Monday, 

June 21, 2010 

Part II 

Environmental 

Protection Agency 

40 CFR Parts 257, 261, 264 et al. 

Hazardous and Solid Waste Management 

System; Identification and Listing of 

Special Wastes; Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Proposed Rule 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35128 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 257, 261, 264, 265, 268, 

271 and 302 

[EPA–HQ–RCRA–2009–0640; FRL–9149–4] 

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. 

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 nonminefill uses of CCRs at coal mine sites 

in this action. 

DATES: Comments must be received on 

or before September 20, 2010. EPA will 

provide an opportunity for a public 

hearing on the rule upon request. 

Requests for a public meeting should be 

submitted to EPA’s Office of Resource 

Conservation and Recovery by July 21, 

2010. See the FOR FURTHER INFORMATION

CONTACT section for contact information. 

Should EPA receive requests for public 

meetings within this timeframe, EPA 

will publish a document in the Federal 

Register providing the details of such 

meetings. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

RCRA–2009–0640, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: Comments may be sent by 

electronic mail (e-mail) to rcradocket@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 email 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–HQ–RCRA–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 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., EPA–HQ– 

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 http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site 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 http:// 

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 

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 http:// 

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 http:// 

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 


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Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35129 

1The 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, 

DC, 2006. 

2The NRC committee recommended ‘‘that 

secondary uses of CCRs that pose minimal risks to 

human health and the environment be strongly 

encouraged.’’ Ibid. 

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, 

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, DC 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 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 

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, e-mail 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 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 Preamble (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 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 scientificallysupported quantities required for 

enhancing soil properties and/or crop 


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35130 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

3The 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. 

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. 

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. 

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. 

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 misoperation will probably cause loss of 

human life. 

Significant hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation 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 misoperation 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. 

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 postgraduate 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 


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treating acid mine drainage, whether for 

purposes of disposal or for beneficial 

use, such as mine reclamation. 

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 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: 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 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 

m/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 

D. The Contents of This Preamble 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 CoProposals 

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 

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 Non-Utilities 

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 2010 Risk 

Assessment 

B. Background on EPA’s 2010 Risk 

Assessment 

1. Human Health Risks 

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 


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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 NonWastewaters (Dry CCRs) 

3. Proposed Treatment Standards for 

Wastewaters (Wet-Handled CCRs) 

4. Effective Date of the LDR Prohibitions 

C. Applicability of Subtitle C Regulations 

D. CERCLA Designation and Reportable 

Quantities 

1. Reporting Requirements 

2. Basis for RQs and Adjustments 

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 

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 

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 

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 

• 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 

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 


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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 criteria for a 

damage case 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. 

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 CoProposals 

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, 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 

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 


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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 

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. 

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.’’ 

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 protected. 42 U.S.C. 6924. Sections 


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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 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 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 ‘‘F-wastes,’’ 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 ‘‘K-wastes,’’ 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. 

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 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 


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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-toKnow Act (EPCRA) requires facilities to 

report the release of a CERCLA 

hazardous substance at or above its RQ 

to State and local authorities. 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 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 sludgehandling 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 cleanup (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 (§ 257.3–2), 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 largevolume 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 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 


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4Toxicological 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. 

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 

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/ 

EPA-WASTE/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 comanaged 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 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. 

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 using a limestonebased 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35138 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

5Compiled 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). 

6Compiled 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. 

7Compiled 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. 

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.) 

TABLE 2—TCLP MEDIAN COMPOSITIONS OF COAL-FIRED UTILITY LARGE-VOLUME CCRS 5 (MG/L) 

Constituent Fly ash Bottom ash Boiler slag FGD 

As ..................................................................................................................... 0.066 0.002 0.002 0.290 

Ba ..................................................................................................................... 0.289 0.290 0.260 0.532 

B ....................................................................................................................... 0.933 0.163 n/a — 

Cd .................................................................................................................... 0.012 0.005 0.0018 0.010 

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. 

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 

Pb ..................................................................................................................................... <0.003 <0.003 0.0006 

Hg .................................................................................................................................... 1.8×10¥5 2.6×10¥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 


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8See http://www.epa.gov/safewater/arsenic/

regulations.html. 

9National Academy of Sciences, Managing Coal 

Combustion Residues in Mines; The National 

Academies Press, Washington, DC, 2006. 

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. 

11See 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. 

12Five 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 Upflow 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 

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 

Continued 

of the mobility of metals in CCRs under 

a variety of different conditions. This 

issue is further discussed in the 

following subsection. 

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 coal-fired 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 Mercury 

Roadmap (http://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 coalfired 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 MercuryEnriched 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. 

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 (nongypsum 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 singlepoint 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. 

In response to these concerns, a 

review of available leaching test 

methods was conducted. A leaching test 

method 10 based on research conducted 

at Vanderbilt University in the United 

States and the Energy Research Center 

of the 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–846 12


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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 particle-size 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. 

13U.S. EPA (2000) Characterization and 

evaluation of landfill leachate, Draft Report. 68– 

W6–0068, Sept 2000. 

14EPRI (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. 

15MCL is the maximum concentration limit for 

contaminants in drinking water. 

16TC 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). 

18For example, EPA used a generic DAF values 

of 100 in the Toxicity Characteristic final 

regulation. (See: 55 FR 11827, March 29, 1990) 

19Senior, C; Thorneloe, S.; Khan, B.; Goss, D. Fate 

of Mercury Collected from Air Pollution Control 

Devices; EM, July 2009, 15–21. 

20U.S. EPA, Characterization of MercuryEnriched 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. 

21U.S. EPA, 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. 

to facilitate 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 

disposal or beneficial use applications. 

Landfill field leachate data from EPA 13

and EPRI 14 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 

DWEL 17) are also provided to provide 

some context in understanding the leach 

results. It is 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 

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 

conclusions 5119 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, 

Æ 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, 

Æ 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. 


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22Sanchez, 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). 

23The 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. 

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 

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

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 groundwater 

before leachate reaches a well are not 

accounted for, and so MCL and DWEL values 

cannot be directly compared with leachate 

values. 


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24As 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. 

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 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. 

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 

damages 24 and 36 cases of potential 

damages resulting from the disposal of 


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25This 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. 

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 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. 

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=09000064801cf8d1. 

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 dryhandling 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 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/EPA-WASTE/ 

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 

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 


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26EPA’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/EPA-WASTE/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. 

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 NODA are available in 

the docket to the NODA at http:// 

www.regulations.gov, docket number 

EPA–HQ–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. 

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. 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=090000648027b9cc. 

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.) 

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 compositelined units that effectively reduced risks 

from all pathways and constituents 

below the risk criteria. More 

specifically: 

Æ For humans exposed via the 

groundwater-to-drinking-water 

pathway, estimated risks from claylined landfills that dispose of CCRs or 


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27Excess cancer risk means risk in addition to 

pre-existing, ‘‘background’’ risk from other 

exposures. 28Unlined FBC landfills showed less risk as 

modeled; note that the number of FBC landfills 

modeled was very small (seven). 

29EPA’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. 

30Non-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). 

31All chromium present in the particulate matter 

was assumed to be in the more toxic, hexavalent 

form. 

CCRs co-managed with coal refuse are 

lower 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. 

Æ Arsenic and cobalt were the 

constituents with the highest estimated 

risks for surface impoundments. Claylined surface impoundments were 

estimated to present 90th percentile 

risks above the criteria for arsenic, 

boron, cadmium, cobalt, molybdenum, 

and nitrate. The 90th percentile claylined 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 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 claylined surface impoundments, 

respectively. 

Æ 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. 

Æ The model generally predicts that 

groundwater risks will occur centuries 

later for landfills than for surface 

impoundments. For the groundwater-todrinking 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-ingroundwater concentrations at 

approximately 10,000 years, while 

composite-lined surface impoundments’ 

plumes peaked in the thousands of 

years. 

Æ 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 

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. 

Æ 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 assessment 30 also showed 

risks from inhalation of chromium in 

fugitive dust but at levels below the 

criteria.31

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 hydraulic 

conductivity of coal ash can be reduced 

with the appropriate addition of 

moisture followed by compaction to 

attain 95% of the standard Proctor 


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32The 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. 

34 Guidance for Comanagement of Mill Rejects at 

Coal-Fired Power Plants, Electric Power Research 

Institute, 1999. Available in the docket to this 

proposal. 

35For definition of ‘‘proven damage case,’’ see 

section C in the Supplementary Information 

section. 

36Ecological damages are damages to mammals, 

amphibians, fish, benthic layer organisms and 

plants. 

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 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 

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? 

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 

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’’ 


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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 

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 

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 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. 

The report, ‘‘Evaluation of Coal 

Combustion Product Damage Cases 

(Volumes 1 and 2), Draft Report, 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35148 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

37On 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. 

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 http:// 

www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocumentDetail&d=EPAHQ-RCRA-2006-0796-0015. 

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). 

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 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 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 


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38See 65 FR 32216 at http://www.epa.gov/ 

epawaste/nonhaz/industrial/special/fossil/ff2ffr.pdf. 

39 ‘‘Human and Ecological Risk Assessment of 

Coal Combustion Wastes,’’ (April 2010). 40The 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. 

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 

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 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 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 assessment 39

estimated the cancer risk from arsenic 40

that leaches into groundwater from 

CCRs managed in units without 

composite liners to exceed 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 

2×10¥2 to 1×10¥4. The risks from claylined surface impoundments ranged 

from 7×103 to 4×10¥5. Similarly, 

estimated risks from unlined landfills 

ranged between 5×10¥4 to 3×10¥6, and 


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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. 

42ASTSWMO Survey Conducted Feb.—Mar. 

2009 (Excel spreadsheet) available in the docket for 

this proposal. 

43As 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, regrading 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. 

from 2×10¥4 to 5×10¥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 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 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 programs 42 calls into 

question whether those programs, in the 

absence of national minimum standards, 

have sufficiently improved to address 

the gaps that EPA had identified in its 

May 2000 Regulatory Determination 

such that EPA can continue to 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 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 

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 


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44Cited in ‘‘Technical Background Document for 

the Report to Congress on Remaining Wastes from 

Fossil Fuel Combustion: Industry Statistics and 

Waste Management Practices,’’ March 1999. 

45ACAA (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. 

46Estimated from the 2009 ACAA survey and 

Energy Information Administration 2005 F767 

Power Plant database. 

47Estimated 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.’’ 

48Technical Background Document, Ibid. 

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) 

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 increase in coalfired 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 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 

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 

groundwater 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 requirements 49 (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 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 


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51ASTSWMO Survey Conducted Feb.–Mar. 2009 

(Excel spreadsheet). 

52For 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. 

53Additionally, the July 2009 Petition pointed 

out deficiencies in state regulatory programs. 

Florida, if CCWs are disposed in an onsite 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 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 generation 51 (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 

engineer is necessary. With regard to 

liner requirements, 36% (15 of the 42 

states that responded to this question) 

do not have minimum 52 liner 

requirements for CCR landfills, while 

67% (24 of the 36 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 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. 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 


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54Chapter 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. 

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.) 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 coalfired 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: 

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 2010 risk 

assessment often exceeded EPA’s 

typical regulatory levels of concern. 

With very few exceptions, the risks 

modeled for the 2010 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 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 

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 


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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. 

57Waste and Materials-Flow Benchmark Sector 

Report: Beneficial Use of Secondary Materials— 

Coal Combustion Products, February 12, 2008. 

58Avoided 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 Involving 

Procurement of Cement or Concrete’’ available at 

http://www.epa.gov/osw/conserve/tools/epg/pdf/ 

rtc/report4-08.pdf. 

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. 

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 1×10¥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. 

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 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. 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. 

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, 


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59The RIA monetizes the annual tonnage of 

greenhouse gas effects associated with the CCR 

beneficial use life cycle 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). 

60These benefits estimates are further discussed 

in Chapter 5C of the RIA which is available in the 

docket for this proposal. 

61These instances are associated with 7 proven 

damage cases and 1 potential damage case. 

62http://www.epa.gov/reg3hwmd/CurrentIssues/

finalr-battlefield_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. 

beneficially using CCRs as a substitute 

for industrial raw materials contributes 

(a) $4.89 billion per year in energy 

savings, (b) $0.081 billion per year in 

water savings, (c) $0.239 billion per year 

in GHG 59 (i.e., carbon dioxide and 

methane) emissions reduction, and (d) 

$17.8 billion per year in other air 

pollution reduction. In addition, these 

applications also result in annual 

material and disposal cost savings of 

approximately $2.93 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, Virginia 61). 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 groundwater 

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 

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, groundwater 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 offsite 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-site samples. 

The lone off-site surface water sample 

had elevated levels of aluminum, iron, 

and manganese. In April 2010 EPA 

issued a Final Site Inspection Report 62

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. Groundwater 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 

groundwater 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. 

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 


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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. 

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.) 

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 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 

groundwater 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 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 2010 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 


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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 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. 

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. 

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, postclosure 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. 

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 


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64These 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. 

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 

impoundments). The state has 

expressed concern about having to 

revise its regulations again, and repermit 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 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 

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 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, 


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65Currently, 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. 

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. 

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 states 65 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 selfimplementing requirements that utilities 

and others managing regulated 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 coproposed 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 sites (including historical or 

legacy sites) would be considerably 

more expensive, especially where offsite 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. 

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 


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35160 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

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. 

68See http://www.epa.gov/osw/partnerships/ 

c2p2/cases/index.htm. 

69See http://www.epa.gov/osw/partnerships/ 

c2p2/pubs/fgd-fs.pdf. 

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 statespecific 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 

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, the Agency has gathered 

additional information. In addition to 

the evolving character/composition of 

CCRs due to electric utility 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 post-NOX

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); 

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 

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 


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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. 

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. 

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 site-specific 

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. 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. 

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 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 


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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. 

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 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 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: 

Æ 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 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. 

Æ 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 


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71See 40 CFR part 503. 

72According 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. 

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. 

Æ 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. 

Æ 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 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 solicits 

comments for 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

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 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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73Part 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) Web site 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. 

74See 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. 

75See, 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. 

76See 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. 

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 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 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

• 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: 

Æ Li L, Benson CH, Edil TB, 

Hatipoglu B. Groundwater impacts from 

coal ash in highways. Waste and 

Management Resources 

2006;159(WR4):151–63. 

Æ 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. 

Æ 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 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 

applications 75 and as fill material 76). 

Thus, while EPA does not want to 

negatively impact the legitimate 

beneficial use of CCRs unnecessarily, 

we are also aware of the need to fully 

consider the risks, management 

practices, state controls, research, and 

any other pertinent information. Thus, 

to help EPA determine whether to revise 


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77As part of the petition application, the 

petitioner would also need to demonstrate that the 

CCRs are being beneficially used. 

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-by-material 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, 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 noticeand-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 

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 nonnutritive 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 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 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 


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35166 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

78Energy Information Administration (http:// 

www.eia.doe.gov/cneaf/electricity/page/prim2/ 

toc2.html#non). 

79http://www.eia.doe.gov/cneaf/electricity/epa/ 

epaxlfile1_1.pdf. 

80http://www.eia.doe.gov/cneaf/electricity/epa/ 

epaxlfile4_1.pdf. 

81http://www.eia.doe.gov/cneaf/electricity/epa/ 

epaxlfile2_3.pdf. 

any excess may be sold in the wholesale 

market.78 According to the Energy 

Information Administration (EIA), CHPs 

produced 2.7% of the total electricity 

generated from coal combustion in 

2007 79 and burned 2.3% of the total 

coal consumed for electricity generation 

(24 million tons) 80 at 2,967 facilities.81

EPA estimates that CHPs generate 

approximately 3 million tons of CCRs 

annually or an average of just over 1,000 

tons per facility. This is in comparison 

to electric 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 co-managed together. As a 

result, the composition of any comanaged 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. 

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 coproposal 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 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 Web site 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 2010a, ‘‘Human 

and Ecological Risk Assessment of Coal 

Combustion Wastes’’ (April 2010) 

available in the docket for this proposed 

rule, and referred to hereafter as the 

2010 risk assessment; and (4) U.S. EPA 

2010b, ‘‘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 2010 risk 

assessment correlates closely with the 

listing criteria in EPA’s regulations. 

1. Criteria for Listing CCRs as a Special 

Waste and Background on 2010 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. 

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: 

Æ Toxicity (Sec. 261.11(a)(3)(i)) is 

considered in developing the health 

benchmarks used in the risk assessment 

modeling. 

Æ 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. 

Æ 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. 

Æ 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. 

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 


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Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35167 

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. 

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. 

(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 × 10¥5 (one in one 

hundred thousand) * * * (1) Waste streams 

for which the calculated high-end individual 

cancer-risk level is 1 × 10 ¥5 or higher 

generally are considered candidates for a list 

decision * * * (2) Waste streams for which 

these risks are calculated to be 1 × 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 high-end individual cancerrisk level is lower than 1 × 10¥5 generally are 

considered initial candidates for a no-list 

decision. (4) Waste streams for which these 

risks are calculated to be 1 × 10¥6 or lower, 

and lower than 1.0 HQs or EQs for any noncarcinogens, 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 × 10¥4 and 1 × 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 factors. b. The following factors 

will be considered in making listing 

determinations, particularly for wastes falling 

into the risk range between 1 × 10¥4 and 

1 × 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 co-occurrence; (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 2010 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 peer-reviewed 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 2010a). 

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 human health effects from breathing 

windblown particulate matter from CCR 

landfill disposal operations (the 1998 

risk assessment and U.S. EPA 2010b). 

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 2010 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35168 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

83See 40 CFR 300.430. 

84As 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. 

85Full 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. 

U.S. EPA (Environmental Protection Agency). 

2010. Human and Ecological Risk Assessment of 

Coal Combustion Wastes. Office of Resource 

Conservation and Recovery, Washington, DC. April. 

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

87http://cfpub.epa.gov/ncea/iris/index.cfm?

fuseaction=iris.showSubstanceList&list_

type=alpha&view=B. 

88http://toxnet.nlm.nih.gov/cgi-bin/sis/

htmlgen?HSDB. 

89ATSDR ToxFAQs. Available at: http:// 

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

90 Ibid. 

91 Ibid. 

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 × 10¥6, or one in one million 

‘‘excess’’ (above and beyond pre-existing 

risk) probability of developing cancer 

during a lifetime, to 1 × 10¥4 (one in ten 

thousand),83 with 1 × 10¥5 (one in one 

hundred 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. 

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 2010).85 These are 

discussed below with respect to the 

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) ToxFAQs,86 the EPA 

Integrated Risk Information System 

(IRIS),87 and the Toxicology Data 

Network (TOXNET) of the National 

Institutes of Health 88 are all sources of 

toxicological data on the Appendix VIII 

hazardous constituents found in CCRs. 

(The 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 noncarcinogens, 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 

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

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


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92 Ibid. 

93 Ibid. 

94 Ibid. 

95 Ibid. 

96 Ibid. 

97 Ibid. 

98 Ibid. 

99 Ibid. 

100Additional data on the waste characteristics of 

fly ash and FGD are presented in section I.F.2. 

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

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 coproposal. 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 

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) 

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 coalfired 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 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 


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101The 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. 

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. 

103 In other words, based on the results from this 

subset of the total number of Monte Carlo 

realizations. 

104Previous 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. 

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 × 

10¥4 to 1 × 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. For CCRs co-managed with 

coal refule, thallium is estimated at two 

times the reference dose in unlined 

landfills at the 90th percentile, but did 

not exceed the reference dose at the 0th 

percentile for any liner type. 

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 median time 

to peak well concentration as not 

estimated to sour 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 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-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 

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 


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105http://www.epa.gov/epawaste/nonhaz/ 

industrial/special/fossil/ngwrsk1.pdf. 

106See, 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). 

107Hopkins, 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. 

108Rowe, 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). 

109Benson, 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). 

110Coutant, 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). 

111Rowe C., Hopkins, W., and Coffman, V. 

‘‘Failed recruitment of southern toads (Bufo 

terrestris) in a trace-element contaminated breeding 

habitat: direct and indirect effects that may lead to 

a local population sink.’’ Arch. Environ. Contam. 

Toxicol. 2001:40(399–405). 

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. 

Particulate Matter Inhalation: Air 

emissions from CCR disposal and 

storage sites can originate from waste 

unloading operations, spreading and 

compacting operations, the resuspension 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 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 screeninglevel 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 (U.S. EPA 

2010b, 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, 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 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 

Rowe, et al. 2002 that illustrates the 

impact of CCRs on aquatic organisms in 

water bodies near CCR surface 


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112Lemly A., ‘‘Guidelines for evaluating selenium 

data from aquatic monitoring and assessment 

studies.’’ Environ. Monit. Assess. 1993:28(83–100). 

113Sorensen, 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). 

114Sorenson, E. ‘‘Selenium accumulation, 

reproductive status, and histopathological changes 

in environmentally exposed redear sunfish.’’ Arch 

Toxicol 1988:61(324–329). 

115Estimated from the 2009 ACAA survey and 

Energy Information Administration 2005 F767 

Power Plant database. 

116ACAA (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. 

117ACAA (American Coal Ash Association). 

2009. 2008 Coal Combustion Product (CCP) 

Production & Use Survey Results. http://www.acaausa.org/associations/8003/files/ 

2007_ACAA_CCP_Survey_Report_Form%2809-15- 

08%29.pdf. 

118The National Biennial RCRA Hazardous Waste 

Report (2007) available at http://www.epa.gov/ 

epawaste/inforesources/data/br07/national07.pdf. 

119While 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). 

120U.S. EPA 2007. ‘‘Introduction to the Hazard 

Ranking System (HRS).’’ Accessed at: http:// 

www.epa.gov/superfund/programs/npl_hrs/ 

hrsint.htm. 

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) NPDESpermitted discharges from 

impoundments; (2) overtopping of 

impoundments; and (3) groundwater-tosurface-water discharges (modeled in 

US EPA 2010a), as well as other, nonCCR-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 full-scale 

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) 

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

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 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 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. 


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121For specifics, please see http:// 

www.regulations.gov/fdmspublic/component/ 

main?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015. 

122Aluminum, boron, chloride, cobalt, copper, 

fluoride, iron, lithium, manganese, molybdenum, 

nitrate/nitrite, strontium, sulfate, vanadium, and 

zinc. 

123ATSDR CSEM. Available at: http:// 

www.atsdr.cdc.gov/csem/nitrate/ 

no3physiologic_effects.html. 

124This 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). 

125As 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. 

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. 

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 nonAppendix 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 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 on 

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 

1 × 10¥5) 124 and the non-cancer risk 

threshold (HQ greater than 1). 

VI. Summary of the Co-Proposed 

Subtitle C Regulations 

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). 

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 


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35174 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

126Section 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. 

127Replacement 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. 

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 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 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. 

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 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. 


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128EPA notes that the state of Maryland, in 

developing new standards for CCR disposal units 

under its subtitle D authorities, prescribes 

composite liners. 

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 × 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 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. 

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 U.S.C. 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 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 U.S.C. 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 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 μg/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 


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35176 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

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. 

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 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), 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 

humans 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. 

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. 

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 


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130The 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. 

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 

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 one-quarter 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 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, postplacement 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, after the 

effective date of its designation as a 

hazardous waste. See, e.g., 43 FR 58984 

(Dec. 18, 1978; 45 FR 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 on-site). 

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 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 


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131The 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. 

132Recognized 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. 

133 In developing cost estimates for closing its 

surface impoundments, TVA also assumed that the 

process would take place over ten years. 

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 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 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 × 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 U.S.C. 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. 

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 groundwater 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 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 wethandled 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. 


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134See 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’’. 

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, 

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 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 controls 134) 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 

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 technologybased 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 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 site-specific 

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, nomigration determinations are 

necessarily made on a case-by-case 

basis, and the burden is on petitioners 

to show that individual land disposal 

units satisfy the exacting standard. See 

40 CFR section 268.6. 


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35180 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

135EPA’s CCR constituent database which is 

available from the docket to this proposal. 

136Although 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). 

137EPA is also authorized to grant up to a oneyear 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 268.5. 

2. 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 

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 

data 135 indicate that a great portion (if 

not virtually all) dry CCRs meet these 

standards as generated. 

3. 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 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 nonwastewaters.) EPA believes dry disposal 

of the CCR solids will protect human 

health and the environment. As 

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 

short-term 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. 

4. 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

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 


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138EPA 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. 

139A 100-year flood means a flood that as a onepercent 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. 140A 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 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. 

the minimum technology requirements 

(or to 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, 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 

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

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 compliance 

monitoring program to determine 

whether the disposal units are in 


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141While 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. 

142Land 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). 

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. 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, runon), 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 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 similartype 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 manmade structures and have floors 

constructed from non-earthen materials, 

have walls, and have a roof suitable for 

diverting 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 postclosure 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 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 


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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 facilitywide 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 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, postclosure 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 off-site 

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 

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 twofold. 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 off-site (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 

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 

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 


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one-pound 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 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. 

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 ................................................................................................

Arsenic ...................................................................................................

Barium ....................................................................................................

Beryllium ................................................................................................

Cadmium ................................................................................................

Chromium ..............................................................................................

Lead .......................................................................................................

Mercury ..................................................................................................

Nickel .....................................................................................................

Selenium ................................................................................................

Silver ......................................................................................................

Thallium .................................................................................................

5000 (2270) 

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. 

3. Application of the CERCLA Mixture 

Rule to Listed CCR 

Although EPA is proposing a onepound RQ for CCRs listed as a special 

waste, we are also proposing to allow 

the owner or operator to use the 


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143EPA’s CCR constituent concentrations 

database is available in the docket to this notice. 

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 

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 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 

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 non-regulated 

beneficial uses, simply as a result of the 

economics of supply and demand. The 

economic driver—availability of a lowcost, functionally equivalent or often 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35186 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

144According to the most recently available data, 

in 2008 Horsehead produced about 300,000 tons 

per year of an Iron-Rich Material (IRM) as a byproduct 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 part 260, 39331–39353. 

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. 

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 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 significantly 

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.) 

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 coproduct 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 non-regulated 

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 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-ityourselfers 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35187 

146See, 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. 

147See http://www.nytimes.com/gwire/2020/01/ 

13/13greenwire-recycling-questions-complicate-epacoal-ash-de-90614.html. 

where it is collected. 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 standardssetting 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 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 U.S. 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 

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 coproposed 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 

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 K-listed 

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 often superior substitute 

for other raw materials—would 

continue to make CCRs an increasingly 

desirable product. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35188 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

148See section 3010 of RCRA. 

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, (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 

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 

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 listed 148 (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 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35189 

149See the definition for ‘‘hazardous waste’’ in 49 

CFR 171.8. 

150Section 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. 

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 nonauthorized States and in authorized 

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 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. 

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 offsite 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 

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 


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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 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 

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 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 non-hazardous 

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 nonwastewaters, 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. 

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 runon 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: 


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TABLE 9—CCR RULE REQUIREMENTS

Compliance date 

non authorized state 

Compliance date 

authorized state 

Remove Bevill Exclusion .................................... 6 months after promulgation of final rule ......... 6 months after State adopts 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. 

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. 

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 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.

2 years from the effective date of the final rule 2 years from the effective date of the State 

regulation. 

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. 

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 program (see also 40 CFR 

271.1). Therefore, authorized states may, 

but are not required to, adopt federal 

regulations, both HSWA and nonHSWA, 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 


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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 

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 nonHSWA 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. 

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 in 40 

CFR 271.1(j) would be modified to 

indicate that these requirements are selfimplementing. 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 nonhazardous 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 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 FR 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 


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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 

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 

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 coproposal 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 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 × 10–4 to 1 × 

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 postclosure care requirements (since the 

specific 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 


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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 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 

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. 

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 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 


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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 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 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. 

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, 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 


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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 

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. 

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 

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 coproposed 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. 

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 

misoperation 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 

misoperation will probably cause loss 

of human life; 

—Significant hazard potential surface 

impoundment which is a surface 

impoundment where failure or 

misoperation 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 misoperation 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 


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151The 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 

Continued 

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. 

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 

post-graduate 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, 

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 groundwater 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 coproposed 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 coproposed 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. 

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 to 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 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


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main text, EPA is proposing to maintain the existing 

criterion in 257, subpart A for floodplains. 

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 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 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 

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 

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 


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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. 

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 shortterm: 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 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. 

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 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 


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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 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 manmade 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 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 manmade 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 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. 

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 co-proposal 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 


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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. 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 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 humaninduced 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 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 

human-induced 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 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 


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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 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 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 coproposed 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 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 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 twofoot 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 


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152For the findings of the assessment, see: http:// 

www.epa.gov/epawaste/nonhaz/industrial/special/ 

fossil/surveys/index.htm#surveyresults. 

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 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 

wet-handled 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 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 coproposed 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 recordkeeping. 

—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 coproposal. 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. 

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 


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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 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). 

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. 

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. Groundwater 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 

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 


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153The 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 FR 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 FR 30964, 30975–77 

(June 12, 1995) (proposed rule). 

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 MSWLFs in the 40 CFR 

part 258 criteria, and for disposal units 

that may receive conditionally-exempt 

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. Specifically, like the coproposed Subtitle D regulations for CCR 

disposal, these requirements are 

structured to be largely selfimplementing. 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 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 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 


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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 

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. 

Groundwater 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. 

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 coproposed 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, 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 


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154 Guide for Industrial Waste Management, 

available at http://www.epa.gov/epawaste/nonhaz/ 

industrial/guide/index.htm. 

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. 

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 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 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 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 


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accordance with the requirements in 

paragraphs (c) and (d) or (e) of this 

section, as applicable, and based on 

recognized and generally 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. 

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 ‘‘cleanclosure’’ 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 selfimplementing 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 

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 longstanding 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. 

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 


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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. 

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 evapotranspiration 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 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 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 postclosure 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 

post-closure 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 

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, 


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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 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, 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 FR 

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 FR 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 

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 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 criteria 180 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. 

• 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 


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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 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 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 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 

coal-fired 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 million tons in companyowned 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 


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35212 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

155Note 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. 

156While 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. 

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 

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 postclosure 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) customtailored 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 newlyconstructed 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 staterequired 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 

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 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, 


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157Recent 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 selfgenerated 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 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. 

158EPA’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 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. 

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 ‘‘nonhazardous 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. 

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 periodof-analysis (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 

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. 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 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
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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/. 

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 double-counting 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 

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 survey 159

of 584 CCR impoundments operated by 

the electric utility industry. In 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 

high-risk 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 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 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35215 

160ATSDR Texas. Available at: http:// 

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

161Source: EPA Office of Research & 

Development report ‘‘Integrated Science Assessment 

for Particulate Matter: First External Review Draft,’’ 

EPA/600/R–08/139, 2008. 

162Source: U.S. EPA Office of Air & Radiation, 

Particulate Matter ‘‘Health and Environment’’ Web 

site at http://www.epa.gov/particles/health.html. 

163 Ibid; and also see http:// 

www.intheairwebreathe.com/html/ 

photo_gallery.html. 

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 

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 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 coproposed 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 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-ofanalysis 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 rates will increase as 

presented in the first scenario. 

Comments are requested on the impact 

of stigma on the beneficial use of CCRs. 

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35216 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

TABLE 10—COMPARISON OF REGULATORY BENEFITS TO COSTS—Continued 

[$Millions @ 2009$ prices and @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061] 

Subtitle C ‘‘Special Waste’’ Subtitle D Subtitle ‘‘D prime’’ 

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. 

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. 

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35217 

TABLE 11—COMPARISON OF REGULATORY BENEFITS TO COSTS UNDER SCENARIO #2—INDUCED BENEFICIAL USE

DECREASE—Continued 

[$Millions @ 2009$ prices @ 7% discount rate over 50-year future period-of-analysis 2012 to 2061] 

Subtitle C ‘‘Special Waste’’ Subtitle D Subtitle ‘‘D prime’’ 

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. 

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’’ 

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. 

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35218 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

164Recent 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). 

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. 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 lifecycle analyses of current types and 

quantities of CCR beneficial use in the 

U.S. 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 

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 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. 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 upperbound 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35219 

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 upperbound estimates reaching from $7,356 to 

$9,423 million for the 90th and 99th 

percentiles). And under the subtitle D 

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 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 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 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 

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 


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35220 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

165U.S. 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. 

166ATSDR Texas. Available at: http:// 

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

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. 

168http://www.epa.gov/particles/health.html. 

169 Ibid. 

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 

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 U.S. EPA 2010b, 

‘‘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 

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, 

facility-wide 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, wethandled 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—would be 

regulated under RCRA subtitle D. Wethandled CCR wastes would be regulated 

under the co-proposed subtitle C 

alternative described earlier in the 

preamble (see section VI), while dryhandled 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 wethandled CCRs, pursuant to RCRA 

3004(x), as laid out in the co-proposed 

subtitle C alternative. 

This approach would have many of 

the benefits of both of today’s coproposed 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. 

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 


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170Under 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. 

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 nonhazardous wastes. Such an approach 

could present some implementation 

issues, 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 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 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. 

• 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 


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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 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 1 × 10¥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 

• 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 site-specific basis, based 

on site specific risk assessments, taking 

into consideration the 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 

establish standards, such as maximum/ 

minimum thresholds, or rely on 

implementing states to impose CCR sitespecific limits based on front-end 

characterization that ensures individual 

beneficial uses remain protective? 

• 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 


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more specifics on the potential for 

procedural difficulties for state 

programs, and measures that EPA might 

adopt to try to mitigate these effects. 

• 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 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 coal-fired 

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. 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). 

• 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 wethandled 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 

• 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. 


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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. 

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. 

• 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 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 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 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 


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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–RCRA–2009–0640. 

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 June 21, 2010, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by July 21, 2010. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act 

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 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 no-SISNOSE 

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 

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 coproposal. Accordingly, EPA has 

prepared under section 202 of the 

UMRA a ‘‘Written 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35226 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

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. 

• 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. 

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 coproposing 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. 

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. 

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 

non-small municipal government 

jurisdictions, 7 state government 

jurisdictions, and one county 

government jurisdiction. In addition, 

the 48 state governments with RCRAauthorized 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. 

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 coVerDate Mar<15>2010 16:41 Jun 18, 2010 Jkt 220001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4702 E:\FR\FM\21JNP2.SGM 21JNP2

srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35227 

171The 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. 

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 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 

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 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 noncancer 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 downgradient 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 per-kilogram-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 

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 on-site (i.e., onsite 

landfills or onsite surface 


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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 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 stateby-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 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. 

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 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 

pass-thru 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 


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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 

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 low-income (i.e., below 

poverty line) populations in the United 

States. 

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 lowincome 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 lowincome 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 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 lowincome population percentages range 

from 7.3% (Maryland) to 19.3% (New 

Mexico), with a nationwide average of 

11.9%. 

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 

benchmarks. From this analysis, state 

ratios revealed that 24 of the 47 states 


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172Of 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. 

(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-by-plant basis 

and the nationwide aggregation basis, 

this approach does not include 

numerically weighting 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 lowincome populations. 

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 U.S. 

As of 2009, there are 19 commercial 

landfills with RCRA hazardous waste 

permits to receive and dispose of RCRAregulated 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 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. 

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 


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173 It is uncertain whether lead exceedances were 

due to CCRs or lead in plumbing and water holding 

tanks. 

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 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 http://

www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocumentDetail&d=EPAHQ-RCRA-2006-0796-0015. 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 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: 

Æ 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. 

Æ One other alleged case involves the 

failure of an old discharge pipe, and is 

clearly a regulated NPDES permit issue. 

Æ 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 

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 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 http:// 

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) 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 


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174Available at http://cityofchesapeake.net/

services/citizen_info/battlefieldgolfclub/

index.shtml. 

175http://www.epa.gov/reg3hwmd/CurrentIssues/

finalr-battlefield_golf_club_site/redacted_DTN

_0978_Final_Battlefield_SI_Report.pdf. 

176Soil screening levels (SSLs) for contaminants 

in soil are used to identify sites needing further 

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 sampling 174

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 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 Report 175 concluded that (i) 

Metal contaminants were below MCLs 

and Safe Drinking Water Act (SDWA) 

action levels in all residential wells that 

EPA tested; (2) the residential well data 

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 

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 http://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 available from the 

Pennsylvania Department of 

Environmental Protection (PADEP) at 

http://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 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. Additional 

information on the TVA Kingston 

incident is available at http:// 

www.epa.gov/region4/kingston/ 

index.html and http://www.tva.gov/ 

kingston/. 

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 


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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. 

177RALs are used to trigger time-critical removal 

actions. 

178http://www.tva.gov/emergency/wc_1-29- 

09.htm. 

179http://www.tva.gov/environment/reports/ 

widows_creek/wcf_gypsum_removal_fonsi.pdf. 

180The 24 cases identified in the Damage Cases 

Assessment report, plus Martin Creek, PA; 

Gambrills, MD; and Kingston/TVA, TN. 

181The 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. 

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, 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. 

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 downstream 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 http://www.epa.gov/region4/ 

stevenson/index.html. 

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 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 cases 180—17 cases 

of damage to ground water, and ten 

cases of damage to surface water, 

including ecological damages in seven 

of the ten. Sixteen of the 17 proven 

damages to ground water involved 

disposal in unlined units (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 


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previously studied—that is, from 

catastrophic releases due to the 

structural failure of CCR surface 

impoundments. 

TABLE OF EPA’S PROVEN DAMAGE CASES

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

Alliant Nelson Dewey 

Ash Landfill, WI.

Groundwater ..... Arsenic, Selenium, 

Sulfate, Boron, 

Flourine.

The LF 182 was originally 

constructed in the early 

1960’s as a series of settling basins for sluiced 

ash and permitted by the 

State in 1979.

Scientific—Although the boron standard 

was not health-based at the time of the 

exceedances, the boron levels reported 

for the facility would have exceeded the 

State’s recently promulgated healthbased ES for boron, and 

Administrative—The State required a 

groundwater investigation, and the facility took action to remediate groundwater 

contamination and prevent further contamination. 

Dairyland Power E.J. 

Stoneman, WI.

Groundwater ..... Cadmium, Chromium, 

Sulfate, Manganese, 

Iron, Zinc.

Unlined SI 183, on permeable substrate, that 

managed ash, 

demineralizer regenerant, 

and sand filter backwash 

between the 1950’and 

1987.

Scientific—Cadmium and chromium exceeded (health-based) primary MCLs, 

and contamination migrated to nearby, 

private drinking water wells, and 

Administrative—The State required closure of the facility. 

WEPCO Cedar Sauk 

Ash Landfill/WEPCO, 

WI.

Groundwater ..... Selenium, Boron, Sulfate.An abandoned sand and 

gravel pit that received 

CCW from the WEPCO 

Port Washington Power 

Plant from 1969 to 1979.

Scientific—Selenium in groundwater 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 healthbased ES for boron; and contamination 

from the facility appears to have migrated to off-site private wells, and 

Administrative—As a result of the various 

PAL 184 and ES185 exceedances, the 

State required a groundwater 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 the old 

quarry was impacted.

Scientific—The off-site exceedance of a 

health-based standard for selenium. 

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. 


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TABLE OF EPA’S PROVEN DAMAGE CASES—Continued 

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

Don Frame Trucking, 

Inc., Fly Ash Landfill, 

NY.

Groundwater ..... Lead, Manganese ...... This LF has been used for 

disposal of fly ash, 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.

Scientific—The lead levels found in downgradient wells exceed the 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 1950s and the 

mid-1970s. The Vitale 

Brothers, the site owners 

until 1980, accepted and 

disposed saltwaterquenched fly ash from 

New England Power 

Company along with other 

wastes.

This case was not counted as a proven 

damage case in the 1999 RTC 186 because it was a case of illegal disposal 

not representative of historical or current 

disposal practices. However, it otherwise meets the criteria for a proven 

damage 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 quarry pit with an 

elevated groundwater 

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.

Scientific—Observation of off-site 

exceedances of the State’s healthbased standard for lithium. 

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 

1950s and the late 1980s.

Scientific—Several constituents have exceeded their (health-based) primary 

MCLs in down-gradient groundwater, 

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. 


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TABLE OF EPA’S PROVEN DAMAGE CASES—Continued 

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

Great River Energy 

(GRE)—(formerly Cooperative Power Association/United 

Power) Coal Creek 

Station, ND.

Groundwater ..... Arsenic, Selenium ...... This site includes a number 

of evaporation ponds and 

SIs that were constructed 

in 1978 and 1979. Both 

the SIs and the evaporation ponds leaked significantly upon plant startup. 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.

Scientific—Arsenic and selenium 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. 

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.

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 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 comanaged 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, 

Thallium.

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 

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.

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, 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. 


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TABLE OF EPA’S PROVEN DAMAGE CASES—Continued 

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

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 in the 

fish in the lake, affecting 

reproduction and causing 

declines in fish populations in the late 1970s 

and 1980s.

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. 

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 Reservation, 

Oak Ridge, TN.

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 

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.

Scientific—Exceedances of primary and 

secondary MCLs were detected in onsite monitoring locations. 

Administrative—Federal RCRA and the 

Tennessee Department of Environmental Conservation (TDEC) requirements, including placement of 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 coalfired 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 present 

in the reservoir were entirely eliminated.

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. 


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35238 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

TABLE OF EPA’S PROVEN DAMAGE CASES—Continued 

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

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 Reservoir, TX.Surface Water ... Selenium .................... A power plant cooling 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.

Scientific—Observations of impacts 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 Lake Reservoir, TX.

Surface Water ... Selenium .................... This Lake was constructed 

in 1974 to 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.

Scientific—Evidence of adverse effects on 

wildlife—impacts on 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 coal-ash and contaminated water into the 

Oughoughton Creek and 

the Delaware 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.

Scientific—Exceedances of primary and 

secondary MCLs in on-site ground 

water, and exceedances of federal 

water quality criteria in off-site surface 

water, and 

Administrative—PA DEP issued a consent 

order for cleanup. 


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TABLE OF EPA’S PROVEN DAMAGE CASES—Continued 

Damage case, State Affected media Constituents of 

concern Brief description Basis for consideration as a proven damage case 

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 

line, and destroying or 

damaging scores of 

homes.

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 avoided in the lower section of the 

Emory River. 

Sampling results for the 

contaminated residential 

soil showed arsenic, cobalt, iron, and thallium 

levels above the residential Superfund soil screening levels.

Abbreviations key: 

1 LF—Landfill 

2 SI—Surface Impoundment 

3 PAL—Prevention Action Level 

4 ES—Enforcement Standard 

5 RTC—Report to Congress 

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 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 

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: May 4, 2010. 

Lisa P. Jackson, 

Administrator. 

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: 

Alternative 1: Co-Proposal Under 

Authority of Subtitle D 

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. Section 257.1 is amended by 

revising the last sentence of paragraph 

(a) introductory text, revising 

paragraphs (a)(1) and (a)(2), and adding 

new paragraph (c)(12) to read 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. 

(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. Section 257.2 is amended by 

adding definitions of ‘‘CCR landfill ’’ and 

‘‘CCR surface impoundment or 

impoundment’’ to read 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 

part, 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 


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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. 

* * * * * 

Subpart C—[Added and Reserved] 

4. Part 257 is amended by adding and 

reserving Subpart C. 

5. Part 257 is amended by adding 

Subpart D to part 257 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] 

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. 

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] 

Subpart D—Standards for the Receipt 

of Coal Combustion Residuals in 

Landfills and Surface Impoundments 

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. 

(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. As used in this 

subpart: 

Acre-foot means the volume of one 

acre of surface area to a depth of one 

foot. 

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. 

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 

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 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 

(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. 


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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 

mis-operation 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.) 

(1) High hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation will probably cause loss of 

human life. 

(2) Significant hazard potential 

surface impoundment means a surface 

impoundment where failure or misoperation results in no probable loss of 

human life, but can cause economic 

loss, environmental damage, disruption 

of lifeline facilities, or impact other 

concerns. 

(3) Low hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation 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. 

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 postgraduate 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 final 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 final 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. 

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. 

§§ 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. 

§ 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35242 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

(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 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. 

§ 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 

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 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 humaninduced 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. 

(4) Areas susceptible to mass 

movement means those areas of 


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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 maninduced 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 final 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. 

(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. 

(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 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 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 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) of this section 

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 71⁄2 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; 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 


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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, 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 [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. 

(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 [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¥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 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 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 [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 71⁄2 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; 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 


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Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35245 

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) 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. 

§§ 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. 

(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: 

(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 areawide 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35246 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

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 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. 

(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 final 

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. 

(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: 

(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 final 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 be 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 postclosure 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 

(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 


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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. 

(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 sitespecific 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. 

(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 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) 

for 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. 

(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. 


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(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. 

(2) If an individual well comparison 

procedure is used to compare an 

individual compliance well constituent 

concentration with background 

constituent concentrations or a groundwater 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. 

(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 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 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 


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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; 

(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 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 

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 

groundwater 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; 

(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 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35250 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

(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. 

(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. 

(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 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; 

(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 

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; 


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(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 

(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 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; 

(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 

(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). 


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(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 

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 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 

(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; 

(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. 


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Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35253 

(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 

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 postclosure 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 runoff 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 

§§ 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 postclosure 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 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 postclosure 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] 

6. Add Appendixes III and IV to Part 

257 to read as follows: 

Appendix III to Part 257—Constituents 

for Detection Monitoring 

Common Name 1

Boron 

Chloride 

Conductivity 

Fluoride 

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 Name 1

Aluminum 

Antimony 

Arsenic 

Barium 

Beryllium 

Boron 

Cadmium 

Chloride 

Chromium (total) 

Copper 

Fluoride 

Iron 

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
35254 Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 

Alternative 2: Co-Proposal Under 

Authority of Subtitle C 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

6a. 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. 

(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 

§ 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, 

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 the S001 

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) of this section; 

(3) Placed in minefilling operations; 

(4) Generated by facilities outside the 

electric power sector (i.e., not included 

in NAICS code 22112); 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. 

(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. 

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: 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 75, No. 118 / Monday, June 21, 2010 / Proposed Rules 35255 

§ 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. 

* * * * * 

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. 

(a) The regulations in this subpart 

apply to owners or operators of facilities 

that treat, store or dispose of EPA 

Special Waste Number S001. 

(b) 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. 

Facilities that have not met these 

closure requirements by the effective 

date of this regulation would be subject 

to the requirements in Parts 260 through 

268, and 270 through 272, of this 

chapter. 

§ 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 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. 

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. 

(1) High hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation will probably cause loss of 

human life. 

(2) Significant hazard potential 

surface impoundment means a surface 

impoundment where failure or misoperation results in no probable loss of 

human life, but can cause economic 

loss, environment damage, disruption of 

lifeline facilities, or impact other 

concerns. 

(3) Low hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation 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. 

(4) 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. 

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) 


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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. 

(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. 

(c) Plans required under paragraph (b) 

of this section shall be submitted in 

triplicate to the Regional Administrator 

on or before [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 [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 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. 

(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 


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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 [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. 

(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. 

(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 

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. 

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 

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 


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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 [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. 

§ 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. 

(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. 

* * * * * 

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 

§ 265.1300 Applicability. 

(a) 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. 

(b) 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 through 268, and 270 through 272, 

of this chapter. 

§ 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 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 


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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 

(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. 

(1) High hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation will probably cause loss of 

human life. 

(2) Significant hazard potential 

surface impoundment means a surface 

impoundment where failure or misoperation results in no probable loss of 

human life, but can cause economic 

loss, environment damage, disruption of 

lifeline facilities, or impact other 

concerns. 

(3) Low hazard potential surface 

impoundment means a surface 

impoundment where failure or misoperation 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. 

(4) 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. 

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. 

(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. 

(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 [date one year after the 

effective date of the final rule]. 


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(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 [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 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. 

(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. 

(g) Effective [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. 

(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. 


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(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 

(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. 

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 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. 

(3) For purposes 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 [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. 

(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 


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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 268—LAND DISPOSAL 

RESTRICTIONS 

18. The authority citation for part 268 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, 

and 6924. 

19. Section 268.2 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%. 

* * * * * 

20. 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. 

21. Section 268.21 is added to Subpart 

C to read as follows: 

§ 268.21 Waste specific prohibitions—Coal 

combustion residuals. 

(a) Effective [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 [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 section 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. In § 268.40, the table ‘‘Treatment 

Standards for Hazardous Wastes’’ 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] 

Waste code Waste description and treatment/ 

regulatory subcategory 1

Regulated hazardous 

constituent 

Wastewaters Nonwastewaters 

Common 

name CAS2 No. 

Concentration in 

mg/L 3, or technology code 4

Concentration in 

mg/kg 5 unless 

noted as ‘‘mg/L 

TCLP’’, or technology code 

* * * * * * * 

S001 .............. Coal combustion wastes generated by the electric 

power sector. For purposes of this listing, the electric power sector 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. 

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 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 cleanup that commenced prior to the effective date of 

this rule..

Antimony 

Arsenic ........

Barium .........

Beryllium .....

Cadmium .....

Chromium ...

Lead ............

Mercury .......

Nickel ..........

Selenium .....

Silver ...........

Thallium ......

7440–36–0 

7440–38–2 

7440–39–3 

7440–41–7 

7440–43–9 

7440–47–3 

7439–92–1 

7439–97–6 

7440–02–0 

7782–49–2 

7440–22–4 

7440–28–0 

TSS of 100mg/l 

and meet 

§ 268.48.

Meet § 268.48. 

* * * * * * * 

Footnotes to Treatment Standard Table 268.40 

1The 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. 


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4All 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. 5Except 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. 

* * * * * 

23. In § 268.42, Table 1 is amended by 

adding an entry for ‘‘RSLDS’’ to read as 

follows: 

§ 268.42 Treatment standards expressed 

as specified technologies. 

* * * * * 

TABLE 1—TECHNOLOGY CODES AND

DESCRIPTION OF TECHNOLOGYBASED 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 

24. The authority citation for part 271 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), and 

6926. 

25. 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. 

* * * * * 

(j) * * * 

TABLE 1—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 

Promulgation date Title of regulation Federal Register reference Effective date 

* * * * * * * 

[date of signature of final rule] ...... Listing of Special Waste S001 ...... [Federal Register page numbers 

for final rule].

[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 

* * * * * * * 

[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 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.

3001(b)(3)(A) and 

3004(g)(4)(C).

[date of publication date of final rule 

Federal Register page numbers] 

[FR page numbers]. 

PART 302—DESIGNATION, 

REPORTABLE QUANTITIES, AND 

NOTIFICATION 

26. 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. 

27. 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] 

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) 


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TABLE 302.4—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES—Continued 

[Note: All comments/notes are located at the end of this table] 

Hazardous substance CASRN Statutory 

code† 

RCRA 

waste No. 

Final RQ 

pounds 

(Kg) 

* * * * * * * 

† Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding Table 302.4. 

* * * * * 

fSee 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste. 

* * * * * 

28. Section 302.6 is amended by 

amending paragraph (b)(1)(iii), 

including the Table, 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: 

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 

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 

* * * * * 

[FR Doc. 2010–12286 Filed 6–18–10; 8:45 am] 

BILLING CODE 6560–50–P 


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