble: Documented Damages from CCR Management 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 Proceeding with Today’s Co-Proposals. 

EPA is revisiting its regulatory 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 important step. In developing this proposal, EPA 

conducted considerable data gathering and analysis. While the public was able to comment on 

significant portions of our analyses 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 views are fueled by the complex data, analyses, 

legislation, implications of available options, possible unintended consequences, and a decision 

process, all of which pose considerations 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 8002(n) study factors: 

• Source and volumes of CCRs generated per year 
DRAFT 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 use of coal and other natural resources 

• The current and potential utilization of CCRs 

Ultimately, the approach selected will need to ensure that catastrophic releases such as occurred 

at the Tennessee Valley Authority’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 balance the eight factors, which ultimately rests 

on a policy judgment. This is further complicated in this case because the 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 beneficial use expanding as disposal becomes 

more costly; some see damage cases as substantial, while others note very few incidences of 

significant off-site contamination. 

Given the inherently discretionary nature of the decision, the complexities of the scientific 

analyses, and the controversy of the issue, EPA wants to ensure that the ultimate decision is 
DRAFT DO NOT CITE OR QUOTE 25 of 563 5/03/10 

based on the best available data, and is taken with the fullest possible extent of public input. As 

discussed in section IV in greater detail, there are a number of issues on which additional or 

more recent information would be useful in allowing the Agency to reach a final decision. In the 

absence of this information, EPA has not yet reached a conclusion as to how to strike the 

appropriate balance among these eight factors and so is presenting 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 science. Finally, in conducting this rulemaking, 

EPA wants to ensure that our decision processes are transparent and encourage the greatest 

degree of public participation. Consequently, to further the public’s understanding and ability to 

comment on all the issues facing the Agency, within 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 the 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). Since the 2007 NODA, EPA received new reports 

from industry and environmental and citizen groups regarding damage cases. Industry provided 

information indicating that many of EPA’s listed proven damage cases do not meet EPA’s 
DRAFT DO NOT CITE OR QUOTE 26 of 563 5/03/10 

criteria for a damage cases to be proven. Environmental 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 public 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 been raised regarding EPA’s 

quantitative groundwater risk assessment. The Agency would implement similar technical 

controls under RCRA subtitle C or D. Therefore, a central issue is the adequacy of state 

programs. Under either regulatory approach, state programs will have key implementation roles. 

This is a very complex area to evaluate. For example, as EPA reports that 36% of the states do 

not have minimum liner requirements for CCR landfills, 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 so, oversight may not be 

adequately captured in EPA’s existing data. In several areas, there are these types of analytical 

tensions that warrant careful consideration 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 may address groundwater monitoring 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 analysis accounted for adjacent water bodies, the 

draft risk assessment that presents 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 management units so that the 

Agency can more fully account for water bodies that may exist between a waste management 

unit and a drinking water well (and thus, could potentially intercept a contaminated groundwater 

plume). EPA is also requesting comments on how the risk assessment should inform the final 

decision. 

While the Agency believes the analyses conducted are sound, today’s co-proposal 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, and will result in the selection of a regulatory 

structure that best addresses the 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 proposal 
DRAFT DO NOT CITE OR QUOTE 28 of 563 5/03/10 

In combination with its proposal to reverse the Bevill determination for CCRs destined for 

disposal, EPA is proposing to list as a special waste, to be regulated under the RCRA subtitle C 

regulations, CCRs from electric utilities and independent power producers when destined for 

disposal in a landfill or surface impoundment. These CCRs would be regulated from the point of 

their generation to the point of their final disposition, including during and after closure of any 

disposal unit. This would include the generator and transporter requirements and the 

requirements for facilities managing CCRs, such as siting, liners (with modification), run-on and 

run-off controls, groundwater monitoring, fugitive dust controls, financial assurance, corrective 

action, including facility-wide corrective action, closure of units, and post-closure 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 materials are disposed, 

treated, and stored. 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 releases 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. 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 proposal 
DRAFT DO NOT CITE OR QUOTE 29 of 563 5/03/10 

In combination with today’s proposal to leave 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 national criteria to ensure the safe disposal of 

CCRs in these units. The units would be subject to, among other things, location 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 monitoring and corrective 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. Instead, states or citizens 

could enforce the requirements under RCRA citizen suit authority; the states could also enforce 

any state regulation under their independent state enforcement authority. 

EPA is also considering a potential modification to the subtitle D option, called “D prime” in the 

following table. Under this option, existing surface impoundments would not have to close or 

install composite liners but could continue to operate 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 Regulatory Costs and Benefits. 
DRAFT DO NOT CITE OR QUOTE 30 of 563 5/03/10 

For the purposes of comparing the estimated regulatory compliance costs to the monetized 

benefits for each regulatory option, the Regulatory Impact Analysis (RIA) computed two 

comparison indicators: net benefits (i.e., benefits minus costs), and benefit/cost ratio (i.e., 

benefits divided by costs). Table 1 below provides a summary of estimated regulatory costs and 

benefits for three regulatory options, based on the 7% discount rate base case and the 50-year 

period-of-analysis applied in the RIA. Furthermore, 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 annual 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 electric 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 decrease 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 any of the regulatory options. The RIA estimates 

both the first and second scenario incrementally in relation to the third scenario 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 scenarios 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. Section 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 Costs - 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 multiplying 50-year present values by a 50-year 7% discount rate 

“capital recovery factor” of 0.07246. 

B. What is the Statutory Authority for this Action? 

These regulations are being proposed under the authority of sections 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 publish “suggested guidelines for solid waste 

management.” 42 U.S.C. 6907(a). Such guidelines must provide a technical and economic 

description of the level of performance that can be achieved by available solid waste 

management practices that provide for protection of human health and the environment. 

RCRA section 2002 grants EPA broad authority to prescribe, in consultation 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 particular 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 established pursuant to section 3001(a), and codified 

at 40 CFR 261.11. 

Section 3001(b)(3)(A) of RCRA established a temporary exemption for fly ash waste, bottom 

ash waste, slag waste, and flue gas emission 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 hearings and an opportunity for comment, determine 

whether these wastes should be regulated pursuant to subtitle C requirements (42 U.S.C. 6921 

(b)(3)(A)). 

Section 3004 of RCRA generally requires EPA to establish standards applicable to the treatment, 

storage, and disposal of hazardous waste to ensure that human health and the environment are 
DRAFT DO NOT CITE OR QUOTE 33 of 563 5/03/10 

protected 42 U.S.C. 6924. Sections 3004(c) and (d) prohibit free 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 substantially reduce the likelihood of migration of 

hazardous constituents from the waste so that short-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 subject 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 practical difficulties associated with 

implementation of such requirements, and site-specific characteristics, including but not limited 

to the climate, geology, hydrology and soil chemistry at the site. EPA may only make such 

modifications, provided the modified 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). Congress 
DRAFT 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 status 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 annually dredged. 42 U.S.C. 6925(j)(11). 

RCRA Section 4004 generally requires EPA to promulgate 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 subtitle C of RCRA in one of two ways. A 

waste may be subject to regulation if it exhibits certain hazardous properties, called 

“characteristics,” or if EPA has specifically listed the waste as hazardous. See 42 U.S.C. 

6921(a). EPA's regulations in the Code of Federal Regulations (40 CFR) define four hazardous 

waste characteristic properties: ignitability, corrosivity, reactivity, or toxicity (See 40 CFR 

261.21-261.24). All generators must determine whether or not a waste exhibits any of these 

characteristics by testing the waste, or by using knowledge of the process that generated the 

waste (see §262.11(c)). While not required to sample the waste, generators will be subject to 
DRAFT DO NOT CITE OR QUOTE 35 of 563 5/03/10 

enforcement actions if found to be improperly managing 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 third 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 considering the factors noted in this section of the regulations, 

we “conclude that the waste is capable of posing a substantial present or potential hazard to 

human health or the environment when improperly treated, stored, transported, 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 chemical has toxic effects on humans or other life 

forms. When listing a waste, we also add the hazardous 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 contain the various hazardous wastes that EPA 

has listed to date. Section 261.31 lists wastes generated from non-specific sources, known as “Fwastes,” that are usually generated by various industries or types of facilities, such as 

“wastewater treatment sludges from electroplating 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 primary aluminum production” (see EPA Hazardous 

Waste No. K088). Section 261.33 contains 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 leak detection system requirements, the effective dates for 

the land disposal restrictions, and the surface impoundment retrofit requirements). 

If a waste exhibits a hazardous characteristic or is listed under subtitle C then it is subject to the 

requirements of RCRA subtitle C, and the implementing 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 dispose of such waste and establish rules governing every phase of the 

waste’s management from its generation to its final disposition and beyond. Facilities that treat, 

store or dispose of hazardous wastes, require a permit, which incorporates all of the design and 

operating standards established by EPA rules, including standards for piles, landfills, and surface 

impoundments. Under RCRA subtitle C requirements, 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 that minimize threats to human health and the 

environment posed by the land disposal of the waste, or unless the waste is disposed in a unit 

from which there will be no migration of hazardous constituents for as long as the waste remains 

hazardous. In addition, RCRA subtitle 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 protect human health and the environment. RCRA 
DRAFT 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 obligations, 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 federal 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 requirements are generally effective as part of 

the federal RCRA program in that state only after the state adopts the revised requirement, and 

EPA authorizes the state requirement. The exception applies with respect to requirements 

implementing statutory provisions added to subtitle C by the 1984 Hazardous and Solid Waste 

Amendments to RCRA; such requirements are immediately effective in all states, and are 

enforced by EPA. 

All RCRA hazardous wastes are also hazardous substances under the Comprehensive 

Environmental Response, Compensation, 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 hazardous characteristic. Table 302.4 at 40 CFR 302.4 

lists the CERCLA hazardous substances along with their reportable quantities (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 subject 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 under 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 hazardous 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 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 providing technical assistance to states for planning and developing their own environmentally 

sound waste management practices. The actual planning and direct implementation of solid 

waste programs under RCRA subtitle D, however, remains a state and local 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 implementation of solid waste programs under RCRA 

subtitle D. 

Under the authority of sections 1008(a)(3) and 4004(a) of subtitle D of RCRA, EPA first 

promulgated the Criteria for Classification of Solid Waste Disposal Facilities and Practices (40 

CFR part 257) on September 13, 1979. These subtitle D Criteria establish minimum national 

performance standards necessary to ensure that “no reasonable probability of adverse effects on 
DRAFT 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 section 4005(a). EPA does not have the authority to enforce the 

prohibition directly (except in situations involving the disposal or handling of sludge from 

publicly-owned treatment works, where Federal enforcement of POTW sludge-handling facilities 

is authorized under the CWA). States and citizens may enforce the prohibition on open dumping 

using the authority under RCRA section 7002. EPA, however, may act only if the handling, 

storage, treatment, transportation, or disposal of such wastes may present an imminent and 

substantial endangerment to health or the 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 requirements 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 wastes 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 (or corrective action) and financial assurance at solid waste facilities. 

EPA regulations affecting RCRA subtitle D facilities are found at 40 CFR parts 240 through 247, 

and 255 through 258. The existing part 257 criteria include general environmental performance 

standards addressing eight major 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 (§ 257.3-4), land application (§ 257.35), disease (§ 

257.3-6), air (§ 257.3-7), and safety (§ 257.3-8). EPA has also established regulations for RCRA 

subtitle D landfills that accept conditionally exempt 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 the Bevill exclusion or exemption) excluded 

certain large-volume wastes generated primarily from 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 determination by the EPA 

Administrator either to promulgate 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 generated by utilities, and wastes from non-utility 

boilers burning any type of fossil fuel. Further, because of other priorities, EPA did not 

complete its Regulatory Determination on fossil fuel combustion (FFC) wastes 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 Agency 
DRAFT DO NOT CITE OR QUOTE 41 of 563 5/03/10 

entered into a Consent Decree that established a schedule for EPA 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 independent commercial power producers, 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 electric utility and independent power producing facilities that 

are co-managed together with certain other coal combustion wastes; coal combustion wastes 

generated at non-utilities; coal combustion wastes generated at facilities with fluidized bed 

combustion technology; petroleum coke combustion wastes; wastes from the combustion of 

mixtures of coal and other fuels (i.e., co-burning of coal with other fuels where coal is at least 

50% of the total fuel); wastes from the combustion of oil; and wastes from the combustion of 

natural gas. 

On August 9, 1993, EPA published its Regulatory Determination for the first category of wastes 

(58 FR 42466, http://www.epa.gov/epawaste/nonhaz/industrial/special/mineral/080993.pdf), 

concluding that regulation under subtitle C of RCRA for these wastes was not warranted. To 

make an appropriate determination for the second category, or “remaining wastes,” EPA 

concluded that additional study was necessary. Under the court-ordered deadlines, the Agency 

was required to complete a Report to Congress by March 31, 1999, and issue a Regulatory 

Determination by October 1, 1999. 

In keeping with its court-ordered 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 the 
DRAFT 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 Determination on wastes from the combustion 

of fossil fuels for the remaining wastes (65 FR 32214, http://www.epa.gov/fedrgstr/EPAWASTE/2000/May/Day-22/f11138.htm). In its Regulatory Determination, EPA concluded that 

the remaining wastes were largely identical to the high-volume monofilled wastes, which 

remained exempt based on the 1993 Regulatory Determination. 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 only the remaining wastes, but effectively 

reopened the decision on CCRs that went to monofills. 

EPA concluded that these wastes could pose significant risks if not properly managed, although 

the risk information was limited. EPA identified 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. However, 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 this basis, the Agency concluded to retain the 

Bevill exemption, and stated we would issue a regulation under subtitle D of RCRA, establishing 

minimum national standards. Those subtitle D standards have not yet been issued. (Today's 

proposal could result in the development of the subtitle D standards consistent with the May 
DRAFT DO NOT CITE OR QUOTE 43 of 563 5/03/10 

2000 Regulatory Determination, or with a revision of the determination, or the issuance of 

subtitle C standards under RCRA.) 

EPA also explicitly stated in the May 2000 Regulatory Determination that the Agency would 

continue to review the issues, and would reconsider its decision that subtitle C regulations were 

unwarranted based on a number of factors. EPA noted that its ongoing review would include (1) 

“the extent to which [the wastes] 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 mercury 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 predominantly of silica and aluminosilicates), 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 electricity. Fly ash is 

removed from the plant exhaust gases primarily by electrostatic precipitators or baghouses and 

secondarily by wet scrubber systems. Physically, fly ash is a very fine, powdery material, 

composed mostly of silica. Nearly all particles are spherical in shape. 

Bottom ash is comprised of agglomerated coal ash particles 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 the base of slag tap and cyclone type furnaces 

that is quenched with water. When the molten slag 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 process used to reduce sulfur 

dioxide (SO2) 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 sludge generated from the wet scrubbing process 
DRAFT DO NOT CITE OR QUOTE 45 of 563 5/03/10 

using a limestone-based reagent is predominantly calcium 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 material can be generated wet, such as FGD, or 

generated dry and water added to facilitate transport (i.e. sluiced) through pipes. In dry systems, 

CCRs are transported in its dry form 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 the toxicity characteristic leaching procedure 

(TCLP) from a number of sources. More recent data on the composition 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 compositions 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 identified 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 CCRs5

 (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 

CrVI 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 Combustion: 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 SO2 component is subject to scrubbing: if scrubbing takes place up stream of 

the removal of fly ash particulates, the FGD would 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 collection 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, Thesis, 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, nickel, selenium, silver and thallium. Although 

these metals rarely exceed the RCRA hazardous waste toxicity characteristic (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 unlined 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 mobility of metals in CCRs under a 

variety of different conditions. This issue is further discussed in the following subsection. 

 

8

 See http://www.epa.gov/safewater/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 different 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, regulatory 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 pollution control technologies in coal-fired power plants. These 

technologies include flue gas desulfurization (FGD) systems for SO2 control, selective catalytic 

reduction (SCR) systems for NOX control, and activated carbon injection systems for mercury 

control. These technologies are being installed or are expected to be installed in response to 

federal regulations, state regulations, legal consent decrees, and voluntary actions taken by 

industry to adopt more stringent air pollution controls. Use of more advanced air pollution 

control technology reduces air emissions of metals and other pollutants 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 changes in air pollution control on the characteristics 

of CCRs and the leaching potential of metals is the focus of ongoing research by EPA’s Office of 

Research and Development (ORD). This research is being conducted to identify any potential 

cross-media transfers of mercury and other metals and to meet EPA’s commitment in the 
DRAFT 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-pollutant control at coal-fired power plants. 

Over the last few years, in cooperation with Electric Power Research Institute (EPRI) and the 

utility industry, EPA obtained 73 different CCRs from 31 coal-fired boilers spanning a range of 

coal types and air pollution control configurations. Samples of CCRs were collected to evaluate 

differences in air pollution control, such as addition of post-combustion NOx controls (i.e., 

selective catalytic reduction), FGD scrubbers, and enhanced sorbents for mercury capture. A 

series of reports have been developed to document the results from the ORD research: The first 

report (Characterization of Mercury-Enriched Coal Combustion Residuals 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 from 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 third report (Characterization of Coal Combustion 

Residues from Electric Utilities - Leaching 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 additional 40 samples to cover the range of coal types 

and air pollution control configurations, including some not covered in the two previous reports. 
DRAFT DO NOT CITE OR QUOTE 51 of 563 5/03/10 

Data from these studies is being used to identify potential trends in the composition and leaching 

behavior of CCRs resulting from changes in air 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 containing calcium sulfite), blended CCRs (non-gypsum scrubber 

residues, fly ash, and lime), and wastewater treatment 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 comparing 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 potential, are likely to change with the increased use of multipollutant and mercury controls, anticipated in response to new Clean Air Act regulations. An 

initial focus was to identify appropriate leach testing methods to assess leaching potential under 

known or expected CCR management conditions (beneficial use or disposal). 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 range of actual conditions under 

which wastes are plausibly managed.9

 Because metal leaching rates change with changing 

environmental conditions (especially pH), single point tests may not be the most accurate 

predictor of potential environmental release of mercury or other 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 available leaching test methods was conducted. A 

leaching test method10 based on research conducted at Vanderbilt University in the United States 

and the Energy Research Center of the Netherlands, among others, was selected to address some 

of these concerns. 

While EPA/ORD’s research relied on the Vanderbilt 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 waste listings of other materials as well.11 Because of 

their general utility, the research methods have been drafted into the appropriate format and are 

being evaluated for inclusion in EPA’s waste analytical methods guidance, SW-84612 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 Utilization of Secondary Materials. Environmental 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 Function 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 

Test 
DRAFT DO NOT CITE OR QUOTE 53 of 563 5/03/10 

their routine use for evaluating other 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 used to evaluate CCRs resulting from different air 

pollution controls at coal-fired power plants. This allowed evaluation of leaching potential over 

a range of field conditions under which CCRs are anticipated to be managed during either 

 5. Draft Method 1317 - Concise Test for Determining 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 effects of pH and the liquid/solid ratio. Fine grained materials (e.g., particle sizes 

of 2 mm or less) will have greater contact 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 materials, the tests were designed to evaluate constituent leaching from the 

exposed surface (leaching of constituents that are either at the surface, or that have migrated over time to the 

surface), can be used. Testing at equilibrium provides an upper bound estimate of constituent 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”) materials evaluates constituent 

leaching from materials of low permeability for which most rainfall flows around the material rather than 

percolating through it. This results in less contact between the rainfall and the material, and so typically, a lower 

rate of constituent leaching. For monolithic materials, both the equilibrium and monolith tests are conducted to 

understand the likely initial rates of leaching from the monolith (while it remains solid), and the upper bound on 

likely leaching, when the monolith degrades over time, exposing more surface 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 equilibrium testing conditions. 
DRAFT DO NOT CITE OR QUOTE 54 of 563 5/03/10 

disposal or beneficial use applications. Landfill field leachate data from EPA13 and EPRI14

studies were used to establish the range of pH conditions expected to be found in actual disposal. 

From this data set, and excluding the extreme values (below 5th percentile and above 95th

percentile), a pH range of 5.4 and 12.4 was determined to represent 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. Therefore, these results 

might understate CCR leaching potential if actual field conditions extend beyond the pH range of 

5.4 and 12.4. 

In Tables 4 and 5, the total metals content of the fly ash and FGD gypsum samples evaluated is 

provided along with the leach test results. Reference indicators (i.e., MCL,15 TC,16 and 

DWEL17) 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 chemicals 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 results 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 invariably 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 sediment. 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 attenuation processes is 

incorporated into the leaching values presented. That is, no dilution and attenuation factor, or 

DAF,18 has been applied to these results. Thus, comparisons with regulatory health values, 

particularly drinking water values, must be done with caution. Groundwater transport and fate 

modeling would be needed to generate 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 range 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 the 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 conditions (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 conclusions19,20,21 that the rate of constituent leaching cannot be reliably 

estimated based on total constituent concentration alone. 

(3) From the more complete data in Report 3, distinctive patterns in leaching behavior have 

been identified over the range of pH values that would plausibly 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 management pH range of 5.4 to 12.4, 

o The leach results at the upper end of the leachate concentration range exceed the 

TC values for As, Ba, Cr, and Se (indicated 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 Residuals from Electric Utilities Using Wet Scrubbers for MultiPollutant Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf 
DRAFT DO NOT CITE OR QUOTE 57 of 563 5/03/10 

o The leach results at the upper end of the leachate concentration ranges exceed the 

TC value for Se. 

(6) The variability in total content and the leaching 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 indicators, 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 additional analysis of the 

leaching data to provide more insight into constituent 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 assessment 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 useful as a reference for assessing additional CCR samples in the 

 

22 Sanchez, F., and D. S. Kosson, 2005. Probabilistic approach 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 where there could be a potential concern for a metal 

when comparing the leach results to the MCL, DWEL, 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 field. 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 intended to represent concentrations at a well and 

the point of exposure; leachate dilution and attenuation processes 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 where there could be a potential concern for a metal 

when comparing the leach results to the MCL, DWEL, or concentration level used to determine 

the TC. Note that MCL and DWEL values are intended to represent concentrations at a well and 

the point of exposure; leachate dilution and attenuation processes that would occur in 
DRAFT 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 Standards 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 impoundments are regulated under the states water 

programs. However, there are limited regulations 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 Pollutant 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 parameter 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 Determination, new information and data have 

become available, including additional damage cases, risk modeling, updated information on 

current management practices and state regulations associated with the disposal of CCRs, 

petitions from environmental and citizens groups for EPA to develop 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 through 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 environmental 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 included in the docket to this proposal. The new 

information on risks and the damage cases are discussed 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 sections of the preamble. 

At the time of the May 2000 Regulatory Determination, the Agency was aware of 14 cases of 

proven damages24 and 36 cases of potential damages resulting from the disposal of CCRs. The 

Agency has since learned of an additional 13 cases of proven damages and 4 cases of potential 

damages, including a catastrophic release of CCRs 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 ecological 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 cases 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 May 2000 Regulatory Determination for CCRs, EPA 

prepared a draft quantitative risk assessment. However, because of time constraints, the Agency 

was unable to address public comments on the draft 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 available for public comment in the August 2007 draft 

report titled “Human and Ecological Risk Assessment of Coal Combustion Wastes.” 

In the May 2000 Regulatory Determination, the Agency concluded that the utility industry had 

made significant improvements in its waste management practices for new landfills and surface 

impoundments since the practices reflected in the 1999 Report to Congress, and that most state 

regulatory programs had similarly improved. To verify its conclusion, in 2005, the U.S. 

Department of Energy (DOE) and EPA conducted 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 study were published in the report titled “Coal 

Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004.” 

Additionally, we are aware of at least one state (Maryland) that has recently amended its 

regulatory requirements for the 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/component/main?/main=DocumentDetail&o=09000064

801cf8d1. 

In October 2006, the utility industry through their 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 the utility industry’s 

commitment to adopt groundwater performance 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 RCRA 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 second 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 Environmental 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 Determination ...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 decision as to whether to lift the Bevill exemption, 

and, while it has determined that federal regulation 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 the petitioner. However, the preamble discusses 

the issues raised in these petitions 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 Agency’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 Regulatory 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 Concerning 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 damage case assessment. EPA also included in 

the docket to the NODA the February 2004 Petition for Rulemaking submitted by a number of 
DRAFT 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 approaches for managing CCRs in landfills and 

surface impoundments. One approach is the Voluntary Action Plan that was formulated by the 

electric utility industry. The second approach was the January 2007 framework prepared by a 

number of environmental and citizens’ groups proposing federal regulation under subtitle D of 

RCRA for CCRs generated by U.S. coal-fired power 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, citizens, citizens groups, and environmental groups 

commented that state regulations are inadequate 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 significant 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 regulations were warranted no longer exist and 

therefore, further development of subtitle D regulations is no longer necessary. In September 

2008, the Environmental Council of the States (ECOS) issued a resolution that states already 

have regulations in place that apply to CCRs, and 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_Resolution_08_14_2010_version.doc). Comments on the 
DRAFT 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 conducted a peer review of the 2007 draft risk 

assessment “Human and Ecological Risk Assessment of Coal Combustion Wastes.” The peer 

review was conducted by a team of five experts in groundwater modeling, environmental fate 

and transport modeling, and human health and ecological 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 section II. B. below and the 

document titled “What Are the Environmental and Health Effects Associated with Disposing of 

CCRs in Landfills and Surface Impoundments?” available from the docket to this notice for more 

detailed discussions of the risk assessment. 

In summary, since the May 2000 Regulatory Determination, the Agency has (1) documented an 

additional 17 cases of damage from the disposal of CCRs (13 proven and 3 potential); (2) 

gathered additional information on industry practices; (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 from environmental and citizens 

groups; and (6) received a proposal for regulating the management of CCRs in landfills and 

surface impoundments from environmental and citizens 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 assessment 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 the risks were equivocal. Rather, EPA noted that 

we had not definitively assessed the ground water risks, 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 impoundments, only 26% of the units had liners 

and only 38% of the units had ground water monitoring). 

 

Between 2000 and 2006, EPA addressed public comments and updated the quantitative risk 

assessment for the management of CCRs in landfills 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 landfills and surface impoundments. 
DRAFT DO NOT CITE OR QUOTE 68 of 563 5/03/10 

The risk assessment was designed to develop national human and ecological risk estimates that 

are representative of onsite CCR management settings throughout the United States. A revised 

draft risk assessment was made available to the public through the August 2007 NODA (which is 

discussed in other sections of the preamble) and is available at 

http://www.regulations.gov/fdmspublic/component/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,” (September 2009). The report, peer 

review comments, and EPA’s response to the peer review comments are available in the docket 

for this proposal. 

For purposes of this rulemaking, EPA defined the target level of protection 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 dose is an estimate of the daily dose that is likely to be without 

appreciable risk of deleterious effects over a lifetime. These are the target levels that EPA 

typically uses in its listing decisions. (See, for example, the 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 further 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 results at the 90th percentile suggest that the 

management of CCRs in unlined or clay-lined waste management units (WMUs) result in risks 

greater than the risk 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 the criteria generally used in 

EPA’s listing determination procedure.26 While still above the criteria, 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-drinking-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 described in the notice of proposed rulemaking for wastes 

from the dye and pigment industries at 59 FR 66075 - 66077 available at http://www.epa.gov/fedrgstr/EPAWASTE/1994/December/Day-22/pr-98.html and in the final rule for Nonwastewaters From Productions of Dyes, 

Pigments, and Food, Drug, and Cosmetic Colorants (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 landfills 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 and molybdenum, as well as arsenic (as high as 1 in 2,000 

individual lifetime excess cancer risk). In addition to arsenic, clay-lined fluidized bed 

combustion (FBC) landfills also presented estimated 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, only trivalent arsenic from CCRs 

codisposed with coal refuse was estimated to exceed the risk criteria with cancer risks of 1 in 

50,000. 

o Arsenic and cobalt were the constituents with the highest estimated risks for surface 

impoundments. Clay-lined surface impoundments were estimated to present 90th percentile 

risks above the criteria for arsenic, boron, cadmium, cobalt, molybdenum, and nitrate. The 

90th percentile clay-lined impoundment estimated 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, cadmium, molybdenum and nitrate ranged from 2 

to 20. The 90th percentile unlined surface impoundment estimates were above the criteria 

for constituents that include arsenic, lead, cobalt and selenium: estimated arsenic cancer risks 

are as high as 1 in 50, and non-cancer effects estimates 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; note 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 arsenic cancer risks as high as 

6 in 10,000, while clay-lined impoundments had estimated 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 and clay-lined surface impoundments, respectively. 

o Composite liners, as modeled in this assessment, effectively reduce risks from all 

constituents to below the risk criteria for both 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 groundwater-to-drinking water pathway for unlined 

landfills, arrival times of the peak concentrations at a receptor well peaked in the hundreds or 

thousands of years, while unlined surface impoundment risks typically peaked within the first 

100 years. Clay liners resulted in later arrival of peak risks, nearly always in the thousands 

of years for landfills but still 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 that were estimated to reach groundwater wells 

eventually had peak arsenic-in-groundwater concentrations at approximately 10,000 years, 

while composite-lined surface impoundments' plumes peaked in the thousands of years. 

o For humans exposed via the groundwater-to-surface-water (fish consumption) pathway, 

unlined and clay-lined surface impoundments were estimated to pose risks above the criteria 
DRAFT DO NOT CITE OR QUOTE 72 of 563 5/03/10 

at the 90th percentile. For CCRs managed 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 cancer risks for unlined and clay-lined units, 

respectively). All 50th percentile surface impoundment risks are estimated to be below the 

risk criteria. No constituents pose estimated risks above the risk criteria for landfills 

(including FBC landfills) at the 90th or 50th percentile. 

o EPA also conducted a separate draft fugitive dust 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 assessment30 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%20Audits%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/special/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 significant uncertainties in national risk 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 the 10,000-year period modeled; 

• Shifting populations and 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 wells and surface water bodies; and 

• The potential conservativeness of human health benchmarks. 

The Agency, however, does solicit comment on several specific aspects of the underlying risk 

assessment. In particular, EPA requests comment on whether clay liners designed to meet a 

1x10-7 cm/sec hydraulic conductivity might perform differently in practice than modeled in the 

risk assessment. Thus, EPA solicits specific data on the hydraulic conductivity of clay liners 

associated with CCR disposal units. In addition to the effectiveness of various liner systems, the 
DRAFT 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 reported, could potentially be taken further with the use of compaction 

coupled with the addition of organosilanes. According to recent studies, 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 present 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 groundwater monitoring data associated with such sites. 

In characterizing CCRs and utilizing such data for the risk analysis, EPA gathered a variety of 

data over a long period of time. As a general matter, 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 http://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), questions have been raised 

regarding the representativeness of these individual data points. In one case, a facility with the 

highest arsenic pore water 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 whether 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) came from site CASJ (known as SJA in the EPRI report). The 

concern is that arsenic in the pore 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 characterize these specific data, but the data are old, the 

impoundment is no longer in operation, and there are apparently no additional records upon 

which to draw conclusions. 

Additional high concentration values, especially for lead, are associated 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 is 
DRAFT DO NOT CITE OR QUOTE 76 of 563 5/03/10 

uncertain whether the high lead levels are associated 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 small 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 comment on several questions. 

• For the highest concentrations in EPA's database, 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 representative 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 the development of an industry guide.34 

EPA solicits information on the degree to which 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 leach samples that have been taken at facilities 

operating in concert with the industry guide). 

• For CCR surface impoundments, are there any examples of pore water concentrations for 

arsenic increasing orders of magnitude 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 “Human 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 waste” categories of RCRA, EPA was statutorily 

required to examine “documented cases in which 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 described in detail in the May 2000 Regulatory 

Determination at 65 FR 32224.35 

At the time of the May 2000 Regulatory Determination, the Agency was aware of 11 

documented cases of proven damage to ground water and 36 cases of potential damage to human 

health and the environment from the improper management of CCRs in landfills and surface 

impoundments. Additionally, the Agency determined 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 because 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 concluded that the threats in those cases were not substantial 

enough to cause large scale, system level ecological disruptions. On review, EPA has concluded 

that the ecological damage cases are appropriate for consideration because, while they might 

involve CWA violations, they nevertheless 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 warranting state environmental 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 reclassified 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, additional damage cases, including ecological 

damage cases, have occurred, and were discussed in the August 2007 NODA. Specifically, EPA 

has gathered or received information on 135 alleged 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 proven 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 cases 
DRAFT DO NOT CITE OR QUOTE 79 of 563 5/03/10 

to groundwater being from unlined landfills, five 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 gravel pits. Another 43 cases (which includes 

the 36 potential damage cases from the May 2000 Regulatory Determination) were determined to 

be potential damages to groundwater or surface water; however, four of the potential damage 

cases were attributable to oil combustion wastes and thus are outside the scope of this proposal; 

therefore, resulting in 39 CCR potential damage cases. The remaining 10 alleged damage cases 

were not considered to be proven or potential damage cases due to a lack of evidence that 

damages were uniquely associated with CCRs; therefore, 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 structural 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 million, 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 case involved the failure of a discharge pipe at the TVA Widows 

Creek plant in Stevenson, Alabama, resulting in a 6.1 million gallon release from an FGD pond, 

leading to $9.2 million in cleanup costs. EPA did not classify this as a damage case, because 
DRAFT DO NOT CITE OR QUOTE 80 of 563 5/03/10 

samples at relevant points of potential exposure did not exceed applicable standards. Two other 

cases involved the placement of coal ash in large scale fill operations. 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 residential drinking wells near the site include 

heavy metals and sulfates at or above groundwater quality standards, and the state of Maryland is 

overseeing remediation. The second case is the Battlefield Golf Course in Chesapeake, Virginia 

where 1.5 million yards of fly ash were used as fill and for contouring of a golf course. 

Groundwater contamination above drinking water levels 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 impacted by the fly ash and, therefore, EPA does not 

consider this site a proven damage case. However, 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 cases to 27 and 40 potential cases 

of damage from the mismanagement of CCRs being disposed. 

The Martins Creek and TVA Kingston fly ash impoundment 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 of 
DRAFT DO NOT CITE OR QUOTE 81 of 563 5/03/10 

fly ash sludge released as a result of the TVA 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 and damaged others. Fortunately, there were no 

injuries. 

While much of our risk modeling deals with ground water contamination, based on historical 

facts, EPA recognizes that failures of large CCR impoundments can lead to catastrophic 

environmental releases and large cleanup costs. It is critical to understand as well, however, that 

the structural integrity requirements and the requirements for conversion or retrofitting of 

existing or new impoundments are designed to avoid such releases and that the benefits of 

avoiding such catastrophic failures are very significant. As discussed 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 avoiding 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 value of these ranges from $405 million to $16,732 

million. In addition, the RIA did not quantify or monetize several other additional benefits 

consisting of future avoided social costs associated 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 discharges from impoundments to surface waters 

In December 2009, EPA received a new report from EPRI challenging our conclusions on many 

of the proven damage cases often noting that there was not significant off-site contamination. 
DRAFT DO NOT CITE OR QUOTE 82 of 563 5/03/10 

The report, “Evaluation of Coal Combustion Product Damage Cases (Volumes 1 and 2), Draft 

Report, November 2009,” is available in the docket to this proposal. EPA solicits comments on 

EPRI's report and welcomes additional data regarding the proven damage cases identified by 

EPA, especially the degree to which there was off-site contamination. 

EPA notes that several stakeholders have very recently identified 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 characterization data, which EPA has also not had time to review in detail 

or to respond to. Generally, these reports include information that is relevant to today’s 

proposal. EPA will review this information carefully 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 cases, see the Appendix to this notice, the table 

“Summary of Proven Cases with Damages to Groundwater 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/component/main?main=DocumentDetail&d=EPAHQ-RCRA-2006-0796-0015. 

 

37 On February 24, the Environmental Integrity Project and EarthJustice issued a report on 31 'new' alleged CCRs 

damage cases which is available at: http://www.environmentalintegrity.org/news_reports/documents/OutofControlMountingDamagesFromCoalAshWasteSites.pdf. 
DRAFT DO NOT CITE OR QUOTE 83 of 563 5/03/10 

III. Overview and Summary of the Bevill Regulatory 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 electric utilities and independent 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 regulations 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 subtitle C standards under RCRA.) Today, EPA is 

reconsidering this determination, and is soliciting comments on two alternative options: (1) to 

reverse the Bevill determination (with respect to disposal of CCRs in surface impoundments and 

landfills), and regulate such CCRs as special wastes 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 provides regulatory text for both options. 

In determining whether or not to exclude a Bevill 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 light of these factors, and we highlight the considerations that 

might lead us to reversing the August 1993 and May 2000 Regulatory Determinations (and 

therefore regulate CCR disposal under RCRA subtitle C), or to leave the determination 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 the 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 management scenarios for these products are very 

different from the risk case being considered for CCR disposal in surface impoundments and 

landfills. EPA makes it clear that CCRs in sand and gravel pits, quarries, 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, however, 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 determination for CCRs destined for 

disposal, EPA is proposing to list as a special 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 subtitle C rules (as proposed to be amended 

here) from the point of their generation to the point of their final disposition, 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 criteria outlined in this proposal, 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 subject to the existing cradle-to grave subtitle C 

waste management requirements at 40 CFR parts 260 through 268, parts 270 to 279, and part 124 
DRAFT 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 (with modification), run-on and run-off controls, groundwater 

monitoring, fugitive dust controls, financial assurance, corrective action, including facility-wide 

corrective action, closure of units, and post-closure 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 materials are disposed, treated, and stored. EPA is 

also considering and seeking comment on a modification, which would not require the closure or 

installation of composite liners in existing surface impoundments; rather, these surface 

impoundments could continue to operate 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 releases 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 standards 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 determination in place, EPA is proposing to 

regulate CCRs disposed of in surface impoundments or landfills under the RCRA subtitle D 

requirements, which would establish national criteria to ensure the safe disposal of CCRs in 
DRAFT DO NOT CITE OR QUOTE 86 of 563 5/03/10 

these units. The units would be subject to, among other things, location 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 monitoring and corrective action for 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 install a composite liner. 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. Instead, states or citizens could enforce the requirements under RCRA citizen suit 

authority; the states could also enforce any state regulation under their 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 prime” option, existing surface impoundments would 

not have to close or install composite liners but could continue to operate 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 Relating to CCRs from Electric Utilities 
DRAFT DO NOT CITE OR QUOTE 87 of 563 5/03/10 

As discussed in the preceding sections, EPA 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.) Review 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 predictions regarding anticipated improvements in 

management and state regulatory oversight of these wastes. Consequently, the Agency has 

determined that reconsideration of its May 2000 Regulatory Determination 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 options described in the previous 

section. 

As stated earlier, EPA’s application of its discretion 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 protective of human health and the environment. Second, any decision 

must be based on sound science. Finally, in conducting this rulemaking, EPA will ensure that its 

decision processes are transparent, and encourage the greatest degree of public participation. 

Consequently, to further the public’s understanding and ability to comment on the issues facing 
DRAFT 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 considerations and the key factors 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 RCRA subtitle C was not warranted in light of 

the trends in present disposal and utilization practices, the current and potential utilization of the 

wastes, and the concerns expressed against duplication of efforts by other federal and state 

agencies. In addition, EPA noted that the utility 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 improving. 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. Further, the risk information available was limited, 

although we also noted that we expected that the limited number of damage cases identified in 

the Regulatory Determination was an underestimate. However, EPA did not conclude that the 

available information regarding the extent or nature of the risks were equivocal. However, the 

Agency noted that “...we identified a potential for risks from arsenic that we cannot 

dismiss....”38 EPA further noted that “[i]n the absence of a more complete groundwater risk 

assessment, we are unable at this time to draw quantitative conclusions regarding the risks due to 

arsenic or other contaminants posed by improper waste management.” Existing older units that 

lacked liners and groundwater monitoring (for surface impoundments, only 26% of all units had 

 

38 See 65 FR 32216 at http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ff2f-fr.pdf 
DRAFT DO NOT CITE OR QUOTE 89 of 563 5/03/10 

liners and only 38% of all units had groundwater monitoring) were the major risk drivers in the 

study. 

As discussed in greater detail in section II. B, EPA has revised the draft quantitative risk 

assessment made available when it solicited public 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 management practices--the disposal of both wet and dry 

CCRs in unlined waste management units, but particularly in unlined surface impoundments, and 

the prevalence of wet handling, can pose significant risks to human health and the environment 

from releases of CCR toxic constituents to ground 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-fired 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 impoundments--lack liners and groundwater monitoring 

systems. EPA’s revised CCR risk assessment39 estimated the cancer risk from arsenic40 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 presented in the revised risk assessment are based on the existing cancer slope factor 

of 1.5 mg/kg/d-1 in EPA’s Integrated Risk Information System (IRIS). 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 Update.” Using this NRC data analysis, EPA 

calculated a new cancer slope 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 90th 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 environment 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 yards of fly ash sludge was released over an 

approximately 300 acre area. The ash slide disrupted power, ruptured a gas line, knocked one 

home off its foundation and damaged others. A root-cause analysis report developed for TVA, 

accessible at http://www.tva.gov/kingston/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 sliding. The direct costs to clean up the 
DRAFT DO NOT CITE OR QUOTE 91 of 563 5/03/10 

damage from the TVA Kingston incident 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 state-issued solid waste disposal permit and Section 

402 of the Clean Water Act, resulted in the discharge of 0.5 million cubic yards of coal-ash and 

contaminated water into the Oughoughton Creek 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 materials contained in the 

docket, there is a growing record of proven damage 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 costs 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 benefits and costs in RIAs. This $3.0 billion social cost 

estimate is larger than TVA’s $933 million to $1.2 billion cleanup cost estimate (i.e., TVA’s estimate as of 03 Feb 

2010), because EPA’s social 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 documentation 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 damage cases. Since the May 2000 Regulatory 

Determination, EPA has documented an additional 13 proven damage cases and 4 potential 

damage cases. 

Further, recently collected information regarding the existing state regulatory programs42 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 conclude 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 management of CCRs, including requirements for liners 

and groundwater monitoring, are lacking, and while industry practices may be improving, EPA 

continues to see cases of inappropriate management or cases in which key protections (e.g., 

groundwater monitoring at existing units) are absent. 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 better designed, in that they are lined and have 

installed groundwater monitoring systems, and therefore the total percentages of unprotected 

units have decreased, it appears that a large amount of waste is still being disposed into units that 

lack the necessary protections of liners, and groundwater monitoring. Furthermore, while 

corrective action has generally been taken at the proven damage 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 regarding the manner and degree to which states are 

regulating the management of this material. All of these factors emphasize the need for prompt 

federal rulemaking and have led EPA to reconsider its May 2000 Regulatory Determination. 

In sum, as a result of the significant new information accumulated on two of the four 

considerations specifically identified in the May 2000 Regulatory 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 reached a decision on whether to revise the Bevill Regulatory 

Determination. Rather, EPA has summarized the information available for each of the factors, 

and identifies those considerations on which EPA believes that critical information is lacking. 

Accordingly, EPA is soliciting further information 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 requirements 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, installation 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, will 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 these 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 Determinations 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 exemption 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 most 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 (excluding 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 disposal 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 considerably. 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 used in the 1999 Report to Congress indicates that 

the average planned life expectancy of a landfill 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_Survey_Report_FINAL_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 impoundments, 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 stringent definitions, as well as possibly, the 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 were 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 appear that the industry 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 constructed 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 new 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 landfills 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 surveyed surface impoundment unit permits included 

requirements addressing ground-water protection standards (i.e., contaminant 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 assurance. The EPA/DOE report also concluded 

that approximately 30 percent of the net disposable CCRs generated is potentially entirely 

exempt from the state solid waste permitting requirements49 (EPA/DOE Report at pages 45-46). 

For example, Alabama does not currently regulate 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 permits 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 entrance 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 properties 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 property. (Title 30 TAC 335.1) 
DRAFT DO NOT CITE OR QUOTE 98 of 563 5/03/10 

surface impoundments under Clean Water Act authorities, and consequently primarily address 

the risks from effluent discharges to navigable waters, but do not require liners or groundwater 

monitoring. 

The Agency recognizes that these statistics may be difficult to interpret due to the limitations of 

the study. The study focused on only eleven states, which account for approximately half the 

CCRs generated in the U.S., and it may not address all of the existing regulatory requirements 

that states may or could impose through other authorities to control these units. As one example, 

the DOE/EPA report notes that four of the six states that do not require solid waste permits rely 

on other state authorities to regulate these units: “In Florida, if CCWs 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 covered under the PPSA certification, which will contain 

the same substantive requirements as would otherwise 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 regard to program changes. From the time of the 1999 Report to 

Congress to 2005, most all programs were neutral, with a couple of programs tightening 

requirements and none relaxing requirements. Going 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 tightening 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 Agency 
DRAFT 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 programs are used to address the risks from these 

units. EPA also received detailed comments on this report authored by several environmental 

groups, who criticized several of the general conclusions. These comments are included in the 

rule docket (see comment 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 Association 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 the substance of the state requirements. According to a 2009 

ASTSWMO survey of states with coal ash generation51 (available in the docket), of the 42 states 

with coal fired utilities, at least 36 have permit 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 provide oversight and to approve implementation plans such as the 

placement of groundwater monitoring wells. Without a state permit program, regulatory 

flexibility is limited, and certification by an independent registered professional engineers is 

necessary. With regard to liner requirements, 36% (15 of the 42 states that responded to this 

question) do not have minimum52 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 states 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-specific 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 significant 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 states 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 programs, EPA recognizes 

that information from the dam safety programs would be a much more meaningful measure of 

state regulation of the structural stability of surface impoundments, and solicits such information. 

Thus, while the states seem to be regulating landfills to a greater extent, given the significant 

risks associated with surface impoundments, these results suggest that there continue to be 

significant gaps in state regulatory programs for the disposal of CCRs. (See Letter from 

ASTSWMO to Matt Hale dated April 1, 2009, a copy of which is in the docket to today's 

proposed rule for complete results of the survey.) 

EPA is also aware of some additional information from ASTSWMO. There are 15 states 

(Colorado, Florida, Indiana, Iowa, Kansas, Kentucky, Maryland, Minnesota, Mississippi, 

Montana, New York, North Carolina, Ohio, Pennsylvania, 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 states (Arizona, Delaware, Georgia, Idaho, 

Iowa, Kansas, Louisiana, Maryland, 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, however. 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 surface 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 the disposal units. EPA has little, if any 

information, that describes the extent to which states and utilities have implemented 

requirements—such as groundwater monitoring, for existing units, for the many landfills and 

surface impoundments that receive CCRs. The information currently in the record with respect to 

existing units is fifteen years old. EPA expects that 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. Finally, 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 risk assessment - may affect our assessment of 

the extent of the liner and groundwater monitoring requirements that would be necessary. 
DRAFT DO NOT CITE OR QUOTE 102 of 563 5/03/10 

Therefore, EPA solicits detailed comments specifically on the current management practices of 

state programs, not only under state waste authorities, but under other authorities as well. The 

adequacy of state regulation is one of the key issues before the Agency, as it will address some 

of the more significant questions remaining regarding 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, regarding 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 practice in implementing its existing requirements, 

including for example, the states’ record of enforcement 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 older, 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 adequately 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 regulations are warranted for coal combustion wastes that are used 

beneficially (other than for minefilling) and for oil and gas combustion wastes. We do not wish 

to place any unnecessary barriers on the beneficial use of fossil fuel combustion wastes so that 

they can be used in applications that conserve natural resources and reduce disposal costs.” (65 

FR 32214) (See separate discussion regarding minefilling in section IV. E of this preamble.) 
DRAFT DO NOT CITE OR QUOTE 103 of 563 5/03/10 

EPA identified specific beneficial uses as covered by the May 2000 determination. In particular, 

EPA stated that: “Beneficial purposes include waste stabilization, beneficial construction 

applications (e.g., cement, concrete, brick and concrete products, road bed, structural fill, 

blasting grit, wall board, insulation, roofing materials), agricultural applications (e.g., as a 

substitute for lime) and other applications (absorbents, filter media, paints, plastics and metals 

manufacture, snow and ice control, waste stabilization).” (See 65 FR 32229) These beneficial 

uses are described in more detail 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 established 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 resin-bound products or mineral filler in asphalt. 

New applications of CCRs have been developed, which may hold great green house gas (GHG) 

benefits (for example, fly ash bricks and a process to use CO2 emissions to produce cement). 

Further, EPA expects that uses could shift 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. (See section IV. D. below for a more detailed discussion on the beneficial use 

of CCRs.)

3. Potential danger, if any, to human health and the 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, nickel, 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, contamination of wetlands, and aquatic life exposure to 

contaminants of concern. As discussed in section 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 risks 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 instances, and were also found in at least some of the 

damage cases). Additionally, as discussed in section I.F.2, the potential exists for the chemical 

characteristics of certain CCRs (e.g., fly ash and FGD) to increase, which could result in 

increases in releases from management units, particularly if such wastes are placed in old unlined 

units, as a result of the increased use and application of advanced air pollution control 

technologies in coal-fired power plants. Further details on the results of EPA’s quantitative 

groundwater risk assessment, and the technical issues that remain to be addressed, and on the 

unquantified human and ecological risks can be found in section II and in the Regulatory Impact 

Analysis for today’s proposal. 

EPA also conducted a population risk assessment for the groundwater-arsenic pathway, as a 

complement to the individual risk analysis. While the RCRA program necessarily focuses on 

individual risks, and individual risks have been the basis of previous Bevill and hazardous waste 
DRAFT 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 pathway are 2,509 total excess cancers, over a 75 

year period.54 (A 75 year period was used in this analysis to capture peak risk while the RIA 

generally covers 50 years.) These estimates are based on a cancer slope factor which represents 

the most recent science derived from a 2001 National Resources Council 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 the 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 catastrophic failure. Based on the information collected from EPA’s 

recent CERCLA 104(e) information request letters 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. Surface impoundments are generally designed to last 

the typical operating life of coal-fired boilers, 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 infrastructure, and the fact that many units may be 

nearing the end of their useful lives. For example, as a result of the administrative consent order 

issued after the December 2008 spill, 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 total of 35 units at 25 facilities reported 

historical releases. These range from minor spills 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/special/fossil/surveys2/index.htm#surveyresults. 

b. From Beneficial Use. The risks associated with the disposal of CCRs stem from the specific 

nature of that activity and the specific 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 groundwater than do landfills. The beneficial uses identified as 

excluded under the Bevill amendment for the most part present a significantly 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 likely to raise concerns from a human health and 

environmental point of view. EPA’s risk assessment 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 raise concerns, resulted in 

EPA concluding that none of the identified beneficial uses warranted federal regulation, because 

“we were not able to identify damage cases associated with these types of beneficial uses, nor do 

we now believe that these uses of coal combustion wastes present a significant risk to human 

health or the environment.” (65 FR 32230, May 22, 2000.) EPA also cited the importance of 

beneficially using secondary materials 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 wallboard, concrete, and bricks because the CCRs are 

bound into products. The Agency believes that such beneficial uses of CCRs offer significant 

environmental benefits. 

As we discuss in other sections of this preamble, there are situations where large quantities of 

CCRs have been used indiscriminately as unencapsulated, general fill. The Agency does not 

consider this a beneficial use under today’s proposal, but rather considers it waste management. 

 

56 1998 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.htm 
DRAFT 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., avoidance 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 supply chain-wide reductions in energy use and GHG 

emissions.57 For example, fly ash typically replaces between 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 CO2 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: Beneficial Use of Secondary Materials – Coal Combustion 

Products, February 12, 2008. 

58 Avoided GHG and energy saving estimates based on energy and environmental benefits estimates in the EPA 

report entitled, “Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects 
DRAFT DO NOT CITE OR QUOTE 109 of 563 5/03/10 

As an added benefit, the use of fly ash generally makes concrete stronger and more durable. 

This results in a longer lasting material, thereby marginally reducing the need for future cement 

manufacturing and corresponding avoided emissions and energy use. 

Benefits from Reducing the Need to Mine and Process Virgin Materials. CCRs can be 

substituted for many virgin materials that would otherwise have to be mined and processed for 

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

concrete; mined gypsum to make wallboard, and aggregate, such as stone and gravel for uses in 

concrete and road bed. Using virgin materials for these applications requires mining and 

processing them, which can impair wildlife habitats and disturb otherwise undeveloped land. It 

is beneficial to use secondary materials - provided it is done in an environmentally sound manner 

- that would otherwise be disposed of, rather than to mine and process virgin materials, while 

simultaneously reducing waste and environmental footprints. Reducing mining, processing and 

transport of virgin materials also conserves energy, avoids GHG emissions, and reduces impacts 

on communities. 

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 and 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.pdf 
DRAFT DO NOT CITE OR QUOTE 110 of 563 5/03/10 

While the Agency recognizes the need for regulations for the management of CCRs in landfills 

and surface impoundments, we strongly support the beneficial use of CCRs in an 

environmentally sound manner because of the significant environmental benefits that accrue both 

locally and globally. As discussed below in section XII. A, the current beneficial use of CCRs as 

a replacement for industrial raw materials (e.g., portland cement, virgin stone aggregate, lime, 

gypsum) provides substantial annual life cycle environmental benefits for these industrial 

applications. Specifically, 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 GHG59 (i.e., carbon dioxide and methane) emissions 

reduction, and (d) $17.8 billion per year in other 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 Average 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 Calculator 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_standards/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 benefits (relative to 2005 tonnage).60

However, as discussed in the next section, there are cases where large quantities of CCRs have 

been “used” indiscriminately as unencapsulated “fill,” e.g., to fill sand and gravel pits or 

quarries, or as general fill (e.g., Pines, Indiana and the Battlefield Golf Course in Chesapeake, 

Virginia61). Although EPA does not consider these practices to be legitimate 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 from surface runoff or 

leachate has been proved: As described previously, EPA has identified 27 proven damage 

cases: 17 cases of damage to groundwater, and ten 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 damage 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 waste has been (and continues to be) managed in 

unlined disposal units. 

Several of the new damage cases involve activities that differ from prior damage cases, which 

were focused on groundwater contamination from 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 involve the large-scale placement, akin to 

disposal, of CCRs, under the guise of “beneficial use.” The “beneficial use” in these cases 

involved the filling of old, unlined quarries or gravel pits, or the regrading of landscape with 

large quantities of CCRs. For example, the 216-acre 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 exceedances 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 out that the elevated levels of manganese and iron are a result of 

the natural background levels of these two contaminants. Surface water samples showed 

elevated levels of aluminum, chromium, iron, lead, manganese, and thallium 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 Report62 which concluded that (i) 

metals contaminants were below MCLs and Safe 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 gravel quarries in Gambrills, Maryland 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 residential drinking 

water wells near the site indicated that, in certain locations, contaminants, including heavy 

metals and sulfates, were present at or above ground water quality standards. Private wells in 83 

homes and businesses in areas around the disposal site were tested. 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 resulted 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 are provided in section II. C (above), and in the 

Appendix to this notice. 

As mentioned in section II. C., during the development 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 has 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 available in the docket to this proposed rule, would benefit from 

public input and further review, in the interest of reaching a more complete understanding of the 

nature and number of damage cases. EPA encourages commenters to consider all of these 

analyses in developing their comments. 

5. Alternatives to current disposal methods: There are no meaningful disposal alternatives other 

than land disposal. Improved disposal management practices are practical (e.g., liners, 

groundwater monitoring, dust control), although EPA has not identified meaningful or practical 

treatment options prior to disposal, other than dewatering. (There are, however, available 

technologies, or technologies under development, to process CCRs now likely destined for 

disposal so that they can effectively be converted to appropriate beneficial uses.) The beneficial 

use of these materials as products continues to be an important alternative 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 industry (or to electric rate payers) for each alternative considered for 

this proposal. These estimates are discussed in the regulatory impact analysis presented within 

section XII. A of this preamble. 

7. The impact of the alternative disposal methods on the use of coal 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 note 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 dry 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 suggested, 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 minefill 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 Regulatory Determination, and represents a significant 

increase.) 
DRAFT DO NOT CITE OR QUOTE 116 of 563 5/03/10 

Parties have commented that any regulation of CCRs under RCRA subtitle C will impose a 

crippling stigma on their beneficial use, and eliminate or significantly curtail these uses, even if 

EPA were to regulate only CCRs destined for disposal, without modifying the regulatory status 

of beneficial reuse. On the other hand, other parties 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 beneficial 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 surface 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 necessarily affect the beneficial reuse of this 

material, EPA nevertheless strongly expressed concern that beneficial use not be adversely 

affected. 

EPA is interested in additional information supporting 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 commenters 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 suggest that regulating CCRs under subtitle C of 

RCRA would raise liability issues, EPA requests that commenters describe the types of liability 
DRAFT 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 exemption 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 approaches, requirements for liners and ground water 

monitoring would be established, although there are differences with respect to the other types of 

requirements that can be promulgated by EPA under RCRA subtitle C and D. In addition, as 

discussed in greater detail below, 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 prepare their comments. One particularly critical 
DRAFT 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 oversight 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 indicates that certain management 

practices—particularly units without composite liners and the prevalence of wet handling can 

pose significant risks; (2) the growing record of proven damage 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 caused greater damage to human health and the 

environment than originally estimated (i.e., catastrophic environmental impacts from surface 

impoundment breaches, and damage resulting from “sham beneficial uses”); and (4) questions 

regarding the adequacy of state regulatory programs for the management of CCRs, as many 

states appear to lack key protective requirements for liners and groundwater monitoring and a 

permitting program to ensure that such provisions 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 subtitle 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 and analyses associated with this proposal are 

complex, and several uncertainties remain in EPA’s quantitative risk analysis. One of these 

uncertainties is the evolving character/composition of CCRs due to electric utility upgrades and 
DRAFT 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-NOX controls). 

Other uncertainties relate to the extent to which 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 releases from surface impoundments located in close 

proximity to water bodies intercept drinking water wells. For example, as explained earlier in 

the preamble, some data reflected pore water taken in the upper section of a surface 

impoundment where coal refuse was placed. There were acid generating conditions and high 

concentrations of arsenic, but the data demonstrated that the underlying coal ash neutralized the 

acid conditions and greatly reduced the arsenic which leached from the bottom of the 

impoundment. There are also technical issues associated with releases from surface 

impoundments located in close proximity to water bodies which intercept drinking water wells. 

For example, surface impoundments are commonly placed next to rivers, which can intercept the 

leachate plume and prevent contamination of drinking water wells on the other side of the river. 

Also, in such circumstances the direction of groundwater 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 analyses 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 associated 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 whether the trend in improving state regulatory 

regimes that EPA identified in May 2000 has materialized to the degree anticipated in the 

Regulatory Determination. Although recent information indicates that significant gaps remain, 

EPA continues to lack substantial details regarding the full extent of state regulatory authority 

over these materials, and the manner in which states have in practice, implemented this 

oversight. Nevertheless, based on the information made available on state programs, the Agency 

is reticent to establish 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 EPA recognizes that the extent of regulation of 

CCRs varies between states, EPA is not yet prepared to draw overall conclusions on the 

adequacy of state programs, as a general matter. EPA is, therefore, requesting that commenters, 

and particularly state regulatory authorities, provide detailed information regarding the extent of 

available state regulatory authorities, and 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 Determination. EPA is also soliciting comments on 

the extent to which the information currently available to the Agency reflects current industry 

practices at both older and new units. For example, EPA would be particularly interested in 

information that indicates how many facilities currently have groundwater monitoring systems in 

place, how those systems are designed and monitored, 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 relevant as it continues to evaluate the overall 

adequacy of state regulatory programs. Specifically, EPA intends to consider how state 

regulatory programs have, in practice, evaluated and imposed requirements to address: 

(1) leachate collection; (2) groundwater monitoring; (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 routine analysis of CCRs; (6) whether financial 

responsibility requirements are in place for the management of CCRs; (7) the extent of permit 

requirements, including under what authorities these disposal units are permitted, the types of 

controls that are included in permits, and the extent of oversight provided by the states, (8) 

whether state programs include criteria for siting new units; (9) the extent of requirements for 

corrective action, post-closure monitoring and maintenance; (10) the state’s pattern of active 

enforcement and public involvement; and (11) whether or not these facilities have insurance 

against catastrophic failures. 

Directly related to the 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 level and type of regulation under RCRA subtitles C and D. In 

the interest of furthering the public understanding 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 advantages 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 national cradle-to-grave control over 

CCRs destined for disposal, consistently managed under federally enforceable standards and 

through federal permits, or permits issued by the states that EPA has authorized to regulate CCRs 

in lieu of EPA. Permits can be a particularly important mechanism, because they allow the 

regulatory Agency to scrutinize the design of disposal units and the management practices of the 

permit applicant. They also allow the regulator to tailor the permit conditions to the facility site 

conditions, including the ability to impose additional specific conditions 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 section 3005(c). Additionally, permitting processes 

provide the public and the local community the opportunity to participate in regulatory decisions. 

The combined requirements under subtitle C would effectively phase-out all wet handling of 

CCRs and prohibit the disposal of CCRs in surface 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 damage 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-derived products. The states have expressed concern that any 

federal approach, including a subtitle D approach, has the potential to cause disruption to the 

states’ implementation of CCR regulatory programs under their own authority. For example, the 

state of Maryland has recently upgraded its disposal standards for CCRs under its state solid 

waste authority, and the new state regulations address the major points in today’s proposal 

(except the stability requirement for impoundments and the prohibition against surface 
DRAFT 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 eliminate or significantly reduce these 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 regulation 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 landfill capacity to manage CCRs. As explained 

previously, EPA shares the concern that beneficial uses not be inadvertently adversely affected 

by the regulation of CCRs destined for disposal. EPA continues to believe that certain beneficial 

use, when performed properly, is the environmentally preferable destination for these materials 

and, therefore, wants to address any potential stigma that might arise from designating CCRs as 

hazardous wastes. Thus, EPA is seeking data and information, including detailed analyses, of 

why the subtitle C regulation outlined in today’s proposal will have the 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 been 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 beneficial uses retain the Bevill exemption and do 

not warrant federal regulation. Nevertheless, EPA agrees that “stigma” is an important 
DRAFT DO NOT CITE OR QUOTE 124 of 563 5/03/10 

consideration in the Agency’s decision, and solicits information and data that will help the 

Agency quantify the potential effects of any stigma arising from association with CCR disposal 

regulated under subtitle C. 

On the question of hazardous waste disposal capacity, EPA believes that management patterns of 

CCRs will continue: that landfills and surface impoundments currently receiving CCRs will 

obtain interim status and convert to RCRA subtitle C status, and that 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 overwhelm the current hazardous waste capacity in 

the United States. EPA’s Biennial Report indicates that approximately two million tons of 

hazardous waste are disposed of annually in hazardous waste landfills, and EPA estimates that 

the current total national commercial hazardous waste landfill disposal capacity 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 million tons going to surface impoundments).64 These 

figures illustrate the very large volume of CCR material involved, 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 units, 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 current capacity, not annual capacity. The annual 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 that is in no way representative of the industry as a whole. 

In some cases, the disposal facility may be operated by a contractor for the utility, and the 

landfill is a captive facility that does not receive other industrial wastes. 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 the 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 nature of off-site disposal sites (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 that the RCRA subtitle C requirements will be 

considerably more expensive for them to implement than a RCRA subtitle D regulation, without 

providing commensurate benefits. For example, the 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 the RCRA subtitle C requirements can be costly 

to implement, and could put more pressure on diminishing state budgets. However, were states 

to utilize the subtitle D requirements of today’s proposal, the cost of implementing a RCRA 

subtitle D program will also be expensive. Thus, 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, it 
DRAFT DO NOT CITE OR QUOTE 126 of 563 5/03/10 

will be because EPA has determined that there are serious environmental and human health risks 

that can only be remedied by regulation 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 the costs of administering permit, inspection, and 

enforcement programs. 

EPA notes that its estimates of costs of compliance with the subtitle C requirements have 

increased since its estimates in the 1999 Report to Congress; as explained later 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 either the subtitle C or subtitle D option is associated with the 

required closure of all existing surface impoundments that do not meet the rule’s technical 

requirements, which EPA is proposing under both the subtitle C and subtitle D co-proposals. 

Further, the technical unit design and groundwater monitoring requirements that will effectively 

protect human health and the environment under either option are quite similar. Finally, EPA is 

proposing to modify certain aspects of the RCRA subtitle C framework to address some of the 

practical implementation challenges associated with applying the existing regulatory framework 

to these wastes. However, commenters have suggested 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 solicits 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 administrative 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 implementation and authorization process is described in 

detail in sections VII and VIII of this preamble. But to summarize, federal regulations under 

subtitle C would not go into effect and become federally enforceable until RCRA-authorized 

states65 have adopted the requirements under their own state laws, and EPA has authorized the 

state revisions. Under the RCRA subtitle C regulations, when EPA promulgates more stringent 

regulations, states are required to adopt those rules within one year, if they can do so by 

regulation, and two years if required by legislative action. If a state 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. Three decades of history in the RCRA program, 

however, suggest that this process will take two to five years (if 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 requirements that utilities and others managing regulated 

 

65 Currently, all but two states are authorized 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 process, 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 the absence of permitting or direct regulatory 

oversight. EPA recognizes that many of the states have regulatory programs in place, albeit with 

varying requirements, for the disposal of CCRs, and that industry practices have been improving. 

The RCRA subtitle D approach would complement existing state programs and practices by 

filling in gaps, and set forth criteria for disposing of CCRs to meet the national minimum 

standards that are designed to address key risks identified in damage cases and the risk 

assessment – including the risk of surface impoundment 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 Assessment. 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 industry and state commenters suggested that a RCRA 

subtitle D approach would eliminate two of their concerns: (1) that a RCRA subtitle C approach 

would inappropriately stigmatize uses of CCRs that provide significant environmental or 

economic benefits, or that (according to those commenters) hold significant potential promise, 

and (2) that the volume of CCR wastes generated – particularly if requirements of a RCRA 

subtitle C regulation led to more off-site disposal – would overwhelm existing subtitle C capacity 

based on the large volumes of CCRs that are generated and would need to be disposed of. It 

would also reduce or eliminate expressed industry concerns about the effect 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 issue, these same commenters have also suggested 

that, under the RCRA subtitle C regulations, future cleanup of poorly sited or leaking disposal 
DRAFT DO NOT CITE OR QUOTE 129 of 563 5/03/10 

sites (including historical or legacy sites) would be considerably 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 examples; 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 under RCRA subtitle C will stigmatize CCRs destined 

for beneficial use, for the reasons discussed elsewhere in today’s preamble, and the Agency does 

not at this point have reason to assume that use of off-site commercial disposal of CCRs will 

increase significantly. 

EPA also notes that many of the requirements discussed 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 preamble, EPA’s ability to enforce those requirements is limited. 

(Of course, certain requirements, such as closure of existing surface impoundments, would have 

a delayed compliance date set to reflect practical compliance realities, but other requirements, for 

example, groundwater monitoring or the requirement 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 currently underway that would establish financial 

assurance requirements for several industries pursuant to CERCLA 108(b), including the Electric 

Power Generation, Transmission and 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 state programs as it relates to CCRs. It establishes a framework 

for Federal, state, and local government cooperation 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 management practices. The co-proposed subtitle D 

alternative in this proposal would establish national minimum standards specifically for CCRs 

for the first time. The actual planning and direct 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 state-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 authority to establish requirements governing the 

transportation, storage, or treatment of such wastes 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 whether any state permitting program for CCR facilities 

is adequate. This complicates the Agency’s ability 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, the “open dumping” prohibition may be enforced 

by states and citizens under 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 Regulatory Determination, EPA concluded that federal 

regulation was not warranted for the beneficial uses identified in the notice, because: “(a) We 

have not identified any other beneficial uses that are likely to present significant risks to human 

health or the environment; and (b) no documented cases of damage to human health or the 

environment have been identified. Additionally, we do not want to place any unnecessary 

barriers on the beneficial uses of coal combustion wastes so they can be used in applications that 

conserve natural resources and reduce disposal costs.” (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 secondary materials and of resource conservation, as 

an alternative to disposal. However, EPA did 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 benefits (environmental and economic), that we did not want to 

impose an unnecessary stigma on these uses and therefore, we did not see 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 character/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.htm 
DRAFT 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 postNOX controls), changes include: (1) a significant 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 substitute for portland cement 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 the standard leach tests-- e.g., the Toxicity 

Characteristic Leaching Procedure (TCLP) that have generally been used may not accurately 

represent the performance of varying types of CCRs under variable field conditions, (5) new 

studies and research by academia and federal agencies on the use of CCRs, including studies on 

the performance of CCR-derived materials 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) the continuing development of state “beneficial 

use” regulatory programs under state solid waste authorities. 

Some of these changes confirm or strengthen EPA’s Regulatory Determination in May 2000 

(e.g., the growth and maturation of state beneficial use programs and the growing recognition 

that the beneficial use of CCRs is a critical component in strategies to reduce GHG emissions); 

 

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

69 See http://www.epa.gov/osw/partnerships/c2p2/pubs/fgd-fs.pdf 
DRAFT DO NOT CITE OR QUOTE 133 of 563 5/03/10 

other developments raise critical questions regarding this determination (e.g., the potentially 

changing composition of CCRs as a result of improved air pollution control and the new science 

on metals leaching). EPA solicits information and data on these developments 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 these 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, although 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 that some uses of CCRs, such as encapsulated 

uses in concrete, and use as an ingredient in the manufacture of wallboard, provide benefits and 

raise minimal health or environmental concerns. 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, unencapsulated 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 agricultural uses, presents a set of issues, which may pose similar 

concerns as those that are causing the Agency to propose to regulate CCRs destined for disposal. 

Still, the amounts and, in some cases, the manner in which they are used—i.e., subject to 
DRAFT DO NOT CITE OR QUOTE 134 of 563 5/03/10 

engineering specifications and material requirements rather than landfilling techniques-are very 

different from land disposal. EPA also notes that stakeholders, 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 information becoming available on the leaching of 

metals from CCRs, we are considering approaches such as, better defining beneficial use or 

developing detailed guidance on the beneficial use of CCRs to supplement 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 prohibit 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 characterization 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 land placement of CCRs. However, EPA is trying to 

balance concerns that proposing one or more of these alternatives might have the effect of 

stifling economic activities and innovation in areas that have potential for environmental 

benefits, while also providing adequate protection 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 proven damage cases involving the large-scale 

placement, akin to disposal, of CCRs has occurred 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 consider this type of use to be covered by the 

exclusion. Therefore, today’s proposed rule explicitly removes these types of uses from the 

category of beneficial use, such that they would be subject to the management standards that 

EPA finally promulgates. EPA also seeks information and data on whether it should take a 

similar approach in today’s proposal to unencapsulated 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 assessment, taking into consideration, inter alia, the 

CCRs character and composition, their leaching potential 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 application, 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 resources, provide improved material properties, 

reduce GHG emissions, lessen the need for waste disposal units, and provide significant 

domestic economic benefits (as noted above in section 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 and ongoing research on these uses, and that the 

composition of CCRs are likely changing as a result 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 the 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 beneficial use programs (which apply to a wide range 

of secondary materials, not just CCRs). EPA, other federal agencies, and academia have 

conducted research on specific uses, and have provided guidance and best management practices 

on using CCRs in an environmentally sound manner in a range of applications. For example, 

EPA, working with the Federal Highway Administration (FHWA), DOE, the American Coal 

Ash Association (ACAA), and USWAG issued guidance in April 2005 on the appropriate use of 

coal ash in highway construction. EPA understands that the composition of CCRs, the nature of 

different CCR uses, and the specific environment in which CCRs are used, can affect the 

effectiveness and the environmentally sound use of particular projects. In today’s proposal, EPA 

is suggesting that an appropriate 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 beneficial uses of CCRs – e.g., those identified in the 

May 2000 Regulatory Determination as clarified in this notice -- should not be prohibited from 

continuing. As described later in this section of today’s notice, EPA solicits comment on 

whether an alternative approach is appropriate, particularly for 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 Determination 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 manufacturing process that have never been “discarded,

70” and thus, 

would not be solid wastes under the existing hazardous waste rules. For example, synthetic 

gypsum is a product of the FGD process at coal-fired power plants. In this case, the utility 

designs and operates its air pollution control devices to produce an optimal product, including 

the oxidation of the FGD to produce synthetic gypsum. In this example, 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. Wallboard 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 product rather than a waste or discarded material. 

This use and similar uses of CCRs that meet product specifications would 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 not 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 associated 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 some commenters disagreed with our findings, no 

data or other support for the commenters’ position was provided, nor was any information 

provided to show risk or damage associated with agricultural use. Therefore, we conclude that 

none of the beneficial uses of coal combustion wastes listed above pose risks of concern.” (See 

65 FR 32230.) Since that time, EPA is not aware of data or other information to indicate that 

existing efforts of states, EPA and other federal agencies are not adequate to address 

environmental issues associated with the beneficial uses of CCRs, that were originally identified 

in the Regulatory Determination. Therefore, at this time, EPA is not proposing to reverse that 

determination. Specifically: (1) EPA believes today’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 beneficial 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 the significant and measurable 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 that consist of or contain these Bevill-exempt 

beneficially used materials, including demolition debris from beneficially used CCRs in 

wallboard or concrete that were generated because the products have reached the end of their 

useful lives—would also not be listed as a special 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 the environmentally preferable outcome for CCRs 

and, therefore, is concerned about regulatory decisions that would limit beneficial uses, including 

research on beneficial uses. Thus, EPA is not proposing to modify the existing Bevill exemption 

for CCRs (sometimes referred to as CCPs when beneficially 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 beneficial uses, uncertainty relative to the future 

characteristics of CCRs and, therefore, uncertainty concerning the risks associated with some 

beneficial uses. At the same time, EPA recognizes 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 characterizing 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 programs are or have been inadequate in being 

environmentally protective and, conversely, where states have, or are developing, increasingly 

effective beneficial use programs. 

As previously discussed, and discussed in section 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 would stigmatize the beneficial use of CCRs, and 

these uses would disappear. Although it remains unclear whether any stigmatic effect from 

regulating CCRs destined for disposal as hazardous waste would decrease the beneficial use of 

CCRs, and irrespective of whether EPA ultimately concludes to promulgate regulations under 

RCRA subtitles C or D, EPA is convinced that regulating the beneficial use of CCRs under 
DRAFT 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 discussed below), yet regulating 

this beneficial use under RCRA subtitle C requirements 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 ingredient 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 restrictions and other 

requirements, as use of the concrete would constitute disposal if placed on the land. EPA instead 

is proposing an approach that would allow beneficial uses to continue, under state controls, EPA 

guidance, and current industrial standards and practices. 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 businesses legitimately using CCRs is justified, on 

the strength of the existing 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 with care, according to appropriate management practices, and 

with appropriate characterization of the material and the site where the materials would be 

placed. In this respect, CCRs are similar to other materials used in this manner – including raw 
DRAFT DO NOT CITE OR QUOTE 141 of 563 5/03/10 

materials derived from quarried aggregates, secondary materials from other industrial processes, 

and materials derived from natural ores. Rather, EPA concludes that, based on our knowledge of 

how CCRs are used, that potential risks of these uses do not warrant federal regulation, but can 

be addressed, if necessary, in other 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 construction 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 that are beneficially used, we believe it is 

necessary and appropriate to distinguish between beneficial use and operations that would 

constitute disposal operations – such as large volumes of CCRs that are used in sand and gravel 

pits or for restructuring the landscape. EPA believes the following criteria can be used to define 

legitimate beneficial uses appropriately, and are consistent with EPA’s approach in the May 

2000 Regulatory Determination, although such criteria were not specifically 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 degradation 
DRAFT DO NOT CITE OR QUOTE 142 of 563 5/03/10 

from salt water; synthetic gypsum serves exactly the same function in wallboard as 

gypsum from ore, and meets all commercial specifications; CCRs as a soil amendment 

adjusts the pH of soil to promote plant growth. 

o The material substitutes for the use of a virgin material, conserving natural resources that 

would otherwise need to be obtained through practices, such as extraction. For example, 

the use of FGD gypsum in the manufacture of wallboard (drywall) decreases the need to 

mine natural gypsum, thereby conserving the natural resource and conserving energy that 

otherwise would be needed to mine natural gypsum; the use of fly ash in lieu of portland 

cement reduces the need for cement. CCRs used 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 regulatory standards are available, the materials 

meet those specifications, and where such specifications or standards have not been 

established, they are not being used in excess 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. Fly ash used as a stabilized base course in 

highway construction is part of many engineering considerations, such as the ASTM C 

593 test for compaction, the ASTM D 560 freezing and thawing test, and a seven day 

compressive strength above 2760 (400 psi). If excessive volumes of CCRs are used—

i.e., greater than were necessary for a specific project,--that could be grounds for a 

determination that the use was subject 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 developed 
DRAFT DO NOT CITE OR QUOTE 143 of 563 5/03/10 

specific standards governing agricultural application of biosolids. While the management 

scenarios differ between biosludge application 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 the 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 criteria, as well as suggestions for other criteria 

that may need to be included to ensure that legitimate 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 beneficial. The discussion that follows provides a brief summary of 

how certain of the beneficial uses meet the various 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 established 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 makeup. The Agency solicits comment on whether 

use of CCRs in consumer products of this kind can be safely undertaken. The Agency further 

 

71 See 40 CFR part 503 
DRAFT 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 the product, such as cement, concrete, brick and 

concrete products, wallboard, and roofing materials – the CCRs provide a functional benefit - 

that is, the CCRs provide a cementitious or structural 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 plastics not only provide benefits, but EPA generally 

does not consider materials used in these ways to be waste - that is, they have not been discarded. 

Use of CCRs in highway projects is a significant practice covering road bed and embankments. 

CCRs used according to FHA/DOT standards provide an important function in road building, 

replacing material that would otherwise need to be obtained, such as aggregate or clay. In many 

cases, the CCRs can lead to better road performance. For snow and ice controls, the beneficial 

use is limited to boiler slag and bottom ash, which replaces fine aggregate that would otherwise 

need to be used to prevent skidding, and amounts used are in line with the materials they 

replace.72 

 

72 According to the ACAA survey, 80% of boiler slag – a vitreous 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 Pits and Large Scale Fill Operations is Not 

Considered a Beneficial Use. 

As indicated earlier, EPA has identified several proven damage cases associated with the 

placement of CCRs in sand and gravel pits. There has also been significant community concern 

with large-scale fill operations. Because of the damage cases and the concern that sand and 

gravel pits and large scale fill operations are essentially 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 that 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 appropriate criteria to distinguish between 

legitimate beneficial uses and inappropriate operations, such as, for example, a comparison to 

features associated with relatively small landfills used by the utility industry, and whether 

characteristics of the materials would allow their safe use for a particular application in a 

particular setting (i.e., characterize 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 major issues associated with the placement of 

CCRs on the land for beneficial use has involved the 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 would 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 raises questions regarding the beneficial use of 

unencapsulated uses of CCRs; accordingly, in this section, the Agency presents information on 

the issues on which it is specifically soliciting comment. 

First, we identify the array of environmental issues 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, and 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 facility, but generated under 

different operating conditions (e.g., different air pollution controls or configurations) may 

not be acceptable for the same management scenario. Changes in air pollution controls 

will result in fly ash and other CCRs presenting 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 significantly impact whether placement of 

unencapsulated CCRs causes environmental risks. There are great differences between 
DRAFT DO NOT CITE OR QUOTE 147 of 563 5/03/10 

the amount of material disposed of in a landfill and in beneficial use settings. For 

example, a stabilized fly ash base course for 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, sometimes achieving levels similar to liner 

systems. This limits the transport of water through the ash and thus acts to protect 

groundwater. The drainage layer prevents capillary effects and thus 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 operations 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. Hydraulic conductivity of the subsurface, the 

rainfall in the area, the depth to groundwater, and other factors (e.g., changes in 

characteristics due to the addition of advanced air pollution controls) are important 

considerations in whether a specific beneficial 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 address the environmental issues that may be 
DRAFT 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 reporting States, or 85 percent, indicated they had 

either formal or informal decision-making processes or beneficial use programs relating 

to the use of solid wastes.”73

(http://www.astswmo.org/files/publications/solidwaste/2007BUSurveyReport11-30-

07.pdf) For example, Wisconsin’s Department of Natural Resources has developed a 

regulation (NR 538 Wis. Adm. Code), which includes a five-category system to allow for 

the beneficial use of industrial by-products, including coal ash. The state has approved 

CCRs in a full range of uses, including road 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 for assessing the use of recycled industrial 

materials in highways. This model is shared with states to facilitate assessments to 

determine if such beneficial use projects 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 determination 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/partnerships/c2p2/pubs/iwem-report.pdf and the Industrial 

Waste Management Evaluation Model (IWEM) at http://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 the 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, Grosenheider K, Johnson M. Screening tool for 

using waste materials in paving projects (STUWMPP). Office of Research 

Services, Minnesota Dept. of Transportation, Minnesota; 2004. Report nr 

MN/RC–2005-03. 

o Sauer JJ, Benson CH, Edil TB. Metals leaching from highway test sections 

constructed with industrial byproducts. University 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 understanding, and to consider 

emerging science and practices. Furthermore, the beneficial use of CCRs is a world wide 

activity, so there is also considerable 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 opportunities for CCRs, EPA believes it is imperative 

to gather a full range of views on the issue of unencapsulated uses in order to ensure the 
DRAFT 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 provide information and data to demonstrate that 

it is inappropriate. For example, previous risk analyses do not address many of the use 

applications currently being 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 literature indicates that the uncontrolled (i.e., 

excessive) application of CCRs can lead to the potentially toxic accumulation of metals (e.g., in 

agricultural applications75 and as fill material76). 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 whether 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 approach to be taken. For example, EPA might 

consider a prohibition on these uses, except where, as part of a case-by-case, or material-bymaterial petition process where appropriate characterization of the material is used (including 

taking into account the pH to which the material 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/content/3c5gaq2qrkr5unvp/fulltext.pdf. 

76 See information regarding the Town of Pines Groundwater Plume at 

http://www.epa.gov/region5superfund/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 expects that the risk assessment would be based on 

actual leach data from the material. (See request for comment below on material 

characterization.) 

In reaching its decision on whether to regulate unencapsulated 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 Draft SW-846 leaching test methods described in 

Section I. F. 2 and other tools (e.g., USEPA’s Industrial Waste Management Evaluation 

Model (IWEM)) to aid prospective beneficial users 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 probabilistic assessment modeling. 

• As discussed previously, EPA is working with USDA to study agricultural use of FGD 

gypsum to provide further knowledge in this area. 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 needed, 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 beneficial 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 cover 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 conditions on other types of hazardous wastes 

destined for land placement (e.g., maximum application rates 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 allowable total 

concentrations for non-nutritive and toxic metals in zinc fertilizers produced from 

recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Comments 

are solicited as to whether EPA should establish standards or rely on implementing states 
DRAFT 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 uses remain protective. 

• Whether to exclude from beneficial use unencapsulated uses in direct contact with water 

bodies (including the seasonal high groundwater table)? 

E. Placement of CCRs in Minefilling Operations 

In today’s proposal, EPA is not addressing its Regulatory Determination on minefilling, and 

instead will work with the OSM to develop effective 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 recommendations of the National Research Council (NRC), 

which, at the direction of Congress, studied the health, safety, and environmental risks associated 

with the placement of CCRs in active and abandoned coal mines in all major U.S. coal basins. 

The NRC published its findings on March 1, 2006, in a report entitled ‘‘Managing Coal 

Combustion Residues (CCRs) in Mines,” which is available at 

http://books.nap.edu/openbook.php?isbn=0309100496. 

The report concluded that the “placement of CCRs in mines as part of coal mine reclamation 

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

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

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

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

NRC report recommended that enforceable federal standards be established for the disposal of 
DRAFT DO NOT CITE OR QUOTE 154 of 563 5/03/10 

CCRs in minefills to ensure that states have specific authority and that states implement adequate 

safeguards. The NRC Committee on Mine Placement of Coal Combustion Wastes also stated 

that OSM and its SMCRA state partners should take the lead in developing new national 

standards for CCR use in mines because the framework is 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 Interior (DOI) will take the lead in developing these 

regulations. EPA will work closely with DOI throughout 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 revise the Bevill exclusion for CCRs generated at 

facilities that are not part of the electric power sector and which use coal as the fuel in non-utility 

boilers, such as manufacturing facilities, universities, and hospitals. The Agency lacks sufficient 

information at this time to determine an appropriate course of action for 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, manufacturing, transportation, and education. The 

electricity that they generate is mainly for their own use, but any excess may be sold in the 
DRAFT DO NOT CITE OR QUOTE 155 of 563 5/03/10 

wholesale market.78 According to the Energy Information Administration (EIA), CHPs 

produced 2.7% of the total electricity generated from coal combustion in 200779 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 utilities, 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 waste, many of which are 

generated in much larger quantities than CCRs, and thus, they are likely to be mixed or comanaged together. As a result, the composition of any co-managed waste might be 

fundamentally different from the CCRs that are generated by electric utilities. Presently, EPA 

lacks critical data from these facilities sufficient to address key Bevill criteria such as current 

management practices, damage cases, risks, and waste characterization. Thus, EPA solicits 

information and data on CCRs that are generated 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 information. In addition, EPA does not currently have 

enough information on non-utilities to determine whether a regulatory flexibility 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 operations in today’s proposal, and will instead focus 

on the nearly 98% of CCRs that are generated at electric utilities. 

 

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

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

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

81 http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile2_3.pdf 
DRAFT DO NOT CITE OR QUOTE 156 of 563 5/03/10 

V. Co-Proposed Listing of CCRs as a Special 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 subtitle 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 CCRs 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 requirements 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 section 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 generated by facilities outside the electric 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 sections, which lay out reasons why the Agency may 

decide to reverse the Bevill Regulatory Determination and exemption. Rather than repeat that 

discussion here, EPA simply references the discussion in the earlier sections. In addition, EPA 

would be relying on the various risk assessments conducted on CCRs to provide significant 
DRAFT DO NOT CITE OR QUOTE 157 of 563 5/03/10 

support for a listing determination. EPA’s risk assessment work includes four analyses: (1) U.S. 

EPA 1998, “Draft Final Report: Non-groundwater Pathways, Human Health 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/special/fossil/ngwrsk1.pdf); (2) preliminary 

groundwater and ecological risk screening of selected constituents in U.S. EPA 2002, 

“Constituent Screening for Coal Combustion Wastes,” (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 screening analysis; (3) U.S. EPA 2009a, “Human 

and Ecological Risk Assessment of Coal Combustion Wastes” (September 2009) available in the 

docket for this proposed rule, and referred to hereafter as the 2009 risk assessment; and (4) U.S. 

EPA 2009b, “Inhalation of Fugitive Dust: A Screening 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 correlates 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, the 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 eleven factors that EPA must consider in 

determining whether the waste poses a “substantial present or potential hazard to human health 

and the environment when improperly treated, stored, transported or disposed of or otherwise 

managed.” Nine of these factors, as described 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)(viii)) are combined in the calculation of the levels of the CCR 

constituents that pose a hazard. 

o Potential of the hazardous constituents and any 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 the contaminants to which individuals are 

exposed. 

o Two of the factors, plausible mismanagement 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 discussed in section II. C. The final factor allows EPA to consider 

other factors as appropriate (§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 listing determinations found at 40 CFR Part 261.11 

require the Administrator to list a solid waste as a hazardous waste (and thus subject 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, the 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 constituents listed in Appendix VIII of 40 CFR 

part 261 (Hazardous Waste Constituents) and, after considering the following factors, the 

Administrator concludes that the waste is capable of posing a substantial present or potential 

hazard to human health or the environment when 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 constituent or any toxic degradation product of the constituent to 

migrate from the waste into the environment under the types of improper management 

considered in paragraph (vii). 

(iv) The persistence of the constituent or any toxic degradation product of the constituent. 
DRAFT DO NOT CITE OR QUOTE 160 of 563 5/03/10 

(v) The potential for the constituent or any toxic degradation product of the constituent to 

degrade into non-harmful constituents 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 management 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 health 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 regarding how the Agency uses human health and 

environmental risk estimates in making listing decisions, given the uncertainty that can co-exist 

with risk estimates. Specifically: 

“...the Agency’s listing determination policy utilizes a “weight of evidence” approach in 

which risk is a key factor...however, risk levels themselves do not necessarily represent 

the sole basis for a listing. There can be uncertainty in calculated 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 for 
DRAFT DO NOT CITE OR QUOTE 161 of 563 5/03/10 

which the calculated high-end individual cancer-risk level is 1 x 10-5 or higher generally 

are considered candidates for a list decision...(2) Waste streams for which these risks are 

calculated to be 1 x 10-4 or higher...generally will be considered 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 the 

Agency 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. However, even for these waste streams, in some 

cases, there can be factors that could mitigate 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 presumption of candidacy for either listing (risk 

> 10-5) or no listing (risk < 10-5). However, this presumption is not as strong as when 

risks are outside this range. Therefore, listing determinations for waste streams would 

always involve assessment of the additional factors discussed below....Additional 
DRAFT 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 into the risk range between 1 x 10-4 and 1 x 10-6. (1) 

Certainty of waste characterization; (2) Certainty in risk assessment methodology; (3) 

Coverage by other regulatory programs; (4) Waste volume; (5) Evidence of cooccurrence; (6) Damage cases showing actual 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 releases from landfills and 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 chemical characteristics of the chemical, the 

properties of the waste stream, and the environmental 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 water well, or to nearby 

surface water, and is ingested as drinking water 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 of 
DRAFT DO NOT CITE OR QUOTE 163 of 563 5/03/10 

human health effects from breathing windblown particulate matter from CCR landfill disposal 

operations (the 1998 risk assessment and U.S. EPA 2009b). 

Longstanding EPA policy is for EPA risk assessments 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 exposure situation, and a high end 

estimate that represents conditions likely to be encountered by individuals with higher exposures 

(U.S. EPA 1995).82 Examples of factors that would influence a nearby resident’s exposure are 

the residence’s distance from a CCR waste management unit, and an individual’s behavior or 

activity patterns. In the 2009 risk assessment, the high end risk estimates are the 90th 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 individual’s cancer risk, the risk criteria are in the range of 1 x 10-6, or 

one in one million “excess” (above and beyond pre-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 Protection 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 and 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 effects would be expected to occur (expressed as a 

ratio of the estimated exposure to the exposure at which it is likely that there would be no 

adverse health effects; this ratio 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 established under the Safe Drinking Water Act. 

The exposure pathways for humans that EPA has evaluated for CCR landfills and surface 

impoundments are nearby residents’ groundwater ingestion and air inhalation, and fish 

consumption by recreational fishers. 

2. Ecological Risks 

For ecological non-cancer hazards that are modeled, 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-reviewed scientific literature. Such evidence is 

often sufficient to determine adverse ecological effects in lieu of or in addition to modeling 

potential ecological risks. 

 

84 As noted previously, EPA’s hazardous waste listing determination 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 ecological receptors: exposures in which ecological 

receptors inhabit a waste management unit directly, 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 Individual Listing Criteria. 

CCRs contain the following Appendix VIII toxic constituents: antimony, arsenic, barium, 

beryllium, cadmium, chromium, lead, mercury, nickel, 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 Research 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. Research 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 findings. In the following discussion 

of the eleven listing factors, we combined factors iii (Migration), iv (Persistence), v 

(Degradation) and vi (Bioaccumulation); and factors vii (Plausible Types 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 developing 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 Health88 are all sources of toxicological data on the Appendix VIII 

hazardous constituents found in CCRs. (The information 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 carcinogens, 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 nature 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 weight-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/index.cfm?fuseaction=iris.showSubstanceList&list_type=alpha&view=B 

88 http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB 
DRAFT DO NOT CITE OR QUOTE 167 of 563 5/03/10 

uncertainty spanning perhaps an order of magnitude) of a daily exposure to the human 

population (including sensitive subgroups) that is likely 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 the metals identified are sufficiently toxic that 

they are capable of posing a substantial present or potential hazard to human health and the 

environment when improperly treated, stored, transported 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 constituents that were estimated in the draft 

groundwater risk assessment to pose high-end (90th percentile) risks at or above the risk criteria 

in one or more situations, and that were also found 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 glucose and cholesterol levels, myocardial 

effects, and spontaneous abortions. EPA has set a limit of 145 ppb in lakes and streams to 

protect human health from the harmful effects of antimony taken in through water and 

contaminated fish and shellfish.90

 

89 ATSDR ToxFAQs. Available at: http://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 gastrointestinal disturbances and muscular 

weaknesses when people are exposed to it at levels above the EPA 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/m3

), 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 system function, high blood pressure, and anemia.93

Hexavalent Chromium. Hexavalent chromium has been shown to cause lung cancer when 

inhaled.94

Mercury. Exposure to high levels of metallic, inorganic, 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 sensitive to nickel. The most common reaction is a 

skin rash at the site of contact. Less frequently, 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 

95Ibid 

96 Ibid 
DRAFT 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 for a long period of time may result in a condition 

called arygria, a blue-gray discoloration 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 fly ash and FGD are presented 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 metals are contained in CCRs at relatively high 

concentrations, such that if CCRs were improperly 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-proposal, including documents contained in the docket to today’s 

proposed rule. 

3. Migration, Persistence, Degradation, and Bioaccumulation—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 environment are all factors that EPA considered and 

evaluated in the design of the fate and transport 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 hazardous constituents in the fate and transport 

models, the Agency would note that the toxic 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 degrade with the passage of time. Thus, these 

toxic metals will persist in the environment 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 the fate and transport models to assess likely 

migration of the CCR toxic constituents from different 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 environment. To estimate the risks posed by the 

management of CCRs in landfills and surface impoundments, the risk assessment estimated the 

release of the CCR toxic constituents from landfills and surface impoundments, the 

concentrations of these constituents in environmental 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 transport 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 50th

and 90th percentile risk assessment results for relevant Appendix VIII constituents are discussed 
DRAFT DO NOT CITE OR QUOTE 172 of 563 5/03/10 

below. While these results are based on a subset 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 for 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 electric utilities. 

Ingestion of Groundwater: The risk assessment predicted that CCRs pose an estimated trivalent 

arsenic cancer risk of 4 in 10,000 for unlined landfills and 2 in 10,000 for clay-lined landfills at 

the 90th percentile. No cancer risks above 1 in 100,000 were found at the 50th percentile. The 

90th percentile results also estimated that thallium is ingested at three times the reference dose 

and antimony at twice the reference dose for unlined landfills. For clay-lined landfills, only 

thallium is estimated to exceed the reference dose, with a 90th percentile ingestion of twice the 

reference dose. 

CCRs co-managed with coal refuse in landfills are 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 90th percentile. EPA 

estimates that arsenic poses a 2 in 100,000 risk of cancer at the 50th 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 reference dose in unlined landfills at the 90th percentile, 

but did not exceed the reference dose at the 50th 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 90th percentile. For clay-lined landfills managing FBC waste, 

arsenic is estimated to have a cancer risk of six in one hundred thousand at the 90th 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 unlined 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, and 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 concentrations 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 90th

percentile. For unlined surface impoundments at the 90th percentile, selenium’s HQ is two and 

lead’s is three. At the 50th percentile, none of the constituents 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 arsenic 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 did 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 90th percentile, arsenic’s estimated cancer risk is 2 in 100 and 7 in 1,000 for 

unlined and clay-lined surface impoundments, respectively.102 At the 50th 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 90th percentile for unlined surface 

impoundments. In clay-lined surface impoundments, cadmium has an estimated cadmium HQ of 

3. When managed in surface impoundments with composite 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 differences in behaviors when interacting in soil, some chemical 

constituents move more quickly than others through the subsurface environment. For unlined 

surface impoundments, the median number of years 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 not 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 50th and 10th percentiles. Here, attenuation 

refers to the dilution of the concentration of a constituent. Thus, the 10th percentile (not the 90th

percentile) was developed to represent the high-end risks. These 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 incorporating new waste characterization data received since 1998 and 

by applying current data and methodologies to the risk analyses. 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 pathways with risks below the level of concern and eliminate those combinations 

from further analysis. The screening 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 directly 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 full-scale assessment. Using the risk attenuation 

factors, none of the constituents were estimated to exceed an HQ of 1 at either the 50th or 10th

percentile for landfills. For surface impoundments, hexavalent chromium was estimated to 

exceed an HQ of 1 at the 50th percentile, while hexavalent chromium was estimated to exceed an 

HQ of 1 at the 10th percentile. The HQ for nickel under the surface impoundment scenario was 

less than 1 using the 50th and 10th percentile values. However, the use of risk attenuation factors 

in place of probabilistic fate and transport modeling increases the uncertainty associated with 

these results. This analysis was conducted only for the drinking water exposure pathway. 

Consumption of Recreationally Caught Fish: For the unlined, clay-lined, or composite-lined 

landfills, none of the modeled Appendix VIII hazardous 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 90th percentile 

estimates are 3 in 100,000 and 2 in 100,000 excess cancer risk for unlined and clay-lined units, 

respectively. Pentavalent arsenic’s 90th percentile estimate is 2 in 100,000 excess cancer risk for 

unlined impoundments. For all other liner and management unit scenarios at the 90th percentile, 

and all scenarios at the 50th percentile, there were no arsenic 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 and clay-lined surface impoundment scenarios, 

respectively, at the 90th percentile. However, selenium is not estimated to exceed the reference 

dose in the composite lined scenario at the 90th percentile, or any scenario at the 50th 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 and compacting operations, the re-suspension of 

particulates from vehicular traffic, and from wind erosion. Air inhalation exposures may cause 

adverse human health effects, either due to inhalation of small-diameter (less than 10 microns) 

“respirable” particulate matter that causes adverse effects (PM10 and smaller particles which 

penetrate to and potentially deposit 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 thoracic coarse particles and fine particles). 

To evaluate the potential exposure of residents to particulate matter that live 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 Screening 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, there could be exceedances 

of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter in the air at 

residences near CCR landfills. EPA requests comment and data on the screening analysis, on the 

results of any ambient air monitoring for particulate matter that has been conducted, where air 

monitoring stations are located near CCR landfills, along with information on any techniques, 

such as wetting, compaction, or daily cover that 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 for 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 overall particulate matter size distribution,106 but used the total 

constituent concentrations to represent the concentrations of constituents present on the inhaled 

particulate matter. Based on the analysis, at landfills, 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 was 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 hexavalent). The Agency requests comment on the 

analysis, as presented in the draft final report, as well as any data, including air monitoring data 

that may be available regarding the potential for residents to be exposed to toxic constituents by 

this exposure pathway.

Ecological Exposure: Where species were directly exposed to surface impoundments, the risk 

assessment found ecological risks due 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, barium, antimony, and cadmium at the 90th percentile, but not 

at the 50th percentile. EPA’s risk assessment, confirmed 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 Combustion 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 levels in mammals as a result of environmental 

uptake, fish deformities, and inhibited fish reproductive capacity. Because of the large size of 

these management units, many being 100’s of acres to one that is about 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 provide additional pertinent information of 

potential ecological damage. Hopkins, et al. (2006)107 observed deformities and reproductive 

effects in amphibians living on or near CCR disposal sites in Georgia. Rowe, et al. (2002)108

provided a thorough review of laboratory and field studies that relate to the impact of CCR 

surface impoundment management practices’ on aquatic 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: direct 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 attributable to three constituent migration 

mechanisms: 1) NPDES-permitted discharges from impoundments; 2) overtopping of 

impoundments; and 3) groundwater-to-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 50th and 10th percentiles in the same manner as described 

above. The only exceedance of the HQ of 1 was for silver at the 10th percentile under the landfill 

scenario. The only exceedances of the ecological criteria for surface impoundments of the 40 

CFR part 261 Appendix VIII constituents was for chromium at the 10th percentile. Since fullscale modeling was not conducted, the results for these constituents are uncertain. 

4. Plausible Types of Mismanagement, Quantities of the Waste Generated, Nature and 

Severity of Effects from Mismanagement– 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 accumulation, reproductive status, and histopathological 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 increased 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/files/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/associations/8003/files/2007_ACAA_CCP_Survey_Report_Form%2809-15-08%29.pdf 

118 The National Biennial RCRA Hazardous Waste Report ( 2007) available at 

http://www.epa.gov/epawaste/inforesources/data/br07/national07.pdf. 
DRAFT DO NOT CITE OR QUOTE 182 of 563 5/03/10 

EPA currently has documented evidence of proven 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 cases 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 constituents in Appendix VIII of Part 261, four were 

found at levels of concern in both the risk assessment and the damage cases (arsenic, cadmium, 

lead, and selenium). Two additional Appendix VIII (Part 261) constituents (chromium and 

nickel) were found in damage cases, and showed the 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 risk 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 reflect surface water discharges. Five damage cases 

resulted in selenium fish consumption advisories consistent with the risk assessment’s prediction 

that selenium consumption from fish in water bodies affected by CCR disposal units would result 

in excess ecologic and human health risk. We are aware 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 and 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 from 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 selenium levels in migratory birds, wetland vegetative 

damage, fish kills, amphibian deformities, snake metabolic effects, plant toxicity, mammal 

uptake, fish deformities, and inhibited fish reproductive capacity. Although these effects cannot 

easily be linked to the results of the risk assessment 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 receptors. 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 Surface Impoundments?” in the docket to this proposal. 

Furthermore, four of the 27 proven damage case disposal sites have been listed on the EPA’s 

National Priorities List (NPL). The NPL is the list of national priority sites with known releases 

or threatened releases of hazardous substances, pollutants, or contaminants throughout the 

United States and its territories. The Hazard Ranking System (HRS), the scoring system EPA 

uses to assess the relative threat associated with a release from a site, is the primary method used 
DRAFT 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 with scores of 28.5 or above. The HRS is a proven 

tool for evaluating and prioritizing the releases that may pose threats to human health and the 

environment throughout the nation. Whereas each of those 4 NPL sites also contains waste other 

than CCRs, CCRs are one of the prevalent waste types in each case.121 

In addition, the Kingston, Tennessee damage case (see the Appendix) helps to illustrate the 

additional threats to human health and the environment that can be caused by the failure of a 

CCR waste management unit. At TVA's Kingston facility, there were four failure conditions: 

the presence of an unusually weak fly ash (‘Slimes’) 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 structural integrity of surface impoundments, 

significant damage to human health and the environment could be a likely outcome. In 

summary, while the preponderance of documented damage cases were the result of releases from 

unlined landfills and surface impoundments, EPA believes that the above data identify situations 

(e.g., adverse impacts on migratory birds) illustrative of potential 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=DocumentDetail&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 Agencies 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. Specifically, 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. Corrective action measures at these CCR 

management units vary depending on the site specific circumstances 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. 

6. Other Factors – Factor (xi) 

The damage cases and the risk assessment also 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 constituents, 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) constituents do not provide an independent basis 

for listing CCRs, EPA finds their presence in the damage 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.cdc.gov/csem/nitrate/no3physiologic_effects.html 
DRAFT DO NOT CITE OR QUOTE 186 of 563 5/03/10 

relevant to the listing decision because of the potential to cause additive or synergistic effects to 

the Appendix VIII constituents. For instance, exposure to high levels of cobalt (cobalt has an 

HQ of 500 when rounded to 1 significant digit) can result in lung and heart effects, the same 

endpoints as exposure to high levels of antimony. Thus, these two constituents could act 

additively or synergistically on both the heart and lungs. The risk assessment showed 90th 

percentile cobalt drinking water ingestion to be 500 times the reference dose. Thus, cobalt could 

exacerbate the heart and lung effects 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 factors as (1) the continued 

evidence that CCRs in landfills and surface impoundments may not be properly managed – e.g., 

the lack of groundwater monitoring for many existing units; (2) the continued gaps in some state 

regulations; (3) the damage cases we have documented to date, including the damage done by 

the recent catastrophic release of CCRs from the impoundment failure in Kingston, Tennessee; 

and (4) the results of the risk assessment, which indicates high-end risks associated with 

disposal of CCRs in unlined and clay-lined CCR landfills and surface impoundments far 

exceeding acceptable levels (e.g., exceeding 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 listing for wastes from the dye and pigment industries, December 22, 1994; 59 FR 66072). 
DRAFT DO NOT CITE OR QUOTE 187 of 563 5/03/10 

Under the subtitle C alternative, EPA would list CCRs from electric utilities and independent 

power producers intended for disposal in landfills and surface impoundments as a special waste, 

which would make them subject to the existing subtitle C regulations at 40 CFR parts 260 

through 268, as well as the permitting requirements 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 liners, leachate collection and removal systems, and 

groundwater monitoring for land disposal units; fugitive dust control; closure and post-closure 

care requirements; storage requirements; corrective action; financial assurance; waste 

characterization; and permitting requirements. These regulations also impose requirements on 

generators and transporters of CCRs destined for disposal, including manifesting (if the CCRs 

destined for disposal are sent off site). As discussed in detail in section IV. E of today’s 

preamble, EPA is proposing to leave the Bevill determination in place for CCRs used 

beneficially. Thus, CCRs beneficially used would not be subject to regulation from the point of 

generation or from the point they are recovered from landfills or surface impoundments, to the 

point where they are used beneficially. In addition, when beneficially used (e.g., in wallboard 

and concrete), the CCRs become part of a new 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 characteristic of hazardous waste (i.e., ignitability, 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 that CCRs be subject to the existing subtitle C 

requirements without modification. Accordingly, for those regulatory 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 requirements, and will not respond to any unsolicited 

comments submitted during this rulemaking. However, where EPA has determined that special 

characteristics of these wastes warrant changes; e.g., where implementation of existing 

requirements would present practical difficulties, or where additional requirements are necessary 

due to the special characteristics of these wastes, EPA is proposing to revise the requirements to 

account for these considerations. For example, EPA is proposing tailored design criteria for new 

CCR disposal units, pursuant to its authority 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 requirements and the effective dates 

for the land disposal restrictions, and the surface impoundment retrofit requirements. EPA is 

also proposing to establish new land disposal prohibitions and treatment standards for both 

wastewater and non-wastewater CCRs. In addition, to address dam safety and stability issues, 

EPA is proposing design and inspection requirements for surface impoundments, similar to those 

of the Mine Safety and Health Administration (MSHA) design requirements for slurry 

impoundments at 30 CFR part 77.216 for surface impoundments. Further, EPA is proposing that 

 

126 Section 3004(x) of RCRA provides EPA the authority to modify certain statutory provision (i.e., 3004(c), (d), (e), 

(f), (g), (o), and (u) and 3005(j) taking into account the special characteristics of such wastes, the practical 

difficulties associated with implementation of such requirements, 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 not closed in accordance with the rule’s 

requirements by the effective date of this rule would be subject to all of the requirements of this 

rule, including the need to obtain a permit, irrespective of whether the unit continues to receive 

CCRs or the facility otherwise engages in the active management of those units. 

 

Finally, we would note that if the Agency concludes to reverse the Bevill determinations and list 

CCRs as a special waste, EPA would make in any final rule conforming changes to 40 CFR parts 

260 through 268 and 270 through 272 so that it is clear that these requirements apply to all 

facilities regulated under the authority of RCRA subtitle C that generate, transport, treat, store, 

or dispose of special wastes as well as to those facilities that generate, treat, store, or dispose of 

special wastes. 

The following paragraphs set out the details of this subtitle C proposal, with the modified or new 

requirement discussed in Section B. and the existing subtitle C requirements discussed in Section 

C. 

A. Special Waste Listing 

Under this regulatory option, EPA is proposing to list CCRs generated by electric utilities and 

independent power producers destined for disposal as a special waste subject to the requirements 

of RCRA subtitle C by amending 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, the Agency believes that 
DRAFT DO NOT CITE OR QUOTE 190 of 563 5/03/10 

listing CCRs destined for disposal as a special waste, rather than a hazardous waste could, in 

large measure, address potential 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 are in addition to the general subtitle C requirements found at 40 

CFR parts 264 – 268 and 270 – 272. 

1. Modification of Technical Standards Under 3004(x) 

Section 3004(x) of RCRA authorizes the Administrator to modify the statutory 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 characteristics of the wastes, the practical difficulties 

associated with implementation of such requirements, and site-specific characteristics, including, 

but not limited to the climate, geology, hydrology and 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 under RCRA 3004(x), the CCR landfill and surface 

impoundment liner and leak detection system requirements, the effective dates for the land 

disposal restrictions, and the surface impoundment retrofit requirements. 
DRAFT DO NOT CITE OR QUOTE 191 of 563 5/03/10 

i. Modification of CCR Landfills and Surface 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 removal system above (in the case of a landfill) 

and between such liners. Section 3004(o)(4)(A) also requires these units to install a leak 

detection system. Landfills and surface impoundments 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 described in 40 CFR sections 264.221 and 

264.301. Under section 3005 (j)(1) (and, as explained below, effectively 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 install a composite liner and leachate collection and 

 

127 Replacement unit means a landfill, surface impoundment, or waste pile 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 approved 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 assessment, composite liners effectively reduce risks 

from all constituents to below the risk criteria for both landfills and surface impoundments. 

Therefore, the Agency believes a composite liner 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 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 thick. The FML component must be 

installed in direct and uniform contact with the compacted soil component. The leachate 

collection system must be designed and constructed to maintain less than a 30-cm depth of 

leachate over the liner. 

EPA has concluded that these liner and leachate collection requirements will be protective of 

human health and the environment from the release of contaminants to groundwater from CCRs 

in landfills and surface impoundments. Specifically, the risk assessment indicates that risks from 

disposal units with composite liners will be less than the 1 x 10-5 for carcinogens and less than an 

HQ of one for other hazardous constituents—levels 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 the damage cases, as none of the proven damage 

cases involved lined landfills or surface impoundments (with the possible exception of one unit, 

which in any case did not have a composite liner). In addition, the proposed modified 
DRAFT DO NOT CITE OR QUOTE 193 of 563 5/03/10 

requirements are the design standards for composite liners specified for municipal solid waste 

landfills at 40 CFR part 258; based on EPA’s experience, 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 involving the failure of clay liners, it is not 

proposing to allow new disposal units 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 units, 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 EPA in its review, we request that commenters 

provide data on the hydraulic conductivity of clay liners associated with coal ash disposal units, 

and information on the protectiveness of clay liner designs based on site-specific analyses. 

Thus, we are proposing to amend the current requirements of 40 CFR 264.220, and 264.300 to 

require that CCR surface impoundments 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 new 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 the Agency to approve alternate liner designs, 

based on site-specific demonstrations that the alternate design and operating practices, together 

with location characteristics, will prevent the 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 alternative 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 groundwater is particularly deep and/or infiltration 

rates are low, or where alternative 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 requirements for liners and leachate collection and 

removal systems. RCRA section 3004 (o)(1)(A). The statute thus does not require existing 

landfills that are brought into the subtitle C system because they are receiving newly listed 

hazardous wastes, or the new category of listed special wastes proposed in this notice, to be 

retrofitted with a new minimum-technology liner/leachate 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 retrofitted to meet the new requirements. Congress 

specifically established this approach under subtitle C, and EPA sees no reason or special 

argument to adopt more stringent requirements for CCR landfills, particularly given the volume 
DRAFT DO NOT CITE OR QUOTE 195 of 563 5/03/10 

of the material and the disruption 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 promptly remediated. This is consistent with the 

manner in which EPA has historically implemented the hazardous waste requirements. EPA 

believes that maintaining this approach in this context will be protective, in part, because, unless 

facilities ship all of their wastes off-site (which EPA believes is highly unlikely), they will need a 

permit for on-site management of CCRs, which will provide regulatory oversight that could, as 

necessary, address the risks from the existing (unpermitted) landfills. 

By contrast, Congress was significantly more concerned about the risks associated with unlined 

surface impoundments managing newly listed hazardous wastes (see 42 USC Section 6924, 

October 21, 1976). This is addressed in more detail in section (iv) below titled “Wet-Handling 

of CCRs, Closure, and Interim Status for Surface Impoundments.” 

 ii. Fugitive Dust Controls. 

 

The proposed subtitle C approach would require 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 μg/m3 level 

established as the level of the 24-hour NAAQS for fine particulate matter (PM-2.5). In addition, 

CCR facilities would be required to control fugitive dust by either covering or otherwise 
DRAFT 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 managed to control wind dispersal of 

dust. EPA is proposing this requirement based on the 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/m3 level established as the level of the 

24-hour PM 2.5 NAAQS for fine particulate. 

 iii. Special Requirements for Stability of CCR Surface Impoundments. 

To detect and prevent potential catastrophic releases, EPA is proposing requirements for periodic 

inspections of surface impoundments. The Agency believes that such a requirement is critical to 

ensure that the owner and operator of the surface impoundment becomes aware of any problems 

that may arise with the structural stability of the unit before they occur and, thus, prevent the past 

types of catastrophic releases, such as at Martins Creek, Pennsylvania and TVA’s Kingston, 

Tennessee facility. Therefore, EPA is proposing that inspections be conducted every seven days 

by a person qualified to recognize specific signs of structural instability and other hazardous 

conditions by visual observation and, if applicable, to monitor instrumentation. If a potentially 

hazardous condition develops, the owner or operator shall immediately take action to eliminate 

the potentially hazardous condition; notify the Regional Administrator or the authorized State 

Director; and notify and prepare to evacuate, if necessary, all personnel from the property which 
DRAFT DO NOT CITE OR QUOTE 197 of 563 5/03/10 

may be affected by the potentially hazardous condition(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 surface impoundment can be evacuated. Reports of 

inspections are to be maintained in the facility operating record. 

To address surface impoundment (or impoundment) integrity (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 and Health Administration (MSHA) at 30 CFR 

77.216. Facilities relying on CCR impoundments would need to (1) submit to EPA or the 

authorized state plans for the design, construction, 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 impoundment 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 identified, owners and operators would be required to 

address these issues in a timely manner. 

In developing these proposed regulations for 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 government are charged with dam safety, including the 

U.S. Department of Agriculture (USDA), the Department of Defense (DOD), the Department of 

Energy (DOE), the Nuclear Regulatory Commission (NRC), the Department of Interior (DOI), 
DRAFT DO NOT CITE OR QUOTE 198 of 563 5/03/10 

and the Department of Labor (DOL), MSHA. EPA looked particularly to MSHA, whose charge 

and jurisdiction appeared to EPA to be the most similar to our task. MSHA’s jurisdiction 

extends to all dams used as part of an active mining operation and their regulations cover “water, 

sediment or slurry impoundments” so they include dams for waste disposal, freshwater supply, 

water treatment, and sediment control. In fact, MSHA’s current impoundment regulations were 

created as a result of the dam failure at Buffalo Creek, West Virginia on February 26, 1972. 

(This failure released 138 million gallons of stormwater 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 presented by CCRs in this rule. In our 

review of the MSHA regulations, we found them to be comprehensive and directly applicable to 

the dams used in surface impoundments 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, these 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 mandate to ensure the protection of human and the 

environment. Thus, we have modeled our proposal on the MSHA regulations in 30 CFR Part 77 

and we have placed the text of the salient portions 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 issues 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 than five (5) feet and have 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 cover all CCR impoundments for stability, regardless 

of height and storage volume, whether to use the cut-offs in the MSHA regulations, or whether 

other regulations, approaches, or size cut-offs should be used. If commenters believe that other 

regulations or size cut-offs should be adopted (and not the size-cut offs established in the MSHA 

regulations), we request that commenters provide the basis and technical support for their 

position. 

The second option that EPA considered, but is not being proposed 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 compliance with their permits. In addition, 

regulations at 40 CFR 122.44(k) allow the use of best management practices for the control and 

abatement of the discharge of toxic pollutants. Guidance could be developed to use best 

management practices to address impoundment construction, operation, and maintenance, 

consistent with the requirements of 40 CFR 122.41(e) and 122.44(k). Associated permit 

conditions could require that surface impoundments be designed and constructed in accordance 

with relevant state and federal regulations. The Agency requests comments regarding the 

alternate use of NPDES permits rather than the 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 requirements, 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 years. 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 the applicable groundwater monitoring provision under Part 40 CFR

265, Subpart F within 12 months of the promulgation 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 which either do not meet the treatment standards or which remain 

classified as hazardous wastes are removed 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 impoundments to continue managing 

hazardous waste without complying with the minimum technology requirements 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 that existing surface impoundments cannot obtain 

interim status and continue to receive or store newly regulated hazardous waste for more than 

four years after the promulgation of the listing – unless 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 receive or store hazardous waste after the four-year deadline if (1) 

the unit has at least one liner, and there is no evidence it is leaking, (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 owner, 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 that have not completed closure prior to the 

effective date of the rule. Under 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 be 
DRAFT 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 characteristic wastes before the effective date of RCRA subtitle C 

to comply with the requirements. However, EPA believes that a revised approach is necessary to 

protect human health and the environment, in this particular case, given the size of the CCR 

surface impoundments in question; the enormous volumes of CCRs they typically 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 hydraulic head leading to continued release—even 

where the impoundment has been drained—that 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 definition of disposal for regulatory purposes to be 

narrower than the statutory definition of disposal. Although in some situations, post-placement 

management has been considered disposal, triggering RCRA subtitle C regulatory requirements 

e.g., multiple dredging of impoundments or management of leachate, EPA has generally 

interpreted the statute to require a permit only if a facility treats, stores, 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 would be required if, after 

the rule’s effective date, a facility neither continued to accept the listed wastes for disposal, nor 

continued to “manage the wastes” in the existing unit. In other words, under this interpretation, 

facility owners could abandon the unit before the effective date of the rule without incurring any 

regulatory obligations under RCRA subtitle C (presuming no other regulated unit is present onsite). 

Given the particularly significant risk associated with CCR impoundments described above, as 

well as the fact that these risks are primarily driven by the existing disposal units, EPA believes a 

broader interpretation of disposal is appropriate in this case. This is reinforced by the fact that 

the continued release of constituents to surrounding soil and groundwater through the continued 

infiltration of precipitation through inappropriately closed CCR impoundments (or failure to 

remove the impoundment waters, which provides a hydraulic head) properly 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 subtitle C by today’s proposal would choose 

not to, or would not be able to, comply with either of these alternatives (i.e., retrofit or clean 

closure), given the size of the units and the volume of CCRs involved. Therefore, EPA believes 

that the section 3005(j) requirements, for all practical purposes, will have the effect of requiring 
DRAFT DO NOT CITE OR QUOTE 204 of 563 5/03/10 

the closure of existing surface impoundments receiving CCRs within four years of the effective 

date of today’s proposed rule (unless they 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 section are met. In today’s notice, EPA is proposing to modify the 

time required for retrofitting surface 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 years of the effective date of today’s 

rule. 

Therefore, EPA is proposing to modify the section 3005(j) requirements by extending the time 

limit for unit closure. The modified standard in today’s proposal would require facilities 

operating surface impoundments that do not meet minimum technology requirements and are 

receiving CCRs to stop receiving those CCRs no later than five years 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 seven years rather than four years. 

EPA believes that the four-year deadline in RCRA section 3005(j) receiving CCRs will be 

extraordinarily difficult if not impossible for many facilities to meet, given the size of the units 

 

130 The HSWA surface impoundment retrofit requirements, as they applied to impoundments in existence 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 retrofit its impoundment, rather than to close it. EPA 

believes facilities managing surface impoundments today, will similarly choose to close 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. Facility owners choosing to 

close surface impoundments may have to make significant engineering and process changes, e.g., 

to convert from wet- to dry-handling of wastes, which cannot necessarily be accomplished within 

four years. For example, USWAG has raised concerns that there is limited manufacturing 

capacity for key conversion equipment, which could reasonably be expected 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 find 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 ultimately dictated by the permitting authority, rather 

than the applicant. This may be further complicated by the fact that location standards or on-site 

space limitations can restrict the opportunity for siting new units at the generating facility, 

requiring utilities to find off-site disposal facilities able to receive the special waste in the 

volumes in question. 

In the 1984 amendments, Congress only allowed surface impoundments four years to cease 

receiving hazardous waste (or comply with minimum technological design requirements, etc.). 

Given the enormously greater volume of waste involved with CCR surface impoundments and 

the process changes that the facilities will need to implement to convert to dry handling, EPA 
DRAFT DO NOT CITE OR QUOTE 206 of 563 5/03/10 

believes it not practicable to require surface impoundments to cease receiving CCR waste or 

comply with the minimum technological requirements four years and that additional time is 

appropriate. (As noted below, facilities in most states will have significantly more time for 

planning, because the rules will not become effective in states authorized for the RCRA program 

before those states have amended their requirements consistent with today’s rule; the state 

regulatory process will likely take several years.) On the other hand, 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 additional 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 groundwater 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 for 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 likely 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 features 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 quickly identified Therefore, the additional timeframe that EPA 

is proposing to allow – needed to address practical realities – will “assure protection of human 

health and the environment. While ground water monitoring, corrective 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 public health and the environment in the short term while the 

permanent solutions are being implemented. 

EPA recognizes that the costs of these requirements 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, affecting 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, standards, 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 http://www.osha.gov/OshDoc/Directive_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 asserted 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 impoundments 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 utilities have already 

decided, or are being required by states, to close existing impoundments, regardless of the 

requirements of today’s proposed rule. As a result, EPA believes today’s proposal would have 

less effect than industry commenters 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 years 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 procedural, 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 amendments 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 assumed 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 impoundment annually. See discussion of section 3005 

(j)(11) and implementing regulations above. As a practical matter, this meant that all but a very 

few surface impoundments ceased receiving hazardous wastes within this time period. Thus, a 

requirement that surface impoundments cease receiving liquid wastes in five years and close in 

seven years is consistent with Congressional direction on appropriate time periods to phase out 

the management of CCRs in surface impoundments. Further, as noted previously, 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 years), giving facilities substantial 

advance notice. (See discussion on when the rules become effective in section VII of this 

preamble.) For commenters who suggest a longer 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 regulatory Agency to provide additional time on a case-by-case 

basis because of site-specific issues (e.g., particular technical difficulties or equipment 

availability outside the utility’s control, as well 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 hazardous 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. For example, existing impoundments theoretically 

may already have a composite liner, and present minimal threat of release (e.g., because they are 
DRAFT DO NOT CITE OR QUOTE 210 of 563 5/03/10 

below grade or not far above grade). EPA solicits comment on whether a variance process 

would be appropriate allowing some impoundments or similar units that manage wet-handled 

CCRs to remain in operation because they present 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 Guidelines for Dam Safety established by the 

Federal Emergency Management Agency). It should 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 considered protective for 

hazardous waste impoundments not utilizing minimum technology controls134) and commenters 

should address whether this existing 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 prohibited the land disposal of 

hazardous waste unless the waste meets treatment standards established by EPA before the waste 

is disposed of, or is disposed of in units from which there will be no migration of hazardous 

constituents for as long as the waste remains hazardous. The treatment standards may be either a 

treatment level or a specified treatment method, and the treatment must substantially diminish 

the toxicity of the waste or substantially reduce the likelihood 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 reasonable 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 threats 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 regulations (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 meets 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 identified or listed under RCRA section 3001 after the date of the 

1984 amendments to RCRA subtitle C (the situation here), EPA is required to determine whether 

the waste shall be prohibited from one or more methods of land disposal 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 specify 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 must 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 Demonstrated Available Technologies (BDAT) of the 

constituents in question. These treatment standards can be met by any type of treatment, other 
DRAFT DO NOT CITE OR QUOTE 212 of 563 5/03/10 

than impermissible dilution, and wastes can satisfy the treatment standards as generated (i.e., 

without being treated). 

As explained above, section 3004(x) of RCRA authorizes the EPA Administrator to modify the 

requirements of sections (d), (e), (f), and (g) of section 3004 for Bevill wastes, including CCRs 

that EPA determines to regulate as hazardous, to take into account the special characteristics of 

the wastes, the practical difficulties associated with implementation of the requirements, and sitespecific characteristics, so long as such modified requirements assure protection of human health 

and the environment. 

In conjunction with a proposed listing, EPA is proposing to prohibit the land disposal of CCRs, 

unless they meet the applicable treatment standards. In addition, although CCRs could be 

disposed of without treatment in landfills and impoundments from which 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 determinations 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 proposing that CCRs be subject to the UTS. As 

EPA has found repeatedly, this standard reflects the performance of Best Demonstrated 
DRAFT DO NOT CITE OR QUOTE 213 of 563 5/03/10 

Available Technology and so satisfies the requirements 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 available technologies, although data135 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 for wastewater CCRs. As an initial 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 weight total suspended solids (i.e., the current 

wastewater definition for purposes of LDRs; see 40 CFR part 268.2 (f)). Functionally, the 

current definition of wastewaters would not include slurried fly ash or slurried FGD from wet air 

pollution control systems. EPA believes it important to distinguish between nonwastewaters 

which involve dry coal ash and surface impoundment systems which are commonly viewed as 

involving wastewaters. EPA, therefore, is proposing to create the 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 wastewater, 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. However, the Agency requests comment on this 

alternative definition of wastewaters for purposes of determining which treatment standards the 

CCRs would be subject to. 

As part of the proposed treatment standard, EPA is proposing that these wastewaters undergo 

solids removal so that the wastewaters 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 Practicable 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 protect human health and the environment. As 

 

136 Although TSS is not a hazardous constituent, it is a reasonable surrogate of effective treatment performance here 

because TSS necessarily contain the metal hazardous constituents which are the object of treatment, and these 

metals will necessarily be removed as TSS are removed. See 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 results 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 and the environment are minimized. If finalized, 

EPA will add new treatment method codes to the 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 unless EPA finds that there is 

insufficient alternative protective treatment, recovery or disposal capacity for the wastes. RCRA 

section 3004(h)(2). National capacity 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 they are disposed of in a landfill or surface 

impoundment, however, that unit must meet the 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 extension, 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 prohibition 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 operators 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 mechanisms 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 standards as generated. However, EPA solicits comment on this issue. 

EPA also notes that the proposed LDR prohibition and treatment standards would not take effect 

until programs in authorized states are authorized and the state implementing rules take effect, so 

this proposal effectively is for the prohibition and treatment standard requirement to take effect 6 

months following the conclusion of the authorization process and effective date of authorized 

state rules. This should be ample 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 prohibiting 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 to 
DRAFT 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 hazardous wastes otherwise prohibited from land 

disposal. See RCRA sections 3005 (j)(6) and 3005 (j)(11). As further explained above, EPA 

believes that an additional three years is needed 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 section 3004(h)(2)) and a five year period for impoundment 

retrofitting yielding a seven year extension. 

The legal basis for the proposal is 3004 (x) (which specifically authorizes modification of the 

section 3005 (j) requirements). Section 3005 (j) (11) allows untreated wastewaters to be 

managed in surface impoundments that do not meet 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 annual dredging is impractical and 

would defeat the purpose of providing 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 additional requirement. Finally, as 

discussed previously, in the interim period before surface impoundments cease taking waste and 

are closed, numerous safeguards will 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 national capacity extension for CCR wastewaters is 

really an issue of how long it will take to convert 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, believes it has the authority and that it is appropriate to use section 

3004 (x) to extend the national capacity period in order to convert to dry handling.138

EPA is further proposing that during the national capacity variance (the initial two years of the 

proposed two years plus five year extension of otherwise-applicable requirements), CCR 

wastewaters could continue to be managed in impoundments that do not meet the minimum 

technology requirements. The reasons are identical to those allowing such impoundments to 

receive CCRs for the remainder of the proposed extension period. 

EPA solicits comment on these proposals, including 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 section 3004 (x) to modify the requirements of LDR prohibitions 

under section 3004 (g), and EPA views capacity variances related 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 describes the existing technical standards required in 40 CFR parts 

264/265/267. However, persons who generate and transport CCRs, under the subtitle C 

alternative, would also be subject to the generator (40 CFR part 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 proposing to modify these standards, nor to reopen 

the requirements. 

1. General Facility Requirements, including Location Restrictions. Under the existing 

regulations, all of the following requirements would apply: the general facility standards of 40 

CFR parts 264/265/267 (Subpart B), the preparedness and prevention 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). Consistent with section 264.18, the regulations would 

include location standards prohibiting the siting of new treatment, storage, or disposal units in a 

100-year floodplain (unless the facility 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 recurring in any given year or a flood 

of a magnitude equaled or exceeded once in 100 years on the average over a significantly 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 percentage of the earth’s gravitational pull (g), will exceed 

0.10 g in 50 years. Note that in the pre-1997 editions of the NEHRP (National Earthquake Hazards Reduction

Program) provisions, seismic hazards around the nation were defined at a uniform 10 percent probability of 

exceedance in 50 years. Since the 1997 NEHRP Provisions, however, the seismic design maps have been redefined 
DRAFT 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 regulated landfills and surface impoundments, without 

modification. Consistent with 40 CFR 265.90, existing CCR disposal units would be required to 

install groundwater monitoring systems within one year of the effective date of these regulations. 

The facility would operate under the self-implementing interim status requirements of 40 CFR 

part 265 until the regulatory authority imposed the specific requirements of 40 CFR part 264 

through the RCRA permitting process. Generally, 40 CFR parts 264/265 require groundwater 

monitoring systems that consist of enough wells, installed at appropriate locations and depths, to 

yield ground water samples from the uppermost aquifer that represent the quality of background 

groundwater that has not been affected by leakage 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 typically 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 evidence 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 exceedance 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 where earthquakes are expected to occur infrequently.
DRAFT DO NOT CITE OR QUOTE 221 of 563 5/03/10 

compliance monitoring program to determine whether the disposal units are in compliance with 

the groundwater protection standards established by EPA or the state and specified in the permit. 

(See 40 CFR part 264, subpart F.) 

Under 40 CFR part 264, subpart F, if the results of the compliance monitoring program indicate 

exceedances of any of the constituent levels listed in the permit for the groundwater protection 

standard, the owner or operator would have to initiate corrective action to achieve compliance 

with the groundwater protection standards. 

3. Storage. EPA is not proposing to modify the existing 40 CFR parts 264/265/267 storage 

standards. These regulations establish design and operating requirements for containers, tanks, 

and buildings used to treat or store hazardous wastes. For containers, the regulations establish 

requirements for the storage of hazardous waste, 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 storage area is sloped or is otherwise designed and 

operated to drain and remove liquid 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 registered professional engineer that the foundation, structural 

support, seams, connections, and pressure controls (if applicable) are adequately designed and 

that the tank system has sufficient structural strength, 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 contain no free liquids and are in buildings with 

an impermeable floor do not require secondary containment. New tanks (that are required to 

have secondary containment) must have secondary containment when constructed; existing tanks 

(that are required to have secondary containment) must come into 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 secondary containment required, and the variance process. 

Containment buildings must be completely enclosed 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 that 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 standards impose significant costs without 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 existing 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 construct a building with an 

impermeable floor, or construct a secondary containment system around the silo (alternatively, 

they could go through a variance process with the regulatory Agency). 

EPA believes that the variance process allowing alternatives to secondary containment would 

address the concerns raised by industry. The Agency, however, recognizes that the variance 

process imposes time and resource burdens not only on industry, but on the regulatory agencies. 

EPA notes that, in the case of larger volume, higher toxicity mineral processing materials being 

reclaimed, the Agency developed special storage 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 that 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 manufactured of a material suitable for storage of its contents. 

(While not specifically mentioned in this section, we would also consider 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 Secondary Materials and Bevill Exclusion Issues; Treatment 

Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving 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 the proposed subtitle C storage requirements for 

CCRs, the workability of the existing variance process, 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-closure 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 completed closure, when the requirements of a 

final rule become effective. The 40 CFR parts 264/265 landfill and surface impoundment 

requirements establish cover requirements (e.g., the 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 monitoring, unless an alternative post-closure period is 

established by EPA or the authorized state. 

5. Corrective action. EPA is also not proposing to modify the existing corrective action 

requirements, including the facility-wide corrective action requirements of RCRA under section 
DRAFT DO NOT CITE OR QUOTE 225 of 563 5/03/10 

3004(u), section 3008(h), and 40 CFR 264.101. Under these 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 becomes effective, will be requires to characterize, 

and as necessary remediate, releases of CCRs or hazardous constituents. Section 3004(x) 

provides EPA the flexibility to modify corrective action requirements for facilities managing 

CCRs, including facility-wide corrective action (assuming EPA can reasonably determine that an 

alternative is protective of human health and the environment). The facility-wide corrective 

action requirement applies to all solid waste management units from which there have been 

releases of hazardous wastes or hazardous constituents; however, EPA does not see a compelling 

reason to change the corrective action requirements. Imposing corrective action requirements, 

including facility-wide corrective 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 section 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 hazardous constituents at the facility. 

6. Financial assurance. EPA is also not proposing to modify 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-closure care (including facility-wide corrective 

action, as needed), and specific levels of financial assurance are required to cover liability for 

bodily injury and property damage to third parties caused by sudden accidental occurrences 
DRAFT 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, insurance policies, corporate guarantees, and 

demonstrations and documentation that owners or operators 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 should be established for local governments that 

own and operate coal-fired 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 from the authorized state. The effect of EPA’s 

proposed listing would extend these permitting requirements 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 regulatory agencies impose technical design and management 

standards of 40 CFR parts 264/267. Facilities with landfills that are in existence on the effective 

date of the regulation (which in this case would generally be the effective date of the state 

regulations establishing the federal CCR requirements) – which receive CCRs or actively 

manage CCRs -- are eligible for “interim status” under federal regulations, providing they 
DRAFT DO NOT CITE OR QUOTE 227 of 563 5/03/10 

comply with the requirements of 40 CFR section 270.70. By contrast, facilities 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 CFR part 265. As noted previously, 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 wastes 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 alternative, the Agency is proposing to allow state or federally-required 

cleanups commenced prior to the effective date of the final rule to be completed in accordance 

with the requirements determined to be appropriate 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 specifies remedies, clean-up goals, and timelines that 

were determined to be protective of human health and the environment, based on the conditions 

at the site. The overseeing Agency will also be able to ensure that the cleanup waste, if sent offsite (which may sometimes be necessary) will go to appropriately designed and permitted 

facilities. Second, altering the requirements for cleanups currently underway would be 

disruptive and could cause significant delays in achieving clean-up goals. Once the rule 
DRAFT 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, the Agency takes comment on this proposed 

provision. 

D. CERCLA Designation and Reportable Quantities. 

Under current law and regulations, all hazardous wastes listed under RCRA and codified in 40 

CFR 261.31 through 261.33, and special wastes under 261.50 if the proposed special waste 

listing is finalized, as well as any solid waste that 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 quantities (RQs). If a 

hazardous substance is released in an amount that equals or exceeds its RQ within a 24-hour 

period, the release must be reported immediately to the National Response Center (NRC) 

pursuant to CERCLA section 103. 

Thus, under this subtitle C alternative, 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 are 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, depending on the volume of the spill. Typically, under 
DRAFT DO NOT CITE OR QUOTE 229 of 563 5/03/10 

current CERCLA requirements, a person releasing CCRs, for example, would report depending 

on his estimate of the amount of arsenic or other 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 proposing two alternative methods to adjust the onepound statutory RQ. The first method, one traditionally utilized by the Agency, adjusts the RQ 

based on the lowest RQ of the most toxic substance 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 statutory RQ based upon the Agency’s characterization 

and physical properties of the complex mixtures which 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 immediately 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 facilities to report releases of 

extremely hazardous substances and CERCLA hazardous substances to state and local 
DRAFT DO NOT CITE OR QUOTE 230 of 563 5/03/10 

authorities. The EPCRA section 304 notification must be given immediately 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 are generated by electric utility and independent 

power producers that are intended for disposal (and not beneficially used), as special wastes 

subject to regulation under subtitle 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 the RQs of individual hazardous substances begins with an 

evaluation of the intrinsic physical, chemical, and toxicological properties of each hazardous 

substance. The intrinsic properties examined, called "primary criteria," are aquatic toxicity, 

mammalian toxicity (oral, dermal, and inhalation), ignitability, reactivity, 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 substance are evaluated using the various primary 

criteria; each hazardous substance may receive 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 degradative processes, which are used as secondary adjustment criteria. 

These natural degradative processes are biodegradation, hydrolysis, and photolysis (BHP). If a 

hazardous substance, when released into the environment, degrades relatively rapidly to a less 

hazardous form by one or more of the BHP processes, 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 presents 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 RQs for RCRA wastes is based on an analysis of 

the hazardous constituents of the waste streams. EPA determines an RQ for each hazardous 

constituent within the waste stream and establishes 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 mercury (i.e., the two constituents within CCRs 

with the lowest RQ). In this same rule, however, EPA is also proposing that an alternative 

method for adjusting the RQ of the CCR wastes also 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 Mixture 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 use the maximum observed concentrations of the 

constituents within the listed CCR wastes in determining when to report releases of the waste. 

For listed CCR wastes, where the actual concentrations 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 identified by EPA (see Table 8 below). Thus, although 

actual knowledge of constituent concentrations may 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 the 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 from a facility, and the actual 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. Reporting 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 concentration of arsenic is 100 ppm, 10,000 
DRAFT DO NOT CITE OR QUOTE 235 of 563 5/03/10 

pounds of the listed CCR waste would need to be released to reach the RQ for arsenic. As 

applied to listed CCR waste, EPA’s proposed approach reduces the burden 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 applies to listed CCR wastes 

in this proposal is consistent with EPA’s approach in a final rule listing 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, the Agency promulgated a change to 

the regulations and its interpretation of the mixture rule to allow facilities to consider the 

maximum observed concentrations for the constituents 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 listing two chlorinated aliphatic 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 alternative 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 existing table that provided the maximum observed 

constituent concentrations for 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 production wastes (K174 and K175). Therefore, the 

Agency is at this time proposing to correct that 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 significantly curtail these uses. EPA questions this assertion, in fact, our 

experience suggests that the increased 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 increased 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 result of the economics of supply and demand. The 

economic driver—availability of a low-cost, functionally 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 implementing RCRA regulation 

and elsewhere that material inevitably flows 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 states, and those companies that 

beneficially use CCRs have nevertheless commented 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 destined 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 commented that, by operation of state law, the beneficial use of CCRs 

would be prohibited under many states’ beneficial use programs, if EPA were to designate CCRs 

destined for disposal as a RCRA subtitle C waste. 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 assumption that stigma would 

alter consumer preferences thereby decreasing end-users’ willingness to pay for products that 

include CCPs. This would have the practical effect 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 considered 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 additional incentives to avoid disposal costs, the 

consumer demand may decrease as negative perceptions 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 weakened or eliminated, even in 

states that are friendly to beneficial use, (5) competitors who use virgin or other materials are 
DRAFT DO NOT CITE OR QUOTE 238 of 563 5/03/10 

taking advantage of the hazardous waste designation by using scare tactics and threats of 

litigation to get customers to stop using products containing CCRs, (6) customers are already 

raising questions about the safety of products that contain CCRs, and (7) uncertainty is already 

hurting business as customers are switching to products where there is less regulatory risk and 

potential for environmental liabilities. For example, 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 beneficial uses of CCRs. In looking to evaluate this issue, we 

believe it is first important to understand that the proposed rule (if the subtitle C alternative is 

finalized) would regulate CCRs under subtitle C of RCRA only if they are destined for disposal 

in landfills and surface impoundments, and would leave the Bevill determination in effect for the 

beneficial use of CCRs. That is, the legal status of CCRs that are beneficially used would remain 

entirely unchanged (i.e., they would not be regulated under subtitle C of RCRA as a hazardous 

waste, nor subject to any federal non-hazardous waste requirements). EPA is proposing to 

regulate the disposal of CCRs under subtitle C of RCRA because of the specific nature of 

disposal practices and the specific risks these practices involve—that is, the disposal of CCRs in 

(often unlined) landfills or surface impoundments, with millions of tons placed in a concentrated 

location. The beneficial uses that EPA identifies as excluded under the Bevill amendment, for 

the most part, present a significantly different picture, and 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 section 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” management at all; rather, the material is a 

legitimate co-product that, under most 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 consolidated form and while continuing to meet long 

established product specifications. 

In fact, EPA’s experience with past waste regulation, and with how hazardous waste and other 

hazardous materials subject to regulation under subtitle C are used and recycled, suggests that a 

hazardous waste “label” does not impose a significant barrier to its beneficial use and that nonregulated uses will increase as the costs of disposal 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 hazardous 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 Reporting System (BRS) data). Both currently 

and historically, it has been used as an ingredient in fertilizer and in making steel, and in 

the production of zinc products, including pharmaceutical materials. Slag from the 
DRAFT 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 would be diverted from recycling to disposal in non-hazardous 

waste landfills. 

• Electroplating wastewater sludge is a listed hazardous waste (F006) that is recycled for 

its copper, zinc, and nickel content for use in the commercial market. In 2007, 

approximately 35% of F006 material was recycled (according to BRS data). These 

materials do not appear to be stigmatized in the marketplace. 

• Chat, a Superfund mining cleanup waste with lead, cadmium and zinc contamination, is 

used in road construction in Oklahoma and the surrounding states.145 In this case, the 

very waste that has triggered an expensive Superfund cleanup is successfully offered in 

the marketplace as a raw material in road building. The alternative costs of disposal in 

this case are a significant driver in the beneficial use of this material, and the Superfund 

origin of the material has not served 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 (and is not identified as a hazardous 

waste), “stigma” does not prevent 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 boilers, often at the site where it is collected. 

 

144 According to the most recently 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 that these plants cannot meet the demands 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 subject them to any management standards 

when used or recycled, but, as in the case of used oil, this alternative would avoid 

labeling CCR’s as “hazardous waste,” even while relying on subtitle C authority.) 

• Spent etchants are directly used as ingredients in the production of a copper micronutrient 

for livestock; and 

• Spent solvents that are generated from metals parts washing and are generally hazardous 

wastes before reclamation are directly used in the production of roofing shingles. 

Furthermore, common products and product ingredients routinely used at home (e.g., motor oil; 

gasoline; many common drain cleaners and household 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 because 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 likely to raise concerns where they are safely 

incorporated into a product. 

Certain commenters have also expressed the concern that standards-setting organizations might 

prohibit the use of CCRs in specific products or materials in their voluntary standards. Recently, 

chairpersons of the American Standards and Testing Materials (ASTM) International Committee 

C09, and its subcommittee, C09.24, in a December 23, 2009 letter indicated that ASTM would 
DRAFT 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 EPA’s decision not to revise the regulatory status 

of CCRs destined for beneficial use. Further 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 specifications for the reuse of 

solvents and, thus, by implication, does not appear to take issue with the 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 referenced 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/volume1505.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/2020/01/13/13greenwire-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 fly ash is widely accepted throughout the world as a 

practice that improves the performance 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 statutes 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 generally allow the use of hazardous waste in their 

beneficial use programs, this general prohibition 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 cases, 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 state 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 concern, EPA is proposing, as one alternative, to 
DRAFT 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 identifies the currently regulated 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 Wastes 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 the full description of our regulatory proposal. 

EPA believes that this action could significantly reduce the likelihood that products made from 

or containing CCRs would automatically be perceived as universally “hazardous.” When taken 

in combination with (1) the fact that beneficially used CCRs will remain exempt and (2) EPA’s 

continued promotion of the beneficial use of CCRs, 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 regulated 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-regulated beneficial uses, simply as a result of the economics of 

supply and demand. The economic driver—availability of a low-cost, functionally equivalent or 
DRAFT DO NOT CITE OR QUOTE 245 of 563 5/03/10 

often superior substitute for other raw materials -- would continue to make CCRs an increasingly 

desirable product. 

VII. How would the Proposed Subtitle C Requirements be Implemented? 

A. Effective Dates 

If EPA were to finalize the subtitle C regulatory alternative proposed today, the rule, as is the 

case with all RCRA subtitle C rules, would become 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 implements the hazardous waste program (Iowa, 

Alaska, Indian Country, and the territories, except Guam) and in authorized States, six months 

after the State promulgates its regulations that EPA has approved via the 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 requirements will depend on whether they are in a 

jurisdiction where EPA administers 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 administers the RCRA program (Iowa, Alaska, the 

territories [except Guam], and Indian Country), most of the subtitle C requirements go into effect 

and are enforceable by EPA six months after promulgation of the final rule. This includes the 

generator requirements, transporter requirements, 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 requirements as specified later in this section. Any 

new CCR landfills, including lateral expansions (as defined in the regulation), must be in 

compliance with all the requirements of any final 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 promulgated under the authority of RCRA and not the 

HSWA amendments) will not be effective until 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 comply 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 law once the State submits and EPA approves a 

modification to the State’s authorized program. (See the State Authorization section (section 

VIII) for a more detailed discussion.) The requirements that are more stringent or broader in 

scope than the existing regulations and are promulgated pursuant to HSWA authority will 
DRAFT 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 subtitle C -- that is, they are federally enforceable 

without waiting for authorization of the program revision applicable to the HSWA provisions. 

On the other hand, any requirements that are promulgated 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 subtitle 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 intention that, unless otherwise 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 undertaken a comprehensive description of all of the 

subtitle C regulatory requirements which may 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 destined for disposal become a newly listed 

special waste subject to the subtitle C requirements. Persons that generate this newly identified 

waste is required to notify EPA within 90 days after the wastes are identified or listed148 (by EPA 

or the state) and obtain an EPA 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 include standards for waste determination (40 

CFR 262.11), compliance with the manifest (40 CFR 262.20 to 262.23), pre-transport 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 import/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, these 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 interim status or a permit, as appropriate). 

These requirements would be applied to special wastes as well. Permit requirements are 

described in Section VII.D below. 

Transporters of CCRs destined for disposal will be transporting a special waste subject to subtitle 

C on the effective date of this regulation. Persons who transport these newly identified wastes 

will be required to obtain an EPA identification number as described above and must comply 

with the transporter requirements set forth in 40 CFR part 263 on the effective date of the final 

rule. In addition, generators and transporters of CCRs destined for disposal should be aware that 

an EPA identified waste subject to the EPA waste manifest requirements 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 effective date of the final rules. The effective date of these rules 

is six months after promulgation of the federal rule in non-authorized States 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 after promulgation of the State regulations. (See previous section for 

a more detailed discussion of effective dates.) 

2. Treatment, Storage, and Disposal Facilities (TSDs) 

i. Requirements 

Facilities treating, storing, or disposing of the newly listed CCRs are subject to the RCRA 3010 

notification requirements, the permit requirements 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, the preparedness and prevention requirements in 

subpart C, the contingency plan and emergency 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 assurance requirements in subpart H . 

C. RCRA Section 3010 Notification. 

Pursuant to RCRA section 3010 and 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 noted 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 authorized States, it will be 90 days from the date of promulgation of 
DRAFT DO NOT CITE OR QUOTE 251 of 563 5/03/10 

listing CCRs as a special waste by the state, unless the state provides an alternative timeframe.) 

This requirement may be applied even to those TSDs that have previously notified EPA with 

respect to the management of hazardous wastes. 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 that they generate, transport, treat, store or dispose of CCRs. 

However, any person who treats, stores, or disposes 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 promulgation of a new regulation, the 

treatment, storage or disposal of hazardous waste or special waste subject to subtitle C by any 

person who has not applied for and received a RCRA 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 interim status are treated as having 

been issued a permit until a final decision 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, store, or dispose of regulated CCRs at the time the rule becomes effective 

would generally be eligible for interim status 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 regulations which first require them to comply with the standards. (In 

most cases, these would be the state regulations implementing the federal program; however, in 

those States and jurisdictions where EPA implements the program, the deadline will be six 

months after promulgation of the final federal rule.) Such facilities are 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 part, that “Any person who. . . .is in existence on the effective date of 

statutory or regulatory changes under this 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 water monitoring and financial responsibility 

requirements. If the facility fails to submit these certifications and the Part B permit application, 

interim status will terminate on that date. 

2. Existing Interim Status Facilities 

EPA is not aware of any utilities or CCR treatment or disposal sites in RCRA interim status 

currently, and therefore EPA does not believe the standard federal rules on changes in interim 

status will apply. However, in case such a situation exists, EPA describes below the relevant 

provisions. Again, EPA is describing the federal requirements, but because the proposed 

requirements that subject these facilities to permitting requirements 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 management 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 3005(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 doing this, the facility may continue managing the 
DRAFT 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 management of the newly listed wastes (in this case 

CCRs) and may not manage those wastes until the facility receives either a permit or a change in 

interim status allowing such activity (40 CFR 270.10(g)). This requirement, if applicable to any 

electric utilities, will be applied to those facilities managing CCRs destined for disposal since 

these facilities will now be managing CCRs subject to the subtitle C requirements. 

3. Permitted Facilities 

EPA also believes that no electric utilities treating, storing, 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 hazardous 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), the authorized state regulations will govern the 

process. 

Under 40 CFR 270.42(g), facilities that already have RCRA permits must request permit 

modifications if they want to continue managing the newly listed wastes (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 waste or unit becomes subject to the new regulatory 

requirements (i.e., the effective date of the final federal rule in those jurisdictions where EPA 
DRAFT 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 effective date of the final rule. Again, these 

requirements, if applicable to any electric utilities, will be applied to those facilities managing 

CCRs destined for disposal since 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 subpart B, the preparedness and 

prevention requirements in subpart C, the contingency plan and emergency procedure 

requirements in subpart D, the manifest, recordkeeping and reporting requirements in subpart E, 

the corrective action requirements, including facility-wide corrective action in subpart F, and the 

financial assurance requirements in Subpart H, are applicable to TSDs and TSDs must be in 

compliance with those requirements on the effective date of the final (usually state) regulation, 

except as noted below. These requirements will apply to those facilities managing CCRs 

destined for disposal. 

Moreover, all units in which newly identified hazardous wastes are treated, 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 standards in subparts 40 CFR parts 
DRAFT 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 closure 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 are detailed in 40 CFR 264.113(c) through (e) and 

265.113(c) through (e). As stated earlier, these requirements 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 required to be in compliance with the surface 

impoundment stability requirements, the LDR treatment standards for non-wastewaters, and the 

fugitive dust controls on the effective date of the final rule. 

For certain of the other requirements, 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) and 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 Administrator 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 monitoring 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 maintain 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 final 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 final 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 adopts 
DRAFT 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 regulations 
DRAFT 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, and 

maintain 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 authorizes qualified states to administer their own hazardous 

waste programs in lieu of the federal program within the state. Following authorization, EPA 

retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although 

authorized states have primary enforcement responsibility. 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 Hazardous and Solid Waste Amendments 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 state. The federal requirements no longer apply in 

the authorized state, and EPA could not issue permits 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 requirements did not take effect in the 

authorized state until the state adopted the federal 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 authority take effect in authorized states at 

the same time that they take effect in unauthorized states. EPA is directed by the statute to 

implement these requirements and prohibitions in authorized states, until 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 authorization, 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 stringent or broader in scope than the existing federal requirements. 

RCRA section 3009 allows the states to impose standards more stringent than those in the federal 
DRAFT DO NOT CITE OR QUOTE 263 of 563 5/03/10 

program (see also 40 CFR 271.1). Therefore, authorized 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 and broader in scope than current 

federal regulations and therefore States would be required to adopt regulations and modify their 

programs if this alternative is finalized. 

B. Effect on State Authorization 

If finalized, a subtitle C rule for CCRs would affect state authorization in the same manner as 

any new RCRA subtitle C requirement; i.e., (1) this 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 program remains at least as stringent as the federal 

program; and (2) they must receive authorization 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 provisions of this alternative, if finalized would be finalized pursuant to 

the RCRA base program authority and some pursuant to HSWA authority. For RCRA base 

program or non-HSWA requirements, the general rule, as explained previously, is that the new 

requirements do not become enforceable as a matter of federal law in authorized states until 
DRAFT DO NOT CITE OR QUOTE 264 of 563 5/03/10 

states adopt the regulations, modify their programs, 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 authorization from EPA, then EPA implements the 

requirements until the State receives 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 occurring 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 programs. States may have an additional year to 

modify their programs if an amendment to a state statute is needed. See 40 CFR 271.21(e)(2)(v). 

As noted above, this alternative to the co-proposal is proposed pursuant in part to HSWA 

authority and in part to non-HSWA or RCRA base program authority. The majority of this 

alternative is proposed pursuant to non-HSWA authority. 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 authorization 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 disposal 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 that currently do not exclude CCRs from subtitle 

C regulation (that is, CCRs are regulated under subtitle C if they exhibit one or more of the 

characteristics) and the CCRs in fact 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 management standards promulgated pursuant to section 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 requirements, States would not be required to 

promulgate regulations for these less stringent standards – should a State decide not to 

promulgate such regulations, the facilities in that state would be required to comply with the full 

subtitle C standards. Therefore, the tailored management standards will be effective in 

authorized States only when States promulgate such regulations. 

Therefore, the Agency would add this rule to Table 1 in 40 CFR 271.1(j), if this alternative to the 

co-proposal is finalized, which identifies the federal program requirements that are promulgated 

pursuant to HSWA and take effect in all states, regardless of their authorization status. Table 2 
DRAFT 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 the 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 authorized, states adopt an equivalent 

rule and receive authorization for such rule from EPA, the authorized 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 Regulating CCRs Under Subtitle D Regulations. 

A. Overview and General Issues 

EPA is co-proposing and is soliciting comment on an approach under which the May 2000 

Regulatory Determination would remain in place, 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 national minimum criteria governing facilities for 

their disposal. EPA’s co-proposed subtitle D minimum criteria are discussed below. 

Statutory standards for Subtitle D approach. Under RCRA 4005(a), upon promulgation of 

criteria under 1008(a)(3), any solid waste management practice or disposal of solid waste which 

constitutes the "open dumping" of solid waste is prohibited. The criteria 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 which 
DRAFT 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 identically. See, e.g., Criteria for Classification 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 dumping criteria in this 

respect, as reflected in the proposed changes to 257.1. 

Section 4004(a) of RCRA provides that EPA shall promulgate regulations containing criteria 

distinguishing which facilities are to be classified as sanitary landfills and which are open 

dumps. This section provides a standard that varies from that under RCRA subtitle C. 

Specifically, subtitle C provides that management standards 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, Section 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 classification 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 environment from disposal of solid waste at a 

facility, and accordingly, EPA looked at such effects 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 adverse 
DRAFT 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 effect on health or the environment. In EPA’s view, this provides it the 

discretion to establish requirements that are less certain to eliminate a risk to health or the 

environment than otherwise might be required under Subtitle C, and allows additional flexibility 

in how those criteria may be applied to facilities. 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 determine that additional 

protections are appropriate. 

Statements in the legislative history of 4004(a) are also consistent with EPA’s interpretation of 

the statutory language. While it provides 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 disposal facilities that included surface 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 legislative 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 define sanitary landfill as disposal site at which 

there is no reasonable chance of adverse effects on health and the environment from the disposal 

of discarded material 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 minimum 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 requirements, EPA believes that the part 258 criteria represent a 

reasonable balance between ensuring the protection 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 part 258 are very similar to those found at CCR 

disposal facilities, and the regulations applicable to such units would be expected to address the 

risks presented by the constituents in CCR wastes. Moreover, CCR wastes do not contain the 

constituents that are likely to require modification of the existing 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 this preamble, each of the provisions adopted for 

today’s 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, along with the other record evidence 

specific to CCRs, discussed throughout the co-proposed subtitle C alternative. EPA also relied 

on the Agency’s Guide for Industrial Waste 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 tribal representatives, as well as a focus group 

of industry and public interest stakeholders chartered under the Federal Advisory Committee 
DRAFT DO NOT CITE OR QUOTE 270 of 563 5/03/10 

Act, and reflects a consensus view of best practices for industrial waste management. It also 

contains recommendations based on more recent scientific developments, and state-of-the art 

disposal practices for solid wastes. 

In addition, EPA considered that many of the technical requirements that EPA developed to 

specifically address the risks from the disposal of CCRs as part of the subtitle C alternative, 

would be equally justified under a RCRA subtitle D regime. Thus, for example, EPA is 

proposing the same MSHA-based standards for surface impoundments that are discussed as part 

of the subtitle C alternative. The factual record—i.e., the risk analysis and the damage cases--

supporting such requirements is the same, irrespective of the statutory authority under which the 

Agency is operating. Although the statutory standards under subsections C and D differ, EPA 

has historically interpreted both statutory provisions to establish a comparable level of 

protection, corresponding to an acceptable risk level ranging between 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 more 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 include the following regulatory 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 Criteria and Operating Criteria (including provisions 

for surface impoundment integrity), and several of the provisions specifying appropriate 

pollution control technologies. Additional support for EPA’s decision to specify appropriate 

monitoring, corrective action, closure, and post-closure care requirements (since the specific 
DRAFT DO NOT CITE OR QUOTE 271 of 563 5/03/10 

requirements correlate closely with the existing 40 CFR 258 requirements) 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 adjust them, as appropriate to account for site 

specific conditions. Because there is no corresponding guaranteed permit mechanism under the 

RCRA subtitle D regulations proposed today, EPA also considered the 40 CFR part 265 interim 

status requirements for hazardous waste facilities, which were designed 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 experience 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 technical design standard (e.g., the composite liner 

requirement for new CCR landfills and surface impoundments). In addition, for many of these 

requirements, the Agency also has established performance criteria that the owner or operator 
DRAFT DO NOT CITE OR QUOTE 272 of 563 5/03/10 

can meet, in place of the technical design standard, which provides the 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 several cases, the alternative standard 

is intended to address the circumstances where the appropriate requirement is highly dependent 

on site-specific conditions (such as the spacing and location of ground-water wells); 

consequently, uniform, national standards that assure the requisite level of protection are 

extremely difficult to establish. EPA could establish a minimum national requirement, but to do 

so, EPA would need to establish the most restrictive criteria that would ensure protection of the 

most vulnerable site conditions. Because this would result in overregulation of less vulnerable 

sites, EPA questions whether such a restrictive approach would be consistent with the RCRA 

section 4004 standard of ensuring “no reasonable probability of adverse effects.” (emphasis 

added). The existing 40 CFR part 258 requirements provide the flexibility to address this issue 

by establishing alternate performance 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 available only in states with EPA 

approved programs. See, e.g., 56 FR 51096 (authorizing alternative cover designs). However, 

EPA cannot rely on these oversight mechanisms to implement the RCRA 4004 subtitle D 

requirements. Under these provisions of RCRA, EPA lacks the authority to require state permits, 

approve state programs, and to enforce the criteria. Moreover as discussed in Section IV, the 

level of state oversight varies appreciably among states. Consequently, for these provisions EPA 

is also proposing to require the owner or operator of the facility to obtain certifications by 

independent registered professional engineers to provide verification that these provisions are 
DRAFT DO NOT CITE OR QUOTE 273 of 563 5/03/10 

properly applied. EPA has also proposed to require certifications by independent professional 

engineers more broadly as a mechanism to facilitate citizen oversight and enforcement. As 

discussed in greater detail below, EPA is proposing to require minimum qualifications for the 

professionals who are relied upon to make such certifications. In general, EPA expects that 

professionals in the field will have adequate incentive to provide an honest certification, given 

that the regulations require that the engineer not be an employee 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 technical criteria, provided the alternative meets a 

specified performance standard, yet also provide some degree of third-party verification of 

facility practices. The availability of meaningful independent verification is critical to EPA’s 

ability to conclude that these performance standards will meet the RCRA section 4004 

protectiveness standard. EPA recognizes that relying upon third party certifications is not the 

same as relying upon the state regulatory authority, and will likely not provide the same level of 

“independence.” For example, although not an employee, the engineer will still have been hired 

by the utility. EPA therefore broadly solicits comment on whether this approach provides the 

right balance between establishing sufficient guarantee that the regulations will be protective, 

and offering facilities sufficient flexibility to be able to feasibly implement requirements that will 

be appropriate to the site conditions. In this regard, EPA would also be interested in receiving 

suggestions for other mechanisms to provide facility flexibility 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 states already have some of these requirements in 

place under their current RCRA subtitle D waste management programs established under state 

law, as explained previously in this preamble. EPA and certain commenters, however, have 

identified significant gaps in state programs and current practices. For example, EPA does not 

believe that many, if any, states currently have provisions that would likely cause the closure of 

existing surface impoundments, such as the provisions 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 maximum of five years of the effective date of the regulation. 

The RCRA subtitle D proposal outlined here is intended to fill such gaps and ensure national 

minimum standards. EPA intends to provide a complete set of requirements, designed to ensure 

there will be no reasonable probability of adverse 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 require a state permit program or to oversee state 

programs, EPA has sought to enhance the protectiveness of the proposed RCRA subtitle D 

standards by providing for state and public notifications of the third 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 section-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 the 
DRAFT 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 information on an internet site with a 

link clearly identified as being a link to notifications, reports, and demonstrations required under 

the regulations. EPA believes the internet is currently the most convenient and widely accessible 

means for gathering information and disseminating it to the public. However, the Agency 

solicits comments regarding the methods for providing 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 already available to the public through the state. 

The co-proposed subtitle D regulation accordingly includes a number of public notice provisions. 

In particular, to ensure that persons residing near CCR surface impoundments are protected from 

potential catastrophic releases, we are proposing that when a potentially hazardous condition 

develops regarding the integrity of a surface impoundment, that the owner or operator 

immediately notify potentially affected persons and the state. The Agency is also proposing to 

require that owners or operators notify the state, and place the report and other supporting 

materials in the operating record and on the company’s internet site of various demonstrations, 

documentation, and certifications. Accordingly, notice must be provided: (1) of demonstrations 

that CCR landfills or surface impoundments will not adversely affect human health or the 

environment; (2) of demonstrations of alternative fugitive dust control measures; (3) annually 

throughout the active life and post-closure care period that the landfill or surface impoundment is 

in compliance with the groundwater monitoring and corrective action provisions; (4) when 

documentation related to the design, installation, development, and decommission of any 
DRAFT 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 certification of the groundwater monitoring system by 

an independent registered professional engineer or hydrologist has been placed in the operating 

record; (6) when groundwater monitoring sampling and analysis program documentation has 

been placed in the operating record; (7) when the use of an alternative statistical method is to be 

used in evaluating groundwater monitoring data and a justification for the alternative statistical 

method has been placed in the operating record; (8) when the owner or operator finds that there 

is a statistically significant increase over background for one or more of the constituents listed in 

Appendix III of the proposed rule, at any groundwater monitoring well; (9) when a notice of the 

results of assessment monitoring that may be required under the groundwater monitoring 

program is placed in the operating record; (10) when a notice is placed in the operating record 

that constituent levels that triggered assessment monitoring have returned to or below 

background levels; (11) when a notice of the intent 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-closure 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 regulations will ensure there is no 

reasonable probability of adverse effects on health or the environment, unless there is a 

mechanism for states and citizens to monitor the situation, such as when groundwater monitoring 

shows exceedances, so that they can determine when intervention is appropriate. EPA also 
DRAFT DO NOT CITE OR QUOTE 277 of 563 5/03/10 

believes that notifications, such as those described above, will minimize the danger of owners or 

operators abusing the self-implementing system through increased transparency and by 

facilitating the citizen suit enforcement mechanism. 

EPA is proposing that owners and operators provide notification to the public by posting notices 

and relevant information on an internet site with a link clearly identified as being a link to 

notifications, reports, and demonstrations required under the regulations. EPA believes the 

internet is currently the most convenient and widely 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 open 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 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. Facilities and practices failing to satisfy these consolidated subpart D 

criteria violate RCRA’s prohibition 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 integrate 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 surface impoundments violate the federal standards, 

and therefore may be enforced by citizen suit under RCRA 4005(a) and 7002. EPA has also 

proposed language to make clear that those 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 facilities is discussed later 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 requirements 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 disposal 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 criteria under Subpart A. 

 2. General provisions. 

The proposed general provisions address the applicability of the new proposed RCRA Subpart D 

requirements, the continuing applicability of certain of the existing open dumping criteria, 
DRAFT DO NOT CITE OR QUOTE 279 of 563 5/03/10 

provide for an effective date of 180 days after 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 section 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 discussed later in this preamble. 

The applicability section also specifies an effective date of 180 days after publication of the final 

rule. EPA believes that, with the specific exceptions 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 timeframe 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 period under RCRA subtitle C, that it is reasonable 

to conclude that persons should be able to meet those same or similar requirements under RCRA 

subtitle D. EPA also notes that pending finalization of any regulations, facilities continue to be 

subject to the existing part 257 open dumping criteria as they may apply.

 

3. Definitions. 
DRAFT DO NOT CITE OR QUOTE 280 of 563 5/03/10 

This section of the proposed regulation discusses the definitions of some of the key terms used in 

the proposed RCRA subtitle D rule that are necessary 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 definitions in this section. However, by simply 

incorporating these unmodified definitions into this 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 specific 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. Accordingly, 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 quantities 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 subtitle 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 coal 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 definition of “CCR landfill” to mean an area 

of land or an excavation, including a lateral expansion, in which CCRs are placed for permanent 

disposal, and that is not a land application unit, surface impoundment, or injection well. For 

purposes of this proposed rule, landfills also include piles, sand and gravel pits, quarries, and/or 

large scale fill operations. EPA modeled this definition after the definition of “Municipal solid 

waste landfill (MSWLF) unit” contained in the existing criteria for those facilities. Although this 

is somewhat different than the definition proposed under the subtitle C alternative (which is 

based on the existing part 260 definition), EPA intends for this proposed definition to capture 

those landfills and other large-scale 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 (although 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 that 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 description of likely conditions at a CCR surface 

impoundment, stating that CCR surface impoundments often receive CCRs that have been 

sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution 

control devices. EPA intends for this proposed definition to capture those surface impoundments 
DRAFT DO NOT CITE OR QUOTE 282 of 563 5/03/10 

that are described in EPA’s damage cases and risk assessments described 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 landfill 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 landfill or surface impoundment has commenced 

construction if: (1) The owner or operator has obtained 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 modified without substantial loss—for physical 

construction of the CCR landfill or surface impoundment 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 separate definitions of these units for purposes of 

RCRA subtitle D since the question of whether these 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 sees no reason to establish a separate 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 release of water or stored contents due to failure of 

a dam (or impoundment) or mis-operation 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 life, but can cause economic loss, 

environmental damage, disruption of lifeline facilities, 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, Significant, or Low Hazard Potential 

This definition, just like the proposed RCRA subtitle C definition, 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 widely-used definitional scheme for classifying the 

hazard potential posed by dams, and EPA expects that the regulated community’s familiarity 

with these requirements will make their application to CCR surface impoundments relatively 

straightforward. 
DRAFT DO NOT CITE OR QUOTE 284 of 563 5/03/10 

Independent registered professional 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 baccalaureate or post-graduate degree in the natural sciences 

or engineering and has sufficient training and experience in groundwater hydrology and related 

fields as may be demonstrated by state registration, professional certifications, 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 requirements cannot presuppose the existence of a 

permit or state regulatory oversight, the criteria in today's proposed rule are self-implementing. 

However, as discussed earlier, to try to minimize the potential for overregulation, and to provide 

some degree of flexibility, EPA is proposing to allow facilities to deviate from the criteria upon a 

demonstration that the alternative meets a specified performance standard. But to provide for a 

minimum level of verification and to reduce the opportunity 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 minimum qualifications. The Agency is proposing to define a “qualified 

ground-water scientist” to be a scientist or engineer who has received a baccalaureate or postgraduate degree in the natural sciences 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 accredited university programs that enable that 

individual to make sound professional judgments regarding ground-water monitoring, 
DRAFT DO NOT CITE OR QUOTE 285 of 563 5/03/10 

contaminant fate and transport, and corrective action. This requirement is the same as the current 

requirement at § 258.50(f). The Agency believes that specialized coursework and training should 

include, at a minimum, physical geology, ground-water hydrology or hydrogeology, and 

environmental chemistry (e.g., soil chemistry or low temperature geochemistry). Some national 

organizations, such as the American Institute of Hydrology and the 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 the waste boundaries of an existing CCR 

landfill, or existing CCR surface impoundment made after the effective date of the final rule. 

This definition is identical to the co-proposed subtitle 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 expansion has occurred at a CCR landfill or surface impoundment should 

not differ between those units regulated 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 the 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 sees no reason to establish a separate definition for this term for 

purposes of RCRA subtitle D since whether a landfill 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, which 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 purposes 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 accepted good engineering practices means engineering maintenance 

or operation activities based on established codes, standards, published technical reports, 

recommended practice, or similar document. Such practices detail generally approved ways to 

perform specific engineering, inspection, or mechanical integrity activities. In several 

provisions, EPA requires that the facility operate 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 references but does not attempt to 

codify, any particular set of engineering practices, but to allow the professional engineer latitude 

adopt improved practices that reflect the state-of-the art practices, as they develop over time. 

This definition is the same as the definition EPA is proposing under the subtitle C alternative. 

4. Location Restrictions. 

To provide for no reasonable probability of adverse effects on health or the environment from 

the disposal of CCRs at CCR landfills and surface impoundments, EPA believes that any RCRA 
DRAFT 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 include requirements relating to placement 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 existing CCR landfills and surface impoundments. 

The location standards in this proposal are primarily based on the location standards developed 

for municipal solid waste landfill units, and represent provisions to ensure that the structure of 

the disposal unit is not adversely impacted by conditions at the site, or that the location of a 

disposal unit at the site would not increase risks to human health or the environment. The 

criteria for municipal solid waste landfills provide restrictions on siting units in wetlands, fault 

areas, seismic impact zones, and unstable areas.151 Each of those factors is generally recognized 

as having the potential to impact the structure of a disposal unit negatively or increase the risks 

to human health and the environment. As discussed 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 Management (EPA530-R-03-001, February 2003) also 

 

151 The proposed definition of seismic impact zone was modified 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 criterion, bird strikes to aircraft, 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 restrictions as appropriate for industrial waste management. These 

proposed requirements are all discussed in turn below, after a general explanation of the 

Agency’s proposed treatment of new CCR disposal 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 sets 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 new 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 two 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 contained 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 protection of human health and the 

environment. 

The Agency decided to apply today's final unstable area location restriction 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 destruction of these units outweighs any disposal 
DRAFT DO NOT CITE OR QUOTE 289 of 563 5/03/10 

capacity concerns resulting from the closure 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 risks and are structurally less vulnerable than 

surface impoundments, and disposal capacity shortfalls, 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 existing units in these locations. For example, if 

existing CCR landfills located in wetlands were required 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 existing CCR landfills located in wetlands could potentially significantly 

disrupt statewide solid waste management. Therefore, 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 capacity 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 CCR 
DRAFT 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 along 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 units and the distance between these disposal units 

and the active faults, and therefore, is unable to precisely estimate the number of these existing 

CCR landfills that would not meet today's fault 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, given 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 the seismic impact zone restrictions on existing 

CCR landfills located in these areas. As with the other location restrictions, 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 information 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 existing CCR landfills in such areas would be of 

particular interest to the Agency. EPA also notes that the proposed location requirements do not 
DRAFT DO NOT CITE OR QUOTE 291 of 563 5/03/10 

reflect a complete prohibition on siting facilities in such areas, 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 proposed approach is generally consistent with the 

proposed approach to existing landfills under subtitle C of RCRA, and with Congressional 

distinctions between the risks presented by landfills and surface 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 disruption that could be involved if these design 

requirements were applied to existing landfills. 

By contrast, and consistent with its approach to existing surface impoundments under subtitle C, 

the proposed regulations would apply all of the location restrictions to existing surface 

impoundments. This means that facilities would need to either demonstrate 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 performance standard, or close. EPA is making this 

distinction because, as discussed in sections IV-VI, the record indicates that 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 environment that would result from the rapid and 

catastrophic destruction of these units could result in injuries to human health and the 

environment, that are far more significant, as illustrated 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 failure of a surface impoundment; as noted earlier, 

the direct cost to clean up the TVA spill is currently 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. Finally, as already noted, the distinction EPA is 

making between existing landfills and existing surface impoundments is also consistent with 

Congressional direction; as discussed in section VI, Congress 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 concerns that this will present 

significant difficulties with regard to disposal capacity in the short-term: e.g., “grandfathering” 

in existing CCR landfills, allowing CCR landfills to vertically expand without 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, EPA 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 disposal capacity. EPA notes, however, that unlike under the subtitle C 

co-proposal, EPA is not proposing to require facilities to cease wet handling. Thus EPA expects 
DRAFT 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 apply 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 capacity, which will be particularly 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 human health or the environment will be mitigated 

because facilities will be required to otherwise comply with the more stringent environmental 

restrictions, such as the corrective action and closure provisions proposed below. 

b. Discussion of Individual Location Requirements. 

Placement above the water table. The co-proposed subtitle D regulations would prohibit new 

CCR landfills and all surface impoundments from being located within two feet of the upper 

limit of the natural water table. EPA is proposing to define the natural water 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 engineered 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 should already be complying 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 facility prepare and make available a written 

demonstration that such engineering measures have been incorporated 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 demonstration meets the regulatory standards. 

Today's proposed wetland provisions would apply only to new CCR landfills, including lateral 

expansions of existing CCR disposal units, and all surface impoundments. New CCR landfills, 

which include lateral expansions, as well as all 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 proposed CCR disposal unit or 

lateral expansion is available that does not involve wetlands. Second, the owner or operator 

must show that the construction or operation of the unit will not cause or contribute to violations 

of any applicable State water quality standard, violate any applicable toxic effluent standard or 

prohibition, jeopardize the continued existence of endangered or threatened species or critical 
DRAFT DO NOT CITE OR QUOTE 295 of 563 5/03/10 

habitats, or violate any requirement 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 degradation of wetlands. To this end, the owner or operator must ensure 

the integrity of the CCR disposal unit , and its ability to protect ecological resources by 

addressing: erosion, stability, and 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 demonstrate that ecological resources in the wetland are 

sufficiently protected. Fourth, the owner or operator must demonstrate that steps have been 

taken to attempt to achieve no net loss of wetlands by first avoiding impacts to wetlands to the 

maximum extent practicable, then minimizing unavoidable impacts to the maximum extent 

practicable, and finally offsetting 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 company’s internet site, and notify the state that 

the demonstrations have been placed in the operating record 

For facilities that cannot make such a demonstration, this proposed provision effectively bans the 

siting of new CCR landfills or surface impoundments in wetlands, and would require existing 

surface impoundments to close. 

EPA notes that this section of the proposal is consistent with regulatory provisions currently 
DRAFT 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 believes that wetlands are very important, fragile 

ecosystems that must be protected, and has identified wetlands protection 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 existing 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 proposed criteria. Likewise, EPA is concerned that 

an outright ban of new CCR landfills in wetlands would 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 close. As noted in section VI, concerns have 

been raised regarding the potential for disposal capacity shortfalls, which 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 provide additional flexibility in the proposed RCRA 

Subtitle D rules, and to address concerns regarding the potential for disposal 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 Agency is therefore proposing a comprehensive set 

of demonstration requirements. In addition, the Agency believes that when such facilities are 

sited in a wetland, that the 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 remaining wetland base, as defined by acreage and 
DRAFT DO NOT CITE OR QUOTE 297 of 563 5/03/10 

function. Specifically, § 257.61(a)(4) requires owners or operators of new CCR landfills and 

surface impoundments to demonstrate that steps have 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 feasible 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 language in § 257.61(a)(2) 

clarifying that the owner or operator must demonstrate that both the construction and operation 

of the unit will not result in violations of the standards specified 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 the unit will not cause or contribute 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 ability to protect the ecological resources of the 

wetland. In addition, EPA is proposing requirements for third-party certification and state/public 

notice, to provide some verification of facility practices, and to generally assist citizens’ ability 

to effectively intervene and enforce the requirements, as necessary. 

Fault Areas. The proposed rule would ban the location of new CCR landfills and any surface 

impoundment within 200 feet (60 meters) of faults that have experienced displacement during 

the Holocene Epoch. The Holocene is a unit of geologic time, extending from the end of the 
DRAFT DO NOT CITE OR QUOTE 298 of 563 5/03/10 

Pleistocene Epoch to the present 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 fracturing in any geologic 

material along which there has been an observable amount of displacement of the sides relative 

to each other. Faulting does not always occur along 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 included as part of the definition of fault, and thus 

the 200-foot setback distance will apply to the outermost boundary of a fault or fault zone. 

The 200-foot setback was first adopted by EPA in the criteria for municipal solid waste landfills 

(MSWLFs), codified at 40 CFR part 258. In the course of that proceeding, EPA documented 

that seismologists generally believed that the structural integrity of MSWLFs could not be 

unconditionally guaranteed when they are built within 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 earthquakes 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, EPA 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. Therefore, 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 zone 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 the 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 proposing 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 demonstration must be certified by an independent 

registered professional engineer and the owner or operator of the CCR disposal unit must notify 

the state that the demonstration has been placed in the operating record and on the company’s 

internet 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 would also ban the location of new CCR 

landfills and any surface impoundments 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 all containment structures 

(i.e., liners, leachate collection systems, and surface water control systems). The demonstration 

must be certified by an independent registered professional engineer and the owner or operator 

must notify the state that the demonstration has been placed in the operating 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 greater 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 readily 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, entitled “Probabilistic Estimates of Maximum 

Acceleration and Velocity in Rock in the Contiguous United States.” 

Another approach would be to adopt criteria of the National Earthquake Hazards Reduction 

Program (NEHRP) of the U.S. Geological Survey used to develop national seismic hazard maps. 

The NEHRP uses ground motion probabilities of 2, 5, and 10% in 50 years to provide a relative 

range of seismic hazard across the country. The larger probabilities indicate 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 level 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 specific hypothetical large earthquakes (see 

http://earthquake.usgs.gov/hazards/products/scenario/). The Agency solicits comments on the 

proposed definition and whether there are variants like those used to develop the national seismic 

hazard maps that could lessen the burden on the industry and the geographic areas covered by the 

proposed definition. For additional information on the National Seismic Hazard Mapping 

Project, see http://earthquake.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 unstable areas to demonstrate that the integrity 

of the structural components of the unit will not be disrupted. EPA’s damage cases have 
DRAFT DO NOT CITE OR QUOTE 301 of 563 5/03/10 

provided indirect evidence of the kind of environmental and human health risks that would be 

associated with failure of the structural components of the surface impoundment from subsidence 

or other instability of the earth at a CCR disposal unit. Accordingly, EPA believes that, to 

provide a reasonable probability of preventing releases 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 “unstable 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 responsible for preventing releases from such units. 

Unstable areas are characterized by localized or regional ground subsidence, settling (either 

slowly, or very rapidly and catastrophically) of overburden, or by slope failure. The owner or 

operator must consider the following factors 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 (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 operation of the CCR landfill, surface impoundment or 

lateral expansion that is necessary 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 components of the CCR landfill, surface impoundment or 
DRAFT DO NOT CITE OR QUOTE 302 of 563 5/03/10 

lateral expansion (this includes weak and unstable soils); 

(2) Areas susceptible to mass movement—areas where the downslope movement of soil and rock 

(either alone or mixed with water) occurs under the influence of gravity; and 

(3) Karst terraces—areas that are underlain by soluble bedrock, generally limestone or dolomite, 

and may contain extensive subterranean drainage systems and relatively large subsurface voids 

whose presence can lead to the rapid development of sinkholes. 

Karst areas are characterized by the presence of certain physiographic features such as sinkholes, 

sinkhole plains, blind valleys, solution valleys, losing streams, caves, and big springs, although 

not all these features are always present. EPA's intent in this proposed 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 geologic 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-induced phenomena include: Debris flows resulting 

from heavy rainfall in a small watershed; the 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 explosives, 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 naturally-occurring conditions can make an area 

unstable and these can be very unpredictable and destructive, especially if amplified by humaninduced changes to the environment. Such conditions can include the presence of weak soils, 

over steepened slopes, large subsurface voids, or simply the presence of large quantities of 
DRAFT DO NOT CITE OR QUOTE 303 of 563 5/03/10 

unconsolidated material near a watercourse. 

 

The Agency recognizes that rapid sinkhole formation that occurs in some karst terraces can pose 

a serious threat to human health and the environment by damaging the structural integrity of 

dams, liners, caps, run-on/run-off control systems, and other engineered structures. However, 

EPA is not proposing an outright ban of CCR landfills and surface impoundments in all karst 

terraces because of concerns regarding the impacts of such a ban in certain regions of the 

country. For example, several States (i.e., Kentucky, Tennessee) are comprised mostly of karst 

terraces and banning all CCR disposal facilities in karst terraces would cause severe statewide 

disruptions in capacity available for CCR disposal. Moreover, the Agency believes that some 

karst terraces may provide sufficient structural 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 the 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. The demonstration must be certified by an 

independent registered professional engineer, and the owner or operator must notify the state that 

the demonstration has been placed in the operating 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) after the effective date of the rule, to close the landfill 
DRAFT 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 alternative 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 must place the demonstration in the 

operating record and on the company’s internet site and notify the state that this action was 

taken. 

Thus, the proposed rule allows a maximum of 7 years from the effective date of the final rule if 

this alternative is finally promulgated for existing CCR landfills to comply with the unstable area 

restrictions, and existing CCR surface impoundments to comply with the location restrictions or 

to close. As discussed under the subtitle C option, EPA believes that five years will, in most 

cases, be adequate time to complete proper and effective facility closure and to arrange for 

alternative waste management. However, there may be cases where alternative waste 

management capacity may not be readily available or where the siting and construction of a new 

facility may take longer than five years. EPA believes the two-year extension should provide 

sufficient time to address these potential problems. 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 consistent with those EPA is proposing 

under its subtitle C co-proposal for surface impoundments. EPA is aware of no reason that the 
DRAFT 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 groundwater risk assessment clearly show the 

need for effective liners – namely composite liners – to very significantly reduce the probability 

of adverse effects. The co-proposed subtitle D design standards would require that new landfills 

and all surface impoundments that have not completed 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 retrofitted 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 proposing 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 technical justification for these requirements is 

equally applicable to the wastes and the units, irrespective of the statutory authority under which 

the requirement is proposed. 

EPA is also proposing to adopt the same approach to new and existing units under RCRA 

subtitle D that it is proposing under RCRA subtitle C. EPA would only require new landfills (or 

new portions of existing landfills) to meet these 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 retrofitted with a new minimumtechnology liner/leachate collection and removal system (or to close). They can continue to 
DRAFT DO NOT CITE OR QUOTE 306 of 563 5/03/10 

receive CCRs, and continue to operate as compliant 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 different 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 requirements 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 impoundments to install the 

proposed liner systems because the impoundments would only continue to operate for a limited 

period of time. EPA’s proposed treatment standards—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 require surface impoundments to retrofit, and that 

compliance with the groundwater monitoring and other subtitle C requirements would be 

sufficiently protective. EPA lacks the authority under RCRA subtitle D to establish a 

comparable requirement; EPA only has the authority 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 than install a liner, wet-handling of CCRs can 

continue, even in existing units, and EPA’s risk assessment confirms that the long-term operation 
DRAFT DO NOT CITE OR QUOTE 307 of 563 5/03/10 

of such units would not be protective without the installation of the composite liner and leachate 

collection system described below. 

The composite liner would consist of two components: an upper component 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 1×10−7cm/sec. 

The FML component would be required to be installed in direct and uniform 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 municipal solid waste landfill criteria.) EPA solicits 

comment, however, on whether any subtitle D option should 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 engineer 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 beyond the property boundary. Although the existing 

part 258 requirements allow for such a demonstration, 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 protection. Nevertheless, EPA would be interested in receiving data 
DRAFT DO NOT CITE OR QUOTE 308 of 563 5/03/10 

and information that demonstrates whether under other site conditions, an alternative liner would 

be equally protective. In this regard, EPA would also be interested 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 requirement that is as consistent as possible 

with the existing part 258 requirements, and would require 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 deficiencies in units currently 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 impoundments, the same stability requirements that are 

proposed as part of the subtitle C alternative. As explained in that section, these are based on the 

long-standing MSHA requirements, with only minor 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 independent registered professional engineer certify 

that the design of the impoundment is in accordance with recognized and generally accepted 

 

152 For the findings of the assessment, see: 

http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/index.htm#surveyresults 
DRAFT DO NOT CITE OR QUOTE 309 of 563 5/03/10 

good engineering practices for the maximum volume of CCR slurry and wastewater that will be 

impounded therein, and that together design and management features ensure dam stability. The 

proposed regulation also requires the facility to conduct weekly inspections to ensure that any 

potentially hazardous condition or structural weakness will be quickly identified. As with the 

co-proposed RCRA subtitle C option, the proposed RCRA subtitle D regulation also requires that 

existing and new CCR surface impoundments be inspected annually by an independent 

registered professional engineer to assure that the design, operation, and maintenance of the 

surface impoundment is in accordance with current, prudent engineering practices for the 

maximum volume of CCR slurry and CCR waste water which can be impounded. EPA has 

concluded, subject to consideration of public comment, that these requirements are necessary to 

ensure that major releases do not occur that would cause adverse 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 windblown dust from landfills, and record-keeping. 
DRAFT DO NOT CITE OR QUOTE 310 of 563 5/03/10 

-Existing criteria for Endangered Species and Surface Water. 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 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 criterion is not enforceable by RCRA citizen suit. 

The extent to which this criterion may be enforced is governed by the remedies available under 

the CWA, which is the source of the 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 Solid Waste Management Plans and Criteria for 

Classification of Solid Waste Disposal Facilities 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 physical structure of the landfill; (2) the surface 

discharge of wastes in solution or suspension; 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 helps to ensure that run-off does not cause an 

overflow of the surface impoundment 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 impoundments. Additionally, run-off 

control systems from the active portion of CCR disposal units are required to collect and control 

at least the water volume resulting from a 24-hour, 25-year storm. This protects surface water 

that would otherwise flow untreated into a body of water. The facility is required to prepare a 

report, available to the public, documenting how relevant calculations were made, and how the 

control systems meet the standard. A registered professional engineer must certify that the 

design of the control systems meet the standard. Also, the owner or operator is required to 

prepare a report, certified by an independent registered professional engineer, and documenting 

how relevant calculations were made, and how the control systems meet the standard. The state 

must be notified that the report was placed in the operating record for the site, and the owner or 

operator must make it available to the public on the 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 United States that is in violation 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 low intensity with long duration. EPA believes that 

this is a widely used standard, and is also the current standard used for hazardous waste landfills 

and municipal solid waste landfill units under 40 CFR Part 258.. EPA has no information that 
DRAFT 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 included under the Subtitle C co-proposal, based upon 

its risk assessment findings that fugitive dust control 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 alternative, and to facilitate citizen-suit 

enforcement of the criteria, EPA has provided for certification by an independent registered 

professional engineer, notification to the state that the documentation has been placed in the 

operating record, and provisions making available to the public on the owner’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 appropriate for interested states and 

citizens to be able to access all of the information required by the proposed rule in one place. 

Therefore, the co-proposed Subtitle D alternative requires the owner or operator of a CCR 

landfill or surface impoundment to record and retain 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 the location restrictions, design criteria, 

and operating criteria) and 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 surface 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 impoundments would be required to comply with the 

design requirements in section 257.71 (that is, no later than seven years after the 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 impounding structure for the reporting period; 

(2) Location and type of installed 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 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 affected the stability or operation of the impounding 

structure that has occurred during the reporting period; and 

(7) A certification by an independent registered professional engineer that all construction, 

operation, and maintenance were in accordance with the plan. The 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 77.216-4). As the Agency has stated previously, MSHA has 

nearly 40 years of experience writing regulations and inspecting dams associated with coal 

mining, which is directly relevant to the issues presented by CCRs in this proposal. In our 

review of the MSHA regulations, we found them to be comprehensive and directly applicable to 

and appropriate for the dams used in surface impoundments at coal-fired utilities to manage 

CCRs. 

The proposed rule would also allow the owner or operator to submit a certification by an 

independent registered professional 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 indicate the potential for CCR landfills and surface 

impoundments to leach hazardous constituents into groundwater, impairing drinking water 

supplies and causing adverse impacts on human health and the environment. Indeed, 

groundwater contamination is one of the key environmental risks EPA has identified with CCR 

landfills and surface impoundments. Furthermore, as mentioned previously, the legislative 

history of RCRA section 4004 specifically evidences concerns over groundwater contamination 

from open dumps. To this end, groundwater monitoring is a key mechanism for facilities to 

verify that the existing containment structures, such as liners and leachate collection and removal 
DRAFT DO NOT CITE OR QUOTE 315 of 563 5/03/10 

systems, are functioning as intended. Thus, EPA believes that, in order for a CCR landfill or 

surface impoundment to show no reasonable probability of adverse effects on health or the 

environment, a system of routine groundwater monitoring to detect any such contamination from 

a disposal unit, and corrective action requirements to address identified contamination, is 

necessary. 

Today's co-proposed subtitle D criteria require a system of monitoring 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 for statistical analysis of the analytical data 

derived from the well samples to detect the presence of hazardous constituents released from 

these facilities. The Agency is proposing a groundwater monitoring program consisting of 

detection monitoring, assessment monitoring, and a corrective action program. This phased 

approach to groundwater monitoring and corrective action programs provide for a graduated 

response over time to the problem of groundwater contamination as the evidence of such 

contamination increases. This allows for proper consideration of the transport characteristics of 

CCR constituents in ground water, while protecting 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 regardless of whether the unit is a landfill or surface 

impoundment. Therefore, EPA has largely modeled the proposed groundwater monitoring and 

corrective action requirements for CCR landfills and surface impoundments after those for 
DRAFT DO NOT CITE OR QUOTE 316 of 563 5/03/10 

MSWLFs in the 40 CFR part 258 criteria, and for disposal units that may receive conditionallyexempt small quantity generator (CESQG) hazardous 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 requirements at length in today’s preamble. Rather, 

EPA refers the reader to the detailed discussions of these requirements in the preambles to the 

final and proposed rules for the MSWLF 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, EPA is proposing to modify or revise these 

requirements. Below, EPA discusses the particular areas where the Agency is proposing to make 

modifications, and solicits comment on those specific differences. EPA, more generally, solicits 

comment on whether relying on the existing groundwater 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 Waste Disposal Facilities and Practices; Identification 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 Disposal Facilities and Practices; Identification and Listing of 

Hazardous Waste; Requirements for Authorization of State Hazardous 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 regulations for CCR disposal, these requirements 

are structured to be largely self-implementing. In addition, states and citizens 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 citizens’ 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 law for CCR disposal facilities. 

At the same time, however, EPA is mindful of the differences in the statutory authorities for 

establishing criteria for CCR landfills and surface impoundments versus MSWLFs and CESQG 

facilities, and in particular, the possibility that a state may 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 proposed 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) (establishment 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 discussed earlier in this preamble, EPA believes 

that this provides an important independent validation of the particular route chosen. EPA 
DRAFT DO NOT CITE OR QUOTE 318 of 563 5/03/10 

solicits comment in particular on the appropriateness 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 facilities to operate under 

an alternative standard, such as the existing provisions under 257.21(g) and 258.50(h) 

(establishing alternative schedules for groundwater 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 indicator parameters, under 

specified circumstances. EPA is proposing not to adopt these alternatives for CCR disposal 

facilities because groundwater monitoring is the single 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 composite liner. Since these units will continue to 

operate in the absence of a composite liner, groundwater monitoring is the primary means to 

prevent groundwater contamination. Although EPA is proposing to require existing surface 

impoundments to retrofit with composite liners, these units are more susceptible to leaking, and 

thus the need for a rigorous groundwater monitoring program is correspondingly high. 

Moreover, EPA is concerned that provisions allowing such modification of these requirements 

are particularly susceptible to abuse, since such provisions would allow substantial cost 

avoidance. Therefore, in the absence of a state oversight mechanism in place to ensure such 

modifications are technically appropriate, such a provision may operate at the expense of 

protectiveness. In addition, given 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 instances, including these alternative standards would 
DRAFT DO NOT CITE OR QUOTE 319 of 563 5/03/10 

not be workable. For example, establishing 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 workable 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 omissions 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 requirement for certification by an independent 

professional engineer would be effective or appropriate in such a case. 

Applicability. The co-proposed subtitle D criteria require facilities to install a groundwater 

monitoring system at existing landfills and surface impoundments within one year of the 

effective date of the regulation so that any releases from these units will be detected, thus 

providing an opportunity to detect and, if necessary, take corrective action to address any 

releases from the facilities. The proposed rule also provides that new CCR landfills and surface 

impoundments comply with the groundwater monitoring 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 necessary 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 monitoring is a shorter time frame than EPA provided to facilities 

as part of the original part 258 or part 257 subpart A requirements, there are good reasons to 

establish a shorter time frame here. As discussed in section IV, many of the existing units into 

which much of the CCR is currently disposed are unlined, and they are aging. Under these 
DRAFT DO NOT CITE OR QUOTE 320 of 563 5/03/10 

circumstances, EPA believes that installation of groundwater monitoring is critical to ensure that 

releases from these units are detected and addressed 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 specifically 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, particularly 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 designed to be applied even in the absence of state action, EPA has 

not included provisions for state establishment of a compliance schedule under 257.21(d) and 

258.50(d). EPA solicits comment on whether these types of provisions are 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 provisions of this subpart. This notification must also be placed 

on the owner or operator’s internet site. EPA believes that annual notification will facilitate state 

oversight of the groundwater monitoring 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 three down gradient wells at all CCR units. EPA is 

proposing this requirement based on the subtitle C interim status self-implementing 

requirements. 

The design of an appropriate groundwater monitoring system is particularly dependent on site 

conditions relating to groundwater flow, and the development 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 groundwater that has not 

been affected by contaminants from CCR landfills or surface impoundments. EPA’s existing 

requirements under parts 257, Subpart B, 258, and 264 all recognize this, and because they 

operate in a permitting context, these requirements 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 believes 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 more detailed groundwater monitoring system may 

need to be in place, and EPA is therefore requiring a certification by the independent registered 

professional engineer or hydrologist that the groundwater monitoring system is designed to 

detect all significant groundwater 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 are in place to determine whether a statistically 

significant increase in the level of a hazardous constituent has occurred, indicating the possibility 

of groundwater contamination. The co-proposed subtitle D criteria would require the same 

provisions addressing groundwater sampling and analysis procedures with those already in use 

for CESQG and MSWLF facilities, since generally the same constituents and analysis 

procedures would be appropriate in both instances. However, EPA is requesting comment on 

one issue in particular. In the final 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 section was selected for the conditions present 

at a particular MSWLF. At the time, EPA indicated its expectation that as states gained program 

approval, they would take on the responsibility of approving alternate statistical tests proposed 

by the facilities. See 56 Fed. Reg. 51071. Because states may choose not to create a regulatory 

oversight mechanism under the co-proposed subtitle D rule for CCR landfills and surface 

impoundments, however, EPA is requesting comment on whether the lack of such an oversight 

mechanism will impair selection of appropriate test methodologies, and whether EPA should 

instead adopt a different approach to ensure the protection of human health and the environment 

at CCR disposal facilities. For example, one approach might be for EPA to tailor a list of 

methodologies to particular site conditions. EPA would welcome suggestions 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 selecting 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 whether 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 specified circumstances. EPA is not including these provisions 

because it believes that a set of specified parameters are necessary to ensure adequate 

protectiveness, since EPA’s information on CCRs indicates that their composition would not be 

expected to vary such that the parameters are inappropriate. Under the proposed rule, monitoring 

would be required no less frequently than semi-annually. EPA has again decided not to include a 

provision that would allow an alternative sampling frequency, because of the lack of guaranteed 

state oversight and potential 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 parameters and alternative 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 releases 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 appropriateness of this list of parameters For the same 

reasons as discussed under the proposed requirements for detection monitoring, EPA has chosen 

not to include in the proposed requirements for assessment monitoring provisions for allowing a 

subset of wells to be sampled, the deletion of assessment monitoring parameters, or alternative 

sampling frequencies. EPA again solicits comment on whether these options are appropriate for 

CCR landfills and surface impoundments. 

Assessment of corrective measures. The proposed rule also requires that whenever monitoring 

results indicate a statistically significant level of any appendix IV constituent exceeding the 

groundwater protection standard, the owner or operator must initiate an assessment of corrective 

action remedies. Unlike for the MSWLF and CESQG criteria, the proposed rule provides a 

discrete time frame for completion of the assessment, 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 completed because it expects that this will be a 
DRAFT DO NOT CITE OR QUOTE 325 of 563 5/03/10 

sufficient length of time to complete the required activities. EPA solicits comment on the 

appropriateness of the 90-day timeframe. 

Selection of Remedy. The proposed rule establishes a framework for remedy selection based 

upon the existing requirements for MSWLFs and CESQG facilities. These provisions have been 

modified to eliminate consideration of “practicable 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 required 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 standards for CCR landfills and surface impoundments. 

See 42 U.S.C. 6949a(c)(1). EPA solicits comment on these modifications, specifically, on how 

this modification may affect the ability of the regulated community to comply with the proposed 

criteria, and on how this modification may affect the protectiveness of the proposed standards for 

human health and the environment. 

In the provisions discussing factors to be considered in determining 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 does not expect that these risks would be relevant to the disposal 

of CCRs in CCR landfills and surface impoundments. 

Implementation of the corrective action remedy. The co-proposed subtitle D criteria require that 

the owner or operator comply with several requirements to implement the corrective action 
DRAFT 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 include 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 set period of three consecutive 

years. EPA solicits comment on whether to allow for a different period of time. EPA is 

particularly concerned with whether such a provision would provide protection 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 ensuring 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 impoundment, 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 industry experts, a Tribal representative, state 

officials, and environmental groups, documents the general consensus on the need for effective 
DRAFT DO NOT CITE OR QUOTE 327 of 563 5/03/10 

closure and post-closure requirements.154 Post-closure care requirements are also particularly 

important for CCR units because the time to peak concentrations for selenium and arsenic, two 

of the more problematic constituents 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 again modeled its proposed requirements for 

CCR landfills on those already in place for MSWLFs with modifications to reflect the lack of a 

mandatory permitting mechanism, and other changes that it believes are appropriate to ensure 

that there is no reasonable probability 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 landfills and surface impoundments include proposed 

257.100(a) – (c). These provisions provide that prior to closure of any CCR unit, the owner or 

operator must develop a plan describing the closure of the unit, and a schedule for 

implementation. The plan must describe the steps necessary to close the CCR landfill or surface 

impoundment at any point during the active life in accordance with the requirements in 

paragraphs (c) and (d) or (e) of this section, as applicable, 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 proposing 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 does not attempt to codify any particular set of 

engineering practices, but to allow the professional engineer latitude in adopting improved 

practices that reflect the state-of-the art practices, as they develop over time. The plan must be 

certified by an independent registered professional engineer. In addition, the owner or operator 

must notify the state that a plan has been placed in the operating record and on the owner’s or 

operator’s publically accessible internet site. 

These provisions are modeled after the closure plan requirements in 258.60(c). Of note here is 

that, while EPA rejected a certification requirement for MSWLF closure plans, EPA is proposing 

to require one here to increase the ability of citizens to effectively enforce the rules. In the 

MSWLF rule, EPA rejected a certification 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 state program, where EPA could assure that states 

would play an active role in overseeing and enforcing the facility’s implementation of the 

requirements. 

EPA is also proposing that the closure plan provide, 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 largest area of the CCR unit ever requiring a final cover during the 

active life of the unit, and an estimate of the maximum inventory 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 closure of a CCR landfill or surface impoundment with 

CCRs in place or through CCR removal and decontamination of all areas affected by releases 

from the landfill or surface impoundment. Proposed 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/guide/chap11s.htm). As previously noted, the 

Guide represents a consensus view of best practices for industrial waste management, based on 

involvement from EPA, and state and tribal representatives, 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 protection for health and the environment under either 

option. Although EPA anticipates that facilities 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 rule. EPA is also considering whether to adopt a 

further incentive for clean closure, under which 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 facility, and notification is provided to the state. In the absence of 
DRAFT 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 recognized 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 would be required to either drain the unit, or 

solidify the remaining wastes. EPA is also proposing to require that the wastes be stabilized to a 

bearing capacity sufficient to support the final cover. The proposed criteria further require that, 

in addition to the technical cover design requirements applicable to landfills, any final cover on a 

surface impoundment would have to meet requirements designed to address the nature of the 

large volumes of remaining wastes. Specifically, EPA is proposing that the 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 the general performance standard that the probability 

of future impoundment of water, sediment, or slurry is precluded. This general performance 

standard is based on the MSHA regulations, and is designed to ensure 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 requires that CCR landfills and surface impoundments 

have a final cover system designed and constructed 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 requires an infiltration layer 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 material that is capable of sustaining native plant 

growth as a way to minimize erosion of the final cover. These requirements are generally 

modeled after the performance standard and technical requirements contained 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 after the interim status closure 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 designed 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 from the remaining wastes at the CCR landfill or 

surface impoundment. The regulation requires certification 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 landfill 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 design is certified by an 

independent registered professional 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 infiltration layer that achieves an 

equivalent reduction in infiltration, and an erosion layer that provides equivalent protection from 

wind and water erosion, as the infiltration and erosion layers specified in the technical standards 

in paragraph (d). Under this alternative, EPA expects that evapo-transpiration covers may be an 

effective alternative, which are not appropriately evaluated based on permeability alone. For 

example, an independent registered professional engineer might certify an alternative cover 

design that prevents the same level of infiltration as the system described above (i.e., no greater 

than 1×10−5

 cm/sec, etc), based on: (1) hydrologic modeling and lysimetry or instrumentation 

using a field scale test section, or (2) hydrologic modeling and comparison of the soil and 

climatic conditions at the site with the soil and climatic conditions 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 independent registered professional engineer that the alternative 

cover would minimize infiltration at least as effectively as the “design” cover described above. 

As with the other final covers, the design of the evapo-transpiration 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 conditions. However, EPA is specifically soliciting comment on 

whether this degree of flexibility is appropriate, given the lack of guaranteed state oversight. In 
DRAFT 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 approved 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 requirements, 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- and 180-day deadlines for beginning and completing 

closure, respectively, that are contained in existing section 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 deadlines under the MSWLF criteria. EPA believes that extending 

the closure deadlines in this context is inappropriate because, in the absence of an approved State 

program, the owner or operator could unilaterally decide to extend the time for closure of the 

unit, without any basis, or oversight by a regulatory authority. 

The proposed closure requirements also include a provision addressing required 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 determined that state oversight of 
DRAFT 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 propriety of such a provision, and encourages 

commenters who are interested in supporting such an option, to suggest alternatives to state 

oversight to provide for facility accountability. 

Following closure of the CCR management unit, the co-proposed subtitle D approach requires 

post-closure care modeled after the requirements 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 protect 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 record and on the owner’s or operator’s internet 

site; and (3) the owner or operator notifies the state of the company’s findings. The proposed rule 

also allows an increase in this period, again, with notification to the state, if the owner or 

operator of the CCR landfill or surface impoundment determines 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 period would be appropriate for post-closure care 

for CCR disposal units. EPA recognizes 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-closure 
DRAFT DO NOT CITE OR QUOTE 335 of 563 5/03/10 

care that will be appropriate for all possible sites, and all possible conditions. EPA therefore 

solicits comment on alternative methods to account 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 leachate collection and removal system requirements 

described above, maintain the groundwater monitoring system and monitor the groundwater in 

accordance with the groundwater monitoring requirements described above, and place the 

maintenance plan in the operating record and on the company’s internet site. 

EPA is also considering whether to adopt a number of provisions to increase the flexibility 

available under these requirements. For example, EPA is considering a self-certified stoppage of 

leachate management, such as provided for in 258.61(a)(2), and is soliciting public comment on 

the need for such a provision, as well as its propriety, in light of the absence of guaranteed state 

oversight. EPA is also considering whether to adopt a provision to allow any other disturbance, 

provided that the owner or operator of the CCR landfill or surface 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 would need to be certified by an independent registered professional 

engineer, and notification provided to the state that the demonstration had been placed in the 

operating record and on the owner’s or operator’s internet site. In the MSWLF rule, EPA limited 

this option to approved states, on the ground that, “under very limited circumstances it may be 
DRAFT DO NOT CITE OR QUOTE 336 of 563 5/03/10 

possible or desirable to allow certain post-closure uses of land, including some recreational uses, 

without posing a significant threat to human health and the environment, but such situations are 

likely to be very limited and need to be considered 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 interested in suggestions for other 

mechanisms providing facility flexibility and/or oversight. 

9. Financial Assurance. 

EPA currently requires showings of financial assurance under multiple programs, including for 

RCRA subtitle C hazardous waste treatment, storage and disposal facilities; the RCRA subtitle I 

underground storage tank program; and under other statutory authorities. Financial assurance 

requirements generally help ensure that owners and operators adequately plan for future costs, 

and help ensure that adequate funds will be available 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 necessary to ensure continued protection of human health and the 

environment. Financial assurance requirements also encourage the development and 

implementation of sound waste management practices 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 does 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 responsibility requirements 

under CERCLA § 108(b). See Identification of Additional Classes of Facilities for Development 

of Financial Responsibility Requirements under CERCLA Section 108(b), 75 Fed Reg. 816 

(January 6, 2010). EPA solicits comments on whether 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 closed 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 comment on existing state waste programs for financial 

assurance for CCR disposal facilities, and whether and how the co-proposed RCRA subtitle D 

regulatory approach might integrate 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 subtitle “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 could continue to operate for the remainder 

of their useful life. New surface impoundments would be required to have composite liners. The 

other co-proposed subtitle D requirements would remain the same. This modification results in 

substantially lower costs, but also lower benefits as described 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 subtitle 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, corrective action, closure, and post-closure 

care requirements as co-proposed in this notice; however, in lieu of the phase-out of surface 

impoundments, EPA would establish and fund a program for conducting annual (or other 

frequency) structural stability (assessments) of impoundments having a “High” or “Significant” 

hazard potential rating as defined by criteria developed by the U.S. Army Corps of Engineers for 

the National Inventory of Dams. EPA would conduct 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 annual inspections would be far more cost effective 

than the phase-out of surface impoundments – approximately $3.4 million annually for 
DRAFT 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 integrity 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 surface impoundments would need to meet the 

proposed minimum federal criteria180 days after 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, irrespective of whether or not the states have 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 location restrictions and design criteria would apply 

the date that such CCR landfills and surface impoundments are placed into service. 

• For existing CCR surface impoundments, the compliance date for the liner requirement is 

five years after the effective date of the final rule. 

• For existing CCR landfills and surface impoundments, the compliance date for the 

groundwater monitoring requirements is one year after 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 groundwater monitoring requirement must 

be in place and in compliance with the groundwater monitoring requirements before 

CCRs can be placed in the unit. 

(Note: As discussed in Section 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 specified 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 facilities can comply without interaction with a 

regulatory agency. EPA can however take action under section 7003 of RCRA to abate 

conditions that “may present an imminent and substantial endangerment to health or the 

environment.” EPA could also use the imminent and substantial endangerment authorities under 

CERCLA, or under other federal authorities, such as the Clean Water Act, to address those 

circumstances where a unit may pose a threat. 

In addition, the federal RCRA subtitle D requirements would be enforceable by states and by 

citizens using the citizen suit provisions of RCRA 7002. Under this section, any person may 

commence a civil action on his own behalf against any person, who (1) is alleged to be in 

violation of any permit, standard, regulation ....which has become effective pursuant to this 
DRAFT 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 Regulation 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 encourage 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 federal approval procedures 

for state adoption of the minimum nationwide criteria. States would be free to develop their own 

regulations and/or permitting programs using their solid waste laws or other state authorities. 

While states are not required to adopt such minimum nationwide criteria, some states (about 25) 

incorporate federal regulations by reference or have specific state statutory 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 adopt them, consistent with their state laws and 

administrative procedures. 

If the states do not adopt or adopt different standards for the management of CCRs, facilities 

would still have to comply with the co-proposed subtitle D criteria, if finalized, independently of 

those state regulations. Thus, even in the absence of a state program, CCR landfills and CCR 
DRAFT 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 and 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 interaction with regulatory officials -- that is, the requirements 

are self-implementing. Also, even in the absence of a state regulatory program for CCRs, these 

federal minimum criteria are enforceable by citizens and by states using the 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 substantial endangerment to human health or the 

environment or and can rely on other federal authorities. See the previous 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 and benefits associated with 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 here. For purposes of evaluating the potential 

economic impacts of the proposed rule, the RIA evaluated 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 industry, and (2) the monetized value of existing CCR 

beneficial uses in industrial applications. Incremental to this baseline, the RIA estimated (1) 

future industry compliance costs for CCR disposal associated with the regulatory options 
DRAFT 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 beneficial use. The findings 

from each of these main sections of the RIA are summarized below. These quantified benefit 

results are based on EPA’s initial analyses using existing information and analytical techniques. 

1. Characterization of Baseline Affected Entities and CCR Management Practices 

Today’s action will potentially affect CCRs generated by coal-fired electric utility plants in the 

NAICS industry code 221112 (i.e., the “Fossil Fuel Electric Power Generation” industry within 

the NAICS 22 “Utilities” sector code). Based on 2007 electricity generation data published by 

the Energy Information Administration (EIA), the 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 consisting of 121 companies, 18 cooperative 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 22 
DRAFT DO NOT CITE OR QUOTE 344 of 563 5/03/10 

million tons in company-owned surface impoundments, 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 companies). 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 plants use more than one CCR management method, 

these management plant counts exceed 495 total plants. Based on the estimates developed for 

the RIA, total CCR disposal is about 94 million tons 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 data 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 beneficial uses in at least 14 industries, of which 

28 of the 272 plants solely supply CCRs for beneficial 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 may 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, where 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 plants 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 disposal units and associated baseline disposal 

costs for two types of CCR disposal units: landfills and surface impoundments. Impoundments 

are sometimes named by electricity plant personnel as basins, berms, canals, cells, dams, 

embankments, lagoons, pits, ponds, reservoirs, or sumps. The baseline is defined as existing 

(current) conditions with respect to the presence or absence of 10 types of environmental 

engineering controls and eight ancillary regulatory elements, plus projection of future baseline 

conditions of CCR disposal units without regulation over the 50-year future period-of-analysis - 

2012 to 2061 - applied in the RIA. A 50-year future period was applied in the RIA to account 

for impacts of the proposed regulatory options which 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 state government regulations of CCR 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 controls installed for CCR disposal 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) dust controls, (5) 

rainwater run-on and run-off controls, (6) financial assurance for corrective action, disposal unit 

closure, and post-closure care, (7) disposal unit location restrictions, (8) closure capping of 

disposal units, (9) post-closure groundwater monitoring, and (10) CCR storage design and 

operating standards prior to disposal (Note: Although listed here, this 10th element was not 

estimated in the RIA because of EPA’s lack of information on baseline CCR storage practices). 

This specific set of engineering controls represents the elements of the RCRA 3004(x) custom-
DRAFT DO NOT CITE OR QUOTE 346 of 563 5/03/10 

tailored technical standards proposed in today’s notice for the RCRA subtitle C option. The 

eight ancillary elements evaluated in the RIA are (11) offsite transport and disposal, (12) 

disposal unit structural integrity inspections, (13) electricity plant facility-wide environmental 

investigations, (14) facility-wide corrective action requirements, (15) waste disposal permits, 

(16) state government regulatory enforcement inspections, (17) environmental release 

remediation requirements, and (18) recordkeeping and reporting to regulatory agencies. Some 

states require many of these technical standards for future newly-constructed CCR disposal units, 

some states require them for existing units, and some states have few or no regulatory 

requirements specific to CCR disposal 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 the percentage of CCR surface impoundments with 

baseline controls ranged from 20% to 49%, depending 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 and company voluntary environmental 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 Use 
DRAFT 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 the 47 million tons per year (2005) of industrial beneficial uses of 

CCRs. CCRs are beneficially used nationwide as material ingredients in at least 14 industrial 

applications according to the American Coal Ash Association: (1) concrete, (2) cement, (3) 

flowable fill, (4) structural fill, (5) road base, (6) soil modification, (7) mineral filler in asphalt, 

(8) snow/ice control, (9) blasting grit, (10) roofing granules, (11) placement in mine filling 

operations,156 (12) wallboard, (13) waste solidification, and (14) agriculture. The baseline annual 

sales revenues (as of 2005) received by the electric utility industry for sale of CCRs used in these 

industrial applications are estimated 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 applications, labeled economic 

benefits in the RIA. Based on the lifecycle 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 industrial applications (i.e., concrete, 

cement and wallboard), baseline lifecycle benefits of beneficially using CCRs compared to 

substitute industrial materials are (a) $4,888 million per year in energy savings, (b) $81 million 

per year in water consumption savings, (c) $365 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 categories identified by the American Coal Ash Association 

(http://acaa.affiniscape.com/displaycommon.cfm?an=1&subarticlenbr=3). However, 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 beneficial 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 industry as of 2005. The sum 

of environmental benefits, industrial raw materials 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 regulation 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 prior 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 controls under the subtitle “D prime” option would be 

identical as well, except that existing surface impoundments would not have to close or be 

dredged and have composite liners installed within five years of the effective date of the 

regulation. The RIA also assumes all three options 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 value equivalent basis over a 50-year period-ofanalysis (2012 to 2061) using both a 7% and an alternative 3% discount rate. These two 

alternative discount rates are required by the Office of Management and Budget’s September 

2003 “Regulatory Analysis” Circular A-4. For the purpose of summary here, only the 7% 

discount rate results are presented for each option because the 7% rate represents 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 basis, the estimated regulatory 

compliance costs for the three options are $1,474 million (subtitle C special waste), $587 million 

(subtitle D), and $236 million (subtitle “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 sources and analytical 

approaches. 

5. Benefits for RCRA Regulation 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 cancer prevention benefits and 

(b) avoided groundwater remediation costs at CCR disposal sites; 

2. CCR impoundment structural failure prevention benefits (i.e., cleanup costs avoided); 

and 
DRAFT DO NOT CITE OR QUOTE 350 of 563 5/03/10 

3. Induced future increase in industrial beneficial uses of CCRs. 

As was done with the cost estimates described above, the RIA estimated benefits both at the 7% 

and 3% discount rates using the same 50-year period-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 human non-cancer prevention benefits, ecological 

protection benefits, surface water protection benefits, 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 controlling 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 tests 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 leach significantly more aggressively under different pH 

conditions potentially present in disposal units. In the EPA Office of Research & Development report 

“Characterization of Coal Combustion Residues from Electric 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 Utilities 
DRAFT DO NOT CITE OR QUOTE 351 of 563 5/03/10 

The RIA based estimation of future human cancer cases avoided on the individual “excess” 

lifetime cancer probabilities reported in the EPA risk assessment, although the RIA also used 

more recent (2001) science published by the National Research Council on arsenic 

carcinogenicity. 

The RIA estimated groundwater protection benefits by categorizing electric utility plants 

according to their individual types of CCR disposal 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 within 1-mile of the disposal 

units. Results from the risk assessment were applied to these populations 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 potentially get cancer was then adjusted upward to 

account for the more recent and more widely accepted arsenic carcinogenicity research by the 

National Research Council.158 The RIA then segregated the 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 Scrubbers 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 state of the science for health risk assessment for arsenic. 

The National Research Council (NRC) published the report, “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 2001 
DRAFT DO NOT CITE OR QUOTE 352 of 563 5/03/10 

cancers and bladder cancers, as well as into those that were predicted to result in death versus 

those that were not. The RIA monetized each of these cancer sub-categories using EPApublished economic values for statistical life and cost of illness. 

The RIA further adjusted these monetized future cancer counts, to take into account existing 

state requirements for groundwater 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 baseline 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 would be incurred. Thus, the RIA also accounted 

for these costs under each of the regulatory options as well, thus avoiding possible doublecounting of cancer cases and remediation costs. On an average annualized basis, the human 

cancer prevention component of the groundwater protection benefit category for the three 

options are $37 million (RCRA subtitle 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, the 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 available, the RIA (2010) uses 

the NRC arsenic cancer data for 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, the avoided remediation cost benefit totals to $466 

million, $168 million, and $84 million present value, respectively. Added together on an average 

annualized basis, these two groundwater protection 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 benefit 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 collapse at the Tennessee Valley Authority’s 

Kingston, Tennessee coal-fired electricity plant illustrated that structural failures of large CCR 

impoundments can lead to catastrophic environmental releases and large cleanup costs. The RIA 

estimated the benefit of avoiding future cleanup costs for impoundment failures, which the 

structural integrity inspection requirement 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 costs avoided on information contained in EPA’s 

2009 mail survey159 of 584 CCR impoundments operated by the electric utility industry. In 

 

159 Descriptive information and electric utility industry responses to EPA’s 2009 mail survey is available at the 

survey webpage http://www.epa.gov/waste/nonhaz/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, revealed 42 CCR impoundment releases spanning 

1995 to 2009. Particularly, there were five significant releases between 4,950 cubic yards and 

5.4 million cubic yards of CCRs, and one catastrophic release of 5.4 million cubic yards of CCRs 

during this time period at coal fired power plants. 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 two alternative failure scenarios based on 96 highrisk CCR impoundments identified as at least 40 feet 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 avoided 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 million 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 benefit category evaluated in the RIA 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 future increase in beneficial use induced by the 
DRAFT 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 beneficial use as a result of a potential “stigma” effect 

under the subtitle C option. Both scenarios are based on a baseline consisting of (a) projecting 

the future annual tonnage of CCR generation by the electric utility industry in relation to the 

Energy Information Administration’s (EIA) future annual projection of coal consumption by the 

electric utility industry, and (b) projecting the future baseline growth in CCR beneficial use 

relative to the historical growth 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 incentive” to the electric utility industry to shift additional CCRs from 

disposal to beneficial use. Proportional to the estimated cost for each option, the RIA applied a 

beneficial use market elasticity factor to the projected baseline future growth in beneficial use to 

simulate the induced increase. On an average annualized basis, the monetized value --- based on 

the same unitized (i.e., per-ton) monetized social values assigned to the lifecycle benefits of 

baseline CCR beneficial uses --- of the estimated potential induced increases in future annual 

CCR beneficial use tonnage for the three options 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 increases in beneficial use totals to $84,489 million 

(RCRA subtitle C special waste), $33,796 million (RCRA subtitle D), and $13,518 million 

(subtitle “D prime”) present value, respectively. 

The RIA also monetized the alternative “stigma” scenario of future reduction in beneficial use 

induced by the RCRA subtitle C option. The RIA formulated assumptions about the percentage 
DRAFT DO NOT CITE OR QUOTE 356 of 563 5/03/10 

future annual tonnage reductions which might result to some of the 14 beneficial use markets. 

For example, federally purchased concrete was assumed to stay at baseline levels because of the 

positive influence of comprehensive procurement guidelines that are already in place to 

encourage such types of beneficial uses. Conversely, the levels of non-federally purchased 

concrete were assumed to decrease relative to the baseline. On an average annualized basis, the 

monetized value --- based on the same unitized (i.e., per-ton) monetized social values assigned to 

the lifecycle benefits of baseline CCR beneficial uses --- of the 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 significant risks of adverse 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 effects 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 contaminant levels in mammals as a result 

of environmental uptake, (h) fish deformities, and (i) inhibited fish reproductive capacity. 

Requirements in the proposed rule should prevent or reduce these impacts in the future by 
DRAFT DO NOT CITE OR QUOTE 357 of 563 5/03/10 

limiting the extent of environmental contamination and thereby reducing the levels directly 

available. 

2. Non-Quantified Surface Water Protection Benefits 

In EPA’s risk assessment, recreational fishers could be exposed to chemical constituents in CCR 

via the groundwater-to-surface water exposure pathway. Furthermore, State Pollutant Discharge 

Elimination System (SPDES) and National Pollutant Discharge Elimination System (NPDES) 

discharges from CCR wet disposal (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 plants 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 potential 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 Census population data “zip code tabulation areas” 

for the 495 electric utility plant locations. Thus, the potential population health benefits of 

RCRA regulation may be quite large. Inhalation of hexavalent chromium has been shown to 

cause lung cancer.160 By requiring fugitive dust controls, the proposed rule would reduce 

 

160 ATSDR Texas. Available at: http://www.atsdr.cdc.gov/toxfaq.html 
DRAFT DO NOT CITE OR QUOTE 358 of 563 5/03/10 

inhalation exposure to hexavalent chromium near CCR disposal units that are not currently 

required to control fugitive dust. 

Furthermore, several non-cancer health effects associated with CCRs are a result of particulate 

matter inhalation due to dry CCR disposal. Human health effects for which EPA is evaluating 

causality due to particulate matter exposure include (a) cardiovascular morbidity, (b) respiratory 

morbidity, (c) mortality, (d) reproductive effects, (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 report “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 potential risks by bringing them to acceptable levels. 

CCR dust (and other types of particulate matter) can also be carried over 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 nutrient 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 particulates are known to contribute 

 

161 Source: EPA Office of Research & Development report “Integrated Science Assessment for Particulate Matter: 

First External Review Draft,” EPA/600/R-08/139, 2008. 

162 Source: U.S. EPA Office of Air & Radiation, Particulate Matter “Health and Environment” website at 

http://www.epa.gov/particles/health.html 
DRAFT 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 environmental impacts discussed above. 

C. Comparison of Costs to Benefits for the Regulatory Alternatives 

For purposes of comparing the estimated regulatory 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 tables (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 three different scenarios were analyzed concerning 

potential impacts on beneficial use of CCRs impact under the regulatory options. 

The three tables below represent three possible outcomes regarding 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 first scenario assumes that the increased cost of disposal from 

regulation under subtitle C will encourage industry to seek out additional markets and greatly 

increase their beneficial use of CCRs. In the second table, EPA presents a negative effect on 

beneficial use, based on stigma, and the possibility of triggering use restrictions under state 

regulation and private sector standards due to subtitle C regulation. In the final table, EPA 

presents a scenario where beneficial use continues on its current path, without any changes as a 

result of the rule. On the basis of past experience, EPA believes that it is likely that recycling 

 

163 Ibid; and also see http://www.intheairwebreathe,com/html/photo_gallery.html 
DRAFT DO NOT CITE OR QUOTE 360 of 563 5/03/10 

rates will increase as presented in the first scenario. Comments are requested 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-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 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 Avoided $128 to $1,212 $58 to $550 $29 to $275 
DRAFT 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 multiplying 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 Under 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 $724 
DRAFT DO NOT CITE OR QUOTE 363 of 563 5/03/10 

Table 12 

Comparison of Regulatory Benefits to Costs Under 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 multiplying 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 Under 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 $0 
DRAFT DO NOT CITE OR QUOTE 365 of 563 5/03/10 

Table 12 

Comparison of Regulatory Benefits to Costs Under 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 multiplying 50-year present values by a 50-year 7% discount rate 

“capital recovery factor” 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 and 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 (catastrophic 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 combustion residue landfills and surface impoundments. 
DRAFT DO NOT CITE OR QUOTE 366 of 563 5/03/10 

The second category of catastrophic impacts in the RIA was assessed, primarily based upon data 

on releases, as reported in EPA’s 2009 Information Collection Request. And finally, the RIA 

assessment of beneficial use impacts was conducted 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 controlling 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 using SPLP and TCLP data. Furthermore, recent 

research and damage cases indicate that these leaching tests may under-predict 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 leach significantly more aggressively 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 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 U.S. EPA (2006, 

2008b). 
DRAFT DO NOT CITE OR QUOTE 367 of 563 5/03/10 

benefits provided by the proposed rule. EPA bases 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 arsenic carcinogenicity, reflected in more recent NRC 

research. 

The RIA began its groundwater impacts assessment 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 potentially affected populations of 

groundwater drinkers within 1-mile of the WMU. Results from the risk assessment were applied 

to these populations by using a linear extrapolation, starting from a risk of zero - to the peak 

future risk as demonstrated by the risk assessment. 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 potential 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 regulatory and remedial programs. This led to the exclusion of some 
DRAFT 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 costs would be incurred. Thus, EPA accounted 

for these costs under each of the regulatory options as well. 

Once groundwater remediation costs and cancer costs under the baseline and each regulatory 

option were estimated, the aggregate benefits from each regulatory option were calculated (in 

comparison to the baseline). Net present value estimates were generated both at the 3% and 7% 

discount rate, as discussed in further detail within the RIA. To summarize, at a discount rate of 

7%, the net present value of the groundwater benefits (including 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 catastrophic 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 releases reported in its 2009 Information Collection 

Request. In this data set, 42 releases were reported 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 million and 1 billion gallons, and one 

catastrophic release of over 1 billion gallons during this time period at coal fired power plants. 

Given these historic releases, EPA projected the occurrence of future releases using a Poisson 

distribution. EPA then estimated future avoided cleanup costs under the two 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 demonstrated by the results of the Poisson distribution. 

The full details of these analyses are reported in the RIA. To summarize the results here at the 

7% discount rate, the estimated net present value of avoided releases under the subtitle C 

requirements total $1,762 million on average (with the upper-bound estimates reaching from 

$3,140 to $4,177 million for the 90th and 99th percentiles). And under the subtitle D 

requirements and discount rate of 7%, the estimated net present value of avoided releases total 

$793 million on average (with the upper-bound estimates reaching from $1,413 to $1,880 million 

for the 90th and 99th percentiles). 

In addition, a second Poisson distribution was developed as a sensitivity 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 expected. The cleanup costs avoided under the two coproposed rules were again calculated as described above and included in the RIA, given this 

alternative higher occurrence rate. To summarize the results of this sensitivity analysis, at a 7% 

discount rate the estimated net present value of avoided releases under the subtitle C 

requirements total $5,154 million on average (with the upper-bound estimates reaching from 

$7,356 to $9,423 million for the 90th and 99th percentiles). And under the subtitle D 
DRAFT DO NOT CITE OR QUOTE 370 of 563 5/03/10 

requirements and same discount rate of 7%, the estimated net present 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 90th and 99th percentiles). 

Finally, a further sensitivity analysis was also performed to determine the extent to which these 

benefits would change if the catastrophic failures occurred sooner than projected by the Poisson 

distribution. Here, 96 impoundments were identified that were at least 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 calculated using both 3% and 7% discount rates. Given the potential 

earlier releases, the analyses in the RIA find that at a 7 % discount rate and a 10% failure rate, 

the net present value of avoided catastrophic failure 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 avoided catastrophic failure costs increases to $16,732 

million under Subtitle C, versus $7,590 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 used. In the RIA, EPA estimates the expected 

increase in beneficial use associated with the increased costs of disposing CCRs, and also 
DRAFT DO NOT CITE OR QUOTE 371 of 563 5/03/10 

evaluates potential future changes in the beneficial uses of CCRs as a result of a potential 

“stigma” effect. 

To begin, EPA projected the quantity of CCRs that will be produced in the future, based upon 

Energy Information Administration’s (EIA) estimates of future coal supply and demand. At the 

same time, EPA also projected the growth in the percent of beneficial use that would take place 

absent any EPA rule. Combining these, EPA was able to project the total quantities of 

beneficially used CCRs under the 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 application 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. Using 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 elasticity would decrease with increasing 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 current beneficial use, and applied them to our 

projected increases in beneficial 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 benefits (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 social 
DRAFT DO NOT CITE OR QUOTE 372 of 563 5/03/10 

benefits overlap with the economic benefits, these numbers should not be added together.) This 

number represents EPA’s lower-bound estimate of the potential increase 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, increasing 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 estimates 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, federally purchased concrete was assumed to stay at 

baseline levels because of the positive influence of comprehensive procurement guidelines that 

are already in place to encourage such types of beneficial 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 are 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, resulting 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 driven largely by increases 

in disposal costs under the subtitle C option, EPA further estimated the effects that would result 
DRAFT DO NOT CITE OR QUOTE 373 of 563 5/03/10 

under a subtitle D rule by applying a ratio of the rule’s respective costs 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 use under subtitle D would 

be approximately $33,796 million (at an assumed discount 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 that 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 adverse effects to plants and wildlife, which is 

confirmed by the many impacts seen in the existing 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 contaminant levels in mammals as a result of environmental uptake, fish 

deformities, and inhibited fish reproductive capacity. 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 Not Captured in the RIA 
DRAFT DO NOT CITE OR QUOTE 374 of 563 5/03/10 

In EPA’s risk assessment, recreational fishers could be exposed to constituents via the 

groundwater to surface water pathway. Furthermore, State Pollutant Discharge Elimination 

System (SPDES) and National Pollutant Discharge Elimination System (NPDES) discharges 

from wet handling likely exceed the discharges from groundwater to surface water. Thus, 

exposure to arsenic via fish consumption could be significant. However, 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 potential reduction of excess 

cancer cases associated with hexavalent chromium 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 hexavalent chromium has 

been shown to cause lung cancer.166 By requiring fugitive dust controls, the proposed rule would 

reduce inhalation exposure to hexavalent chromium near waste management units that are not 

currently required to control fugitive dust. 

Non-cancer Health Effects Associated 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. Office of Resource Conservation and Recovery. 

166 ATSDR Texas. Available at: http://www.atsdr.cdc.gov/toxfaq.html 
DRAFT DO NOT CITE OR QUOTE 375 of 563 5/03/10 

There are several non-cancer health effects associated with CCRs are a result of particulate 

matter inhalation due to dry handling. Human health effects for which EPA is evaluating 

causality due to particulate matter exposure include cardiovascular morbidity, respiratory 

morbidity, and mortality, reproductive and 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 potential risks by bringing them to acceptable levels. 

Particles can also be carried over 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 reduce the environmental impacts discussed above. 

XIII. Other Alternatives EPA Considered. 

 

167 Integrated Science Assessment for Particulate Matter: First External Review Draft. EPA/600/R-08/139. 

Research Triangle Park, NC: U.S. Environmental Protection Agency, Office of Research and Development. 2008. 

168 http://www.epa.gov/particles/health.html 

169 Ibid 
DRAFT DO NOT CITE OR QUOTE 376 of 563 5/03/10 

In determining the level of regulation appropriate for the management of CCRs, taking into 

account both the need for regulations to protect human health and the environment and the 

practical difficulties associated with implementation 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 several combination approaches, such as regulating 

surface impoundments under subtitle C of RCRA, while 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 registered 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, such 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 authority. (See Section IV. for a more detailed 

discussion on the differences in EPA’s authorities 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 hazardous 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. Wet-handled CCR wastes would be regulated under 

the co-proposed subtitle C alternative described earlier in the preamble (see section VI), while 

dry-handled CCRs would be regulated under the co-proposed RCRA subtitle D alternative 

described earlier in the preamble (see section IX). In addition, EPA would retain the existing 

Bevill exemption for CCRs that are beneficially used. Under this approach, EPA would establish 

modified requirements for wet-handled CCRs, pursuant 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 degree of federal oversight, including permit 

requirements and federally enforceable requirements, for surface impoundments and similar 

units that manage wet CCRs. Based on the results of our ground water risk assessment, it would 

also provide a higher level of protection 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 properly 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 impoundments 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 subtitle 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 shares the disadvantages of the subtitle C approach, as it applies to 

surface impoundments, and of the subtitle D approach, as it applies to landfills. For example, 

portions of the rules applicable to surface impoundments would not become enforceable until 

authorized states adopt the subtitle C regulations and become authorized; 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 subtitle D options see sections VI and IX. 

Under another approach considered by EPA, the Agency would issue the proposed subtitle C 

regulations, but they would not go into effect for some time period, such as three years, as an 

example, after promulgation. The rule would include a condition that would exclude CCRs from 

regulation under subtitle C of RCRA in states that: (l) had developed 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 year, 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 timeframe 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 individually, 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 approach 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 state 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, both 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 rule (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 standards 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 monitored 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 commenters 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/special/ckd/ckd/ckd-fr.pdf). Like the previous 

approach, EPA is evaluating (and in fact is re-evaluating) this approach, and whether RCRA 

provides EPA the authority to promulgate such a rule. 

Other commenters suggested yet another approach 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 established in 40 CFR 261.11. These commenters 
DRAFT 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 Agency determines that subtitle C regulation is 

warranted based on the consideration of the eight factors 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 the 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 Project which is available in the docket for this 

proposal.) 

Finally, some commenters have suggested that EPA not promulgate any standards, whether it be 

RCRA subtitle C or D, but continue to rely on the 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 that such an approach is at all acceptable, and 

that national regulations whether it be under RCRA subtitle C or D needs to be promulgated. 

First, RCRA was designed as a preventative statute and not one where EPA would get involved 

only after a problem has been discovered. Thus, such 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, which the Agency believes has not 

shown to be at all acceptable. Furthermore, imminent 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 and 
DRAFT 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 occurred, and are likely to occur in the future. 

Nevertheless, the Agency solicits comment 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 our legal authorities to promulgate 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 Comments on Specific Issues? 

Throughout today’s preamble, the Agency has identified 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 supporting information and data are requested. 

Management of CCRs

 Whether regulatory approaches should be established 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 reflects current industry 

practices at both older and new units. 

 The regulatory approaches proposed in the notice 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 damage 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 notice 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, should the Agency require that owners or 

operators of existing and new CCR surface impoundments submit emergency response plans 

to the regulatory authority if wet 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 generated by non-utility industries, such as volumes 

generated, characteristics of the CCRs, and whether 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, state 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 that has been conducted; where air monitoring 

stations are located near CCR landfills or surface impoundments; and information on any 
DRAFT DO NOT CITE OR QUOTE 383 of 563 5/03/10 

techniques, such as wetting, compaction, or daily 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 that are down-gradient 

of CCR disposal units, any monitoring data that 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 designs based on, for example, a specific performance standard, 

such as the 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. 

 Whether clay liners designed to meet a 1x10-7 cm/sec hydraulic conductivity might perform 

differently in practice than modeled in the risk assessment, including specific data on the 

hydraulic conductivity of clay liners associated with CCR disposal units. 

 The effectiveness of such additives as organosilanes, including any analyses that would 

reflect long-term performance of the additives, as well as the appropriateness of a 

performance standard that would allow the use of these additives in lieu of composite liners. 

Beneficial Use
DRAFT 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 component in strategies to reduce GHG emissions 

taking into account the potentially changing composition 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 states request and evaluate CCR characterization 

data prior to the beneficial use of unencapsulated CCRs. 

 The appropriate means of characterizing 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 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 involving unencapsulated uses of CCRs) warrant 

tighter control and why such tighter control is necessary. 

 If EPA determines that regulations are needed for the beneficial use of CCRs, should EPA 

consider removing the Bevill exemption for such uses and regulate these uses under RCRA 

subtitle C, develop regulations under RCRA subtitle 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 beneficial uses should be prohibited. 

 Whether the Agency should promulgate standards allowing uses on the land, on a sitespecific basis, based on site specific risk assessments, taking into consideration the 
DRAFT 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 which CCRs would be applied, such as location, 

volume, rate of application, and proximity to water. 

 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 beneficial use? When are totals levels relevant? 

 Whether EPA should fully develop a leaching assessment tool in combination with the Draft 

SW-846 leaching test methods described in Section I. F. 2 and other tools (e.g., USEPA’s 

Industrial Waste Management Evaluation Model (IWEM)) to aid prospective beneficial users 

in calculating potential release rates over a specified period of time for a range of 

management scenarios. 

 Information and data relating to the agricultural 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 conditions on other types of hazardous wastes 

used in a manner constituting disposal (e.g., maximum application rates 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 allowable total concentrations for nonnutritive and toxic metals in zinc fertilizers produced from recycled hazardous secondary 

materials (see 67 FR 48393; July 24, 2002). Should EPA should establish standards, such as 

maximum/minimum thresholds, or rely on implementing states to impose CCR site-specific 

limits based on front-end characterization that ensures individual 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 discussed elsewhere in today’s preamble. The 

Agency solicits comment on any new uses of CCR, 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 provided that would increase the amount of CCRs 

that are beneficially used and comment on specific 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 beneficial use of CCRs and the causes of these 

adverse effects. 

 The issue of “stigma” and its impact on beneficial uses of CCRs, including more specifics on 

the potential for procedural difficulties for state 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 regulating CCRs under subtitle C of RCRA would 

raise liability issues, EPA requests that commenters describe the types of liability and the 

basis/data/information on which these claims are based. 

 EPA furthermore welcomes ideas on how to best estimate these effects for purposes of 

conducting regulatory impact analysis, and requests any data or methods that would assist in 

this effort. 

Today’s Co-proposed Regulations

General 

 Some commenters have suggested 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 Agency solicits comment on such an approach, 

including how such an approach would be protective of human health and the environment. 

RCRA Subtitle C Regulations 

 Whether EPA should modify the corrective action requirements for facility-wide corrective 

action under the subtitle C co-proposal under the authority of section 3004(x) of RCRA. If 

so, how such modification would be protective of human health and the environment. 

 Pursuant to RCRA section 3010 and 40 CFR 270.1(b), facilities managing these special 

wastes subject to RCRA subtitle C must notify EPA of their waste management activities 
DRAFT 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 requirement for persons who handle CCRs and have 

already: (1) notified EPA that they manage hazardous wastes, and (2) received an EPA 

identification number. Should such persons be required to re-notify the Agency that they 

generate, transport, treat, store or dispose of CCRs? 

 Representatives of the utility industry have stated 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 without 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 containment, 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 hydrologists or engineers of the adequacy 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 unable to precisely estimate the number of these 

existing CCR landfills that would not meet today'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 necessary to protect engineered 

structures from seismic damages and also expects that the 200-foot buffer is appropriate for 

CCR surface impoundments. The Agency seeks 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 reflect a complete prohibition on siting facilities 

in areas of concern, but provide a performance standard that facilities must meet in order to 

site a unit in such a location. Information on the extent to which facilities could comply with 

the proposed performance standards, and the necessary costs that would be incurred to 

retrofit CCR disposal units to meet these standards is solicited. 

 The proposed definition of seismic impact zones 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 engineer 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 is beyond the property boundary). 
DRAFT DO NOT CITE OR QUOTE 390 of 563 5/03/10 

 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 already available to the public through the state. 

 Whether the subtitle “D prime” option is protective 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 have a composite liner) and minimal risk of a 

catastrophic release (e.g., as indicated by a low or less than low potential hazard rating under 

the Federal Guidelines for Dam Safety established by the Federal Emergency Management 

Agency). 

Surface Impoundment Stability
DRAFT DO NOT CITE OR QUOTE 391 of 563 5/03/10 

 The adequacy of EPA’s proposals to address surface impoundment integrity under RCRA. 

 Whether to address all CCR impoundments for stability, regardless of height and storage 

volume; whether to use the cut-offs in the MSHA regulations; or whether other regulations, 

approaches, or size cut-offs should be used. If commenters believe 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 financial assurance should be a key program 

element under a subtitle D approach, if the decision is made to promulgate regulations under 

RCRA subtitle D. 

 Whether financial responsibility requirements 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 individual state regulatory and non-regulatory 

approaches taken to ensure the safe management 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 specifics 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 there was off-site contamination. 

 The report of additional damage cases submitted to EPA on February 24, 2010 by the 

Environmental Integrity Project 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 RIA 
DRAFT DO NOT CITE OR QUOTE 393 of 563 5/03/10 

 Data on the costs of converting coal fired power plants from wet handling to dry handling 

with respect to the various air pollution controls, transportation systems, disposal units, and 

other heterogeneous factors. 

 Relevant RCRA corrective actions and related costs that would be useful in characterizing 

the potential costs for future actions. 

 Information on other significant and catastrophic surface impoundment releases of CCRs or 

other similar materials and cleanup costs 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 tools, but welcomes additional data that 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: Regulatory Planning and Review. 

Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this 

action is an "economically significant regulatory action” because it is likely to have an annual 

effect on the economy of $100 million or more (section 3(f)(1)). This determination is based on 

the regulatory cost estimates provided in EPA’s “Regulatory Impact Analysis” (RIA) which is 

available in the docket for this proposal. The 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. The 
DRAFT 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 annualized basis, the estimated regulatory compliance 

costs for the three options in today’s proposed action are $1,474 million (subtitle C special 

waste), $587 million (subtitle D), and $236 million (subtitle “D prime”) per year. On an average 

annualized basis, the estimated regulatory benefits for the three options in today’s proposed 

action are $6,320 to $7,405 million (subtitle C special waste), $2,533 to $3,026 million (subtitle 

D), and $1,023 to $1,268 million (subtitle “D prime”) per year. On an average annualized basis, 

the estimated regulatory net benefits for the three 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 Request (ICR) document prepared by EPA 

has been assigned EPA ICR number 1189.22. 

Today’s action co-proposes two regulatory alternatives that would regulate the disposal of CCRs 

under RCRA. The regulatory options described in today’s notice contain mandatory information 
DRAFT 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 requirements for releases of hazardous substances 

to the environment under CERCLA and EPCRA. The labor hour burden and associated cost for 

these requirements are estimated in the ICR "Supporting Statement" for today's proposed action. 

The Supporting Statement identifies and estimates the burden for the following nine categories 

of information collection: (the proposed options also contain other regulatory 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 investigation (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 applied 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 $92.6 
DRAFT 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 annualization period. The estimated number of likely 

respondents (under the options) ranges 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 required to respond to, a collection of information unless it displays 

a currently valid OMB control number. The OMB 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 minimizing 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 publication 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 substantial number of small entities. Small entities 

include small businesses, small organizations, 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 electric 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 Business 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 and is not dominant in its field. 

EPA certifies that this action will not have a significant economic impact 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 small entities and welcomes comments on issues 

related to such impacts, including our estimated count of small entities that own the 495 electric 

utility plants covered by this rule. This certification is based on the small business analysis 

contained in the RIA for today’s proposal, which 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 plants are owned by 200 entities consisting 
DRAFT DO NOT CITE OR QUOTE 398 of 563 5/03/10 

of 121 companies, 18 cooperative organizations, 60 state or local governmental 

jurisdictions, and one Federal government Agency. 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 estimates for the regulatory options and the RFA 

evaluation is based on these estimates and therefore overestimates potential impacts of 

our proposed regulations. The RIA estimated that (a) none of the 51 small entities may 

experience average annualized regulatory compliance 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 percent of annual revenues, and (c) 46 to 50 

of the small entities (i.e., 90% to 98%) may experience regulatory costs less than one 

percent of annual revenues. These percentages constitute the basis for today’s noSISNOSE certification. 

As analyzed in the RIA, there are two electricity 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 increases via rate hike 

petitions to public utility commissions in states which regulate public utilities, and via 
DRAFT DO NOT CITE OR QUOTE 399 of 563 5/03/10 

market price increases in the 18 states (as of 2008) which have de-regulated electric 

utilities, and 

• The residential, commercial, industrial, and transportation sector economic demand for 

(i.e., consumption of) electricity is relatively price inelastic, which 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 any potential impacts its regulations may have on 

small entities, the Agency requests comment on its analysis, and its finding that this action is not 

expected to have a significant economic impact 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 otherwise prohibited by law, to assess the effects of their regulatory 

actions on State, local, and tribal governments and the private sector. This co-proposal contains 

a Federal mandate that may result in expenditures 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 estimates for the regulatory options and the UMRA 

evaluation is based on these estimates and therefore overestimates the potential impacts of this 

co-proposal. Accordingly, EPA has prepared under section 202 of the UMRA a “Written 
DRAFT 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 cooperatives 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 across the regulatory options, the upper-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 state or local governments is less than the $100 

million UMRA threshold, (a) because the highest-cost 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 plan developed pursuant to section 203 of the UMRA. EPA’s 

interim plan provides for two types of possible small government input: 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 consisting of two consultation components. 
DRAFT DO NOT CITE OR QUOTE 401 of 563 5/03/10 

• A series of meetings in calendar year 2009 were 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 April 15-16 meeting with ASTSWMO at their 

Mid-Year Meeting (Columbus OH), (4) a May 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 Orleans, LA), (6) a July 21-23 meeting at 

ASTSWMO’s Board of Directors Meeting (Seattle, WA), and (7) an August 12 meeting 

at ASTSWMO’s Hazardous Waste Subcommittee Meeting (Washington DC). 

ASTSWMO is an organization with a mission to work closely with EPA to ensure that its 

state government members are aware of the most current developments related to their 

state waste management programs. ECOS is a national non-profit, non-partisan 

association of state and territorial 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 following 10 organizations representing 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) National Conference of State Legislatures, (3) Council of State 

Governments, (4) National League of Cities, (5) U.S. Conference of Mayors, (6) County 

Executives of America, (7) National Association of Counties, (8) International City/County 

Management Association, (9) National 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” organizations appropriate to contact for purpose of 

consultation with elected officials. EPA has received written comments from a number of these 

organizations and a copy of their comments has been 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 duplicative of State regulations; 

that any federal regulation will have a great impact on already limited State resources; and that 

such a rule would have a negative effect on beneficial use. A number of commenters also raise 

the issue of the cost to their facilities of a subtitle C rule, particularly increased disposal costs and 

the potential shortage of hazardous waste disposal capacity. 

Consistent with section 205 of UMRA, EPA identified and considered a reasonable number of 

regulatory alternatives. Today’s proposed rule identifies a number of regulatory options, and 

EPA’s RIA estimates that the average annual direct cost to industry across the three originally 

considered options (e.g. as reflected in the RIA in Exhibit 7L) may range between $415 million 

to $1,999 million. Section 205 of the UMRA requires Federal agencies to select the least costly 

or most cost-effective regulatory alternative unless the Agency publishes with the final rule an 

explanation of why such alternative was not adopted. We are co-proposing two regulatory 

options in today’s notice involving RCRA subtitle C “special waste” and subtitle D. The 

justification for co-proposing the higher-cost options is that this provides for greater benefits and 

protection of public health and the environment 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 “meaningful and timely input by State and local 

officials in the development of regulatory policies that have federalism implications.” “Policies 

that have federalism implications” are defined in the Executive Order to include regulations that 

have “substantial direct effects on the States, on the relationship between the national 

government and the States, or on the distribution of power and responsibilities among the various 

levels of government.” 

 

Under Executive Order 13132, EPA may not issue a regulation that has federalism 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 EPA 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 State 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 statement 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 estimates and, therefore, overestimates the potential impacts of our 

proposal. 

Based on the estimates in EPA’s RIA for today’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 state government jurisdictions, and one county 

government jurisdiction. In addition, the 48 state governments with RCRA-authorized programs 

for the proposed regulatory options may incur between $0.05 million to over $5.4 million in 

added annual administrative costs involving the 495 electric utility plants for reviewing and 

enforcing the various requirements. Based on these estimates, the expected annual cost to state 

and local governments for at least one of the regulatory options described in today’s notice 

exceeds the $25 million per year “substantial compliance 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 consulted with 10 national 

organizations representing state and local elected officials to ensure meaningful and timely input 

by state/local governments, consisting of two consultation 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 Order 13132, and consistent with EPA policy to promote 

communications between EPA and State and local 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 tribal summary impact statement, 

for regulations and other actions which are expected 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 direct 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 Generating 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 are 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 electric utility plants located on tribal lands is from CMD’s 

SourceWatch Encyclopedia at: 

http://www.sourcewatch.org/index.php?title=Coal_and_Native_American_tribal_lands 
DRAFT 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 Nation, 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 electric 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 the 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 implications as specified in Executive Order 13175. Thus, Executive Order 

13175 does not apply to this action. EPA solicits comment on the accuracy of the information 

used for this determination. EPA met with a Tribal President, 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 “stigma” 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 risks. 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 assessment which includes evaluation of child exposure 
DRAFT DO NOT CITE OR QUOTE 407 of 563 5/03/10 

scenarios, as well as has evaluated Census child population data surrounding the 495 plants 

affected by today’s co-proposal, because today’s action meets both of the two criteria for 

“covered regulatory actions” defined 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 environmental health or safety effects of the planned 

regulation on children, and (b) to explain why the planned 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 findings with respect to child exposure scenarios, 

and the results of the child demographic data evaluation. 

G1. Evaluation of environmental health and safety effects on children 

EPA conducted a risk evaluation consisting of two steps, focusing on environmental and health 

effects to adults and to children that may occur 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 likely to pose risks. The second step, conducted 

between 2003 and 2009, consisted of more detailed “probabilistic” modeling for those 

constituents identified in the screening as needing further evaluation. Constituents that may 
DRAFT DO NOT CITE OR QUOTE 408 of 563 5/03/10 

cause either cancer or non-cancer effects in humans (i.e., both adults and children) were 

evaluated under modeling scenarios where they 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 contaminated groundwater or by eating fish caught 

in surface water bodies affected by the contaminated groundwater. 

As described elsewhere in today’s notice, EPA found that for the non-cancer health effects in the 

groundwater-to-drinking-water pathway and in the fish consumption pathways evaluated in the 

probabilistic modeling, children rather than adults had the higher exposures. This result stems 

from the fact that while at a given exposure point (e.g., a drinking water 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 equations (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 affected by this rulemaking. 

This demographic data analysis is supplemental to and separate from the risk assessment 

summarized above. To make this determination, the RIA compares Census demographic data on 
DRAFT DO NOT CITE OR QUOTE 409 of 563 5/03/10 

child populations residing near each of the 495 affected plants, to statewide children population 

data. The results of that evaluation are summarized here. 

• Of the 495 electric utility plants, 383 of the plants (77%) operate CCR disposal units onsite (i.e., onsite landfills or onsite surface impoundments), 84 electric utility plants solely 

transport CCRs to offsite disposal units operated by other companies (e.g., commercial 

waste management companies), and 28 other electric utility plants generate CCRs that are 

solely beneficially used rather than disposed. Child demographic data is evaluated in the 

RIA for all 495 plants because some regulatory options could affect the future CCR 

management method (i.e., disposal versus beneficial use) for some plants. 

• The RIA provides three complementary approaches to comparison of child populations 

surrounding the 495 plants to statewide child population data: (a) plant-by-plant 

comparison basis, (b) state-by-state aggregation 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 for 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 degree 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 ratio of 1.00 indicates that the child population 

percentage living near an electric utility plant is equal to the statewide average, a ratio 
DRAFT DO NOT CITE OR QUOTE 410 of 563 5/03/10 

greater than 1.00 indicates the child population percentage near the electric utility plant is 

higher than the statewide population, and a ratio less than 1.00 indicates the child 

population is less than the respective statewide average. 

• Using the plant-by-plant basis, 310 electric utility plants (63%) have surrounding child 

populations which exceed their statewide children 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 percentages which exceed their statewide 

benchmark. Using the state-by-state aggregation basis, 27 of the 47 states (57%) where 

the 495 electric utility plants are located have disproportionate percentages of children 

residing near the plants compared to the statewide averages, which also indicates a 

disproportionate surrounding child population. Using the nationwide aggregation basis 

across all 495 electric utility plants in all 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 comparisons indicate that the current (baseline) environmental and 

human health hazards and risks from electric utility CCR disposal units, and the expected future 
DRAFT DO NOT CITE OR QUOTE 411 of 563 5/03/10 

benefits of the regulatory options being considered in today’s co-proposal may have a 

disproportionately higher effect on child populations. 

The public is invited to submit comments or identify 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 that 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 today’s co-proposal are not expected to have a 

significant adverse effect on the supply, distribution, 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 which are relevant for evaluating potential energy 

effects of this proposed rule: (a) increases in the cost of energy production in excess of 1%; (b) 

increases in the cost of energy 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 production costs or energy distribution costs for the 

495 electric utility plants likely affected by this rulemaking, EPA in its RIA for today’s action 

evaluated the potential impact on electricity prices (for the regulatory options) as measured 

relative to the 1% numerical threshold of these two Executive Order indicators to represent an 

“other similarly adverse outcome.” 

The RIA calculated the potential increase in electricity prices of affected plants 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 utility plants that would likely be affected by the co-proposal (with 

333,500 megawatts nameplate capacity), rather than 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 nameplate capacity), the price effects estimated in 

the RIA are higher than would be if the regulatory costs were averaged over the entire electric 

utility and independent electricity producer supply (totaling 1,011,700 megawatts, not counting 

an additional 76,100 megawatts of combined heat and electricity producers). 

The price effect calculation in the RIA involved estimating plant-by-plant annual revenues, 

plant-by-plant average annualized regulatory compliance 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 Administration; these costs ranged from $0.0620 (Idaho & 

Wyoming) to $0.1892 (Hawaii) per kilowatt-hour, and the nationwide average for the 495 plants 

was $0.0884. Based on a 100% regulatory cost pass-thru scenario representing an upper-bound 
DRAFT DO NOT CITE OR QUOTE 413 of 563 5/03/10 

potential electricity price increase for each plant, the RIA estimated the potential target 

electricity sales revenue needed to cover these costs for each plant. The RIA then compared the 

higher target revenue to recent annual revenue estimates per plant, to calculate the potential price 

effect of this cost pass-thru scenario on electricity prices for each of the 495 electric utility 

plants, as well as on a state-by-state sub-total 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 estimates 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 price of $0.0884 per kilowatt-hour, the 100% regulatory cost passthru scenario may increase prices for the 495 electric utility plants by 0.172% to 0.795% across 

the original regulatory options; the 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 of the options being coproposed today would have a significant adverse effect on the supply, distribution, or use of 

energy. However, the Agency solicits comments 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 note) 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 standards are technical standards (e.g., materials 

specifications, test methods, sampling procedures, and business practices) that are developed or 

adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, 

through OMB, explanations when the Agency decides not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards. 

 J. Executive Order 12898: Federal Actions 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 provision 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, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome (i.e., below poverty line) populations 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 analyze information on minority and low-income 

populations for areas surrounding facilities or sites expected to have substantial environmental, 

human health, or economic effects on the surrounding populations, when such facilities or sites 

become the subject of a substantial Federal environmental administrative or judicial action. 

While EO 12898 does not establish quantitative thresholds for this “substantial effect” criterion, 

EPA has collected and analyzed population data 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 respective statewide population data, in 

order to identify whether these two demographic groups may disproportionately reside near 

electric utility plants. The result of these comparisons indicate (a) whether existing hazards 

associated with CCR disposal at electric utility plants to community safety, human health, and 

the environment may disproportionately affect minority and low-income populations 

surrounding the plants, and (b) whether the expected effects (i.e., benefits and costs) of the 

regulatory action described in today’s co-proposal rule may disproportionately affect minority 

and low-income populations. 

Of the 495 electric utility plants, 383 of the plants (77%) operate CCR disposal units onsite (i.e., 

onsite landfills or onsite surface impoundments), 84 electric utility plants solely transport CCRs 

to offsite disposal units operated by other companies (e.g., commercial waste management 
DRAFT 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-income Census data evaluation is conducted for all 

495 plants because some regulatory options could affect the future CCR management method 

(i.e., disposal versus beneficial 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 offsite CCR landfills, (b) populations surrounding 

the potential siting of new CCR landfills and (c) populations within the customer service areas of 

the 495 electric utility plants who may incur electricity 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 three 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 aggregation comparisons, and (c) nationwide aggregate 

comparisons. There are year 2000 Census data for 464 (94%) of the 495 electric utility plants 

which the RIA used for these comparisons and extrapolated to all 495 plants. Statewide minority 

population benchmark percentages range from 3.1% (Maine) to 75.7% (Hawaii), with a 

nationwide average of 24.9%, and statewide low-income population 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 absolute percentages, the percentages are compared 

as a numerical ratio whereby a ratio of 1.00 indicates that the group population percentage living 

near an electric utility plant is equal to the statewide average, a ratio greater than 1.00 indicates 

the group population percentage near the electric utility plant is higher than the statewide 

population, and a ratio less than 1.00 indicates the group 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 populations below their statewide benchmarks, which 

represents a ratio of 0.39 (i.e., 138/357). Because this ratio is less than 1.00, this finding 

indicates a relatively small number of the electric utility plants have surrounding minority 

population percentages which disproportionately exceed their statewide benchmarks. On a plant 

zip code tabulation area basis, 256 electric utility plants (52%) have surrounding low-income 

populations which exceed their respective statewide benchmarks, whereas 239 plants (48%) have 

surrounding low-income populations below their statewide 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 comparison, the percentages of minority and low-income 

populations surrounding the plants were compared to their respective statewide population 
DRAFT DO NOT CITE OR QUOTE 418 of 563 5/03/10 

benchmarks. From this analysis, state ratios revealed 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 utility plants, suggesting a slightly disproportionate higher minority 

surrounding population and a higher disproportionate, higher low-income surrounding 

population. However, in comparison to the other two numerical comparisons—the plant-byplant basis and the nationwide aggregation basis, this approach does not include numericallyweighting of state plant counts or state surrounding populations, which explains why this 

comparison method yields a different numerical result. 

Using the nationwide aggregation comparison across all 495 electric utility 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 electric utility plants, and a disproportionately higher low-income 

population surrounding these plants. 

These demographic data comparisons indicate that the current (baseline) environmental and 

human health hazards and risks from electric utility CCR disposal units, and the expected future 

effects (i.e., benefits and costs) of the regulatory options described in today’s co-proposal may 

have a disproportionately lower effect on minority populations and may have a 

disproportionately higher effect 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 effects of the regulatory options on three other 

population groups: (a) populations surrounding offsite landfills, (b) populations 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 notice does not quantify these potential effects so 

only a qualitative discussion appears below. 

The potential effect on offsite landfills as evaluated in the RIA only involves the RCRA subtitle 

C “special waste” based regulatory option described in today’s co-proposal, whereby electric 

utility plants may switch the management of CCRs, in whole or in part, from current onsite 

disposal to offsite commercial RCRA-permitted landfills. In addition, some or all of the CCRs 

which are currently disposed in offsite landfills 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 offsite commercial RCRA-permitted landfills are CCRs 

which are currently supplied for industrial beneficial use applications if such use is curtailed. 

The future addition of any or all of these three fractions of CCR generation 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-regulated hazardous waste is currently disposed 

of in RCRA subtitle C permitted landfills in the US. As of 2009, there are 19 commercial 
DRAFT 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 shift could have a disproportionate effect on populations surrounding 

these locations, and in particular, minority and low-income populations surrounding commercial 

hazardous waste facilities, for the reason that a recent (2007) study determined that minority and 

low-income populations disproportionately live near commercial hazardous waste facilities. 

However, the study included other types of commercial hazardous waste treatment and disposal 

facilities in addition to commercial hazardous waste landfills. 

The siting of new landfills is another potential effect due to possible changes in the management 

of CCRs, especially if the switch to offsite commercial hazardous waste landfills causes a 

capacity shortage (as described above) under subtitle C option. However, 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 surrounding 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 and expand existing onsite landfills or build 

new ones onsite. If this were to occur, the environmental justice impacts could be similar to the 

demographic comparison findings previously discussed, which indicates that the current 

environmental and human health hazards and risks from electric utility CCR disposal units, and 
DRAFT 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 populations, 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 affected 495 electric utility plants to cover the 

cost of regulatory compliance (as evaluated in a previous section of today’s notice). Thus, 

customers in electric utility service areas could experience 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 populations for the 495 electric utility plants. 
DRAFT DO NOT CITE OR QUOTE 422 of 563 5/03/10 

APPENDIX to the Preamble: Documented Damages from CCR Management Practices. 

EPA has gathered or received through comments 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 today’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 were from unlined landfills, five were from 

unlined surface impoundments, one involved a surface impoundment for which it is not clear 

whether the unit was lined, and the remaining six 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 potential 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 potential damage cases attributable to CCRs. (The concern with 

 

172 Of the 16 proven cases of damages to ground water, the 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 circumstances 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 unlined surface impoundments. Prior to the May 

2000 Regulatory Determination, the unlined oil ash impoundments were closed, and thus EPA 

decided regulatory action to address 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/main?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.htm), (2) Salem Acres, Massachusetts 

(http://yosemite.epa.gov/r1/npl_pad.nsf/f52fa5c31fa8f5c885256adc0050b631/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/superfund/npl/wisconsin/WID980901243.htm). Another site has 

undergone remediation under EPA enforcement action: Town of Pines 

(http://cfpub.epa.gov/supercpad/cursites/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 violations 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 new, and one of the alleged NPDES violations is new; the other 
DRAFT 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 EPA’s attention since February 2005 (the closure 

date of damage cases assessed by the NODA’s companion 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 contamination from landfills and surface 

impoundments. Specifically: 

o Two of the new alleged cases involve the structural failure of surface impoundments; i.e., 

dam safety and structural integrity issues, which were not a consideration at the time of 

the May 2000 Regulatory Determination. In both cases, there were Clean Water Act 

violations. 

o One other alleged case involves the failure of an old discharge 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 rulemaking to address minefilling. EPA is soliciting 

comments on those alternatives. 

The Agency has classified three of the five new 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 briefly 
DRAFT DO NOT CITE OR QUOTE 425 of 563 5/03/10 

below. The following descriptions further illustrate 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 primarily 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 contamination 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 residential drinking water wells near the site indicated that, in 

certain locations, contaminants, including heavy metals and sulfates were present at or above 

ground water quality standards. The Anne Arundel County, Maryland Department of Health 

tested private wells in 83 homes and businesses in areas around the disposal site. MCLs were 
DRAFT 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 and 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 discharge 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 resulting from the placement of CCRs in unlined sand 

and gravel quarries. 

Under the terms of the consent order, the defendants are required to pay a fine, remediate the 

ground water in the area and provide replacement water supplies 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 MDE 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 assistance to perform an assessment of the Battlefield Golf Course. 

The 216 acre site was contoured with 1.5 million cubic 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 fly ash was placed at least two feet 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 water well sampling assessment at residences 

surrounding the golf course. Additionally, 13 monitoring points were installed around the site. 

No monitoring points were installed through the fly ash area to avoid creating an additional path 

of contaminant migration. EPA conducted a site investigation by reviewing analytical data from 

fly ash, soil, surface water, sediment, and groundwater sampling events completed in 2001, 2008 

and 2009. The sampling results of the City of Chesapeake ground water and surface water 

sampling174 indicated that the highest detections 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 concentrations. 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 residential well was 596 μg/L which 

was significantly below the health-based regional screening level for boron in tap water of 7,300 

μg/L. Additionally, the secondary drinking water 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 high and, thus, it could not be ruled out that the elevated levels of 

manganese and iron are a result of the natural 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 lead. Lead has been detected during EPA sampling 

events above the action level of 15 μg/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 wells on the golf course (1.1 to 1.6 μg/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 Report175 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 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 

sediment samples in the ponds were below EPA Biological Technical Assistance Group 

screening levels and are not expected to pose a threat to ecological receptors. Based on these 

findings, EPA has categorized the Battlefield 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.pdf
DRAFT 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 violation of the State’s solid waste disposal permit, resulted in the 

discharge of 0.5 million cubic yards of coal-ash and contaminated water into the Oughoughton 

Creek and the Delaware River. 

Ground-water monitoring results from approximately 20 on-site monitoring wells found 

selenium concentrations exceeding Pennsylvania’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. Sampling began soon after the spill in August 2005 and 

continued through November 2005. Several samples exceeded the Federal Water Quality 

Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see 

www.epa.gov/waterscience/criteria/wqctable/index.html). Four samples also exceeded the WQC 

for arsenic – three of which were taken near the outfall to the river. Lead, nickel and zinc were 

also detected above the WQC in samples taken near the outfall to the river. Sampling results are 
DRAFT DO NOT CITE OR QUOTE 430 of 563 5/03/10 

available from the Pennsylvania Department of Environmental Protection (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 considers 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 Authority’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 and 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 requires that TVA properly operate and maintain all 

facilities and systems for collection and treatment, and expressly prohibits overflows of wastes to 

land or water from any portion of the collection, 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, 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 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 and residential soil to determine if the release 

posed an immediate threat to human health. Sampling results for the contaminated residential 

soil showed arsenic, cobalt, iron, and thallium levels above the residential 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 residential soil results were below the Residential RAL. 

Shortly after the release, samples were also collected of untreated 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 are 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 concentrations equal or exceed the SSLs, further study or 

investigation, but not necessarily cleanup, is warranted. 

177 RALs are used to trigger 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 observed again after a heavy rainfall. 

In early January 2009, the Tennessee Wildlife Resources 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 tissue on a semiannual basis and expects that the 

assessment of the impact of this release on wildlife resources and habitat will require repeated 

sampling and evaluation over the next three to five years. 

Constituent concentrations measured in drinking water on December 23, 2008, near the intake of 

the Kingston Water Treatment Plant, located downstream 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 identified and sampled potentially impacted private wells that are 

used as a source for drinking water. More than 100 wells have been tested to date and all have 

met drinking water standards. 

To address potential risks from windblown 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 contaminated materials into waters of the state 

and, where feasible, minimize further down-stream 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 administrative order and agreement 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 Emory 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 (TVA) coal-burning power plant 

in Stevenson, Alabama. FGD is a residual of a process that reduces sulfur dioxide emissions 

from coal-fired boilers Some 5,000 cubic yards of FGD material containing water and a mixture 

of predominantly gypsum and some fly ash, was 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/region4/stevenson/index.html. 

 

178 http://www.tva.gov/emergency/wc_1-29-09.htm 
DRAFT 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. EPA 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 been 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 release. Specifically, the concentrations of 

metals, solids and nutrients detected in samples drawn from the drinking water intake for 

Scottsboro, Alabama, along with samples collected 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-based 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 collected 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 concentrations of metals, nutrients, and 

suspended and dissolved solids. However, because 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 final 
DRAFT 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 Creek 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 cases180 - 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 (for the remaining unit, it is 

unclear whether a liner was present). 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 structural failure of CCR surface impoundments. 

Table of EPA’s Proven Damage Cases

 

179 http://www.tva.gov/environment/reports/widows_creek/wcf_gypsum_removal_fonsi.pdf 

180 The 24 cases identified in the Damage Cases Assessment 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 LF182 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 SI183, 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 water 
DRAFT 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. 

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 contamination from the 

facility appears to have migrated to 

off-site private wells, and 

Administrative - As a result of the 

various PAL184 and ES185

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 the 
DRAFT 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 RTC186

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 damage 
DRAFT DO NOT CITE OR QUOTE 440 of 563 5/03/10 

1980, accepted and 

disposed 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-site 

exceedances 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 selenium 
DRAFT 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 wells 

contained selenium above the (healthbased) primary MCL and (ii) There is 

evidence of surface water and 

sediment contamination, and 

Administrative - The site was 
DRAFT 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 of 
DRAFT 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 impacts 
DRAFT 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 fish 
DRAFT 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 100 

million 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 of 

federal 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 be 
DRAFT 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 products, coal combustion 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 products, coal combustion 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, Insurance, Packaging and containers, Reporting and 

recordkeeping requirements, Security measures, Surety bonds 

40 CFR Part 268 

Hazardous waste, Reporting and recordkeeping requirements. 

40 CFR Part 271 
DRAFT DO NOT CITE OR QUOTE 453 of 563 5/03/10 

Administrative practice and procedure, Confidential business information, Hazardous materials 

transportation, Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, Reporting 

and recordkeeping requirements, Water pollution control, 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 preamble, 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 paragraphs (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 satisfy 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 satisfy 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 subpart A of this part do not apply 

to CCR landfills and CCR surface impoundments subject 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 formation, 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 excavation, 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 which is not an injection well. Examples of 
DRAFT DO NOT CITE OR QUOTE 456 of 563 5/03/10 

CCR surface impoundments are holding, storage, settling, 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 Existing 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/operators 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 requirements in this Subpart are 

applicable [date 180 days after the effective date of the final rule]. 

(b) Definitions. 

Active life means the period of operation beginning with the initial placement of CCRs in the 

landfill or surface impoundment and ending at completion 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 formations, or portion of a formation capable of 

yielding significant quantities of groundwater to wells. 

Area-capacity curves means graphic curves which readily show 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 the water contained in the 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 formation, 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 excavation, 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 which is not an injection well. Examples of 

CCR surface impoundments are holding, storage, settling, 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 operator has obtained the Federal, State and local 

approvals or permits necessary to begin physical 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 physical 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 necessary to begin physical construction; and either 

(1) A continuous on-site, physical construction program has begun; or 
DRAFT DO NOT CITE OR QUOTE 461 of 563 5/03/10 

(2) The owner or operator has entered into contractual obligations—which can not be 

cancelled or modified without substantial loss—for physical construction of the CCR 

surface impoundment to be completed 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 tending 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 elevation 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 incremental 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 human life, but can cause economic 

loss, environmental damage, disruption of lifeline 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 
DRAFT DO NOT CITE OR QUOTE 462 of 563 5/03/10 

environmental losses. Losses are principally limited to the surface impoundment owner’s 

property. 

Independent registered professional engineer or hydrologist means 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 baccalaureate or post-graduate degree in the natural sciences or engineering and has 

sufficient training and experience in groundwater hydrology and related fields as may be 

demonstrated by state registration, professional certifications, or completion of accredited 

university programs that enable that individual to make sound professional judgments regarding 

the technical information for which a certification under this subpart is necessary. 

Lateral expansion means a horizontal expansion of the 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 the 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 operation of a facility. 

Owner means the person(s) who owns a facility or part of a facility. 

Probable maximum precipitation means the value for a particular area which represents an 

envelopment of depth-duration-area rainfall relations for all storm types affecting that area 

adjusted meteorologically to maximum conditions. 
DRAFT DO NOT CITE OR QUOTE 463 of 563 5/03/10 

Recognized and generally accepted good engineering practices means engineering maintenance 

or operation activities based on established codes, standards, published technical reports, 

recommended practice, or similar document. Such practices detail generally 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 average 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 liquid 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 commercial extraction of aggregate 

for use in construction projects. 

State means any of the several States, the District of Columbia, the Commonwealth of Puerto 

Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern 

Mariana Islands 

Surface Water means all water naturally open to the atmosphere (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 aquifers that are hydraulically interconnected with this aquifer within 

the facility's property boundary. 

Waste boundary means a vertical surface located at the hydraulically downgradient limit of the 

CCR landfill or CCR surface impoundment, or lateral 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 impoundments and lateral expansions must be 

constructed with a base that is located a minimum of two feet above the upper limit of the natural 

water table. 

(b) For purposes of this section, natural water table means 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 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 surface impoundments, and lateral expansions shall not be 

located in wetlands, unless the owner or operator can make the following demonstrations, 

certified by an independent registered professional engineer or hydrologist. The owner or 

operator must place the demonstrations in the operating record and the owner’s or operator’s 

publicly accessible internet site, and notify the state of this action. 

(1) Where applicable under section 404 of the Clean Water Act or applicable state wetlands laws, 

the presumption that a practicable alternative to the proposed landfill, surface impoundment, or 

lateral expansion is available which does not involve wetlands is clearly rebutted; and 

(2) The construction and operation of the new CCR landfill, new CCR surface impoundment, or 

lateral expansion will not: 

(i) Cause or contribute to violations of any applicable state water quality standard, 

(ii) Violate any applicable toxic effluent standard or prohibition under Section 307 of the Clean 

Water Act; 

(iii) Jeopardize the continued existence of endangered or threatened species or result in the 

destruction or adverse modification of a critical habitat, protected 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 degradation of wetlands. The owner or operator must demonstrate the 
DRAFT DO NOT CITE OR QUOTE 466 of 563 5/03/10 

integrity of the new CCR landfill, new CCR surface impoundment, or lateral expansion and its 

ability to protect ecological resources by addressing the following factors: 

(i) Erosion, stability, and migration potential of native wetland soils, muds and deposits used to 

support the new CCR landfill, new CCR surface impoundment, or lateral expansion; 

(ii) Erosion, stability, and migration potential of dredged and fill 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 resources and their habitat from release of CCRs. 

(v) The potential effects of catastrophic 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 Act or applicable state wetlands 

laws, steps have been taken to attempt to achieve no net loss of wetlands (as defined by acreage 

and function) by first avoiding impacts to wetlands 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 offsetting remaining unavoidable wetland impacts 

through all appropriate and practicable compensatory mitigation actions (e.g., restoration of 

existing degraded wetlands or creation 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 surface 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 distance 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 protective of human health and the environment. 

The demonstration must be certified by an independent registered professional engineer and the 

owner or operator must notify the state that the demonstration has been placed in the operating 

record and on the owner’s or operator’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 two sides of a fault measured in any 

direction. 

(3) Holocene means the most recent epoch of the Quaternary period, extending from the end of 

the Pleistocene Epoch to the present. 

§ 257.63 Seismic impact zones. 

(a) New CCR landfills, new CCR surface impoundments and lateral expansions shall not be 

located in seismic impact zones, unless the owner or operator demonstrates that all containment 

structures, including liners, leachate collection systems, and surface water control systems, are 
DRAFT DO NOT CITE OR QUOTE 468 of 563 5/03/10 

designed to resist the maximum horizontal acceleration in lithified earth material for the site. 

The demonstration must be certified by an independent registered professional engineer and the 

owner or operator must notify the state that the demonstration has been placed in the operating 

record and on the owner’s or operator’ 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 earth 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 seismic hazard map, with a 98 percent or greater 

probability that the acceleration will not be exceeded in 50 years, 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 particles of older rock that formed by crystallization of 

magma or by induration of loose sediments. This 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 existing 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 lateral 
DRAFT 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. The demonstration must be certified by an 

independent registered professional engineer. The owner or operator must notify the state that 

the demonstration has been placed in the operating record and on the owner’s or operator’s 

publicly accessible internet site. The owner or operator must consider 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 components responsible for preventing releases 

from a landfill or surface impoundment. Unstable areas can include poor foundation conditions, 

areas susceptible to mass movements, and Karst terrains. 

(2) Structural components means liners, leachate collection 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 for 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 may result in inadequate foundation support for the structural 

components of a CCR landfill, CCR surface 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 substantial 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 events, results in the downslope transport of soil 

and rock material by means of gravitational influence. Areas of mass movement include, but are 

not limited to, landslides, avalanches, debris slides 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 developed as a result of dissolution of limestone, dolomite, or other 

soluble rock. Characteristic physiographic features present in karst terranes include, but are not 

limited to, sinkholes, sinking streams, caves, large springs, and blind valleys. 

§ 257.65 Closure of existing CCR landfills and surface impoundments. 

(a) Existing CCR landfills and surface impoundments 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 conduct post-closure activities in 

accordance with §257.101. 

(b) The deadline for closure required by paragraph (a) of this section may be extended up to two 

years if the owner or operator can demonstrate that: 

(1) There is no available alternative 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 paragraph (b) of this section must be certified by an independent 

registered professional engineer or hydrologist. 

(d) The owner or operator must place the demonstration 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 paragraph (a)(2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner. The design of the composite liner and leachate collection system must be 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 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 thick. 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., the coefficient of permeability). 

(b) [Reserved] 

§ 257.71 Design Criteria for Existing CCR Surface Impoundments. 

(a) No later than [five years after effective date of final rule] existing CCR surface 

impoundments shall be constructed: 

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system between the upper and lower components of the 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 thick. 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 accessible internet site, and provide to the state 
DRAFT DO NOT CITE OR QUOTE 473 of 563 5/03/10 

a history of construction, and any record or knowledge of structural instability 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 surface. (Federal Guidelines for Dam Safety,

Glossary of Terms, Federal Emergency Management Agency, April 2004.) 

(d) The history of construction specified in paragraph (b) shall contain, at a minimum, the 

following information as may be available: 

(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; and the identification number of the CCR 

surface impoundment if one has been assigned by the state. 

(2) The location of the CCR surface impoundment indicated on the most recent USGS 

71/2minute 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 watershed affecting the CCR surface impoundment. 

(5) A description of the physical and engineering properties of the foundation materials on which 

the CCR surface impoundment is constructed. 

(6) A statement of the type, size, range, and physical and engineering 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 
DRAFT DO NOT CITE OR QUOTE 474 of 563 5/03/10 

approximate dates of construction, and each successive 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 length and width of the CCR 

surface impoundment, showing all zones, foundation improvements, drainage provisions, 

spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the 

measurement of the minimum vertical distance between the crest of the CCR surface 

impoundment and the reservoir surface at present and under design storm conditions, CCR slurry 

level and CCR waste water level, and any identifiable 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 which 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 independent registered professional engineer that the design of the 

CCR surface impoundment is in accordance with current, 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 storm which exceeds the capacity of the CCR surface 

impoundment; or, in lieu of the certification, a report indicating what additional investigations, 
DRAFT DO NOT CITE OR QUOTE 475 of 563 5/03/10 

analyses, or improvement work are necessary before such a certification can be made by an 

independent registered professional engineer, including what provisions 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 certification in the operating record and on the 

owner’s or operator’s publicly accessible internet site and provide 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 least six feet high and showing the identification 

number of the existing 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 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 classified as having a high or significant hazard 

potential, as certified by an independent registered professional engineer, the owner or operator 

shall develop and maintain in the operating record, 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-safety 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 includes provisions for an annual face-to-face meeting 

or exercise between representatives of the facility 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 paragraph (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 collection system must be 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 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 1×10−7cm/sec. FML components consisting of high density 

polyethylene (HDPE) shall be at least 60-mil thick. 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., the coefficient of permeability). 

(b) Plans for the design, construction, and maintenance of new CCR surface impoundments and 

lateral expansions shall be placed in the operating record and be submitted to the state upon 

certification by an independent registered professional engineer, and a notice shall be placed on 
DRAFT DO NOT CITE OR QUOTE 477 of 563 5/03/10 

the owner’s or operator’s publicly accessible 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 more above the upstream toe of the structure. 

(c) A permanent identification marker, at least six feet high and showing 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 immediately 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 paragraph (b) of this section, shall contain at a minimum the following 

information: 

(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; and the identification number of the CCR 

surface impoundment if one has been assigned by the state. 

(2) The location of the CCR surface impoundment indicated on the most recent USGS 

71/2minute 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 watershed affecting the CCR surface impoundment. 
DRAFT DO NOT CITE OR QUOTE 478 of 563 5/03/10 

(5) A description of the physical and engineering properties of the foundation materials on which 

the CCR surface impoundment is constructed. 

(6) A statement of the type, size, range, and physical and engineering 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 successive 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 length and width of the CCR 

surface impoundment, showing all zones, foundation improvements, drainage provisions, 

spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the 

measurement of the minimum vertical distance between the crest of the CCR surface 

impoundment and the reservoir surface at present and under design storm conditions, CCR slurry 

level and CCR waste water level, and any identifiable 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 which 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 independent registered professional engineer that the design of the 

CCR surface impoundment is in accordance with generally accepted engineering standards 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 storm which exceeds the capacity of the CCR surface 

impoundment. The owner or operator shall place the certification in the operating record and on 

the owner’s or operator’s publicly accessible internet site and notify the state that these actions 

have been taken. 

(e) Any changes or modifications to the plans 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 this paragraph shall be placed on 

the owner’s or operator’s publicly accessible internet site. 

(f) For CCR surface impoundments classified by as having a high or significant hazard potential, 

as certified by an independent registered professional 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-safety 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 includes provisions for an annual face-to-face meeting 

or exercise between representatives of the facility 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/m3

, unless some alternative standard has been established pursuant to 

applicable requirements developed under a State Implementation Plan (SIP) approved or 

promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended. 

(b) CCR surface impoundments must be managed to control wind dispersal of dusts, consistent 

with the standard in paragraph (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 emplaced as conditioned CCRs as defied in paragraph 

(d) of this section. 

(d) For purposes of this section, conditioning means 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 registered professional engineer and notification provided to the state 

that the documentation has been placed 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 and surface impoundments must design, construct, 

and maintain: 

(1) A run-on control system 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; 

(2) A run-off control system from the active portion of the CCR landfill or surface impoundment 

to collect and control at least 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 requirements of this section. The 

owner or operator must notify the 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 report, certified by an independent registered 

professional engineer, that documents how relevant calculations were made, 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 Act, 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 structural weakness and other hazardous 

conditions. 

(2) At intervals not exceeding 7 days all instruments shall be monitored. 

(3) 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. 

(4) All existing CCR surface impoundments shall be inspected annually by an independent 

registered professional engineer to assure that the design, operation, and maintenance of the 

surface impoundment is in accordance with generally accepted engineering standards. The 

owner or operator must notify the state that a certification by the independent registered 
DRAFT 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 engineering standards has been placed in the operating 

record and on the owner’s or operator’s publicly accessible internet site. 

(b) When a potentially hazardous condition develops, the person owning or operating the CCR 

surface impoundment shall immediately: 

(1) Take action to eliminate the potentially hazardous condition; 

(2) Notify potentially affected persons and state and local first responders; 

(3) Notify and prepare to evacuate, if necessary, all personnel from the owner or operator’s 

property which may be affected by the 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 often as required by an authorized representative of the state. 

(c) After each inspection and instrumentation monitoring referred to in paragraphs (a) and (b) of 

this section, each qualified person who conducted all or any part of the inspection or 

instrumentation monitoring shall promptly record the results of such inspection or 

instrumentation monitoring in a book which shall be available in the operating record and such 

qualified person shall also promptly report the results of the inspection 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 designated by the owner or operator as responsible for 

health and safety at the owner 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 other 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 surface impoundment must record and retain near 

the facility in an operating record and on the owner’s or operator’s publicly accessible internet 

site, all records, reports, studies 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 twelfth 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 plan 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 impoundments 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 report has been placed in the operating record and on the owner’s or 

operator’s publicly accessible internet site. 

(1) Changes in the geometry of the impounding structure for the reporting period. 

(2) Location and type of installed 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 and 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 affected the stability or operation of the impounding 

structure that has occurred during the reporting period. 

(7) A certification by an independent registered professional 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 engineer 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 accessible 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 subject to this subpart 

must comply with the groundwater monitoring 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 specified in §§257.91 through 257.95 within [one year after the 

effective date of the rule]; 

(2) New CCR landfills and surface impoundments must comply with the groundwater 

monitoring requirements specified in §§257.91 through 257.95 before CCR can disposed of in 

the CCR landfill or surface impoundment. 

(b) The owner or operator must notify the state 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 surface impoundment, groundwater monitoring shall be 

conducted throughout the active life and post-closure 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 consists of a sufficient number of 

wells, installed at appropriate locations and depths, to yield 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 determination of background quality may include 

sampling of wells that are not hydraulically upgradient of the CCR management area where: 

(i) Hydrogeologic conditions do not allow the owner or operator to determine what wells are 

hydraulically upgradient; or 
DRAFT DO NOT CITE OR QUOTE 487 of 563 5/03/10 

(ii) Sampling at other wells will provide an indication 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 passing the waste boundary. The downgradient 

monitoring system must be installed at the waste boundary that ensures detection of groundwater 

contamination in the uppermost aquifer. 

(b) The groundwater monitoring system must include 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 surface impoundment when the facility has several 

units, provided the multi-unit groundwater monitoring 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 casing) 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 decommission of any monitoring wells, piezometers 

and other measurement, sampling, and analytical devices documentation has been placed in the 

operating record and on the owner’s or operator’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 specifications 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 information that must include thorough 

characterization of: 

(i) Aquifer thickness, groundwater flow rate, groundwater flow direction 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 professional engineer or hydrologist. Within 14 days 

of this certification, the owner or operator must notify the state that the certification has been 

placed in the operating record and on the owner’s or operator’s publicly accessible 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 monitoring results that provide an accurate representation 

of groundwater quality at the background and downgradient 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 documentation has been placed 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 include sampling and analytical methods that are 

appropriate for groundwater sampling and that accurately measure hazardous constituents and 

other monitoring parameters in groundwater samples. Groundwater samples shall not be fieldfiltered prior to laboratory analysis. 

(c) The sampling procedures and frequency must 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 direction of groundwater flow each time groundwater 

is sampled. Groundwater elevations in wells which monitor the same CCR management area 
DRAFT 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 landfill or surface impoundment must establish 

background groundwater quality in a hydraulically upgradient or background well(s) for each of 

the monitoring parameters or constituents required 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 quality may be established at wells that are 

not located hydraulically upgradient from the CCR landfill or surface impoundment if it meets 

the requirements of §257.91(a)(1). 

(f) The number of samples collected to establish 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 specified under §257.94(b) for detection monitoring, 

§257.95(b) and (c) for assessment monitoring, 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 statistical 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 contamination. 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 statistically significant evidence of contamination. The method must 

include estimation and testing of the contrasts between each compliance well's median and the 

background median levels for each constituent. 

(3) A tolerance or prediction interval 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 method that meets the performance standards 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 operating record and on the owner’s or operator’s publicly 

accessible internet site and notify the state of the use of this alternative test. The justification 

must demonstrate that the alternative method meets the performance standards of paragraph (h) 

of this section. 

(h) Any statistical method chosen under paragraph (g) of this section shall comply with the 

following performance standards, as appropriate: 

(1) The statistical method used to evaluate groundwater monitoring data shall be appropriate for 

the distribution of chemical parameters or hazardous 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 constituent 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 used, the Type I experiment wise error rate for 

each testing period shall be no less 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 evaluate groundwater monitoring data, the specific type 

of control chart and its associated parameter values shall be protective of human health and the 

environment. The parameters shall be determined after considering the number of samples in the 

background data base, the data distribution, and the range of the concentration values for each 

constituent of concern. 

(4) If a tolerance interval or a predictional interval 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 considering the number of samples in the background data 

base, the data distribution, and the range of the concentration values 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 used in the statistical method shall be the lowest concentration 

level that can be reliably achieved within specified limits of precision 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 include 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 increase over background values for each parameter or 

constituent required 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). 

(1) In determining whether a statistically significant increase has occurred, the owner or operator 

must compare the groundwater quality of each parameter or constituent at each monitoring well 

designated pursuant to §257.91(a)(2) to the background 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 analysis, 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 listed in Appendix III to this part. 

(b) The monitoring frequency for all parameters listed in Appendix III to this part shall be at 

least semiannual during the active life of the CCR landfill or surface impoundment (including 

closure) and the post-closure period. A minimum of four independent samples from each 
DRAFT DO NOT CITE OR QUOTE 494 of 563 5/03/10 

background and downgradient well must be collected and analyzed for the Appendix III 

parameters during the first semiannual sampling event. 

(c) At least one sample from each background and 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 statistically significant increase over background for one or more of the 

parameters listed in Appendix III to this part at any monitoring well 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 accessible internet site indicating which parameters have shown 

statistically significant changes from background levels, and notify the state that this notice was 

placed in the operating record and on the owner’s or operator’s publicly accessible internet site; 

and 

(2) Must establish an assessment monitoring program meeting the requirements of §257.95 of 

this part within 90 days except as provided 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 accessible 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 this 
DRAFT DO NOT CITE OR QUOTE 495 of 563 5/03/10 

section. If, after 90 days, a successful demonstration 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 whenever 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 surface 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 independent samples from each well (background and 

downgradient) must be collected and analyzed to establish background for the constituents. 

(c) After obtaining the results from the initial 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 operating record and on the owner’s or operator’s 

publicly accessible internet site identifying the Appendix IV constituents that have been detected 

and notify the state that this notice has been placed 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 basis 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 this part that are detected in response to paragraph (b) of this 

section, and record their concentrations in the facility operating 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 constituents 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 standards shall be established in 

accordance with paragraphs (g) or (h) of this section. 

(d) If the concentrations of all Appendix IV constituents are shown to be at or below background 

values, using the statistical procedures in §257.93(g), for two consecutive 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 return to detection monitoring. 

(e) If the concentrations of any Appendix IV constituents are above background values, but all 

concentrations are below the groundwater protection standard established under paragraphs (g) 

or (h) of this section, using the statistical procedures in §257.93(g), the owner or operator must 

continue assessment monitoring in accordance with this section. 

(f) If one or more Appendix IV constituents are detected at statistically 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 the 
DRAFT 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 the groundwater protection standard 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 publicly accessible internet site. The owner or 

operator of the CCR landfill or surface impoundment also must: 

(1)(i) Characterize the nature and extent of the release by installing additional monitoring wells 

as necessary; 

(ii) Install at least one additional monitoring well at the facility boundary in the direction of 

contaminant migration and sample this well in accordance 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 paragraph (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 source other than the CCR landfill or surface impoundment caused 

the contamination, 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 placed 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 operator of the CCR landfill or surface impoundment must 

continue monitoring in accordance with the assessment monitoring program pursuant to this 

section, and may return to detection monitoring if the Appendix IV constituents are at or below 
DRAFT 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 landfill or surface impoundment must comply with 

paragraph (f) of this section including initiating an assessment of corrective measures. 

(g) The owner or operator of the CCR landfill 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 contaminant level (MCL) has been promulgated under 

section 1412 of the Safe Drinking Water Act (codified) 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 wells in accordance with §257.91(a)(1); or 

(3) For constituents for which the background level is higher than the MCL identified under 

paragraph (g)(1) of this section or health based levels identified under paragraph (h)(1) of this 

section, the background concentration. 

(h) The owner or operator may establish an alternative groundwater protection standard for 

constituents for which MCLs have not been established provided that the alternative groundwater protection standard has been certified by an independent registered professional engineer 

and the state has been notified that the alternative ground-water protection standard has been 

placed in the operating record and on the owner’s or operator’s publicly accessible internet site. 

These groundwater protection standards 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 Laboratory Practice Standards (40 CFR part 792) or equivalent; 

(3) For carcinogens, the level represents a concentration associated 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 effects other than cancer or mutation. 

(ii) [Reserved] 

(i) In establishing groundwater protection standards under paragraph (h) of this section, the 

owner or operator of the CCR landfill or surface impoundment may consider the following: 

(1) Multiple contaminants in the groundwater; 

(2) Exposure threats to sensitive 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 level exceeding the groundwater protection standards 

defined under §257.95 (g) or (h) of this part, the owner or operator of the CCR landfill or surface 

impoundment must initiate an assessment of corrective 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 monitoring program as specified in §257.95. 

(c) The assessment shall include an analysis of the effectiveness of potential corrective measures 

in meeting all of the requirements and objectives of the remedy as described under §257.97, 

addressing at least the following: 

(1) The performance, reliability, ease of implementation, and potential impacts of appropriate 

potential remedies, including safety impacts, cross-media impacts, and control of exposure to 

any residual contamination; 

(2) The time required to begin 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 assessment 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 surface impoundment must select a remedy that, at a 

minimum, meets the standards listed in paragraph (b) of this section. The owner or operator of 
DRAFT DO NOT CITE OR QUOTE 501 of 563 5/03/10 

the CCR landfill or surface impoundment must notify the state and the public within 14 days of 

selecting a remedy, that a report certified by an independent registered 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 internet 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 this 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 specified 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 and 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 risks in terms of likelihood of further releases due to CCRs remaining 

following implementation of a remedy; 

(iii) The type and degree of long-term management required, including monitoring, operation, 

and maintenance; 
DRAFT DO NOT CITE OR QUOTE 502 of 563 5/03/10 

(iv) Short-term risks that might be posed to the community, workers, or the environment during 

implementation of such a remedy, including potential threats to human health and the 

environment associated with excavation, transportation, and redisposal of containment; 

(v) Time until full protection is achieved; 

(vi) Potential for exposure of humans and environmental receptors to remaining wastes, 

considering the potential threat to human health and the environment associated with excavation, 

transportation, redisposal, or containment; 

(vii) Long-term reliability of the engineering 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 the following factors: 

(i) The extent to which containment practices will reduce further releases; 

(ii) The extent to which treatment technologies may be used. 

(3) The ease or difficulty of implementing a potential remedy(s) based on consideration of the 

following types of factors: 

(i) Degree of difficulty associated with constructing the technology; 

(ii) Expected operational reliability 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 location of needed treatment, storage, 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 a 
DRAFT DO NOT CITE OR QUOTE 503 of 563 5/03/10 

schedule must require the initiation of remedial activities within a reasonable period of time 

taking into consideration the factors set forth in paragraphs (d) (1) through (8) of this section. 

The owner or operator of the CCR landfill or surface impoundment must consider the following 

factors in determining the schedule of remedial activities: 

(1) Extent and nature of contamination; 

(2) Reasonable probabilities of remedial technologies in achieving compliance with the 

groundwater protection standards established under §257.95 (f) or (g) and other objectives of the 

remedy; 

(3) Availability of treatment or disposal capacity for CCRs managed during implementation of 

the remedy; 

(4) Desirability of utilizing technologies that are not currently available, but which may offer 

significant advantages over already available technologies in terms of effectiveness, reliability, 

safety, or ability to achieve remedial objectives; 

(5) Potential risks to human health 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, and physical structures caused by 

exposure to CCR constituents; 

(v) The hydrogeologic characteristic of the facility and surrounding land; 

(vi) Groundwater removal and treatment costs; and 
DRAFT 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 notifies the state that the demonstration, certified 

by an independent registered professional engineer or hydrologist, has been placed in the 

operating record and on the owner’s or operator’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 impoundment and those substances are present in 

concentrations such that cleanup of the release from the CCR landfill or surface impoundment 

would provide no significant reduction in risk to actual or potential receptors; or 

(2) The constituent(s) is present 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 under §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 pursuant to paragraph (e) of this section shall not 

affect the obligation of the owner or operator to undertake source control measures or other 

measures that may be necessary to eliminate or minimize further releases to the groundwater, to 
DRAFT DO NOT CITE OR QUOTE 505 of 563 5/03/10 

prevent exposure to the groundwater, or to remediate the groundwater to concentrations 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 established under §257.97(d) for initiation and completion of remedial 

activities the owner or operator must: 

(1) Establish and implement a corrective action groundwater monitoring 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 protection standard pursuant to paragraph (e) 

of this section. 

(2) Implement the corrective action remedy selected under §257.97; and 

(3) Take any interim measures necessary to ensure the protection of human health and the 

environment. Interim measures should, to the greatest extent practicable, be consistent with the 

objectives of and contribute to the performance of any remedy that 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 populations or environmental receptors to any of the 

Appendix IV constituents; 

(iii) Actual or potential contamination of drinking 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 remedial action is not initiated 

expeditiously; 

(v) Weather conditions that may cause any of the Appendix IV of this part constituents to 

migrate or be released; 

(vi) Potential for exposure to any of the Appendix IV of this part constituents as a result of an 

accident or failure of a container or handling system; and 

(vii) Other situations that may pose threats 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 determination 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 professional 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 exposure of humans or the environment to residual 

contamination, as necessary to protect human health and the environment; and 
DRAFT 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 structures that are consistent with the overall 

objective of the remedy. 

(4) Notify the state within 14 days that a report, including the certification required in paragraph 

(c)(1) of this section, justifying the alternative measures prior to implementing the alternative 

measures has been placed in the operating record 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, shall 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 §257.97 shall be considered complete when: 

(1) The owner or operator of the CCR landfill or surface impoundment complies with the 

groundwater protection standards established under §§257.95 (h) or (i) at all points within the 

plume of contamination that lie beyond the groundwater 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 demonstrating that concentrations of Appendix IV constituents have not 

exceeded the groundwater protection standard(s) for a period of three 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 been 
DRAFT DO NOT CITE OR QUOTE 508 of 563 5/03/10 

completed in compliance with the requirements of paragraph (e) of this section has been placed 

in the operating record and on the owner’s or operator’s publicly accessible internet site. The 

certification must be signed by the owner or operator and by an independent registered 

professional engineer or hydrologist. 

§ 257.99 [Reserved]

Closure and Post-Closure Care 

§ 257.100 Closure criteria. 

(a) Prior to closure of any CCR landfill or surface 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 and certified by an independent registered 

professional engineer. The closure plan shall be consistent with paragraph (g) of this section and 

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, 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 impoundment 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 areas 
DRAFT 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 the state in which the 

CCR landfill or surface impoundment is located. 

(c) At closure, the owner or operator of a surface impoundment must: 

(1) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and 

waste residues; 

(2) Stabilize remaining wastes to a bearing capacity sufficient to support the final cover; and 

(3) Cover the surface impoundment with a final cover designed and constructed to: 

(i) Provide long-term minimization of the migration of liquids through the closed impoundment; 

(ii) Function with minimum maintenance; and 

(iii) Promote drainage and minimize erosion or abrasion of the cover; 

(iv)Accommodate settling and subsidence so that the cover's integrity is maintained; and 

(v) Have a final cover system that meets the requirements of subsection (d). 

(d) For closure with CCRs in place, a final cover system must be installed at all CCR landfills 

and surface impoundments that is designed to minimize 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 present, 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 minimum 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 capable of sustaining native plant growth, and 
DRAFT 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 select 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 alternative cover design has been placed in the operating record and on the 

owner’s or operator’s publicly accessible internet site. The alternative final cover design must 

include: 

(1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration 

layer specified in paragraphs (d)(1) and (d)(2) of this section, and 

(2) An erosion layer that provides equivalent protection from wind and water erosion as the 

erosion layer specified in paragraph (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 the steps necessary to close the CCR landfill or surface impoundment 

at any point during the active life in accordance with 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 paragraph (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 paragraph (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 criteria 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 registered professional engineer, 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 part, or by the initial receipt of CCRs, whichever is 

later. 

(i) Prior to beginning closure of each CCR landfill 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 operator’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 reasonable likelihood that the CCR landfill or surface 

impoundment will receive additional CCRs, no later than 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 surface impoundment, the owner or operator of the 

CCR landfill or surface impoundment must notify the state that a certification, signed by an 
DRAFT DO NOT CITE OR QUOTE 512 of 563 5/03/10 

independent registered professional engineer, verifying that closure 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 operator’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 been placed in the operating record and on the 

owner’s or operator’s publicly accessible internet site. 

(2) The notation on the deed must in perpetuity notify any potential purchaser of the property 

that: 

(i) the land has been used as a CCR landfill or surface impoundment; and 

(ii) its use is restricted under § 257.101(c)(3). 

§ 257.101 Post-closure care requirements. 

(a) Following closure of each CCR landfill or surface 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, and 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 settlement, 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 system in accordance with the requirements of 
DRAFT DO NOT CITE OR QUOTE 513 of 563 5/03/10 

§§ 257.70, 257.71, and 257.72. 

(3) Maintaining the groundwater monitoring system and monitoring 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 sufficient to protect human health and the environment and this 

demonstration is certified by an independent registered professional engineer 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 internet site; or 

(2) Increased if the owner or operator of the CCR landfill or surface impoundment determines 

that a lengthened period is necessary to protect 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 professional engineer that includes, at a 

minimum, the following information: 

(1) A description of the monitoring and maintenance activities required in paragraph (a) of this 

section for each CCR landfill or surface impoundment, 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 property during the post-closure period. Post-closure 

use of the property shall not disturb the integrity of the final cover, liner(s), or any other 

components of the containment system, or the function of the monitoring systems unless 

necessary to comply with the requirements in this subpart. Any other disturbance is allowed if 
DRAFT DO NOT CITE OR QUOTE 514 of 563 5/03/10 

the owner or operator of the CCR landfill or surface 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 independent registered professional 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 operator’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-closure care period for the CCR landfill or surface 

impoundment, the owner or operator of the CCR landfill or surface impoundment must notify the 

state that a certification, signed by an independent registered professional engineer, verifying that 

post-closure care has been completed in accordance with the post-closure plan has been placed in 

the operating record and on the owner’s or operator’s publicly accessible internet site. 

§§ 257.102 - 257.109 [Reserved] 

APPENDIX III to Part 257 – CONSTITUENTS FOR DETECTION MONITORING 

Common Name1

Boron 

Chloride 

Conductivity 
DRAFT 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 government regulations, scientific publications, and 

commerce; synonyms exist for many chemicals. 

APPENDIX IV to Part 257 – CONSTITUENTS FOR ASSESSMENT MONITORING 

Common Name1

Aluminum 

Antimony 

Arsenic 

Barium 

Beryllium 

Boron 

Cadmium 

Chloride 

Chromium (total) 

Copper 

Flouride 

Iron 
DRAFT 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 government regulations, scientific 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 preamble, title 40, chapter I of the Code of Federal Regulations is 

proposed to be amended as follows: 

PART 261—IDENTIFICATION AND LISTING 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 paragraph (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 purpose of generating electricity by the electric 

power sector if the fly ash, bottom ash, boiler slag, and flue gas emission control wastes are 

beneficially used or placed in minefilling operations. Beneficial Use of Coal Combustion 

Products (CCPs) means the use of CCPs that provides 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 relevant product specifications and regulatory 

standards (where these are available). 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, 

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 flue gas emission control wastes generated 

primarily from the combustion of coal for the purpose 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 flue gas emission control wastes, generated 

primarily from the combustion of fossil fuels other 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 Subject to Subtitle C Regulations 

Sec. 

261.50 General 

Subpart F – Special Wastes Subject to Subtitle C Regulations 

§ 261.50 General

(a) The following solid wastes are special wastes subject to regulation 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 generated by the electric power 

sector (Electric Utilities and Independent Power 

Producers). 

 * 

(T) 

(b) For the purposes of this listing, the electric power sector is defined as electricity-only and 

combined-heat-and-power (CHP) plants whose primary business is to sell electricity, or 

electricity and heat, to the public; 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 defined in paragraph (c) of this section; 

(2) beneficially used as defined 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); or 
DRAFT DO NOT CITE OR QUOTE 520 of 563 5/03/10 

(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. 

(c) Uniquely associated wastes are low-volume wastes other than those 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 that are not of sufficient quality to burn as fuel, and 

wastes from cleaning the boilers 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 alternative material, conserving natural resources that 

would otherwise need to be obtained through practices such as extraction; and meets relevant 

product specifications and regulatory standards (where these are available). 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, are not considered beneficial uses. 

9. Part 261 is amended by adding Appendix 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 264 continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925. 

11. Section 264.1 is amended by adding paragraph (k) to read as follows: 

§ 264.1 Purpose, scope and applicability 

* * * * * 

(k) Owners or operators who treat, store or dispose 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, subpart FF of this part includes 

additional requirements for the treatment, storage or disposal of EPA Special Waste Number 

S001. 

12. Section 264.140 is amended by revising paragraph (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 facilities and facilities that treat, store or dispose of special 

wastes, except as provided otherwise 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 Coal Combustion Residual (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 Coal Combustion Residual (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 Waste Number S001. 

Owners or operators of surface impoundments that cease receiving EPA Special Waste Number 

S001, must comply with the closure requirements 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 requirements by the effective date of this regulation 

would be subject to the requirements in Parts 260-268, and 270-272. 

§ 264.1301 Definitions. 

This section contains definitions for terms that appear throughout this 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 show 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 the water contained in the 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 formation, an underground mine, a cave, or a corrective 

action management unit. For purposes of this subpart, 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 excavation, 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 which is not an injection well. Examples of 

CCR surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons. 

CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed 
DRAFT 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 obtained the Federal, State and local approvals or 

permits necessary to begin physical 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 physical 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 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 necessary to begin physical 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 can not be 

cancelled or modified without substantial loss—for physical construction of the CCR 

surface impoundment to be completed 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 tending 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 incremental consequences that result from the 

release of water or stored contents due to failure 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 human life, but can cause economic 

loss, environment damage, disruption of lifeline 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 the waste boundaries of an existing CCR 

landfill, or CCR surface impoundment made after 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 presence 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, including lateral expansions, or 

installation from which there is or may be placement of CCRs with the presence of free liquids, 

which began operation, or for which the construction 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-area rainfall relations for all storm types affecting that area 

adjusted meteorologically to maximum conditions. 

Recognized and generally accepted good engineering practices (RAGAGEPs) means 

engineering, operation, or maintenance activities based on established codes, standards, 

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. 

§ 264.1302 Reporting. 

(a) Except as provided in paragraph (b) of this section, every twelfth month following 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 report containing the following information: 

(1) Changes in the geometry of the CCR surface impoundment for the reporting period. 

(2) Location and type of installed 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 

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 wastewater in the CCR surface impoundment at the 

end of the reporting period. 

(6) Any other change which may have affected the stability or operation of the CCR surface 

impoundment that has occurred during the reporting period. 

(7) A certification by an independent registered professional 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 section when the person owning or operating the CCR 

surface impoundment provides the Regional Administrator with a certification by an independent 

registered professional engineer that there have been no changes 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 information 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 requirements in subpart K of this part, EPA Special Waste No. S001 is 

subject to the requirements 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 more 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 submitted in triplicate to the 

Regional Administrator on or before [insert date one year after the effective date of the final 

rule]. 

(d) A permanent identification marker, at least six feet high and showing 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 immediately adjacent to each CCR surface impoundment by 

[insert date 60 days after the effective date of the final rule]. 

(e) The plan specified in paragraph (b) of this section, shall contain at a minimum the following 

information: 

(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; 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 watershed affecting the CCR surface impoundment. 

(5) A description of the physical and engineering properties of the foundation materials on which 

the CCR surface impoundment is constructed. 

(6) A statement of the type, size, range, and physical and engineering 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 
DRAFT DO NOT CITE OR QUOTE 529 of 563 5/03/10 

dates of construction, and each successive stage 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 length and width of the CCR 

surface impoundment, showing all zones, foundation improvements, drainage provisions, 

spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the 

measurement of the minimum vertical distance between the crest of the CCR surface 

impoundment and the reservoir surface at present and under design storm conditions, CCR slurry 

level and CCR wastewater level, and other information pertinent to the CCR surface 

impoundment itself, including any identifiable 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 which 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 calculations 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 independent registered professional engineer that the design of the 

CCR surface impoundment is in accordance with 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 runoff from the design storm which exceeds the 

capacity of the CCR surface impoundment; or, in lieu 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 professional engineer, including what 

provisions have been made to carry out such work in addition to a schedule for completion of 

such work. 

(f) Any changes or modifications to the plans for CCR surface impoundments shall be approved 

by the Regional Administrator prior to the initiation 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 shall be operated and maintained with: 

(1) A run-on control system to prevent flow onto the active portion of the CCR surface 

impoundment during the peak discharge 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-year storm. Run-off from the 

active portion of the CCR surface impoundment must 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 having high or significant hazard potential, the 

owner or operator shall develop and maintain in the operating record an Emergency Action Plan 

which: defines responsible persons and the actions to be taken in the event of a dam-safety 

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 

includes provisions for an annual face-to-face meeting or exercise between representatives of the 

facility owner and the local emergency responders. 

§ 264.1304 Inspection Requirements for Surface Impoundments. 

(a) In addition to the inspection requirements in § 264.226 of this part, all CCR surface 

impoundments that meet the requirements of § 264.1303(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 weakness 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 monitoring intervals approved under this paragraph shall be justified by 

the owner or operator of the CCR surface impoundment based on the hazard potential and 

performance of the CCR surface impoundment, and shall include a requirement for inspection 

immediately after a specified event approved 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 section, 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 professional 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 certification 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 develops, the person owning or operating the CCR 

surface impoundment shall immediately: 

(1) Take action to eliminate the potentially hazardous condition; 

(2) Notify the Regional Administrator and State and local first responders; 

(3) Notify and prepare to evacuate, if necessary, all personnel from the owner or operator’s 

property which may be affected by the 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 often as required by an authorized representative of the Regional 

Administrator. 

(c) After each inspection and instrumentation monitoring referred to in paragraphs (a) and (b) of 

this section, each qualified person who conducted all or any part of the inspection or 

instrumentation monitoring shall promptly record the results of such inspection or 

instrumentation monitoring in a book which shall be available in the operating record for 

inspection by an authorized representative of the Regional Administrator and such qualified 
DRAFT DO NOT CITE OR QUOTE 533 of 563 5/03/10 

person shall also promptly report the results of the inspection 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 the 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 other 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 impoundment which meets the requirements of § 

264.1303(b) of this subpart, the person owning or operating such CCR surface impoundment 

shall submit to and obtain approval from the Regional Administrator, a plan for closure in 

accordance with the requirements of § 264.228 and subpart 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 and lateral expansions of existing landfills are 

exempt from the double liner and leachate collection system requirements of § 264.301(c), and 

the requirements of § 264.302, provided the owner or operator is in compliance with the 

requirements of paragraph (b) of this section. Owners or operators of existing landfills are also 
DRAFT DO NOT CITE OR QUOTE 534 of 563 5/03/10 

exempt from the liner requirements of paragraph (b)(1) of this section, provided they comply 

with the requirements of paragraph (c) of this section and the requirements 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 paragraph (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 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 thick. 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., 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 portion 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 Pollutant Discharge Elimination System (NPDES) 

requirements, pursuant to section 402 of the Clean Water Act. 

(2) the operation of the unit will not cause any violation 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 μg/m3

, 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 this section unless an alternative standard has been established by 

the Regional Administrator. CCRs placed in landfills 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 for the storage must be managed to control the 

dispersal of dust. Pads must have wind protection that will ensure comparable levels of control. 

(e) CCRs transported in trucks or other vehicles 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 STANDARDS FOR OWNERS AND OPERATORS OF 

HAZARDOUS WASTE TREATMENT, STORAGE, 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 paragraph (g) to read as follows: 

§ 265.1 Purpose, scope, and applicability. 

* * * * * 

(g) Owners or operators who treat, store or dispose of EPA Special Waste Number S001, also 

referred to as coal combustion residuals (CCRs) are subject to the requirements of this part, 

except as specifically provided otherwise in this part. In addition, 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 paragraph (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 special 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 Wastes
DRAFT 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 requirements in 40 CFR Part 265.111 and 40 CFR 265.228. 

Facilities that have not met these closure requirements by the effective date of this regulation 

would be subject to the requirements in Parts 260-268, and 270-272. 

§ 265.1301 Definitions. 

This section contains definitions for terms that appear throughout this 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 show 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 the water contained in the 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 formation, an underground mine, a cave, or a corrective 
DRAFT 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 excavation, 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 which is not an injection well. Examples of 

CCR surface impoundments are holding, storage, settling, 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 obtained the Federal, State and local approvals or 

permits necessary to begin physical 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 physical 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 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 necessary to begin physical construction; and either 
DRAFT DO NOT CITE OR QUOTE 540 of 563 5/03/10 

(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 physical construction of the CCR 

surface impoundment to be completed within a reasonable time. 

Factor of safety (Safety factor) means the ratio of the forces tending 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 incremental consequences that result from the 

release of water or stored contents due to failure 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 human life, but can cause economic 

loss, environment damage, disruption of lifeline 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 the waste boundaries of an existing CCR 

landfill, or CCR surface impoundment made after 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 presence 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, including lateral expansion, or 

installation from which there is or may be placement of CCRs with the presence of free liquids, 

which began operation, or for which the construction 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-area rainfall relations for all storm types affecting that area 

adjusted meteorologically to maximum conditions. 

Recognized and generally accepted good engineering practices (RAGAGEPs) means 

engineering, operation, or maintenance activities based on established codes, standards, 

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. 

§ 265.1302 Reporting. 

(a) Except as provided in paragraph (b) of this section, every twelfth month following 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 properly closed in accordance with an approved 

plan shall submit to the Regional Administrator 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 installed 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 impoundment for the reporting period. 

(4) The storage capacity of the CCR surface impoundment. 

(5) The volume of the CCR slurry and CCR waste water in the CCR surface impoundment at the 

end of the reporting period. 

(6) Any other change which may have affected the stability or operation of the CCR surface 

impoundment that has occurred during the reporting period. 

(7) A certification by an independent registered professional 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 section when the person owning or operating the CCR 

surface impoundment provides the Regional Administrator with a certification by an independent 

registered professional engineer that there have been no changes 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 information 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 requirements in subpart K of this part, EPA Special Waste No. S001 is 

subject to the requirements 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 more above the upstream toe of the structure. 

(c) Plans required under paragraph (b) of this section shall be submitted in triplicate to the 

Regional Administrator on or before [insert date one year after the effective date of the final 

rule]. 

(d) A marker, at least six feet high and showing 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 immediately adjacent to each CCR surface impoundment permanent identification 

by [insert date 60 days after the effective date of the final rule]. 

(e) The plan specified in paragraph (b) of this section, shall contain at a minimum the following 

information: 

(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; 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 

71/2minute 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 watershed affecting the CCR surface impoundment. 
DRAFT DO NOT CITE OR QUOTE 544 of 563 5/03/10 

(5) A description of the physical and engineering properties of the foundation materials on which 

the CCR surface impoundment is constructed. 

(6) A statement of the type, size, range, and physical and engineering 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 stage 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 length and width of the CCR 

surface impoundment, showing all zones, foundation improvements, drainage provisions, 

spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the 

measurement of the minimum vertical distance between the crest of the CCR surface 

impoundment and the reservoir surface at present and under design storm conditions, CCR slurry 

level or CCR waste water level, and other information pertinent to the CCR surface 

impoundment itself, including any identifiable 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 which the facility is designed 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 calculations 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. 

(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 stability of the CCR surface impoundment which 

may be requested by the Regional Administrator. 

(17) A certification by an independent registered professional engineer that the design of the 

CCR surface impoundment is in accordance with 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 runoff from the design storm which exceeds the 

capacity of the CCR surface impoundment; or, in lieu 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 professional engineer, including what 

provisions have been made to carry out such work in addition to a schedule for completion of 

such work. 

(f) Any changes or modifications to the plans for CCR surface impoundments shall be approved 

by the Regional Administrator prior to the initiation 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 shall be operated and maintained with: 

(1) A run-on control system to prevent flow onto the active portion of the CCR surface 

impoundment during the peak discharge 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-year storm. Run-off from the 

active portion of the CCR surface impoundment must be handled in accordance with § 265.1307 

of this subpart. 

(h) For CCR surface impoundments classified as having high or significant hazard potential, the 

owner or operator shall develop and maintain in the operating record an Emergency Action Plan 

which: defines responsible persons and the actions to be taken in the event of a dam-safety 

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 

includes provisions for an annual face-to-face meeting or exercise between representatives of the 

facility owner and the local emergency responders. 

§ 265.1304 Inspection Requirements for Surface Impoundments. 

(a) In addition to the inspection requirements in § 265.226, all CCR surface impoundments that 

meet the requirements of § 265.1303(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 weakness 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 monitoring intervals approved under this paragraph shall be justified by 

the owner or operator of the CCR surface impoundment based on the hazard potential and 

performance of the CCR surface impoundment, and shall include a requirement for inspection 

immediately after a specified event approved 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 professional 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 independent registered 

professional engineer that the design, operation, and maintenance of the surface impoundment is 

in accordance with recognized and generally accepted good engineering practices has been 

placed in the operating record. 

(b) When a potentially hazardous condition develops, the person owning or operating the CCR 

surface impoundment shall immediately: 

(1) Take action to eliminate the potentially hazardous condition; 

(2) Notify the Regional Administrator and State and local first responders; 

(3) Notify and prepare to evacuate, if necessary, all personnel from the owner or operator’s 

property which may be affected by the potentially hazardous conditions; and 
DRAFT 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 often as required by an authorized representative of the Regional 

Administrator. 

(c) After each inspection and instrumentation monitoring referred to in paragraphs (a) and (b) of 

this section, each qualified person who conducted all or any part of the inspection or 

instrumentation monitoring shall promptly record the results of such inspection or 

instrumentation monitoring in a book which shall be available in the operating record for 

inspection by an authorized representative of the Regional Administrator and such qualified 

person shall also promptly report the results of the inspection 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 the 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 other 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 impoundment which meets the requirements of § 

264.1303(b) of this subpart, the person owning or operating such CCR surface impoundment 

shall submit to and obtain approval from the Regional Administrator, a plan for closure in 

accordance with the requirements of § 265.228 and part 265 subpart G. This plan shall provide 
DRAFT 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 and lateral expansions of existing landfills are 

exempt from the double liner and leachate collection system requirements of § 265.301(c), and 

the requirements of § 265.302, provided the owner or operator is in compliance with the 

requirements of paragraph (b) of this section. Owners or operators of existing landfills are also 

exempt from the liner requirements of paragraph (b)(1) of this section, provided they comply 

with the requirements of paragraph (c) of this section and the requirements 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 paragraph (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 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 thick. 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 portion 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 Pollutant Discharge Elimination System (NPDES) 

requirements, pursuant to section 402 of the Clean Water Act. 

(2) the operation of the unit will not cause any violation 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 μg/m3, 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 this section unless an alternative standard has been established by 

the Regional Administrator. CCRs placed in landfills as wet conditioned CCRs shall not result 

in the formation of free liquids. 

(d) Tanks, containers, buildings and pads used for the storage must be managed to control the 

dispersal of dust. Pads must have wind protection that will ensure comparable levels of control. 

(e) CCRs transported in trucks or other vehicles 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 268 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 paragraph (f) to read as follows: 

§ 268.2 Definitions applicable in this part. 

 * * * * * 

(f) Wastewaters are wastes that contain less than 1% by weight total organic carbon (TOC) and 

less than 1% by weight total suspended solids (TSS), except for coal combustion residuals, 

[waste code S001], which are wastewaters 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 Number S001 may continue 

to be placed in an existing CCR surface impoundment of this subpart for 60 months after the 

promulgation date of listing the waste provided 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 after placement of waste in the existing CCR surface impoundment 

ceases. 
DRAFT DO NOT CITE OR QUOTE 553 of 563 5/03/10 

22. Section 268.21 is added to Subpart 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 subpart do not apply if: 

(1) The wastes meet the applicable treatment standards 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 standards 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 wastes covered by the extension. 

22. Subpart C is amended by adding 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 amended 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 

subcategory1

Common 

name 

CAS2

 number Concentration in 

mg/L3, 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 § 268.48 
DRAFT DO NOT CITE OR QUOTE 555 of 563 5/03/10 

is defined as 

electricity-only and 

combined-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 

7440-28-0 
DRAFT 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 268.40 
DRAFT 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 Subcategories 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 with its salts and/or esters, the CAS number is 

given for the parent compound only. 

3 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of 

composite samples. 

4 All treatment standards expressed as a Technology 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 Cyanides (Total and Amenable) the nonwastewater 

treatment standards expressed as a concentration were established, in part, based upon 

incineration in units operated in accordance with the technical requirements of 40 CFR Part 

264 Subpart O or Part 265 Subpart O, or based upon combustion in fuel substitution units 

operating in accordance with applicable technical requirements. A facility may comply with 

these treatment standards according to provisions in 40 CFR 268.40(d). All concentration 

standards for nonwastewaters are based 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 expressed as specified technologies. 

* **** 

Table 1—Technology Codes and Description 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 following 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 IMPLEMENTING 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 PROVISIONS 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 page 
DRAFT 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 302 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 following new entry in alphanumeric order 

to the table to read as follows: 

§ 302.4 Designation of hazardous substances. 

* * * * * 

TABLE 302.4.—LIST OF HAZARDOUS SUBSTANCES 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)

* 

S001f ........................................ 

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 the mixture rule to this hazardous waste. 

29. Section 302.6 is amended by amending paragraph (b)(1)(iii) and adding entries in 

alphanumerical order to the Table in paragraph (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 .................................. 0.000145
DRAFT 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