ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 261, 264, 268, 271 and 302 

[EPA-HQ-RCRA-2009- ; FRL- ] 

RIN - 

HAZARDOUS WASTE MANAGEMENT SYSTEM; IDENTIFICATION AND LISTING 

OF HAZARDOUS WASTE; DISPOSAL OF COAL COMBUSTION RESIDUALS FROM 

ELECTRIC UTILITIES AND CERCLA HAZARDOUS SUBSTANCE DESIGNATION 

AND REPORTABLE QUANTITITES 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection Agency (EPA or Agency) is proposing to revise its 

1993 and 2000 Bevill Regulatory Determinations regarding residuals generated from the 

combustion of coal at electric utilities and independent power producers, and to list such coal 

combustion residuals (CCRs) as hazardous wastes under Subtitle C of the Resource Conservation 

and Recovery Act (RCRA), when these materials are destined for disposal. However, this 

proposed rule will not address the placement of CCRs in minefills. The Agency will address the 

management of CCRs in minefills in a separate regulatory action. EPA is also not proposing to 

apply this listing or any requirements in this proposal to CCRs from state or federally required 

clean-ups commenced prior to the effective date of the final rule (e.g., prior to the effective date 

in the relevant authorized state). 

EPA is proposing land disposal restrictions and treatment standards for CCRs. For nonwastewaters, the proposed treatment standard is meeting the Universal Treatment Standards 

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(UTS). For wastewaters, EPA is proposing to require that wastewaters undergo solids removal 

so that the wastewaters contain no greater than 100 mg/l total suspended solids (TSS), and meet 

the UTS. For surface impoundments, EPA is proposing design requirements in addition to those 

already required under the part 264 and 265 regulations, specifically dam safety requirements to 

address the structural integrity of surface impoundments to prevent catastrophic releases. 

The effect of this listing would be to prohibit CCRs from land disposal unless and until CCRs 

meet the proposed treatment standards. In addition, CCRs destined for disposal would be subject 

to the cradle-to grave management standards under the rules implementing subtitle C of RCRA. 

The listing would also trigger emergency notification requirements for releases of hazardous 

substances to the environment under the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right 

to Know Act (EPCRA). EPA is also proposing Reportable Quantity (RQ) adjustments which 

would establish the level of release that triggers these notifications. 

When CCRs are beneficially used, they are often referred to as coal combustion products 

(CCPs). EPA is not proposing to change the May 2000 Regulatory Determination for CCPs that 

are being beneficially used, although it is clarifying this determination and seeking comment on 

potential refinements (see section III.B.2 for further details). These materials are currently 

exempt from the hazardous waste regulations under Section 3001(b)(3)(A) of RCRA, and remain 

so under this proposal. 

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The Agency solicits comment on all aspects of this proposal, including a number of alternative 

approaches for regulating CCRs that are discussed in this preamble, such as regulation of CCRs 

as solid wastes under subtitle D of RCRA. 

DATES: Comments must be received on or before [insert 90 days after publication in the 

Federal Register.] 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2009-

0640, by one of the following methods: 

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

• Email: Comments may be sent by electronic mail (e-mail) to rcra-docket@epa.gov, 

Attention Docket ID No. EPA–HQ–RCRA–2009–0640. In contrast to EPA’s electronic 

public docket, EPA’s e-mail system is not an ‘‘anonymous access’’ system. If you send 

an e-mail comment directly to the Docket without going through EPA’s electronic public 

docket, EPA’s e-mail system automatically captures your e-mail address. E-mail 

addresses that are automatically captured by EPA’s e-mail system are included as part of 

the comment that is placed in the official public docket, and made available in EPA’s 

electronic public docket. 

• Fax: Comments may be faxed to 202–566–0272; Attention Docket ID No. EPA-HQRCRA-2009-0640.

• Mail: Send your comments to the Hazardous Waste Management System; Identification 

and Listing of Hazardous Waste; Disposal of Coal Combustion Residuals From Electric 

Utilities and CERCLA Hazardous Substance Designation and Reportable Quantities 

Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640, Environmental 

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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 Hazardous Waste; Disposal of Coal 

Combustion Residuals From Electric Utilities and CERCLA Hazardous Substance 

Designation and Reportable Quantities Docket, Attention Docket ID No., EPA-HQRCRA-2009-0640, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 

Washington, DC 20460. Such deliveries are only accepted during the Docket’s normal 

hours of operation, and special arrangements should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-2009-0640. EPA's 

policy is that all comments received will be included in the public docket without change and 

may be made available online at www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA 

will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an e-mail comment directly to EPA without going through 

www.regulations.gov, your e-mail address will be automatically captured and included as part of 

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

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

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

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cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

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

information about EPA’s public docket, visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, 

go to the SUPPLEMENTARY INFORMATION section of this document. 

Docket: All documents in the docket are listed in the www.regulations.gov index. Although 

listed in the index, some information is not publicly available, e.g., CBI or other information 

whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 

will be publicly available only in hard copy. Publicly available docket materials are available 

either electronically in www.regulations.gov or in hard copy at the Hazardous Waste 

Management System; Identification and Listing of Hazardous Waste; Disposal of Coal 

Combustion Residuals From Electric Utilities and CERCLA Hazardous Substance Designation 

and Reportable Quantitites Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 

NW., Washington, DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal holidays. The Docket telephone number is (202) 566–

0270. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-

1744. 

FOR FURTHER INFORMATION CONTACT: Alexander Livnat, Office of Resource 

Conservation and Recovery, Environmental Protection Agency, 5304P; telephone number: (703) 

308-7251; fax number: (703) 605-0595; email address: livnat.alexander@epa.gov. For technical 

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information on the CERCLA aspects of this rule, contact Lynn Beasley, Office of Emergency 

Management, Regulation and Policy Development Division (5104A), U.S. Environmental 

Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460, [E-mail address 

and telephone number: Beasley.lynn@epa.gov (202-564-1965).] 

For more information on this rulemaking please visit 

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

SUPPLEMENTARY INFORMATION: 

A. Does this Action Apply to Me? 

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

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

placement of CCRs in minefills. The U. S. Department of Interior 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.1

 In addition, EPA is not proposing to 

affect the current status of coal combustion residuals that are beneficially used. (See section 

III.B.2 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. 

 

1

 National Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, 

Washington, D.C., 2006. 

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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 in Section I.C.2 of this preamble and paragraph (e) of § 261.32 Hazardous 

wastes from specific sources section of the proposed rule. 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 

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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 Solid Waste (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. 

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• If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced. 

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

• Explain your views as clearly as possible. 

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

3. Docket Copying Costs. The first 100-copied pages are free. Thereafter, the charge for 

making copies of Docket materials is 15 cents per page. 

C. Definitions, Abbreviations and Acronyms Used in this Notice. (Note: Any term used in 

this proposed rulemaking that is not defined in this section will either have its normal 

dictionary meaning, or is defined in 40 CFR 260.10.)

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

Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a 

functional benefit; replaces the use of an alternative material, conserving natural resources that 

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. 

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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 an engineered area where waste; e.g., coal combustion residuals, are placed 

into or on the land. For purposes of this proposed rule, landfills also include sand and gravel 

mines, pits, and/or quarries as defined in this section. 

CCR Surface Impoundment means any disposal unit or installation from which there is or may be 

placement of CCRs with the presence of free liquids, and which is not an injection well. 

Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and 

lagoons. CCR surface impoundments receive CCRs that have been sluiced (flushed or mixed 

with water to facilitate movement), or wastes from wet air pollution control devices. 

Coal Combustion Products (CCPs) consist of fly ash, bottom ash, boiler slag, and flue gas 

desulfurization materials that are beneficially used. 

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Coal Combustion Residuals (CCRs) consist of 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; 

i.e., facilities classified in NAICS code 22. 

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. 

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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.2 

 High hazard potential surface impoundment means a surface impoundment where failure or 

mis-operation will probably cause loss of human life. 

Significant hazard potential surface impoundment means a surface impoundment where 

failure or mis-operation results in no probable loss of human life, but can cause economic 

loss, environment damage, disruption of lifeline facilities, or impact other concerns. 

Low hazard potential surface impoundment means a surface impoundment where failure or 

mis-operation results in no probable loss of human life and low economic and/or 

environmental losses. Losses are principally limited to the surface impoundment owner’s 

property. Such dams must: 

1) exceed 25 feet in height3 AND 15 acre-feet storage or, 

2) exceed 50 acre-feet storage AND 6 feet in height. 

Less than low hazard potential surface impoundment means a surface impoundment where 

failure or misoperation results in no probable loss of human life or economic or 

environmental losses. 

 

2

 The Hazard Potential Classification System for Dams was developed by the Interagency Committee for Dam 

Safety (ICODS). 

3

 Dam height is measured from the lowest point on the crest of the dam or berm to the lowest point on the natural 

undisturbed ground or toe of the dam. 

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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. 

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

drinking water under the safe drinking water act. 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. 

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. 

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, 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. 

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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 mine, pit, and/ or quarry means an excavation for the commercial extraction of 

aggregate for use in construction projects. 

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. 

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 

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runoff from coal storage piles at the facility, waste coal or coal mill rejects that are not of 

sufficient quality to burn as a fuel, and wastes from cleaning boilers used to generate steam. 

CCPs Coal Combustion Products 

CCRs Coal Combustion Residuals 

CFR Code of Federal Regulations 

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act 

EPA U.S. Environmental Protection Agency 

EPCRA Emergency Planning and Community Right-to-Know Act 

MCL Maximum Contaminant Level 

mg/L milligrams per liter 

NPDES National Pollutant Discharge Elimination System 

NRC National Response Center 

PDWS Primary Drinking Water Standard 

OSM Office of Surface Mining Reclamation and Enforcement, U.S. Department of the 

Interior 

RCRA Resource Conservation and Recovery Act (42 USCA 6901) 

RQ Reportable Quantity 

SDWS Secondary Drinking Water Standard 

SMCRA Surface Mining Control and Reclamation Act 

μg/L micrograms per liter 

WQC Federal water quality criteria 

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

I. Background.

A. What is the Statutory Authority for this Action?

B. Identification of Hazardous Wastes Under RCRA

C. EPA Regulation of RCRA Hazardous Wastes.

D. Regulation of Solid Wastes That Are Not RCRA Hazardous Wastes

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. New Developments Since the May 2000 Regulatory Determination.

H. Identification and Listing of Hazardous Wastes Under RCRA.

I. EPA Regulation of RCRA Hazardous Wastes.

J. Regulation of Solid Wastes That Are Not RCRA Hazardous Wastes

K. Are there Currently any Federal Regulations or Standards for the Placement of CCRs in 

Landfills and Surface Impoundments?

II. New Information on Risks and Damage Cases.

A. CCR Risk Assessment.

B. Damage Cases

III. Proposed Removal of the Bevill Exemption, Listing, and Special Requirements for 

Disposal of CCRs from Electric Utilities.

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A. What is the Basis for Our Proposal to Remove CCRs from the Bevill Exemption for 

Disposal of CCRs from Electric Utilities in Surface Impoundments and Landfills?

1. RCRA Section 8002(n) Study Factors.

2. Preliminary conclusions

B. How is EPA Addressing the Decisions in the 1993 and 2000 Regulatory Determinations?

1. EPA is Proposing to Reverse the Regulatory Determinations with Regard to Disposal of 

CCRs.

2. EPA Is Not Proposing to Reverse the May 2000 Regulatory Determination Regarding 

Beneficial Use.

3. Placement of CCRs in Minefilling Operations

4. EPA is Not Proposing to Revise the Bevill Determination for CCRs Generated by NonUtilities.

5. EPA is Not Proposing to Apply the New Requirements to CCRs from Certain On-Going 

State or Federally Required Cleanups. 

D. Proposed Listing of CCRs as a Hazardous Waste.

E. What is the Basis for Listing CCRs as a Hazardous Waste?

1. Criteria for Listing CCR as Hazardous Waste and Background on 2009 Risk 

Assessment.

i. Background on EPA’s 2009 Risk Assessment.

ii. Consideration of Individual Listing Criteria.

IV. Summary of the Proposal and Other Options Considered.

A. What is EPA Proposing to Regulate?

B. What Approaches Did EPA Consider for Regulating CCRs?

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1. Subtitle C Approach (Proposed Approach)

2. Subtitle D Approach

3. Combination Subtitle C & D Approach

V. Proposed Special Requirements for CCRs

A. Modification of Technical Standards Under 3004(x)

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

Liner and Leak Detection Requirements.

B. Fugitive Dust Controls.

C. Special Requirements for Stability of CCR Surface Impoundments.

D. Wet-Handling of CCRs and Interim Status for Surface Impoundments.

E. Proposed Land Disposal Restrictions.

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

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

3. Effective Date of the LDR Prohibitions.

F. CERCLA Designation and Reportable Quantities. 

1. Reporting Requirements

2. Application of the CERCLA Mixture Rule to Listed CCR.

3. Correction of Table of Maximum Observed Constituent Concentrations Identified by 

EPA.

VI. Is the EPA Soliciting Comments on Specific Issues?

VII. Impacts of the Proposed Rule.

A. What are the Potential Environmental and Public Health Impacts of the Proposed Rule?

B. What are the Potential Economic Impacts of the Proposed Rule?

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VIII. How Will the Proposed 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.

IX. State Authorization

A. Applicability of the Rule in Authorized States

B. Effect on State Authorization

X. 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.

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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. What is the Statutory Authority for this Action? 

These regulations are being proposed under the authority of sections 2002(a), 3001 and 3004 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. 6912(a), 6921 and 6924. These statutes, combined, are commonly referred 

to as “RCRA.” 

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 

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wastes must be based on the listing criteria established pursuant to section 3001(a), and codified 

at 40 C.F.R. 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 as hazardous wastes (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 3004(c) and (d) prohibit free liquids in hazardous waste 

landfills, and prohibit land disposal of specified wastes (42 U.S.C. 6924(c),(d)). 

RCRA section 3004(x) allows the Administrator to tailor certain specified hazardous waste 

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 

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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)). 

B. Identification of Hazardous Wastes Under RCRA 

EPA's regulations establish two ways of identifying solid wastes as hazardous under RCRA. A 

waste may be considered hazardous if it exhibits certain hazardous properties (“characteristics”) 

or if it is included on a specific list of wastes EPA has determined are hazardous (“listing” a 

waste as hazardous) because we found them to pose substantial present or potential hazards to 

human health or the environment. 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). As a generator, you must determine whether or not a 

waste exhibits any of these characteristics by testing the waste, or by using your knowledge of 

the process that generated the waste (see §262.11(c)). While you are not required to sample your 

waste, you will be subject to enforcement actions if you are found to be improperly managing 

materials that are characteristic hazardous waste. 

EPA may also conduct a more specific assessment of a waste or category of wastes and “list” 

them if they meet criteria set out in 40 CFR 261.11. Under the third criterion, at 40 CFR 

261.11(a)(3), we may decide to list a waste as hazardous 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, 

DRAFT DO NOT CITE OR QUOTE 22 of 324 10/16/09 
transported, or disposed of, or otherwise managed.” We place a chemical on the list of 

hazardous constituents on Appendix VIII only if scientific studies have shown a chemical has 

toxic effects on humans or other life forms. When listing a waste, we also add the hazardous 

constituents that serve as the basis for listing the waste to 40 CFR part 261, Appendix VII. 

The regulations at 40 CFR 261.31 through 261.33 contain the various hazardous wastes that EPA 

has listed to date. Section 261.31 lists wastes generated from non-specific sources, known as “Fwastes,” and contains 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 hazardous 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. 

C. EPA Regulation of RCRA Hazardous Wastes. 

If a waste exhibits a hazardous characteristic or is listed as a hazardous waste then it is subject to 

federal requirements under RCRA. These regulations affect persons who generate, transport, 

treat, store or dispose of such waste. Facilities—that is persons who treat, store or dispose of 

such waste that must meet the hazardous waste management requirements, including the need to 

obtain permits to operate, commonly are referred to as “subtitle C” facilities. Subtitle C is 

Congress’ original statutory designation for that part of RCRA that directs EPA to issue 

regulations for hazardous wastes as may be necessary to protect human health or the 

DRAFT DO NOT CITE OR QUOTE 23 of 324 10/16/09 
environment. EPA standards and procedural regulations implementing subtitle C are found 

generally at 40 CFR parts 260 through 273. 

All RCRA hazardous wastes are also hazardous substances under 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 exhibit a RCRA hazardous characteristic. Table 302.4 at 40 

CFR 302.4 lists the CERCLA hazardous substances along with their reportable quantities (RQs). 

Anyone spilling or releasing a hazardous substance at or above its RQ must report the release to 

the National Response Center, as required in CERCLA Section 103. In addition, Section 304 of 

the Emergency Planning and Community Right-to-Know Act (EPCRA) requires facilities to 

report the release of a CERCLA hazardous substance at or above its RQ to State and local 

authorities. Today's rule proposes to establish RQs for the newly listed wastes. 

D. Regulation of Solid Wastes That Are Not RCRA Hazardous Wastes 

If your waste is a solid waste, but is not, or is determined not to be a listed and/or characteristic 

hazardous waste, then you may dispose it at subtitle D facilities. These facilities are approved by 

state and local governments under state and local laws and generally impose less stringent 

requirements on the disposal of wastes. Subtitle D is the statutory designation for that part of 

RCRA that deals with disposal of solid waste that is not RCRA hazardous waste. EPA 

regulations affecting subtitle D facilities are found at 40 CFR Parts 240 through 247, and 255 

through 258. EPA regulations for subtitle D landfills that accept municipal solid waste 

(“municipal solid waste landfills”) are at 40 CFR Part 258. 

DRAFT DO NOT CITE OR QUOTE 24 of 324 10/16/09 
For implementation of EPA’s subtitle D disposal regulations, EPA does not have authority to 

issue permits but can take enforcement actions where there is an imminent and substantial 

endangerment. Subtitle D prohibits disposal in violation of EPA’s disposal regulations, and this 

prohibition can be enforced through citizen suits under section 7002 of RCRA immediately on 

promulgation. In contrast, EPA’s subtitle C regulations require time for states to adopt and begin 

implementing substantially equivalent regulations under their state laws. EPA’s subtitle D 

disposal regulations are recommended to states for adoption into their permitting and 

enforcement programs under state laws. While most states operate permitting programs for solid 

waste disposal facilities, RCRA does not require state permitting programs, with the exception of 

municipal solid waste landfills which may receive household hazardous waste or small quantity 

generator hazardous waste. 

E. Summary of the 1993 and 2000 Regulatory Determinations.

Section 3001(b)(3)(A)(i) of RCRA (known as the Bevill exclusion or exemption) excluded 

certain large-volume wastes generated primarily from the combustion of coal or other fossil fuels 

from being regulated as hazardous waste under subtitle C of RCRA, pending completion of a 

Report to Congress required by Section 8002(n) of RCRA and a determination by the EPA 

Administrator either to promulgate regulations under RCRA subtitle C or to determine that such 

regulations are unwarranted. 

DRAFT DO NOT CITE OR QUOTE 25 of 324 10/16/09 
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 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), 

DRAFT DO NOT CITE OR QUOTE 26 of 324 10/16/09 
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 III. B). 

On May 22, 2000, EPA published its Regulatory Determination on wastes from the combustion 

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

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

remained exempt based on the 1993 Regulatory Determination. The high volume wastes simply 

dominate the waste characteristics even when co-managed with other wastes, and thus the May 

2000 Regulatory Determination addressed not only the remaining wastes, but effectively 

reopened the decision on CCRs that went to monofills. 

EPA concluded that these wastes could pose risks to human health if not properly managed; 

although the risk information was limited (there were damage cases, but EPA did not believe its 

DRAFT DO NOT CITE OR QUOTE 27 of 324 10/16/09 
quantitative risk modeling was sufficient to rely on). EPA also 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. For a further discussion of the bases for the 

Agency’s determination, see section III below. 

F. What Are CCRs? 

CCRs are residuals from the combustion of coal for the purpose of generating power. 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). 

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 and 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, is quite angular, and has a porous surface structure. 

DRAFT DO NOT CITE OR QUOTE 28 of 324 10/16/09 
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 from a lime-based reagent, wet scrubbing process is predominantly 

calcium sulfite, while the wet sludge from a limestone-based reagent, wet scrubbing process 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 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 of CCR 

DRAFT DO NOT CITE OR QUOTE 29 of 324 10/16/09 
constituents from a number of sources. The CCR constituent database (available in the docket to 

this proposal) contains data on more than 40 constituents. 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, without a corresponding revision of the toxicity 

characteristic (TC). This indicates that, while arsenic levels are typically well below the TC, 

risks from release in landfills and impoundments may still be high. Also, as discussed below, a 

considerable body of evidence has emerged indicating that the toxicity characteristic leaching 

procedure (TCLP) alone is not a good predictor of the mobility of metals in CCRs under a 

variety of different conditions. 

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 [e.g., Clean Air Interstate Rule (CAIR)], state regulations, legal consent 

DRAFT DO NOT CITE OR QUOTE 30 of 324 10/16/09 
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 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 (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. 

In cooperation with Electric Power Research Institute (EPRI) and the utility industry, EPA 

obtained 73 different CCRs from 31 coal-fired boilers spanning a range of coal types and air 

pollution control configurations. Samples of CCRs were collected to evaluate differences in air 

pollution control, such as addition of post-combustion NOx controls (i.e., selective catalytic 

reduction), FGD scrubbers, and enhanced sorbents for mercury capture. A series of reports have 

been (or are being) developed to document the results from the ORD research: The first report 

(Characterization of Mercury-Enriched Coal Combustion Residuals from Electric Utilities Using 

Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, Feb. 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, 

DRAFT DO NOT CITE OR QUOTE 31 of 324 10/16/09 
http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf) was developed to evaluate residues 

from the expanded use of wet scrubbers. 

A third report (Characterization of Coal Combustion Residuals from Electric Utilities Using 

Multi-Pollutant Control Technology – Leaching and Characterization Data, EPA-600/R09/XXX) will update, once the report has been released as final, and provide data on an 

additional 40 samples to cover the range of coal types and air pollution control configurations 

that were 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 1) and 20 FGD gypsum samples (Table 2). The report provides analysis of other 

types of CCRs (i.e., non-gypsum scrubber residues (primarily scrubber sludge containing 

calcium sulfite), blended CCRs (non-gypsum scrubber residues, fly ash, and lime), and 

wastewater treatment filter cake). For each of the metals that are reported (Sb, As, Ba, B, Cd Cr, 

Co, Hg, Pb, Mo, Se, and Tl) from the leaching test results, “box and whisker” plots have been 

developed comparing the different materials and providing comparison to field leachate data. 

An initial focus of the ORD research was to identify appropriate leach testing methods to assess 

constituent release potential under known or expected CCR management conditions (beneficial 

use or disposal). The EPA’s Science Advisory Board and the National Academy of Sciences 

have in the past raised concerns over the use of single-point pH tests that do not reflect the range 

DRAFT DO NOT CITE OR QUOTE 32 of 324 10/16/09 
of actual conditions under which wastes are plausibly managed.4

 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 method5 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 this leach testing approach has been used to evaluate CCR leaching potential in 

EPA/ORD’s studies, these and similar methods can and have been used to evaluate the leaching 

behaviour of other materials as well.6 Because of their general utility, the methods have been 

drafted into the appropriate format and are being evaluated for inclusion in EPA’s waste 

analytical methods guidance, SW-8467

 

4

 National Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, 

Washington, D.C., 2006. 

5

 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. 

6

 See 65 FR 67100 (November 8, 2000) for a discussion of EPA’s use of multi-pH leach testing in support of listing 

a mercury-bearing sludge from VCM-A production. 

7

 Five different methods have been developed for use depending upon the information needed and the waste form. 

1. Draft Method 1313 – Liquid-Solid Partitioning as a Function of Eluate pH using a Parallel Batch Extraction 

Test 

DRAFT DO NOT CITE OR QUOTE 33 of 324 10/16/09 
(http://www.epa.gov/osw/hazard/testmethods/sw846/index.htm). A background information 

document on the derivation and application of the methods has been developed (will cite 

reference which is to be available prior to docket closure), and because of the amount of data 

generated by this testing, an electronic spreadsheet for each method has been developed that 

provides for data management, including data entry, analysis, and viewing. 

The test methods were developed to identify differences in the constituent leaching rate resulting 

from the form of the tested material, as well as the effects of pH and the liquid/solid ratio. Fine 

grained materials (e.g., particle sizes of 2 mm or less) will have greater contact with leaching 

solutions (in a lab test) or rainfall (in the environment) than will solid materials such as concrete 

or CCRs that are pozzolanic when exposed to water. In applying these methods to CCRs or 

other materials, batch tests that are designed to reach equilibrium are used with fine-grained or 

particle-size reduced materials. For solid materials tests 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 

 2. Draft Method 1314 – Liquid-Solid Partitioning as a Function of Liquid-Solid Ratio Using an Up-flow 

Column Test 

3. Draft Method 1315 - Mass Transfer in Monolithic or Compacted Granular Materials Using a Semi-dynamic 

Tank Leach Test 

4. Draft Method 1316 - Liquid-Solid Partitioning as a Function of Liquid-Solid Ratio Using a Parallel Batch 

Test 

5. Draft Method 1317 - Concise Test for Determining Consistency in Leaching Behavior 

DRAFT DO NOT CITE OR QUOTE 34 of 324 10/16/09 
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. 

For this research, the 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 EPA8 and EPRI9 studies were used 

to establish this range. From this dataset 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 

 

8

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

9

 EPRI (2006) Characterization of Field Leachates at Coal Combustion Product Management Sites: Arsenic, 

Selenium, Chromium, and Mercury Speciation, EPRI Report Number 1012578. EPRI, Palo Alto, CA and U.S. Dept 

of Energy, Pittsburgh, PA. 

DRAFT DO NOT CITE OR QUOTE 35 of 324 10/16/09 
plausible management conditions (with regard to pH) for CCRs. 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 are not within the pH range of 5.4 and 12.4. 

In Tables 1 and 2, 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., TC10, MCL11, and 

DWEL12) 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. Thus, comparisons with regulatory health 

 

10 MCL is the maximum concentration limit for drinking water. 

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

12 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 risk manager with evaluation on non-cancer endpoints, but infers that carcinogenicity should be considered 

the toxic effect of greatest concern (http://www.epa.gov/safewater/pubs/gloss2.html#D).

DRAFT DO NOT CITE OR QUOTE 36 of 324 10/16/09 
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 1 and 2) show a range of total 

constituent concentration values, but a much broader range (by orders of magnitude) of 

leaching values, in nearly all cases. 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 conclusions13, , 14 15 that the rate of constituent leaching cannot be reliably 

estimated based on total constituent concentration alone. 

 

13 Senior, C; Thorneloe, S.; Khan, B.; Goss, D. Fate of Mercury Collected from Air Pollution Control Devices; EM, 

July 2009, 15-21. 

14 U.S. EPA, Characterization of Mercury-Enriched Coal Combustion Residuals from Electric Utilities Using 

Enhanced Sorbents for Mercury Control, EPA-600/R-06/008, Feb. 2006; 

http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf 

DRAFT DO NOT CITE OR QUOTE 37 of 324 10/16/09 
(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 Table1), on the leach results from evaluation of 34 fly 

ashes across the plausible management pH range of 5.4 to 12.4, 

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

TC values for As, Ba, Cr, and Se (indicated by the shading in the table). 

(5) Based on the data (summarized in Table 2), on the leach results from evaluation of 20 

FGD gypsums across the plausible management pH range of 5.4 to 12.4, 

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

TC value for Se. 

(6) The variability in total content and the leaching of constituents within a material type 

(e.g., fly ash, gypsum) is such that, while leaching of many samples exceeds one or more 

of the available health indicators, many of the other samples within the material type may 

be lower than the available regulatory or health indicators. Additional or more refined 

assessment of the dataset may allow some distinctions regarding release potential to be 

made among particular sources of some CCRs, which may be particularly useful in 

evaluating CCRs in reuse applications. 

 15 U.S. EPA, Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for MultiPollutant Control; EPA-600/R-08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf 

DRAFT DO NOT CITE OR QUOTE 38 of 324 10/16/09 
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 

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 modeling16 (Sanchez and Kosson, 2005). 

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. 

Therefore, we intend to make the full dataset available as a database, in the form of a leaching 

assessment tool, to provide easier access to the leach data for a range of CCRs and potential field 

conditions. The data management tool can also be used for data storage and viewing when using 

the new SW-846 leaching test methods. The leaching assessment tool data will provide more 

detailed leach data as input to more refined assessments of CCRs and support environmental 

decision-making that will ensure protection of human health and the environment. 

Table 1. Preliminary Leach Results for 5.4<pH< 12.4 and at “own pH” from Evaluation of 

Thirty-Four Fly Ashes. 

 

Hg Sb As Ba B Cd Cr Co Pb Mo Se TI

 

16 Sanchez, F., and D. S. Kosson, 2005. Probabilistic approach for estimating the release of contaminants under field 

management scenarios. Waste Management 25(5), 643-472 (2005). 

DRAFT DO NOT CITE OR QUOTE 39 of 324 10/16/09 
Total in 

Material 

(mg/kg) 

0.01 – 

1.5 

3 - 14 17 - 

510 

590 – 

7,000 

NA 0.3 – 

1.8 

66 - 

210 

16 - 

66 

24 - 

120 

6.9 - 77 1.1 - 

210 

0.72 

- 13 

Leach 

results 

(ug/L) 

<0.01-

0.50 

<0.3 – 

11,000 

0.32 – 

18,000 

50 – 

670,000

210 – 

270,000

<0.1 - 

320 

<0.3 –

7,300 

<0.3- 

500 

<0.2 - 

35 

<0.5 – 

130,000

5.7 – 

29,000

<0.3 

- 790

TC (ug/L) 200 - 5,000 100,000 - 1,000 5,000 - 5,000 - 1,000 - 

MCL 

(ug/L) 

2 6 10 2,000 7,000 

DWEL 

5 100 - 15 200 

DWEL 

50 2 

Note: The dark shading is used to indicate where there could be a potential concern for a metal 

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

the TC. Note that MCL and DWEL values represent well concentrations; leachate dilution and 

attenuation processes that would occur in groundwater before leachate reaches a well are not 

accounted for, and so MCL and DWEL values cannot be directly compared with leachate values. 

Table 2. Preliminary Leach Results for 5.4<pH< 12.4 and at “own pH” from Evaluation of 

Twenty FGD Gypsums. 

 

Hg Sb As Ba B Cd Cr Co Pb Mo Se TI

Total in 

Material 

(mg/kg) 

0.01 – 

3.1 

0.14 

– 

8.2 

0.95 

- 10 

2.4 - 67 NA 0.11 –

0.61 

1.2 – 

20 

0.77 

– 4.4

0.51 

- 12 

1.1 - 

12 

2.3 - 46 0.24 – 

2.3 

DRAFT DO NOT CITE OR QUOTE 40 of 324 10/16/09 
Leach 

results 

(ug/L) 

<0.01-

0.66 

<0.3 

- 

330 

0.32 

– 

1,200 

30 - 

560 

12 – 

270,000

<0.2 - 

370 

<0.3 

– 240

<0.2 

– 

1,100

<0.2 

- 12 

0.36 – 

1,900 

3.6 – 

16,000 

<0.3 – 

1,100 

TC (ug/L) 200 - 5,000 100,000 - 1,000 5,000 - 5,000- 1,000 -

MCL 

(ug/L) 

2 6 10 2,000 7,000 

DWEL

5 100 - 15 200 

DWEL 

50 2 

Note: The dark shading is used to indicate where there could be a potential concern for a metal 

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

the TC. Note that MCL and DWEL values represent well concentrations; 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. 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, new risk modeling, updated information 

on 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 

DRAFT DO NOT CITE OR QUOTE 41 of 324 10/16/09 
49714 (http://www.epa.gov/fedrgstr/EPA-WASTE/2007/August/Day-29/f17138.pdf). Following 

is a brief summary of the new information. 

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

proven damages17 and 36 cases of potential damages resulting from the disposal of CCRs. The 

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

damages so, in total, EPA has documented 27 cases of proven damages and 40 cases of potential 

damages resulting from the disposal of CCRs. See section II and Appendix I of 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 CCR, 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 

and was made available in the 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 since the practices reflected in 

 

17 As discussed later in the preamble, 11 of these documented cases of damage were to human health and the 

environment, while four of these cases were cases of ecological damage, one of which has now been reclassified as a 

potential damage case. 

DRAFT DO NOT CITE OR QUOTE 42 of 324 10/16/09 
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.” 

In February 2004, 125 environmental and citizens groups petitioned the EPA Administrator for a

rulemaking prohibiting the disposal of coal power plant wastes in groundwater and surface water 

until such time as EPA promulgates federally enforceable regulations pursuant to RCRA. A 

copy of the petition is available at 

http://www.regulations.gov/fdmspublic/component/main?/main=DocumentDetail&o=09000064

801cf8d1. In 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.18 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 

 

18 This rulemaking petition was filed by: Earthjustice; the Sierra Club; the Environmental Integrity Project; the 

Natural Resources Defense Council; the Southern Environmental Law Center; and Kentucky Resources Council. 

DRAFT DO NOT CITE OR QUOTE 43 of 324 10/16/09 
caused by mismanagement.” A copy of the petition is available in the docket to this proposal. 

With this proposed rule EPA is proposing to grant these petitions in part (regulating CCRs under 

the subtitle C hazardous waste regulations when disposed of) and deny in part (keeping the 

Bevill Determination in place for CCRs that are benefically used). 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 October 2006, the utility industry through their trade association, the Utility Solid Waste 

Activities Group (USWAG) submitted to EPA a “Utility Industry Action Plan for the 

Management of Coal Combustion Products.” The plan outlines the utility industry’s 

commitment to adopt groundwater performance standards and monitoring, conduct risk 

assessments prior to placement of CCRs in sand and gravel pits, and to consider dry-handling 

prior to constructing new disposal units. 

In January 2007, environmental and citizens groups submitted to EPA a “Proposal for the 

Federal Regulation of Coal Combustion Waste.” The proposal provides a framework for 

comprehensive regulation under subtitle D or RCRA for waste disposed of in landfills and 

surface impoundments generated by coal-fired power plants. 

In August 2007, EPA published a NODA (72 FR 49714, http://www.epa.gov/fedrgstr/EPAWASTE/2007/August/Day-29/f17138.htm) which made public, and sought comment on, the new 

DRAFT DO NOT CITE OR QUOTE 44 of 324 10/16/09 
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 

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 

groups proposing federal regulation under subtitle D of RCRA for CCRs generated by U.S. coalfired 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 

DRAFT DO NOT CITE OR QUOTE 45 of 324 10/16/09 
(ECOS) issued a resolution that states already have regulations in place that apply to CCRs, and 

a federal regulation is not necessary. Comments on the NODA are available in the docket to the 

NODA at 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 review 

was conducted by a team of five expert peer reviewers. 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 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) conducted a peer review and revised its 

risk assessment; (4) received an 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. 

H. Identification and Listing of Hazardous Wastes Under RCRA. 

DRAFT DO NOT CITE OR QUOTE 46 of 324 10/16/09 
RCRA subtitle C establishes two means by which wastes become hazardous and thereby subject 

to subtitle C regulation: identification and listing. RCRA section 3001. A waste is identified as 

hazardous, if it exhibits one of four properties (“characteristics”): ignitability, corrosivity, 

reactivity, and toxicity (see 40 CFR 261.21 – 261.24). As a generator, you must determine 

whether or not a waste exhibits any of these characteristics by testing the waste, or by using your 

knowledge of the process that generated the waste (see §262.11(c)). Wastes are listed as 

hazardous if EPA specifically includes it on a specific list of wastes based on the criteria set out 

in 40 CFR 261.11. Of particular relevance to this proposal, we decide to list a waste as 

hazardous 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 the EPA 

has listed to date. Section 261.31 lists wastes generated from non-specific sources, known as “Fwastes,” and contains 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 hazardous wastes generated from specific 

industry sources, known as “K-wastes,” such as “Spent potliners from primary aluminum 

DRAFT DO NOT CITE OR QUOTE 47 of 324 10/16/09 
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. 

I. EPA Regulation of RCRA Hazardous Wastes. 

If a waste exhibits a hazardous characteristic or is listed as a hazardous waste then it is subject to 

federal requirements under RCRA. These regulations affect persons who generate, transport, 

treat, store or dispose of such waste. EPA standards and procedural regulations implementing 

subtitle C are found generally at 40 CFR parts 260 through 273. 

All RCRA hazardous wastes are also hazardous substances under 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 exhibit a RCRA hazardous characteristic. Table 302.4 at 40 

CFR 302.4 lists CERCLA hazardous substances along with their reportable quantities (RQs). 

Anyone spilling or releasing a hazardous substance at or above its RQ within a 24-hour period 

must report the release to the National Response Center, as required in CERCLA Section 103. In 

addition, Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA) 

requires facilities to report the release of a CERCLA hazardous substance at or above its RQ to 

State and local authorities. Today's rule proposes to establish RQs for the newly listed wastes. 

J. Regulation of Solid Wastes That Are Not RCRA Hazardous Wastes 

DRAFT DO NOT CITE OR QUOTE 48 of 324 10/16/09 
If your waste is a solid waste, but is not, or is determined not to be a listed and/or characteristic 

hazardous waste, then you may manage them at subtitle D facilities. These facilities are regulated 

at the state level and generally impose less stringent requirements on the management of wastes. 

Subtitle D is the statutory designation for that part of RCRA that deals with disposal of solid 

waste. EPA regulations affecting subtitle D facilities are found at 40 CFR parts 240 thru 247, 

and 255 thru 258. Regulations for subtitle D landfills that accept municipal waste (“municipal 

solid waste landfills”) are in 40 CFR part 258. 

K. Are there Currently any Federal Regulations or Standards for 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. 

DRAFT DO NOT CITE OR QUOTE 49 of 324 10/16/09 
II. New Information on Risks and Damage Cases. 

As discussed in section I.D, since publication of the May 2000 Regulatory Determination, a lot 

of new information and data have become available, including EPA’s risk modeling, the 

assessment of additional damage cases, and updated information on the management practices 

and state regulations associated with the disposal of CCRs. As described above, EPA published 

key new information on these issues in its NODA in August 2007, and 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. 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 

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 

DRAFT DO NOT CITE OR QUOTE 50 of 324 10/16/09 
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=090000648

027b9cc. The revised draft risk assessment report was peer reviewed and the revised report titled 

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

reflecting peer review comments is available in the docket for this proposal. 

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 

DRAFT DO NOT CITE OR QUOTE 51 of 324 10/16/09 
assessment, taking into account public and 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 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. 

The results of this risk assessment provides further confirmation of the high risks presented in 

the mismanagement of CCRs disposed of in landfills and surface impoundments. The 

assessment does confirm that appropriately managed CCRs can be handled 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 

DRAFT DO NOT CITE OR QUOTE 52 of 324 10/16/09 
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 used in EPA’s 

listing determination procedure.19 While still above the criteria, clay-lined units tended to have 

lower risks than unlined units. However, it was the composite-lined units that effectively 

reduced risks from all pathways and constituents below the risk criteria. More specifically: 

o For humans exposed via the groundwater-to-drinking-water pathway, risks from clay-lined 

units that dispose of CCRs or CCRs co-managed with coal refuse are lower than those for 

unlined units. However, the 90th percentile risks for clay-lined units are still well above the 

risk criteria. Arsenic was the constituent with the highest risk for landfills. Clay-lined 

landfills presented 90th percentile risks above the criteria for arsenic and thallium. Here, 

arsenic cancer risks were as high as 1 in 5,000. When landfills are unlined, they additionally 

present risk above the criteria for antimony and molybdenum. Here, arsenic cancer risks 

were as high as 1 in 2,000. In addition to arsenic and thallium, clay-lined fluidized bed 

combustion (FBC) landfills also presented 90th percentile risks above the criteria for 

antimony. However, unlined FBC landfills differed in that they only exceeded the risk 

criteria for arsenic.20 At the 50th percentile, only trivalent arsenic from CCRs codisposed 

with coal refuse exceeded the risk criteria with cancer risks of 1 in 50,000. 

 

19 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 66072 available at http://www.epa.gov/fedrgstr/EPAWASTE/1994/December/Day-22/pr-98.html. 

20 Unlined FBC units showed less risk as modeled. 

DRAFT DO NOT CITE OR QUOTE 53 of 324 10/16/09 
Arsenic and cobalt were the constituents with the highest risks for surface impoundments. 

Clay-lined surface impoundments presented 90th percentile risks above the criteria for 

arsenic, boron, cadmium, cobalt, molybdenum, and nitrate. For unlined impoundments, 

arsenic cancer risks were as high as 1 in 500, and cobalt had HQs as high as 200. When 

surface impoundments are unlined, they also show risk above the criteria for lead and 

selenium. Here, arsenic cancer risks are as high as 1 in 50, and cobalt had HQs as high as 

500. The only 50th percentile surface impoundment results that exceeded the risk criteria 

were arsenic and cobalt. Here, unlined units had arsenic cancer risks as high as 6 in 10,000, 

while clay-lined units had arsenic cancer risks as high as 1 in 5,000. Cobalt HQs were as 

high as 20 and 6 for unlined and clay-lined surface impoundments, respectively. 

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

constituents to below the risk criteria for both landfills and surface impoundments at the 90th 

and 50th percentiles. 

o The model generally predicts that risks to groundwater will be well into the future for 

landfills, but closer to the present 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 typically resulted 

in later arrival of peak risks, and composite liners did not show peak risks until the high 

thousands of years if the plume reached the receptor well at all. 

DRAFT DO NOT CITE OR QUOTE 54 of 324 10/16/09 
o For humans exposed via the groundwater-to-surface-water (fish consumption) pathway, 

unlined and clay-lined surface impoundments posed risks above the criteria at the 90th 

percentile. For CCRs managed alone in surface impoundments, these exceedences came 

from selenium (HQs of 3 and 2 for unlined and clay-lined units, respectively). For CCRs comanaged with coal refuse, these exceedences came from arsenic (3 in 100,000 and 2 in 

100,000 excess cancer risks for unlined and clay-lined units, respectively). All 50th 

percentile surface impoundment risks are below the risk criteria. No constituents pose risks 

above the risk criteria for landfills (including FBC landfills) at the 90th or 50th percentile. 

o The 2009 risk assessment added a 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. The 

1998 risk assessment21 also showed risks from inhalation of chromium in fugitive dust but at 

levels below the criteria.22 

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. The agency, however, does solicit comment on several specific aspects of the 

underlying the risk assessment. In particular, EPA requests comment on whether clay liners 

designed to meet a 1 x 10-7 cm/sec hydraulic conductivity might perform differently in practice 

 

21 Non-Groundwater Pathways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2 

(FFC2): Draft Final Report (http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf). 

22 All chromium present in the particulate matter was assumed to be in the more toxic, hexavalent form. 

DRAFT DO NOT CITE OR QUOTE 55 of 324 10/16/09 
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 maximum dry 

density value.23 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.24 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. 

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 

 

23 The standard and modified Proctor compaction tests (ASTM D 698 and D 1557 respectively) are used to 

determine the maximum achievable density of soils and aggregates by compacting the soil or aggregate in a 

standardized mould at a standardized compactive force. The maximum dry density value (or maximum achievable 

dry density value) is determined by dividing the mass of the compacted material (weight divided by the gravitational 

force) by the volume of the compacted material. 

24 “Organo-silane Chemistry: A Water Repellant Technology for Coal Ash and Soils,” John L. Daniels, Mimi S. 

Hourani, and Larry S. Harper, 2009 World of Coal Ash Conference. Available at http://www.flyash.info/2009/025-

daniels2009.pdf and in the docket to this proposal. 

DRAFT DO NOT CITE OR QUOTE 56 of 324 10/16/09 
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. 

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? 

DRAFT DO NOT CITE OR QUOTE 57 of 324 10/16/09 
• 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.25 

EPA solicits information on the degree to which coal refuse management practices have 

changed and the impacts of those changes. 

• 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. 

B. 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 

 

25 Guidance for Comanagement of Mill Rejects at Coal-Fired Power Plants, Electric Power Research Institute, 1999. 

Available in the docket to this proposal. 

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the environment has been proven are described in detail in the May 2000 Regulatory 

Determination at 65 FR 32224.26 

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.27 However, for the May 2000 Regulatory Determination, EPA 

only considered damages to groundwater to be proven damage cases since surface water and 

ecological damages were the result of runoff or overflow and subject to Clean Water Act 

regulations. However, for purposes of this proposed rule, EPA does consider an ecological 

damage to be a proven damage case; therefore, at the time of the May 2000 Regulatory 

Determination, the Agency was aware of 15 cases of proven damages. Subsequently, one of the 

15 proven damage cases has been reclassified as a potential damage case. As a result, the 

Agency has determined that there were 14 proven cases of damages as of the May 2000 

Regulatory Determination. 

Since the May 2000 Regulatory Determination, the Agency has learned of additional damage 

cases. Specifically, EPA has gathered or received information on 135 alleged damage cases. In 

contrast to the Regulatory Determination which referred to ecological damage cases separately, 

 

26 Proven damage cases were those with documented MCL exceedences that were measured in ground water at a 

sufficient distance from the waste management unit to indicate that hazardous constituents had migrated to the 

extent that they could cause human health concerns. 

27 Ecological damages are damages to mammals, amphibians, fish, benthic layer organisms and plants. 

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for purposes of this proposed rule, EPA considers an ecological damage to be a proven damage 

case. Six of the alleged damage cases have been excluded from this analysis because they 

involved minefills, 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, 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 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, the Agency has become aware or has been informed of an additional five cases of 

claimed damage within the past four years. Two of the cases involve the structural failure of the 

surface impoundment; i.e., dam safety and structural integrity issues, which EPA did not identify 

as an issue at the time of the May 2000 Regulatory Determination. In both cases, there were 

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Clean Water Act violations. Another case involved the failure of a discharge pipe, and is a 

potential NPDES permit violation, and the two other cases involved the use of coal ash in large 

scale structural fill operations, one of which involved an unlined sand and gravel pit. 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. 

For a more detailed discussion of the damage cases, see the Appendix to this notice and the 

document “Coal Combustion Wastes Damage Case Assessments” available at 

www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015. 

III. Proposed Removal of the Bevill Exemption, Listing, and Special Requirements for 

Disposal of CCRs from Electric Utilities. 

EPA is proposing to remove the Bevill exemption for disposal of CCRs from electric utilities and 

to list these CCRs when destined for disposal as a waste. As such, CCR landfills and surface 

impoundments would be subject to the existing cradle-to grave hazardous waste requirements at 

40 CFR parts 260 through 268 and 270 to 273, including the generator and transporter 

requirements and the requirements for facilities that treat, store or dispose of CCRs, such as 

siting, liners (with modification), run-on and run-off controls, groundwater monitoring, fugitive 

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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 

treat, store or dispose of CCRs also would be required to be permitted under the hazardous waste 

regulations. 

To address the potential for catastrophic releases from surface impoundments, we also are 

proposing requirements for dam safety and stability. Finally, we are proposing land disposal 

restrictions, and a prohibition on the disposal of CCRs below the natural water table. 

A. What is the Basis for Our Proposal to Remove CCRs from the Bevill Exemption for 

Disposal of CCRs from Electric Utilities in Surface Impoundments and Landfills? 

Based on new risk analyses (discussed in section II.A), and further evaluation of damage cases 

(including the recent spill in Kingston, Tennessee and the ground water contamination in 

Gambrills, Maryland), management practices, and state regulations, EPA has preliminarily 

determined that CCRs intended for disposal should be regulated under RCRA subtitle C. Thus, 

we are proposing to reverse our August 1993 and May 2000 Regulatory Determinations. This is 

consistent with the May 2000 Regulatory Determination where the Agency stated that it would 

continue to review available information to determine whether to revise its original decision 

should additional information indicate there is a need for regulation under the authority of RCRA 

subtitle C (65 FR 32215). As discussed below, our preliminary decision to revise the Regulatory 

Determination is based on consideration of all of the RCRA Section 8002(n) study factors and 

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the three considerations specifically identified in the May 2000 Regulatory Determination (65 

FR 32218). 

EPA’s risk analyses have shown that disposal in unlined waste units, but particularly in unlined 

surface impoundments, pose the greatest risk of releases of CCR toxic constituents to ground 

water and surface water. The Agency has estimated that there are approximately 300 CCR 

landfills and approximately 580 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 ground water monitoring systems. 

Additionally, according to a 2009 ASTSWMO survey of states with coal ash generation28

(available in the docket to this notice), 36% of these states do not have liner requirements for 

CCR landfills, while 67% do not have CCR liner requirements for surface impoundments and 

19% of these states do not have groundwater monitoring requirements for landfills and 61% do 

not have groundwater monitoring requirements for surface impoundments.29 

Results of the joint DOE and EPA study entitled, Coal Combustion Waste Management at 

Landfills and Surface Impoundments, 1994–2004 indicates that state regulations have generally 

improved since 2000, although we would note that the DOE/EPA report only provided a review 

of 11 states. 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 

 

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

29 Additionally, the July 2009 Petition pointed out deficiencies in state regulatory programs. 

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(97%) identified in the survey that were constructed between 1994 and 2004 were constructed 

with liners. Regarding the prevalence of groundwater monitoring at existing 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, with approximately two-thirds of the new units being landfills, while the other onethird are surface impoundments. Nevertheless, despite the improvements by the electric utility 

industry and by some states, EPA still has concerns with the overall regulatory picture--that is, 

that the states appear not to have sufficiently addressed the gaps that EPA had identified in its 

May 2000 Regulatory Determination to conclude that in the absence of federal oversight, the 

continued management of these wastes will be adequate to protect human health and the 

environment. 

For example, only 19% of the surveyed surface impoundment unit permits included requirements 

addressing ground-water protection standards (i.e., contaminant concentrations that cannot be 

exceeded) or closure/post-closure care and only 12% of surveyed units were required to obtain 

bonding or financial assurance. While the Agency recognizes that these statistics may be 

difficult to interpret since it focused on only a limited number of states, and may not address all 

regulatory authorities that the states may have to control these units, such as regulating surface 

impoundments under the Clean Water Act, in a more recent survey conducted by the Association 

of State and Territorial Solid Waste Management Officials (ASTSWMO), the results seem to 

support the view that the states still have not yet adequately implemented regulatory programs 

over CCR management units. In particular, the 2009 ASTSWMO survey indicates that the states 

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still have not regulated surface impoundments adequately, with, for example, only 33 percent of 

the states requiring liners for surface impoundments, only 39 percent of the states requiring 

groundwater monitoring for surface impoundments, only 36 percent of the states regulating the 

structural stability of surface impoundments, and only 31 percent of the states requiring financial 

assurance for surface impoundments. While the states seem to be regulating landfills to a greater 

extent, the Agency believes that these results clearly indicate that there continues to be serious 

gaps in state regulatory programs for the managment of CCRs that are disposed. (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.) Finally, we would note that the EPA/DOE 

report concluded that approximately 30 percent of the net disposable CCRs that are generated is 

potentially entirely exempt from the state solid waste permitting requirements (EPA/DOE Report 

at pages 45-46), and while, as noted above, some of these states may use alternative authorities 

to regulate these units, the states have yet to provide the information to support this position. 

Therefore, the Agency specifically solicits comments on the extent to which the states used 

alternative regulatory authorities to control these units and imposed appropriate regulatory 

requirements. That is, if states are regulating surface impoundments under their Clean Water Act 

authority, but only regulate the discharge of the effluent from such impoundments, EPA does not 

consider such alternative regulatory authority equivalent to what is necessary to protect human 

health and the environment. 

1. RCRA Section 8002(n) Study Factors. 

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Section 8002(n) of RCRA requires the Administrator to conduct a detailed and comprehensive 

study and submit a report on the adverse effects on human health and the environment, if any, of 

the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission 

control waste, and other by-product materials generated primarily from the combustion of coal or 

other fossil fuels. The study was to include an analysis of the eight factors required under 

section 8002(n) of RCRA. EPA addressed these study factors in the 1988 and 1999 Reports to 

Congress. The findings of these two Reports to Congress were the basis for our decisions in the 

August 1993 and the May 2000 Regulatory Determinations to maintain the Bevill exemption for 

CCRs. In considering whether to retain or to reverse the 1993 and 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. 

 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.30 In comparison, much larger volumes are being generated now (primarily due to the 

increase in coal-fired power plants), with 131 million tons of CCRs being generated by coal-fired 

electric power plants in 2007.31 

 

30 Cited in “Technical Background Document for the Report to Congress on Remaining Wastes from Fossil Fuel 

Combustion: Industry Statistics and Waste Management Practices,” March 1999.

31 ACAA 2008 Annual Survey data. 

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Present disposal and utilization practices: In 2007, 36% (47.4 million tons) of CCRs were 

landfilled, 21% (27.7 million tons) were disposed of in surface impoundments, 38% (49.3 

million tons) were beneficially used (excluding minefill operations), and 5% (6.7 million tons) 

were placed in minefills. This compares to approximately 23% (26.2 million tons) being 

landfilled, 46% (53.2 million tons) being disposed of in surface impoundments, 23% being 

beneficially used (excluding minefill operations), and 8% (9 million tons) being placed in 

minefills in 1995. 

The Agency has estimated that there are approximately 300 CCR landfills and approximately 

580 CCR surface impoundments or similar management units in use at roughly 495 coal-fired 

power plants. 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 CCR landfills and 58% of CCR 

surface impoundments lacked groundwater monitoring.32 In the mid-1990s, there were 

approximately 275 CCR landfills and 286 CCR surface impoundments in use.33 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 more accurate 

information being available. For example, much of the increase in surface impoundments likely 

results from including involves counting units that receive wastewater that has been in contact 

 

32 Estimated from the 1995 data reported in the May 2000 Regulatory Determination and the data for new units from 

1994 to 2004 reported in the 2006 DOE/EPA report “Coal Combustion Waste Management at Landfills and Surface 

Impoundments, 1994–2004.” 

33 Technical Background Document, Ibid. 

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with any amount of coal ash, and thus includes many units which were not included in EPA’s 

mid-1990 estimates. 

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

CCRs: 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. With very few exceptions, the risks modeled for the 2009 risk 

assessment correspond with ground water exceedances of constituents observed in EPA’s 

damage case assessments. 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, as a result of the increased use and application 

of advanced air pollution control technologies in coal-fired power plants. 

As discussed in section III.C.2 below, we have not seen evidence of damages from those 

beneficial uses of CCRs for which EPA is proposing to retain the Bevill exemption. On the 

contrary, the Agency believes beneficial uses of CCRs offer significant environmental benefits in 

the form of greenhouse gas 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. At the same time, there are cases 

where large quantities of CCRs have been “used” indiscriminately as unencapsulated “fill,” e.g., 

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to fill sand and gravel pits or quarries, or as general fill (e.g., Pines, Indiana and the Battlefield 

Golf Course in Chesapeake, Virginia). 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. 

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, including 

ecological damages in seven of the ten cases. Sixteen of the 17 proven damages to groundwater 

involved disposal in unlined units – for the one additional unit, it is unknown whether there was 

a liner. We have also identified 40 potential damage cases to ground water and surface water. 

These numbers compare to 14 proven damage cases and 36 potential cases of damage when the 

Agency announced its Regulatory Determination in May 2000. The Agency believes that these 

numbers likely underestimate the number of proven and potential damage cases and that it is 

likely that additional cases of damages 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. For example, EPA has documented damages from the mismanagement of 

CCRs at nearly half of the 140 sites where the Agency has gathered or received allegations of 

damages. Moreover, since the Agency made its Regulatory Determination in May 2000, a 

different kind of damage incident, the catastrophic failure of surface impoundments, has been 

identified, such as the dam failures that have occurred in Martins Creek, Pennsylvania and 

Kingston, Tennessee. 

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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), and treatment standards to reduce the hazards of wet 

handling is an alternative. The beneficial use of these materials as products continues to be an 

important alternative to disposal. The vast majority of CCRs from utilities in the European 

Union are reused. 

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. If EPA were simply to regulate CCRs as straight subtitle C hazardous wastes, with 

limited modifications (the approach EPA is proposing), EPA estimates that the average annual 

cost discounted at 7% at $2.274 billion, a subtitle D non-hazardous solid waste regulatory 

approach at $492 million without land disposal treatment requirements, and a combined 

approach (subtitle C for wet handled CCR) and (subtitle D for dry handled CCR) at $2.176 

billion. These estimates are discussed in more detail in the regulatory impact analysis section of 

this preamble (Section VII.B). 

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 are also used 

as wastewater treatment systems for other wastewaters. Therefore, if facilities switch from wet 

to dry handling of CCRs construction of alternative wastewater treatment systems could become 

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necessary for other wastewaters, especially if they involved acidic wastes that are currently 

neutralized by the coal ash. 

The current and potential utilization of CCRs: In 2007, 38% (49.3 million tons) of CCRs were 

beneficially used (excluding minefill operations) and 5% (6.7 million tons) were placed in 

minefills. (This compares to 16.4% of CCRs being beneficially used, excluding minefilling, at 

the time of the 2000 Regulatory Determination, which is a significant increase.) As discussed 

elsewhere in the preamble, EPA believes that the proposed regulations will not have a significant 

adverse impact on beneficial uses since EPA is proposing to maintain the Bevill exemption for 

these uses. A subtitle D rule, as well as provisions that encourage facilities to switch from wetto dry-handling, would not be expected to adversely affect beneficial uses of CCRs and, in fact, 

would likely increase the beneficial use as CCRs managed dry are more amenable to beneficial 

uses. In comparison, the states and the electric utility industry, as well as industries that 

beneficially use these materials, have argued that a subtitle C rule would adversely affect 

beneficial uses, possibly to the point that minimal amounts of CCPs would be beneficially used. 

If true, this could substantially increase the amount of CCRs that are disposed of. In addition, 

the states have argued that there may be indirect effects on the beneficial use of CCPs, including 

the possible adverse effects on state beneficial use programs; however, the nature and magnitude 

of these impacts is uncertain at the present time. On the other hand, environmental stakeholders 

have taken an opposite position – that is, the level of beneficial use might be related to the 

stringency of regulation, such that a subtitle C rule would actually increase the beneficial use of 

CCPs. Nevertheless, EPA solicits information and data that would help quantify those effects. 

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2. Preliminary conclusions 

Based on a full consideration of the 8002 factors, as well as the factors laid out in its May 2000 

Regulatory Determination, EPA has reconsidered its determinations that regulation of CCRs 

under subtitle C is not warranted. EPA noted that it might revisit its original Determination 

based on, 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.) Since publication of the May 2000 Regulatory Determination, additional information 

has confirmed EPA’s original risk concerns. Recent events also have demonstrated that these 

wastes have caused greater damage to human health and the environment than originally 

estimated. Moreover, the risks that EPA originally identified have not been sufficiently 

mitigated, and the gaps in state oversight have not been adequately remedied over the past eight 

years. Finally, EPA believes that it can effectively mitigate concerns over any potential chilling 

effect on beneficial reuses resulting from association with classifying CCRs as hazardous wastes. 

Consequently, EPA is proposing to revise its August 1993 and May 2000 Regulatory 

Determinations. Based on the current situation, including the changes that have taken place 

since the Agency made its May 2000 Regulatory Determination, we now believe that 

management and disposal of CCRs should be regulated under the hazardous waste provisions of 

RCRA, and believe that continuing to regulate such CCRs under the non-hazardous waste 

provisions of RCRA, even with the promulgation of a national subtitle D rule, would not be 

protective. 

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Part of the reason EPA decided in May 2000 that regulation under subtitle C was not warranted 

was that the risk information 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. Rather, EPA noted that we were unable to draw 

quantitative conclusions regarding the risks posed by arsenic or other constituents to 

groundwater due to the absence of a more complete risk assessment, but still concluded that there 

were "risks that we couldn't dismiss." Largely what drove the risks were the old 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). 

More recent information available since the May 2000 Regulatory Determination provides 

further confirmation of the risks presented in that Determination. Nor have these risks 

appreciably decreased over the past several years. As discussed in section II.A., EPA’s revised 

CCR risk assessment34 estimates the cancer risk from arsenic that leaches from CCRs managed 

in unlined and clay-lined landfills and surface impoundments exceed the criteria established for 

hazardous waste listing determinations: cancer risks of 1x10-5 from arsenic, and RQs over 1 for 

other metals. 

Moreover, the risks that EPA identified have not been sufficiently mitigated, and as discussed 

previously, the gaps in state oversight have not been adequately remedied over the past eight 

years. Although new units appear to be better designed, in that they are lined and have installed 

 

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

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groundwater monitoring systems, and therefore the total percentages of unprotected units have 

decreased, there is still a large amount of waste being disposed of in units that lack the necessary 

protections of liners, and groundwater monitoring. Although 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, there is still a large amount of waste 

being disposed of in unlined units. Furthermore, while corrective action has been taken at a 

number of the proven damage cases, the RCRA regulatory program is designed to prevent 

contamination in the first place, if at all practicable, and not one where contamination is not 

prevented, but cleanup is undertaken after the contamination is discovered.35 Further, additional 

damage cases have come to light, including some superfund/cleanup actions from sham 

"beneficial uses," calling into question the efficacy of the existing state regulatory systems. The 

original Reports to Congress and Regulatory Determinations did not address the potential risks to 

human health and the environment from the catastrophic structural failure of a surface 

impoundment, such as occurred in Tennessee at the TVA facility. The estimated costs to clean 

up the damage from this spill range from $933 million to $1.2 billion.36 All of these factors raise 

serious questions as to EPA’s original determination that the risks from disposal of these wastes 

would be adequately mitigated by regulations under subtitle D of RCRA. 

 

35 As noted in Appendix I on Damage Cases, of the 16 proven cases of damages to groundwater, the Agency has 

been able to confirm that corrective actions have been completed in seven cases and are ongoing in the remaining 

nine cases. Corrective action measures at these CCR management units vary depending on site specific 

circumstances and include formal closure of the unit, capping, re-grading of ash and the installation of liners over 

the ash, groundwater treatment, ground-water monitoring, and combinations of these measures. 

36 Source: TVA’s July 31, 2009 quarterly report available at http://www.tva.gov/kingston/admin_record/pdf/51.pdf. 

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Thus, in summary, the Agency’s basis for this decision is: (1) the growing record of proven 

damage cases to groundwater and surface water, as well as a large number of potential damage 

cases all of which demonstrates that CCRs have not been properly managed under the current 

scheme; (2) a new type of damage case coming to light (i.e., breaches of surface impoundments) 

that was not considered previously, but has shown to have catastrophic impacts on human health 

and the environment if not properly controlled; and (3) the results of the Agency’s 2009 risk 

assessment which indicates that certain management practices – particularly units lacking liners 

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

environment. EPA also notes that recent research indicates that traditional leach procedures 

(e.g., TCLP and SPLP) may underestimate the actual leach rates of toxic constituents under 

different field conditions. Further, state regulatory programs for the management of CCRs, 

including requirements for liners and groundwater monitoring are still lacking, and while 

industry practices may be improving, EPA continues to see cases of inappropriate management 

or absence of key protections (e.g., groundwater monitoring at existing units). Thus, EPA 

concludes that, without strong federal oversight, which subtitle D of RCRA does not provide, the 

disposal of CCRs will continue to present risks to human health and the environment. Finally, 

EPA’s original decision was driven in large measure by concerns that the link to subtitle C would 

tend to discourage the purchase and re-use of these wastes. However, the nature and magnitude 

of these impacts is uncertain. EPA continues to believe that the beneficial use, when performed 

properly, is the environmentally preferable practice for these wastes and therefore remains 

concerned over any potential stigma that might arise from designating CCRs as hazardous 

wastes. But this concern alone, in EPA’s view, is not sufficient to outweigh the combined risks 

described above. Moreover, EPA believes that it can take measures to diminish any stigma that 

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might be associated with the subtitle C link, and to encourage the continued reuse of such 

materials. 

When considered together, the Agency believes these findings justify the removal of the Bevill 

exemption for CCRs that are destined for disposal. 

B. How is EPA Addressing the Decisions in the 1993 and 2000 Regulatory Determinations? 

1. EPA is Proposing to Reverse the Regulatory Determinations with Regard to Disposal 

of CCRs. 

EPA is proposing to revise its Regulatory Determination for disposal of CCRs, and is proposing 

to regulate them as hazardous waste under RCRA subtitle C. As stated previously, EPA 

concluded in the May 2000 Regulatory Determination that these wastes could pose risks to 

human health and the environment if not properly managed, although the risk information was 

limited. There were several bases for that conclusion. EPA identified and discussed a number of 

documented damage cases, as well as cases indicating at least a potential for damage to human 

health and the environment. EPA noted that although the absolute number of documented cases 

was not large, our inquiry on the existence of damage cases was focused on a subset of states that 

only accounted for approximately 20% of coal fired electric utility electricity generation 

capacity. In this regard, we noted that “given the volume of coal combustion wastes generated 

nationwide (115 million tons at the time of the May 2000 Regulatory Determination) and the 

numbers of facilities that currently lack some basic environmental controls, especially 

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groundwater monitoring, other cases of proven and potential damage are likely to exist” (65 FR 

32216). 

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;37 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. As stated previously in this 

preamble, the Agency continues to see evidence of damages from the disposal of CCRs, and 

recent risk analyses have confirmed that current disposal practices pose risks to human health 

and the environment. 

2. EPA Is Not Proposing to Reverse the May 2000 Regulatory Determination Regarding 

Beneficial Use. 

In the May 2000 Regulatory Determination, EPA stated: “The Agency has concluded that no 

 

37 Toxicological Effects of Methylmercury, National Academy of Sciences, July 2000 

(http://books.nap.edu/catalog.php?record_id=9899#toc). EPA has not taken any actions regarding the May 2000 

Regulatory Determination as a result of the NAS report. 

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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 below regarding minefilling in Section III.C.3 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). 

EPA’s rationale for the May 2000 determination – that is, that federal regulation was not 

warranted for the identified beneficial uses was 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. Instead, it generally described the uses 

and benefits of CCRs, and cited the importance of beneficially using secondary materials and of 

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resource conservation, as an alternative to disposal. However, EPA did conduct a detailed risk 

assessment of certain agricultural uses of CCRs,38 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 landscape has changed significantly. 

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 in a wide range of applications, 

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 

greenhouse gas 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 

 

38 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 

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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, 

and agriculture, 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 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 comments on these developments and how the beneficial use of CCRs should be 

addressed. 

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. Thus, EPA is proposing to deny this portion of the July 9, 2009 

petition submitted by environmental and citizens groups that petitioned EPA to regulate these 

beneficial uses under subtitle C of RCRA. This section provides EPA’s basis for leaving the 

Bevill exemption in place for these beneficial uses, although as discussed throughout this 

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section, EPA is also soliciting comment on certain 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 enormous 

benefits and raise minimal health or environmental concerns in their use, while other 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 

under subtitle C of RCRA, when disposed of. Still, the amounts and, in some cases, the manner 

that they are used, 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 due to requirements of more 

widespread use of air pollution control technologies and the new information becoming available 

on the leaching of metals from CCRs, we are considering such approaches as better defining 

beneficial use or developing detailed guidance on the beneficial use of CCRs to supplement the 

regulations. The Agency solicits comments on these and other approaches that EPA could take 

in identifying when uses of CCRs constitute a “beneficial use.” 

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Other alternative approaches – for example, to regulate the beneficial use of CCRs under the 

RCRA hazardous waste regulations that apply to “use constituting disposal,” to prohibit certain 

uses outright (e.g., “unencapsulated” uses, 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 improved leach tests 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 a number of proven damage cases involving the largescale 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, and subjects them to regulation under subtitle C of RCRA. EPA also 

takes comment on whether it should take a similar approach in today’s proposal to other uses of 

CCRs, such as the placement of non-encapsulated 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 

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under the range of conditions under which the 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 emphasize that 

CCRs, when beneficially used will conserve resources, provide improved material properties, 

reduce greenhouse gas emissions, lessen the need for waste disposal units, and provide 

significant domestic economic benefits (as noted below in section III.B.2). 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 

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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 the 

landscape 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. 

Before discussing the rationale behind EPA’s approach, and concerns with specific “beneficial” 

uses, we describe below the current and anticipated beneficial uses of CCRs. 

i. What Kind of Beneficial Uses are Occurring? 

As described earlier, the May 2000 Regulatory Determination identified the following beneficial 

uses: waste stabilization; beneficial construction applications (e.g., cement, concrete, brick and 

concrete products, road bed, structural fill, blasting grit, wallboard, insulation, roofing materials); 

agricultural applications (e.g., as a substitute for lime); and other applications (absorbents, filter 

media, paints, plastics and metals manufacture, and snow and ice control). Since that time, 

additional uses have been identified, e.g., use of CCRs as ingredients in specific products, e.g., 

resin-bound products or mineral filler in asphalt. Additionally, it is possible that uses could shift 

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in the future because the composition and characteristics of CCRs are likely to change 

substantially due to the addition of new air pollution controls at coal-fired utilities. 

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 “discarded39,” 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 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 rule in 

any case, regardless of the option taken. 

ii. Why is EPA Not Proposing to Change the Determination That CCRs that Are 

Beneficially Used Do Not Warrant Federal Regulation? 

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 

 

39 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. 

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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 efforts of states, 

EPA and other federal agencies are not adequate to address environmental issues associated with 

the beneficial use of CCRs, except as already noted. Therefore, at this time, EPA is not 

proposing to reverse that determination. Specifically: (1) EPA believes today’s proposal will 

ensure that “sham” beneficial use situations, like the Gambrills, MD site, will be regulated as 

disposal under subtitle C; (2) many states are developing effective beneficial use programs 

which, in many cases, consider the risks posed by the beneficial use of these 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 continues to believe that the beneficial use of CCRs, when performed properly and in an 

environmentally sound manner, and with front-end characterization of the CCRs proposed to be 

beneficially used and the conditions under which the CCRs will be managed, is the 

environmentally preferable outcome for CCRs and, therefore, is concerned about regulatory 

decisions that would limit legitimate beneficial uses, including research on beneficial uses. 

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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 comments 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. Comments 

should include clear criteria for EPA to enforce against any uses inconsistent with the exemption. 

Some stakeholders have argued 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. For example, commenters argue that if 

EPA regulated the disposal of large volumes of CCRs in landfills or surface impoundments as 

hazardous waste, then suppliers would refuse to supply and users would refuse to use that same 

material for safe beneficial uses (e.g., in concrete). 

EPA is not convinced nor believes that the commenters predictions will occur—that is, that a 

hazardous waste listing of CCRs will in practice eliminate all or virtually all beneficial uses of 

the material – as a result of a stigma effect or through the action of state laws that prohibit 

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hazardous wastes from their beneficial use programs. At the time of the May 2000 Regulatory 

Determination, EPA strongly expressed this concern. On reconsidering this issue, EPA is now of 

the view that the stigma concern will not result in the total collapse of the recycling of these 

materials. Rather, we believe that regulating the disposal of CCRs as hazardous waste, but 

allowing CCRs that are properly characterized and beneficially used to retain the Bevill 

exemption, would encourage facilities to increase the amounts of material beneficially reused, 

because it would decrease the costs associated with waste disposal, and would consequently 

likely increase overall the beneficial use of these materials. Thus, while EPA appreciates the 

concerns of the commenters on this issue, which include states, companies making (or hoping to 

make) products out of CCRs, and CCR users, we are unconvinced that stigma alone will drive 

people away from the use of valuable products. After all, industry currently produces products 

out of materials that, when discarded, would be hazardous waste, and consumers buy products 

which contain ingredients that would require management as a hazardous waste when disposed 

(e.g., solvents). 

At the same time, EPA is convinced that regulating the beneficial use of CCRs under RCRA 

subtitle C as hazardous waste would in fact largely eliminate many beneficial 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 hazardous waste 

requirements would, in EPA’s view, effectively eliminate this use. Use of coal ash as a cement 

ingredient would subject the coal ash to full hazardous waste requirements up to the point that it 

is made into concrete, including requirements for hazardous waste generators, manifesting for 

transportation, and hazardous waste permits for storage. In addition, ready-mix operators would 

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be subject to land disposal restrictions notices and other requirements. 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 tentatively 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 examples of efforts that address environmental 

issues associated with beneficial uses: the State of Wisconsin has an extensive beneficial use 

program that supports the use of CCRs in a variety of circumstances, including road base and 

agriculture, provided certain criteria are met and EPA is working with the U.S. Department of 

Agriculture to develop guidance on the use of FGD gypsum in agriculture. 

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 Environmental Benefits 

 

The beneficial use of CCRs in a wide range of applications offers significant environmental 

benefits, including greenhouse gas 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 the emission of 

GHGs in a number of ways. The most widely recognized CCR application to reduce GHG 

emissions is the use of coal fly ash as a supplementary cementitious material. Its use avoids the 

need to burn the energy equivalent of 55 gallons of oil to produce a single ton of cement. In 

addition, the GHG-generating chemical reactions that occur during the production of portland 

cement are also avoided, thereby taking advantage of the pozzolanic properties of coal fly ash 

that make it a useful replacement for a portion of the portland cement used in making concrete. 

Fly ash can typically replace between 15 to 30 percent of the cement in concrete with even 

higher percentages used for mass concrete placements. According to the National Ready Mixed 

Concrete Association, approximately 450 million cubic yards (881 million tons) of concrete are 

produced per year40 requiring approximately 116 million tons of cement.41 At a 15 to 30 percent 

fly ash to cement replacement rate, the use of fly ash in concrete could reduce GHG emissions by 

12.5 to 25 million tons of CO2 equivalent and reduce oil consumption by 26.8 to 53.6 million 

 

40 http://nrmca.org/concrete/2006%20Statistics/2006_Prod_Stats.htm 

41 http://www.cement.org 

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barrels.42 As an added benefit, depending on the amount of fly ash used to replace the cement, 

the use of fly ash can make the concrete stronger and more durable, which would mean it lasts 

longer than concrete made with only portland cement as the binder. 

GHG emissions are also reduced through the use of CCRs in place of virgin materials, for 

example, in road construction, thereby avoiding the invasive and energy-intensive operations that 

are needed to mine and process virgin materials, including aggregates and clay. This reduction 

in the use of energy for mining and processing leads to a reduction in GHG emissions, as well as 

a host of other environmental benefits including the avoidance of impacts to groundwater and 

surface water. Aggregates and clay are difficult to obtain locally in some parts of the country, 

and CCRs can be a valuable alternative (e.g., aggregate used in California is frequently imported 

from Canada or Mexico). 

Benefits from Reducing the Landfilling of CCRs. Beneficially using CCRs instead of landfilling 

them also reduces the need for additional landfill space and any risks associated with their 

disposal. In particular, the U.S. annually disposes of over 75 million tons of CCRs in landfills 

and surface impoundments, which is equivalent to the space required of 26,240 quarter-acre 

home sites under 8 ft of CCRs. 

 

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

report titled: “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/cpg/pdf/rtc/report4-08.pdf 

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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 lime to make concrete; natural gypsum for wallboard and 

agriculture; and aggregate, such as stone and gravel for uses in concrete, road bed, and roofing 

granules. Using virgin materials for these applications requires mining and processing them, 

which can destroy green fields and wildlife habitats. 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 new ones, 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. 

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 environmental benefits that accrue both locally 

and globally. 

As discussed below in section VII.B, the beneficial use of CCRs as a replacement for industrial 

raw materials (e.g., portland cement, virgin stone aggregate, lime, gypsum) provides $2,300 

million in annual cost savings for these industrial applications. Additionally, beneficially using 

CCRs as a substitute for industrial raw materials contributes (a) $4,888 million per year in 

energy savings, (b) $81 million per year in water savings, (c) $365 million per year in 

greenhouse gas (i.e., carbon dioxide and methane) emissions reduction, and (d) $19,263 million 

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per year in other air pollution reduction. All together, the beneficial use of CCRs provides $25 

billion in annual national economic and environmental benefits. 

iii. 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 drawing a distinction between CCRs that 

are disposed of and those that are beneficially used, we believe it is necessary and appropriate to 

distinguish between beneficial use and sham operations that would constitute disposal operations 

– such as large volumes of CCRs that are used in sand and gravel pits or for restructuring the 

landscape. EPA believes the following criteria can be used to define legitimate beneficial uses 

appropriately, and are consistent with EPA’s approach in the May 2000 Regulatory 

Determination, although such criteria were not specifically identified at that time: 

o The material used must provide a functional benefit. For example, CCRs in concrete 

increase the durability of concrete – and are more effective in combating degradation 

from salt water; synthetic gypsum serves exactly the same function in wallboard as 

gypsum from ore, and meets all commercial specifications; CCRs as a soil amendment 

adjusts the pH of soil to promote plant growth. 

o The material substitutes for the use of a virgin material, conserving natural resources that 

would otherwise need to be obtained through practices, such as extraction. For example, 

the use of FGD gypsum in the manufacture of wallboard (drywall) decreases the need to 

mine natural gypsum, thereby conserving the natural resource and conserving energy that 

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otherwise would be needed to mine natural gypsum; the use of fly ash in lieu of portland 

cement reduces the need for cement. CCRs used in road bed replace quarried aggregate 

or other industrial materials. These CCRs substitute for another ingredient in an 

industrial or commercial product. 

o Where relevant product specifications or regulatory standards are available, the materials 

meet those specifications, and where such specifications or standards have not been 

established, they are not being used in excess quantities. Typically, when CCRs are used 

as a commercial product, the amount of CCRs used is controlled by product 

specifications, or the demands of the user. Fly ash used as a stabilized base course in 

highway construction is part of many engineering considerations, such as the ASTM C 

593 test for compaction, the ASTM D 560 freezing and thawing test, and a seven day 

compressive strength above 2760 (400 psi). If excessive volumes of CCRs are used than 

were necessary for a specific project, that could result in a determination that the use was 

subject to regulations for disposal. 

o In the case of agricultural uses, CCRs would be expected to meet appropriate standards, 

constituent levels, prescribed total loads, application rates, etc. EPA has developed 

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. EPA also recognizes that the characteristics of CCRs are 

such that total concentrations of metals, as biosolids are assessed, may not be the most 

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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 

which may need to be included to ensure legitimate beneficial uses remain exempt an 

enforcement action cam be taken against sham uses. 

In considering 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. In the docket to 

today’s proposal, we provide a matrix which addresses each of the beneficial uses and describes 

how they meet the various criteria. Alternatively, EPA solicits comment on the need to provide a 

formal listing of all beneficial uses. The concern with such an alternative is that new, innovative, 

uses that are not on the list would be subject to hazardous waste regulations. 

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. Use of CCRs in highway projects is 

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a significant practice covering road bed and embankments. As mentioned above, CCRs in the 

highway setting are part of extensive engineering considerations that insure the material provides 

an appropriate function, is replacing material that would otherwise need to be obtained, and is 

not used in excess quantities. 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.43

iv. 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 appearance that sand and 

gravel pits and large scale fill operations are essentially landfills under a different name, EPA is 

proposing to define the placement of CCRs in sand and gravel pits and large scale fill projects as 

land disposal to be regulated under hazardous waste regulations. 

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 sham operations, such as, for example, a comparison to features 

associated with relatively small landfills used by the utility industry, and whether characteristics 

 

43 According to the ACAA survey, 80% of boiler slag – a vitreous material often used as an abrasive – is reused, 

although industry has reported that the demand for boiler slag products is high, and virtually all of the slag is 

currently used. 

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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). 

v. 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 to regulate under the hazardous waste regulations. 

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, which the Agency has reviewed and, information on the issues is presented in this section. 

First, we identify the array of environmental issues associated with unencapsulated uses. CCRs 

can leach toxic metals at levels of concern, so depending on the characteristics of the CCR, the 

amount of material placed, how it is placed, and the site conditions, there is a potential for 

environmental concern. 

• The importance of characterizing CCRs prior to their utilization is that CCRs from 

certain facilities may be acceptable under particular beneficial use scenarios, while the 

same material type from a different facility or from the same facility, but generated under 

different operating conditions (e.g., different air pollution controls or configurations) may 

not be acceptable for the same management scenario. Changes in air pollution controls 

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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.C.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 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. 

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Second, EPA notes the work and research being done by states, federal agencies, and academics 

to assess, provide guidance on, or regulate to deal with 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.”44

(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 two years. 

 

44 Part of EPA’s efforts with the states is to support the development of a national database on state beneficial use 

determinations. Information on the beneficial use determination database can be found on the Northeast Waste 

Management Officials’ Association (NEWMOA) website at http://www.newmoa.org/solidwaste/bud.cfm. This 

database helps states share information on beneficial use decisions providing for more consistent and informed 

decisions. 

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• 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.45

• There is also considerable study and research by states and academic institutions, which 

EPA views as valuable in not only guiding the parties to appropriate uses, but also in 

informing EPA. A few examples are: 

o Li L, Benson CH, Edil TB, Hatipoglu B. Groundwater impacts from coal ash in 

highways. Waste and Management Resources 2006;159(WR4):151-63. 

o Friend M, Bloom P, Halbach T, Grosenheider K, Johnson M. Screening tool for 

using waste materials in paving projects (STUWMPP). Office of Research 

Services, Minnesota Dept. of Transportation, Minnesota; 2004. Report nr 

MN/RC–2005-03. 

o Sauer JJ, Benson CH, Edil TB. Metals leaching from highway test sections 

constructed with industrial byproducts. University of Wisconsin – Madison, 

Madison, WI: Geo Engineering, Department of Civil and Environmental 

Engineering; 2005 December 27, Geo Engineering Report No. 05-21. 

Overall, federal agencies, states, and others are doing a great amount of work to promote 

environmentally sound beneficial use practices, to advance our understanding, and to consider 

emerging science and practices. Furthermore, the beneficial use of CCRs is a world wide 

 

45 See a Final Report titled, “Use of EPA’s Industrial Waste Management Evaluation Model (IWEM) to Support 

Beneficial Use Determinations” at http://www.epa.gov/partnerships/c2p2/pubs/iwem-report.pdf and the Industrial 

Waste Management Evaluation Model (IWEM) at http://www.epa.gov/osw/nonhaz/industrial/tools/iwem. 

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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. EPA believes, by regulating sand and gravel pits and 

large scale fills as disposal, the risks from beneficial use will be adequately addressed such that 

further federal regulations are not warranted at this time. 

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 and as fill material). Thus, while EPA does not want to stigmatize the 

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, if 

EPA determines that a revised approach and regulation of, for example, unencapsulated uses of 

CCRs on the land is warranted, we solicit comments on 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 

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the material to be 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.46 Moreover, if regulating these uses under 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: 

• (1) whether persons should be required to use the leaching assessment tool in 

combination with the Draft SW-846 leaching test methods described in Section I.F 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 the 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 

 

46 As part of the petition application, the petitioner would also need to demonstrate that the CCRs are being 

beneficially used. 

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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 materials charactization 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? (EPA would consider placement of 

unencapsulated CCRs failing the hazardous waste characteristic to be disposal and not a 

beneficial use.) When are totals levels relevant? EPA solicits comment on the extent to 

which states call for CCR characterization (keeping in mind that EPA ORD studies 

generally show that measurement of totals concentrations for metals do not correlate well 

with metal leachate concentrations) prior to the use of unencapsulated CCRs and exclude 

material that exceeds the toxicity characteristic. 

• If regulations are developed, should they cover specific practices, for example, 

restricting fill operations to those that moisten and compact fly ash in layers to attain 95% 

of the standard Proctor maximum dry density value and provide a drainage layer. Are 

such construction practices largely followed now? 

• Historically, EPA has proposed or imposed conditions on other types of hazardous wastes 

destined for land placement (e.g., maximum application rates and risk-based 

concentration limits for cement kiln dust used as a liming agent in agricultural 

applications (see 64 FR 45639; August 20, 1999); maximum allowable total 

concentrations for non-nutritive and toxic metals in zinc fertilizers produced from 

recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Comments 

are solicited as to whether EPA should establish national standards or 

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maximum/minimum thresholds, or rely on implementing Agencies to impose CCR-/sitespecific 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)? 

3. 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 

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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 U. S. Department of Interior and EPA will consider how best to develop waste 

regulations to address minefilling, consistent with the recommendations of the National 

Academy of Sciences. Therefore, the Agency is not addressing minefilling operations in this 

proposed rule. Thus, EPA is proposing to defer a decision on the July 9, 2009 petition submitted 

by environmental and citizens groups that petitioned EPA to regulate the minefilling of CCRs 

under subtitle C of RCRA 

4. 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 nonutility 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. These wastes will be assessed after EPA promulgates regulations for CCRs 

from the electric power sector. 

 

Industries that primarily burn coal to generate power for their own purposes (i.e., non-utilities), 

also known as combined heat and power (CHP) plants, are primarily engaged in business 

activities, such as agriculture, mining, manufacturing, transportation, and education. The 

electricity that they generate is mainly for their own use, but any excess may be sold in the 

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wholesale market.47 According to the Energy Information Administration (EIA), CHPs 

produced 2.7% of the total electricity generated from coal combustion in 200748 and burned 

2.3% of the total coal consumed for electricity generation (24 million tons)49 at 2,967 facilities.50 

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 generate131 

million of tons of CCRs annually, or an average of approximately 265,000 ton per facility. In 

addition, these manufacturing facilities generate other types of waste, many of which are 

generated in larger quantities than CCRs, and thus, they are likely to be mixed or co-managed 

together. As a result, the composition of any co-managed waste might be fundamentally 

different from the CCRs that are generated by electric utilities. Presently, EPA lacks critical data 

from these facilities sufficient to address key Bevill criteria such as current management 

practices, damage cases, risks, and waste characterization, or to understand the implications of a 

determination to regulate this material under subtitle C. For example, EPA’s data do not 

currently have enough information on non-utilities to conduct a regulatory flexibility analysis as 

required under the Regulatory Flexibility Act for rules that may impact a significant number of 

small entities. Therefore, the Agency has decided to assess these operations after addressing the 

electric power sector, and will instead focus on the 97% of CCRs generated at electric utilities. 

5. EPA is Not Proposing to Apply the New Requirements to CCRs from Certain OnGoing State or Federally Required Cleanups. 

 

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

48 http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile1_1.pdf 

49 http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile4_1.pdf 

50 http://www.eia.doe.gov/cneaf/electricity/epa/epaxlfile2_3.pdf 

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The Agency is proposing to allow state or federally-required cleanups commenced prior to the 

effective date of the final rule to be completed in accordance with the requirements determined 

to be appropriate for the specific cleanup. EPA’s rationale for this decision is two-fold. First, 

for state or federally required cleanups that already commenced and are continuing, the state or 

federal government has entered into an administrative agreement with the facility owner or 

operator which specifies remedies, clean-up goals, and timelines that were determined to be 

protective of human health and the environment, based on the conditions at the site. The 

overseeing agency will also be able to ensure that the cleanup waste, if sent off-site (which may 

sometimes be necessary) will go to appropriately designed and permitted facilities – even if the 

permitted facility is under subtitle D rather than subtitle C. 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 of hazardous wastes (see the 

"Requirements for Management of Hazardous Contaminated Media" at 61 FR 18780). However, 

the Agency takes comment on this proposed provision. 

D. Proposed Listing of CCRs as a Hazardous Waste. 

EPA is proposing to list CCRs as a hazardous waste by amending 40 CFR Part 261.32 (a), 

“Hazardous wastes from specific sources,” by adding coal combustion residuals generated by the 

electric power sector, as defined in today’s proposed regulation, as EPA Hazardous Waste 

Number K179 in the list of hazardous wastes under a new category titled “Coal Combustion 

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Residuals.” Thus, EPA is proposing to grant the portion of the July 9, 2009 petition submitted 

by environmental and citizen groups who requested that CCRs that are disposed of be regulated 

as hazardous wastes. This section provides EPA’s basis for regulating CCRs as hazardous waste 

when disposed, and thus, the basis for proposing to grant this portion of the petition. As 

described previously in this preamble, the proposed listing would not apply to CCPs that are 

beneficially used, CCRs that are part of a state or federally required cleanup that commenced 

prior to the effective date of the final rule, or CCRs generated by facilities outside the electric 

power sector. 

 E. What is the Basis for Listing CCRs as a Hazardous Waste? 

Many of the underlying facts on which EPA is relying to support its proposed listing have 

already been discussed in the previous sections, which lays out the Agency’s rationale for 

reversing the Bevill Regulatory Determination and exemption. Rather than reiterate that 

discussion here, EPA simply references the discussion in the earlier units. In addition, EPA is 

relying on the various risk assessments conducted on CCRs to provide significant support for 

EPA’s listing determination. EPA’s risk assessment work includes four analyses: (1) U.S. EPA 

1998, “Draft Final Report: Non-groundwater Pathways, Human Health and Ecological Risk 

Analysis for Fossil Fuel Combustion Phase 2 (FFC2)” (June 5, 1998) referred to hereafter as the 

1998 Non-groundwater risk assessment (available in docket # F-1999-FF2P-FFFFF in the RCRA 

Information Center, and on the EPA website at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ngwrsk1.pdf); (2) preliminary 

groundwater and ecological risk screening of selected constituents in U.S. EPA 2002, 

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“Constituent Screening for Coal Combustion Wastes,” (contractor deliverable dated October 

2002, available in docket EPA-HQ-RCRA-2006-0796 as Document # EPA-HQ-RCRA-2006-

0796-0470); referred to hereafter as the 2002 screening analysis; (3) U.S. EPA 2009a, “Human 

and Ecological Risk Assessment of Coal Combustion Wastes” (September 2009) available in the 

docket for this proposed rule, and referred to hereafter as the 2009 risk assessment; and (4) U.S. 

EPA 2009b, “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal 

Combustion Waste Landfills” available in the docket for this proposed rule. As explained below, 

the 2009 risk assessment correlates closely with the listing criteria in EPA’s regulations. 

1. Criteria for Listing CCR as Hazardous Waste and Background on 2009 Risk 

Assessment. 

In making listing determinations, the Agency considers the listing criteria set out in 40 CFR 

261.11. The criteria provided in 40 CFR 261.11(a)(3) include eleven factors that EPA must 

consider in determining whether the waste poses a “substantial present or potential hazard to 

human health and the environment when improperly treated, stored, transported or disposed of or 

otherwise managed.” Nine of these factors, as described generally below, are incorporated or are 

considered in EPA's risk assessment for the waste streams of concern: 

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

the risk assessment modeling. 

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o Constituent concentrations (Sec. 261.11(a)(3)(ii)) and the quantities of waste generated 

(Sec. 261.11(a)(3)(viii)) are combined in the calculation of the levels of the CCR 

constituents that pose a hazard. 

o Potential of the hazardous constituents and any degradation products to migrate, persist, 

degrade, and bioaccumulate (sections 261(a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v), 

and 261.11(a)(3)(vi)) are all considered in the design of the fate and transport models 

used to determine the concentration of the contaminants to which individuals are 

exposed. 

o Two of the factors, plausible mismanagement and the regulatory actions taken by other 

governmental entities based on the damage caused by the constituents 

((§§261.11(a)(3)(vii) and 261.11(a)(3)(x)), were used in establishing the waste 

management scenario(s) modeled in the risk assessment. 

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. B. 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 that it 

meets the criteria for listing set forth in 40 CFR 261.11(a)(3). The criteria for listing hazardous 

wastes found at 40 CFR Part 261.11 require the Administrator to list a solid waste as a hazardous 

waste upon determining that the solid waste meets one of three criteria in 40 CFR 261.11(a)(1)-

(3). The criteria considered by EPA in determining that listing is warranted pursuant to 40 CFR 

261.11(a)(3) are: 

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 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. 

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i. Background on EPA’s 2009 Risk Assessment. 

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 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 2009a). EPA has also 

performed preliminary analyses of human health effects from constituents that have eroded or 

have run off from waste management units (U.S. EPA 2002), and of human health effects from 

breathing windblown particulate matter from landfill disposal operations (the 1998 risk 

assessment and U.S. EPA 2009b). 

Longstanding EPA policy is for EPA risk assessments to include a characterization of the risks at 

two points on a distribution, or 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 

DRAFT DO NOT CITE OR QUOTE 112 of 324 10/16/09 
(U.S. EPA 1995).51 Examples of factors that would influence a nearby resident’s exposure are 

the residence’s distance from a CCR waste management unit, and an individual’s behavior or 

activity patterns. In the 2009 risk assessment, the high end risk estimates are the 90th percentile 

estimates from a probabilistic analysis. 

The comparisons that EPA uses to judge whether either a high end or central tendency estimated 

risk is of concern are the risk criteria. For an individual’s cancer risk, the risk criteria are in the 

range of 1 x 10-6, or one in one million “excess” (above and beyond pre-existing risk) probability 

of developing cancer during a lifetime, to 1 x 10-4 (one in ten thousand),52 with 1 x 10-5 (one in 

one hundred thousand) being the “point of departure” for listing a waste as hazardous.53 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 

 

51 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. 

52 See 40 CFR 300.430. 

53 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 66072. 

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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. 

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. 

ii. Consideration of Individual Listing Criteria. 

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CCRs contain the following Appendix VIII toxic constituents: antimony, arsenic, barium, 

beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and thallium. These 

Appendix VIII constituents are frequently found in CCRs, as has been reported by the U.S. EPA 

(1988, 1999, 2002, 2006, 2008, and 2009).54 These are discussed below with respect to the 

factors outlined in § 261.11(a)(3)(i)-(xi), and the Agency’s findings. 

Toxicity – Factor (i) 

 

54 Full references: 

U.S. EPA (Environmental Protection Agency). 1988. Wastes from the Combustion of Coal by Electric Utility Power 

Plants – Report to Congress. EPA-530-SW-88-002. U.S. EPA Office of Solid Waste and Emergency Response. 

Washington, DC. November. 

U.S. EPA (Environmental Protection Agency). 1999. Report to Congress: Wastes from the Combustion of Fossil 

Fuels—Volume II, EPA 530-S-99-010. Office of Solid Waste. March. 

U.S. EPA (Environmental Protection Agency). 2002. Constituent Screening for Coal Combustion Wastes. Draft 

Report prepared by Research Triangle Institute for Office of Solid Waste, Washington, DC. September. 

U.S. EPA (Environmental Protection Agency). 2006. Characterization of Mercury-Enriched Coal Combustion 

Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control. EPA 600/R-06/008. Office of 

Research and Development. Research Triangle Park, NC. January. 

U.S. EPA (Environmental Protection Agency). 2008. Characterization of Coal Combustion Residuals from Electric 

Utilities Using Wet Scrubbers for Multi-Pollutant Control. EPA/600/R-08/077. Report to U.S. EPA Office of 

Research and Development, Air Pollution Control Division. Research Triangle Park, NC. July. 

U.S. EPA (Environmental Protection Agency). 2009. Human and Ecological Risk Assessment of Coal Combustion 

Wastes. Office of Resource Conservation and Recovery, Washington, DC. September. 

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Toxicity is considered in developing the health benchmarks used in risk assessment modeling. 

The Agency for Toxic Substances and Disease Registry (ATSDR) ToxFAQs,TM55 the EPA 

Integrated Risk Information System (IRIS),56 and the Toxicology Data Network (TOXNET) of 

the National Institutes of Health57 are all sources of toxicological data on the Appendix VIII 

constituents found in CCRs. (The information from these data sources on the toxicity of the 

metals identified are included in the docket to today’s proposed rule.) Two types of ingestion 

benchmarks are developed. For carcinogens, a cancer slope factor (CSF) is developed. A CSF is 

the slope of the curve representing the relationship between dose and cancer risk. It is used to 

calculate the probability that the toxic nature of a constituent ingested at a specific daily dose 

will cause cancer. For non-carcinogens, a reference dose (RfD) is developed. An RfD is a daily 

oral exposure that is not anticipated to produce appreciable risk of harmful effects over a 

lifetime. The constituents of concern associated with CCRs include antimony, arsenic, barium, 

beryllium, cadmium, cobalt, hexavalent chromium, lead, mercury, molybdenum, 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 effects associated with these constituents is presented below. 

 

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

56 http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showSubstanceList&list_type=alpha&view=B 

57 http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB 

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Ingestion of arsenic has been shown to cause skin cancer, liver cancer, bladder cancer, and lung 

cancer.58 Inhalation of hexavalent chromium has been shown to cause lung cancer.59 Cobalt, 

with the highest HQ in the risk assessment, is known to cause lung and heart effects, as well as 

dermatitis.60 Effects associated with cadmium, lead, and molybdenum include: kidney disease, 

lung disease, fragile bones, decreased nervous system function, high blood pressure, anemia, and 

others.61 Thallium exposure is associated with hair loss, as well as nervous and reproductive 

system damage.62 Antimony is associated with altered glucose and cholesterol levels, 

myocardial effects, and spontaneous abortions.63 Traditional surface impoundments, where 

waste is not co-disposed, may also pose risks for nitrate/nitrite and selenium. Nitrate is 

associated with pregnancy complications and methemoglobinemia (blue baby syndrome),64

while selenium is associated with selenosis.65 Barium has been found to potentially cause 

gastrointestinal disturbances and muscular weakness when people are exposed to it at levels 

above the EPA drinking water standards for relatively short periods of time.66 Beryllium can be 

harmful if you breathe it. If beryllium air levels are high enough (greater than 1000 μg/m3), an 

acute condition can result. This condition resembles pneumonia and is called acute beryllium 

 

58 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

59 Ibid 

60 Ibid 

61 Ibid 

62 Ibid 

63 Ibid 

64 ATSDR CSEM. Available at: http://www.atsdr.cdc.gov/csem/nitrate/no3physiologic_effects.html 

65 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

66 Ibid 

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disease.67 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.68 Exposure to high levels of 

metallic, inorganic, or organic mercury can permanently damage the brain, kidneys, and 

developing fetus.69 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.70

Concentration and Quantity – Factors (ii) and (viii) 

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.71 A recent ACAA survey estimates a total 

CCR production of just over 131 million tons in 2007.72 This is a substantially large waste 

 

67 Ibid 

68 Ibid 

69Ibid 

70 Ibid 

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

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

72 ACAA (American Coal Ash Association). 2008. 2007 Coal Combustion Product (CCP) Production & Use Survey 

Results (Revised). 

http://www.acaa-usa.org/associations/8003/files/2007_ACAA_CCP_Survey_Report_Form%2809-15-08%29.pdf 

DRAFT DO NOT CITE OR QUOTE 118 of 324 10/16/09 
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.73

A CCR constituent database was developed for the regulatory determination in 2000 and in 

followup work leading to today’s proposal. This database contained data on the total CCR 

constituents listed above, as well as many others, with the Appendix VIII constituents found in 

varying concentrations (see Table 3).74 

Table 3. 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 

 

73 The National Biennial Rcra Hazardous Waste Report ( 2007) available at 

http://www.epa.gov/epawaste/inforesources/data/br07/national07.pdf. 

74 Additional data on the waste characteristics of fly ash and FGD is presented in section I.F. 

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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 3 shows 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 proposal, including documents contained in the docket to today’s proposed 

rule. 

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 

DRAFT DO NOT CITE OR QUOTE 120 of 324 10/16/09 
toxic metals will persist in the environment for very long periods of time, and if they escape from 

the disposal site, will continue to provide a potential source of long-term contamination. 

The purpose of the risk assessment was to use the fate and transport models to assess likely 

migration of the CCR toxic constituents from different waste types through different exposure 

pathways, to receptors and to predict whether CCRs under different management scenarios may 

produce risks to human health and the environment. To estimate the risks posed by the 

management of CCRs in landfills and surface impoundments, the risk assessment estimated the 

release of the CCR toxic constituents from landfills and surface impoundments, the 

concentrations of these constituents in environmental media surrounding coal-fired utility power 

plants, and the risks that these concentrations pose to human and ecological receptors. The risk 

estimates were based on a groundwater fate and transport model in which constituents leached to 

groundwater consumed as drinking water, migrated to surface water and bioaccumulated in 

recreationally caught and consumed fish, and on direct ecological exposure. The specific risk 

assessment results for relevant Appendix VIII constituents are discussed below; however, in 

summary, and as discussed previously, the risk assessment demonstrates that if CCRs are 

improperly managed, they have the potential to present a significant hazard to human health and 

the environment. 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. 

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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. 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 x 10-5 (1 in 100,000) for clay or composite-lined 

landfills. Thallium is estimated at three times the reference dose in unlined landfills at the 90th

percentile, but did not exceed the reference dose at the 50th percentile for any liner type. 

For unlined landfills managing FBC waste, arsenic is estimated to have a cancer risk of 3 x 10-5

(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 6 x 10-5 (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 

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peak well water concentrations are estimated to occur is approximately 2,800 to 9,700 years for 

arsenic, 2,600 to 10,000 years for selenium, and 2,300 years for thallium. For clay-lined 

landfills, the median estimated time until peak well concentrations is approximately 4,000 to 

10,000 years for arsenic, 5,100 to more than 10,000 years for selenium, and 4,300 years for 

thallium. Of the contaminated groundwater plumes that are estimated to reach the receptor wells 

from composite-lined units, the constituent concentrations were not estimated to reach peak 

concentrations in the 10,000 year time period that was modeled.75

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 hazard quotient 

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 the 

 

75 The risk model used by EPA evaluates conditions over a 10,000 year period, and considers constituent 

concentrations during that period. In some cases, peak concentrations do not occur during the 10,000 year period. 

DRAFT DO NOT CITE OR QUOTE 123 of 324 10/16/09 
unlined and clay-lined surface impoundments, respectively.76 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 

hazard quotient 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 claylined 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,77 the median number of years was estimated to be 

4,600 years for hexavalent selenium and 8,600 years for trivalent arsenic. 

 

76 Including data with very high leach levels in surface impoundments where pyritic wastes were managed. As 

mentioned earlier, management of CCR with coal refuse may have changed, and some pore water data from the coal 

refuse may not represent the management of these materials today, and thus, what would leach out of surface 

impoundments. EPA has solicited comments on these issues. 

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

DRAFT DO NOT CITE OR QUOTE 124 of 324 10/16/09 
While chromium, vanadium, and nickel were not modeled using the fate and transport models, 

they did show the potential for excess risk at the screening stage.78 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, 10th percentiles (not 90th percentiles) 

were 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 and vanadium were estimated to exceed an HQ 

of 1 at the 10th percentile. The HQ for nickel under the surface impoundment scenario was less 

than 1 using the 50th and 10th percentile values. However, the use of risk attenuation factors in 

 

78 Previous risk assessment results for CCR (U.S. EPA, 1998) indicated concern for the groundwater pathway and 

limited concern for aboveground pathways for human and ecological receptors. The primary purpose of subsequent 

risk analyses was to update those results by incorporating new waste characterization data received since 1998 and 

by applying current data and methodologies to the risk analyses. The initial step in this process is screening and 

constituent selection for a more detailed analysis. The goal of screening is to identify CCR constituents, waste 

types, receptors, and exposure pathways with risks below the level of concern and eliminate those combinations 

from further analysis. The screening analysis (U.S. EPA, 2002) compared the 90th percentile leachate values 

directly to the human health benchmarks identified above. In other words, it was assumed that a human receptor 

was drinking leachate directly from a CCR landfill or surface impoundment with no attenuation or variation in 

exposure. 

DRAFT DO NOT CITE OR QUOTE 125 of 324 10/16/09 
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 constituents posed a cancer risk greater than 1 in 

100,000, nor did they exceed their reference doses. However, for surface impoundments codisposing of CCRs and 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 sites can originate from waste 

unloading operations, spreading and compacting operations, the re-suspension of particulates 

from vehicular traffic, and from wind erosion. Air inhalation exposures may cause adverse 

human health effects, either due to inhalation of small-diameter (less than 10 microns) 

“respirable” particulate matter that causes adverse effects, such as triggered asthma attacks or 

increased mortality (and for which the NAAQS for particulate matter has been established, under 

the CAA), or due to the toxic effects of these respirable particles. 

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To evaluate the potential exposure of residents to particulate matter that live near landfills that 

have disposed of CCRs, EPA has performed a screening-level analysis using the SCREEN3 

model. This analysis, in Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed 

by Coal Combustion Waste Landfills (US EPA 2009b, copy of which is in the docket for this 

proposed rule), indicates that, without fugitive dust controls, there could be exceedances of the 

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, 1998.79 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,80 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 

 

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

80 See, for example, Vouk, V. and Piver, W. “Metallic Elements in Fossil Fuel Combustion Products: Amounts and 

Form of Emissions and Evaluation of Carcinogenicity and Mutagenicity.” Env Health Perspec 1983: 47(201-225). 

DRAFT DO NOT CITE OR QUOTE 127 of 324 10/16/09 
(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: For instances 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 2600 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 

DRAFT DO NOT CITE OR QUOTE 128 of 324 10/16/09 
pertinent information of potential ecological damage. Hopkins, et al. (2006)81 observed 

deformities and reproductive effects in amphibians living on or near CCR disposal sites in 

Georgia. Rowe, et al. (2002)82 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),83 Coutant, et al. (1978)84 and Rowe, et al. (2001),85 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 impoundments include Lemly (1993),86 Sorensen, 

et al. (1982)87 and (1988).88 This latter category may reflect CCR impacts attributable to three 

 

81 Hopkins, W.A., S.E. DuRant, B.P. Staub, C.L. Rowe, and B.P. Jackson. 2006. Reproduction, embryonic 

development, and maternal transfer of contaminants in the amphibian Gastrophryne carolinensis. Environmental 

Health Perspectives. 114(5):661-666. 

82 Rowe, C., Hopkins, W., Congdon, G. “Ecotoxicological Implications of Aquatic Disposal of Coal Combustion 

Residuals in the United States: A Review.” Env Monit Assess 2002: 80(270-276). 

83 Benson, W. and Birge, W. “Heavy metal tolerance and metallothionein induction in fathead minnows: results 

from field and laboratory investigations.” Environ Toxicol Chem 1985:4(209-217). 

84 Coutant, C., Wasserman, C., Chung, M., Rubin, D., Manning, M. “Chemistry and biological hazard of a coal-ash 

seepage stream.” J. Water Poll. Control Fed. 1978:50(757-743). 

85 Rowe 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). 

86 Lemly A., “Guidelines for evaluating selenium data from aquatic monitoring and assessment studies.” Environ. 

Monit. Assess. 1993:28(83-100). 

87 Sorensen, E., Bauer, T., Bell, J., Harlan, C. “Selenium accumulation and cytotoxicity in teleosts following 

chronic, environmental exposure.” Bull. Environ. Contam. Toxicol. 1982:29(688-696). 

DRAFT DO NOT CITE OR QUOTE 129 of 324 10/16/09 
constituent migration mechanisms: 1) NPDES-permitted discharges from impoundments; 2) 

overtopping of impoundments; and 3) groundwater-to-surface-water discharges (modeled in US 

EPA 2009a), as well as other, non-CCR-related, sources of pollutants. 

While chromium, beryllium, copper, silver and vanadium 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 was for chromium, copper and vanadium at the 10th percentile. Since full-scale 

modeling was not conducted, the results for these constituents are uncertain. 

Nature and Severity of Effects from Mismanagement and Other Regulatory Actions – 

Factors (vii), (ix), and (x) 

As discussed earlier, approximately 47 million tons of CCRs were managed in calendar year 

2007 in landfills and nearly 28 million tons were managed in surface impoundments.89 EPA has 

estimated that in 2004, 69% of the CCR landfills and 38% of the CCR surface impoundments 

had liners compared to 57% and 26%, respectively, in 1995. As shown in the risk assessment 

and damage cases, the disposal of CCRs into unlined landfills and surface impoundments is 

 88 Sorenson, E. “Selenium accumulation, reproductive status, and histopathological changes in environmentally 

exposed redear sunfish.” Arch Toxicol 1988:61(324-329). 

89 Estimated from the 2007 ACAA survey and Energy Information Administration 2005 F767 Power Plant database. 

DRAFT DO NOT CITE OR QUOTE 130 of 324 10/16/09 
likely to pose significant risks to human health and the environment. Additionally, documented 

damage cases have helped to confirm the risks posed by these unlined disposal units. 

Specifically, EPA currently has documented evidence of proven and potential damages to 

groundwater and surface water from 67 disposal sites, which are discussed in detail above and in 

Appendix I of this proposal. The damage cases resulting from CCR constituents migrating into 

groundwater were generally the same with those predicted in the risk assessment. 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 found at levels of concern in the risk assessment, but have yet to be 

identified in any of our groundwater damage cases. 

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. Similarly, the risk assessment predicts that 

selenium consumption from fish in water bodies affected by CCR disposal units would result in 

excess risk. 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. 

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In addition to the impacts on human health from groundwater and surface water, 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. While 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 67 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.90 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 28.50 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. In addition, the Kingston, TN damage case (see Appendix I) 

 

90 U.S. EPA 2007. “Introduction to the Hazard Ranking System (HRS).” Accessed at: 

http://www.epa.gov/superfund/programs/npl_hrs/hrsint.htm. 

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helps to illustrate the additional threats to human health and the environment that can be caused 

by the failure of a waste management unit. While the preponderance of documented damage 

cases were the result of releases from unlined landfills and surface impoundments, EPA believes 

that the above data are equally illustrative of potential problems occurring from the management 

of CCRs in surface impoundments. 

As a result of the mismanagement of CCRs, EPA and states have taken steps to compel cleanup 

in several situations. Specifically, in addition to 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. 

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.91 While not 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. 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. 

 

91 Aluminum, boron, chloride, cobalt, copper, cyanide, fluoride, iron, lithium, manganese, molybdenum, 

nitrate/nitrite, strontium, sulfate, vanadium, and zinc. 

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Therefore, based on our examination of CCRs against the criteria for listing hazardous wastes, 

the Agency believes CCRs are capable of posing a substantial present or potential hazard to 

human health or the environment when improperly managed. The Agency’s decision to propose 

to list CCRs as hazardous wastes is based on: the continued evidence that CCRs in landfills and 

surfaces may not be adequated managed – e.g., without groundwater monitoring at existing units; 

the continued application of CCRs in large-scale “disposal” actions, under the name of fill; the 

continued gaps in some state regulations; the damage cases we have documented to date, 

including the damage done as a result of the recent catastrophic release of coal ash from the 

impoundment failure in Kingston, Tennessee; and 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 x 10-5)

92 and non-cancer risk threshold (HQ greater than 1). EPA now believes 

regulations under RCRA subtitle C are warranted for the disposal of CCRs, and therefore are 

proposing to list utility-produced.CCRs going for disposal in surface impoundments or landfills 

as a hazardous waste, and thus subjecting them to RCRA subtitle C (hazardous waste) 

management standards to ensure protection of human health and the environment. 

IV. Summary of the Proposal and Other Options Considered. 

 

92 This risk level is consistent with those discussed in EPA's hazardous waste listing determination policy (see the 

discussion in a proposed listing for wastes from the dye and pigment industries, December 22, 1994; 59 FR 66072). 

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EPA is proposing to revise a portion of its August 1993 and May 2000 Regulatory 

Determinations, which concluded that regulation of CCRs from electric utilities and independent 

power producers under RCRA Subtitle C was not warranted. As discussed previously, 

information developed or presented to EPA since those Regulatory Determinations were 

announced has led the Agency to conclude that the risks from disposal of these CCRs are such 

that the exclusion from hazardous waste regulations should be removed and that CCRs should be 

regulated as hazardous wastes under subtitle C of RCRA. EPA is also proposing to list CCRs 

destined for disposal in landfills and surface impoundments as hazardous under 40 CFR. 261.32; 

if finalized, this rule will impose the requirements at 40 CFR parts 260 through 268 and 270 

through 272 and the notification requirements under CERCLA at 40 CFR part 302 on discarded 

coal combustion residuals. EPA is generally proposing not to modify the standard subtitle C 

requirements as they apply to CCRs, except as specifically discussed below and in section V of 

this preamble. Accordingly, for those regulatory requirements that remain unmodified, EPA is 

not proposing to reopen any aspect of those requirements, and will not respond to any unsolicited 

comments submitted during this rulemaking. 

Subtitle C requirements would require that new disposal units meet the existing hazardous waste 

siting requirements, and that all units meet the hazardous waste monitoring, corrective action, 

and financial assurance requirements. Design criteria for new CCR disposal units are tailored in 

this proposal specifically for CCRs, and modified land disposal restrictions (LDRs) treatment 

standards are proposed to be established. For non-wastewaters, EPA is proposing to require that 

the CCRs meet the Universal Treatment Standards (UTS) at 40 CFR part 268.48 prior to disposal 

as the treatment standard, while for wastewaters, EPA is proposing to require solids removal and 

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that CCRs meet the UTS as the treatment standard. However, EPA is not proposing to modify 

the requirements of 3005(j) for interim status surface impoundments. EPA expects that as a 

result of these measures, facilities will switch to dry handling of CCRs, which will obviate the 

need for the construction of new surface impoundments after the effective date of the rule, and 

will effectively phase out existing surface impoundments within the five years before these 

requirements become effective. 

 

The Agency is also proposing to modify and adopt design and inspection requirements for 

surface impoundments to address dam safety and stability issues similar to the Mine Safety and 

Health Administration (MSHA) design requirements for slurry impoundments at 30 CFR Part 

77.216 (EPA has placed a copy of the MSHA regulations in the docket for this proposed 

rulemaking). As noted previously, the proposed land disposal restrictions will require facilities 

to close existing impoundments, and not to construct new CCR surface impoundments. EPA is 

proposing that CCRs sent to existing landfills and surface impoundments would be required to be 

in compliance with the final LDR treatment standards within two years after the effective date of 

the final rule, with the exception of the LDR wastewater treatment standards for which five years 

is provided to achieve compliance. New landfills, surface impoundments, and lateral expansions 

of new or existing landfills and surface impoundments would be required to be in compliance 

with the final standards before CCRs could be placed in the new landfill, surface impoundment, 

or lateral expansion. For a more detailed discussion of this action, see the Proposed Special 

Requirements for CCRs section (section V) below. 

A. What is EPA Proposing to Regulate? 

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EPA is proposing to list and regulate CCRs generated by the electric power sector, as defined in 

today’s proposed regulation, as hazardous wastes under the authority of RCRA subtitle C, with 

certain modifications of the technical standards pursuant to section 3004(x) of RCRA, when 

these materials are destined for disposal. This proposal applies to CCRs from electric utilities 

and independent power producers whose primary business is to sell electricity, or electricity and 

heat, to the public. 

The proposal does not cover CCRs generated by industries that burn coal to generate power for 

their own purposes, because EPA at this point is not proposing to remove the Bevill exemption 

for these wastes. EPA also is proposing to retain the Bevill determination for CCRs that are 

beneficially used (see discussion of beneficial uses in section III.B.2 of the preamble). Similarly, 

EPA is not addressing the minefilling of CCRs in today’s proposed regulations, but will address 

minefilling operations in a separate action, in cooperation with the U.S. Department of the 

Interior’s Office of Surface Mining. See section III for more detailed discussions of non-utility 

CCRs, beneficial uses, and minefilling. 

As discussed in the May 2000 Regulatory Determination, facilities that generate CCRs also 

generate other low-volume wastes that are related to the coal combustion process, commonly 

referred to as uniquely associated wastes. Examples of these wastes are precipitation runoff 

from the 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 boilers used to generate steam. There are many 

other low-volume wastes like these. With the revisions to the May 2000 Regulatory 

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Determination, the uniquely associated wastes are no longer associated with a Bevill exempt 

waste and, therefore, are no longer exempt from hazardous waste regulations; however, the 

Agency is not proposing to list the uniquely associated wastes as hazardous wastes. 

Consequently, the uniquely associated wastes would not be subject to hazardous waste 

regulations unless they exhibit one or more of the hazardous waste characteristics described in 40 

CFR 261 subpart C, or if they are mixed with a listed hazardous waste; e.g., CCRs (see 40 CFR 

261.3(a)(2)(iv)). 

B. What Approaches Did EPA Consider for Regulating CCRs? 

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 

several approaches in addition to regulation under the hazardous waste provisions of RCRA. 

Specifically, the Agency also considered regulations under RCRA subtitle D (or the nonhazardous waste provisions of RCRA), and combination approaches, such as regulating surface 

impoundments under subtitle C of RCRA and landfills under subtitle D of RCRA. Under all of 

the approaches EPA considered, requirements for liners and ground water monitoring would be 

established. Additionally, under all of the approaches considered, EPA would require annual 

inspections of all CCR surface impoundments by a registered professional engineer to assure that 

the design, operation, and maintenance of the surface impoundment is in accordance with 

generally accepted engineering standards. However, the degree and extent of federal oversight, 

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including enforcement, varies based on whether a regulation is promulgated under RCRA 

subtitle C or subtitle D authority.93 

EPA’s proposed approach is to regulate CCRs as hazardous waste under subtitle C of RCRA. 

However, the Agency solicits comments on the various approaches discussed below, including 

any advantages and disadvantages with the various alternatives, as well as how the alternative 

approaches to a RCRA subtitle C approach would meet EPA’s goal of ensuring protection of 

human health and the environment for the management of CCRs, while not providing a barrier to 

their beneficial use. 

 1. Subtitle C Approach (Proposed Approach) 

 

EPA’s proposed approach in this notice is to list CCRs from public utilities intended for disposal 

as hazardous wastes, which would make them subject to the current subtitle C regulations at 40 

CFR part 260 through 265, 267, and 268. These regulations establish 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. They would also impose hazardous waste generator and transporter requirements 

and manifesting (if waste is sent off site). In most cases, EPA is proposing to adopt the existing 

subtitle C hazardous waste requirements without modification. However, for those existing 

 

93 The discussion below primarily focuses on the technical requirements for the management of CCRs and not the 

administrative or tracking requirements that may also be applicable. 

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requirements for which EPA has determined that the practical difficulties of implementation or 

the special characteristics of these wastes warrant changes, EPA is proposing to add new 

requirements or to modify existing requirements to account for these considerations See 

generally 42 USC 6924(x). 

The specific requirements of the proposed approach are summarized below. 

General TSD Requirements, including Location Restrictions. Under existing regulations, all of 

the following requirements would apply: the general facility standards of parts 264/265/267 

(Subpart B), the preparedness and prevention standards of parts 264/265/267 (Subpart C), the 

contingency plan and emergency procedures of parts 264/265/267 (Subpart D), and the manifest 

system, recordkeeping, and reporting requirements of 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 100-year floodplains (unless the facility 

made a specific demonstration) and seismic impact areas would be prohibited. 

Landfill/Surface Impoundment Design Requirements. Pursuant to section 3004(x),94 EPA is 

proposing to modify the standard RCRA statutory minimum-technology requirements for 

 

94 Section 3004(x) of RCRA provides EPA authority to modify the statutory minimum technology standards for 

disposal units receiving Bevill wastes, including CCRs, 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 the climate, geology, hydrology and soil chemistry at the site, so long as 

such modified requirements are protective of human health and the environment. 

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liners/leachate collection and removal systems for new hazardous waste landfills and surface 

impoundments. 

The current subtitle C design standards for landfills and surface impoundments require a double 

liner system and a specific leachate collection and removal system that can also serve as a leak 

detection system. (See 40 CFR 264/265, Subparts K and N.) 

EPA is proposing to replace the double liner and leachate collection system requirement with a 

composite liner and leachate system requirement. Thus, we are proposing to exclude CCR 

surface impoundments and landfills from the double liner and leak detection requirements of 40 

CFR part 264 by amending 40 CFR 264.220 and 264.300. 

EPA has concluded that the criteria in section 3004(x) for modifying these requirements have 

been met in this case and, therefore, EPA is proposing to modify these double liner requirements 

for landfills and surface impoundments receiving hazardous waste and replace them with 

standards specific for CCRs in landfills and surface impoundments. EPA believes these 

modifications are appropriate, given that they reflect the specific characteristics of CCRs (i.e., 

they do not contain volatile organics, such as ethylbenzene, which has recently been shown to be 

a problematic constituent for synthetic liners) and the practical difficulties of implementation, 

particularly with wastes of such great volume, requiring enormous amounts of liner materials. 

Also, EPA concludes that the protectiveness standard of section 3004(x) will be met under this 

approach. 

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Based on its risk analyses and the damage cases, EPA has concluded that a single composite 

liner system for CCR landfills and surface impoundments will protect human health and the 

environment from releases of contaminants to groundwater. 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) and that the risk analysis estimates that risks from 

disposal units with composite liners will be less than 1x10-5 for carcinogens and less than an HQ 

of one for other hazardous constituents – levels that EPA has consistently considered to be 

protective for the management of solid or hazardous wastes. In addition, these requirements are 

the design standards for composite liners specified for municipal solid waste landfills at 40 CFR 

part 258, and based on EPA’s experience, have been proven to be effective in mitigating the risks 

of leaching to groundwater. The results of EPA’s risk analyses are discussed in section I.F.4 and 

in the full risk assessment, which is placed in the docket for this rulemaking. 

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.95 EPA notes, that 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 doubleliner system (42 USC 6924(o)(2)). EPA solicits comment on whether EPA’s regulations should 

 

95 EPA notes that the state of Maryland, in developing new standards for CCR disposal units under its subtitle D 

authorities, prescribes composite liners. 

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also provide for alternative liner designs based on a specific performance standard, such as the 

subtitle D performance standard in 40 CFR 258.40(a)(1), a performance standard based on a site 

specific risk assessment, or the standard that the alternative 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. The statute does not require existing landfills that are brought into the 

hazardous waste system because they are receiving newly listed hazardous wastes to be 

retrofitted with a new minimum-technology liner/leachate collection and removal system (or to 

close). They can continue to receive hazardous waste, and continue to operate as compliant 

hazardous waste landfills. Of course, these existing units would have to meet groundwater 

monitoring, corrective action, and other requirements of Subtitle C, to ensure that any 

groundwater releases from the unit were identified and promptly remediated. Congress 

specifically established this approach under subtitle C, and EPA sees no reason or special 

argument to adopt more stringent requirements for CCRs, particularly given the volume of the 

material and the disruption that would be involved with any other approach. 

Congress was significantly more concerned about unlined surface impoundments managing 

newly listed hazardous wastes. These are addressed in the later section titled “Wet-handling and 

treatment requirements.” 

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Ground water monitoring/corrective action for regulated units. Today’s proposed rule would 

require the current ground water monitoring and corrective action requirements of parts 264/265 

for regulated landfills and surface impoundments, without modification. Consistent with 40 CFR 

265.90, the regulation would require existing CCR disposal units to install ground water 

monitoring systems within one year of the effective date of these regulations. The facility would 

operate under the self-implementing interim status requirements of part 265 until the regulatory 

authority imposed the specific requirements of part 264 through the RCRA permitting process. 

Generally, parts 264/265 require ground water 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 ground water of CCR constituents listed in the facility permit (these constituents 

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 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 

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standard, the owner or operator would have to initiate corrective action to achieve compliance 

with the groundwater protection standards. 

Dry-handling and treatment requirements. 

For non-wastewaters (i.e., dry CCRs), EPA is proposing that the CCRs be subject to 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). 

Wet-handling and treatment requirements. The proposal includes two specific requirements 

addressing wet-handling of CCRs: (1) under section 3005(j), new and existing surface 

impoundments are required to meet minimum-technology requirements, and (2) hazardous wates 

must meet the land disposal treatment requirements of section 3004(d) of RCRA prior to 

placement in a surface impoundment. 

Today’s proposal is based on EPA’s authority under section 3004(x) of RCRA which provides 

EPA the authority to (1) modify the requirements of section 3005(j) of RCRA (which requires 

retrofitting of surface impoundments to comply with minimum technology requirements of 

section 3004(o) of RCRA) and (2) modify the requirements of RCRA section 3004(d) – the so 

called Land Disposal Restrictions. EPA is proposing to modify the section 3005(j) requirements 

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by requiring facilities operating surface impoundments 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 (seven years after the effective date of the final regulation). 

Today, EPA is also proposing that wet-handled CCRs undergo solids removal so that the 

resulting wastewater contains no greater than 100 mg/l total suspended solids (TSS), which 

represents the Best Practicable Control Technology Currently Available for the Electric Power 

Generating Point Source Category (40 CFR 423.12). The resulting wastewater would also be 

required to meet the Universal Treatment Standards (UTS) at 40 CFR 268.48. The CCR material 

removed from the slurry would be a non-wastewater and would be subject to the non-wastewater 

treatment standard that requires non-wastewater CCRs to meet the UTS. 

The practical effect of today’s proposed rule would be to prevent facilities from continuing to 

manage wet forms of CCRs, and would result in facilities operating surface impoundments to 

stop receiving CCRs no later than five years after the effective date of the final regulation and to 

close the units within two years of that date. This effect stems from the combination of the land 

disposal restriction requirements and the necessity to close the unit within seven years. 

 

Stability Requirements for Surface Impoundments. The proposed regulation would require that a 

registered professional engineer certify that design of the impoundment is in accordance with 

current prudent environmental 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 

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ensure that any potentially hazardous condition or structural weakness will be quickly identified. 

EPA has concluded that this requirement is necessary to ensure that major releases do not occur. 

EPA recognizes that under today’s proposal, existing impoundments will be required to close 

within seven years of the rule’s effective date. However, we nevertheless believe that ongoing 

inspections by registered professional engineers is necessary to the stability of regulated 

impoundments prior to their closure, particularly if states do not become authorized for today’s 

rule in a timely manner. 

Storage. EPA is proposing to require the parts 264/265/267 storage standards without 

modification. 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 a 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 

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variance; however, tanks that contain no free liquids and are in buildings with an impermeable 

floor do not require secondary containment. New tanks (that are required to have secondary 

containment) must have secondary containment when constructed; existing tanks (that are 

required to have secondary containment) must come into compliance within two years of the 

rule’s effective date (or when the tank has reached fifteen years of age). Section 264.193 

specifically describes the secondary containment required, and the variance process. 

Containment buildings must be completely enclosed with a floor, walls, and a roof to prevent 

exposure to the elements (e.g., precipitation, wind, run-on), and to assure containment of the 

managed wastes. Buildings must be designed so that they have sufficient structural strength to 

prevent collapse or other failure, and all surfaces to be in contact with hazardous wastes must be 

chemically compatible with those wastes. 

Recently, representatives of the utility industry have stated their view that CCRs cannot be 

practically or cost effectively managed under the existing parts 264/265/267 storage standards, 

and that these standards impose significant costs without meaningful benefits when applied 

specifically to CCRs.96 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 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, 

 

96 While the utility industry did not specifically mention the part 267 storage standards, we presume that they would 

make the same technical arguments with respect to those standards. 

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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 subtitle C, and it solicits 

comments on whether those standards or other storage standards would be appropriate for 

CCRs.97 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), be manufactured of a material suitable for storage of its 

contents, and meet appropriate specifications, such as those established by either the American 

Society of Testing Materials (ASTM), the American Petroleum Institute (API), or Underwriters 

Laboratories, Inc. (UL) standards. Buildings must be man-made structures and have floors 

constructed from non-earthen materials, have walls, and have a roof suitable for diverting 

rainwater away from the foundation. A building may also have doors or removable sections to 

enable trucks or machines access. 

 

97 Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment Standards for Metal Wastes and 

Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues; Treatment 

Standards for Hazardous Soils, and Exclusion of Recycled Wood Preserving Wastewaters; Final Rule 

(http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm). 

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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 on 

the mining and mineral processing wastes storage requirements. Because EPA received 

comment on these issues late in the development of this proposal, it has not developed cost 

estimates for managing CCRs in compliance with the parts 264/265/267 storage standards. EPA 

solicits specific comments on these potential costs. 

Fugitive Dust Controls. The proposed subtitle C approach would require that surface 

impoundments and landfills be managed in a manner that does not violate any applicable 

requirements developed under a State Implementation Plan (SIP) or promulgated by the 

Administrator under section 110 of the Clean Air Act and that landfills, surface impoundments, 

storage tanks, containers, buildings, pads, and trucks that transport CCRs must be managed to 

control the dispersal of dust. EPA performed a screening-level analysis on the risks posed by 

fugitive dusts from CCR landfills which indicates that, without fugitive dust controls, there could 

be exceedances of the National Ambient Air Quality Standards98 for fine particulate matter in the 

air at residences near CCR landfills.99

Closure and Post-Closure Care. Under today’s proposal, the current subtitle C requirements for 

closure and post-closure care of landfills and surface impoundments would apply. The parts 

264/265 landfill and surface impoundment requirements establish cover requirements (e.g., the 

 

98 National Ambient Air Quality Standards available at http://www.epa.gov/air/criteria.html 

99 Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills (US 

EPA 2009b) which is available from the docket for this proposed rule. 

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cover must have a permeability less than or equal to the permeability of any bottom liner system 

and must minimize the migration of liquids through the closed landfill). These requirements are 

generally applied through a closure-plan or permit approval process. Also, the regulations require 

30 years of post-closure care, including maintenance of the cap and ground-water monitoring, 

unless an alternative post-closure period is established by EPA or the authorized state. 

Corrective action Today’s proposed rule would subject treatment, storage, and disposal facilities 

(TSDs) to corrective action, including facility-wide corrective action requirements of RCRA 

under section 3004(u), section 3008(h), and 40 CFR 264.101. Section 3004(x) provides EPA the 

flexibility to modify corrective action requirements for TSDs managing CCRs, including facilitywide corrective action; 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. 

Financial assurance. The financial assurance requirements of today’s proposed rule are those of 

40 CFR part 264/265/267, subpart H. Financial assurance must be adequate to cover the 

estimated costs of closure and post-closure care, 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, 

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corporate guarantees, and demonstrations and documentation that owners or operators of the 

facility have sufficient assets to cover closure, post-closure care, and liability. The regulations 

also require financial assurance for corrective action under section 264.101. 

As we have estimated that 53 local governments own and operate coal-fired electric utilities, 

EPA is taking 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. 

Permitting requirements. Under subtitle C, TSDs that manage hazardous wastes (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 hazardous waste management permit from EPA or the authorized state. Parts 124, 

264, 267 and 270 detail 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 parts 264/267. TSDs 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) are eligible for “interim status” 

under federal regulations, providing they comply with the requirements of 40 CFR section 

270.70. While facilities are in interim status, they are subject to the largely self-implementing 

requirements of 40 CFR part 265. 

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Beneficial uses As discussed in detail in section III.B.2 of today’s preamble, EPA is proposing 

to leave the Bevill determination in place for CCRs used beneficially. EPA’s reasons for 

proposing this approach, and questions that specific beneficial uses may raise, are discussed in 

section IV of this preamble. Under this approach, CCRs being used for beneficial uses would 

not be subject to regulation from the point of their generation, or from the point they are 

recovered from landfills or surface impoundments, to the point they are beneficially used. 

Discussion. Given the potential risks from the mismanaged disposal of CCRs, which EPA has 

discussed in sections II.A and section II.B, EPA believes that regulating CCRs under subtitle C is 

the most appropriate option. EPA’s risk assessment, damage cases that have been identified, and 

what is known about current practices (including gaps in state programs) strongly support the 

proposal. 

While several alternatives are discussed below, the subtitle C approach proposed today is the 

only option that provides full cradle-to-grave control over this problematic material, and which 

ensures that it will be consistently managed under federally enforceable standards and through 

federal permits, or permits issued by states that EPA has authorized to regulate CCRs in lieu of 

EPA. In addition, the subtitle C option is the only option that allows EPA to issue permits or to 

require states to issue permits. Permits are a particularly important mechanism, because they 

allow the regulatory agency to closely scrutinize the design of disposal units and the 

management practices of the permit applicant, they allow the regulator to impose specific 

conditions where it deems current or proposed facility practices to be inadequate, and they 

ensure participation of the public and the local community in regulatory decisions. Furthermore, 

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the subtitle C approach is the only approach that allows direct federal enforcement of the rule’s 

requirements. The many damage cases, including very recent damage cases, in EPA’s view 

points to the need for this level of control and oversight at the federal level. 

At the same time, EPA acknowledges legitimate concerns with a subtitle C approach on the part 

of states, the utilities, and users of CCR-derived products. EPA generally agrees with 

commenters that the current subtitle D standards for municipal solid waste, from a technical 

perspective, are sufficient to ensure the safe management of CCRs in landfills, although we also 

emphasize that the subtitle D MSW disposal standards do not address surface impoundments, 

and do not address dam stability issues. Also, as noted above, promulgating standards under 

subtitle D of RCRA would not allow EPA to require that CCR requirements be implemented 

through a permit, which the Agency recognizes as an important mechanism in implementing 

regulations. EPA acknowledges commenters’ concerns that subtitle C requirements can be 

costly (the proposed option is the most costly of the options considered), although we believe we 

have proposed or taken comment on appropriate modifications to the subtitle C framework in 

today’s proposal, and, in any case, EPA notes that the technical standards of all the proposed 

options are the same in critical respects, so that the major costs in EPA’s analysis are generally 

the same. (For example, one of the major potential costs of the rule is associated with the 

restrictions on wet-handling of CCRs, which would be required under all options, and the 

technical unit design and groundwater monitoring requirements that will effectively protect 

human health and the environment under any option are identical.) 

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Commenters have raised two additional major substantive concerns with regulation of CCRs 

under subtitle C: 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. 

EPA believes it has generally addressed the concerns that have been raised regarding the effect 

of subtitle C regulation on legitimate beneficial uses in today’s proposal by proposing to leave in 

place its May 2000 Regulatory Determination that beneficial uses do not warrant federal 

regulation. This issue is discussed in detail in section H.2 of the preamble. 

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

CCRs will continue, that landfills and, and at least some surface impoundments, currently 

receiving CCRs will obtain interim status and convert to 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 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 national commercial hazardous waste landfill disposal capacity is between 23.5 and 

30.3 million tons.100 These figures illustrate the very large volume of CCR material involved. 

At the same time, EPA points out that, to the extent that new capacity is needed, the 

 

100 These figures reflect the total current capacity, not annual capacity. 

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implementation of today’s rule, if finalized as proposed, will take place over a number of years, 

providing time for industry and state permitting authorities to address the issue. 

One disadvantage of a subtitle C approach, compared to a subtitle D approach, is that the subtitle 

C approach, in most states, will go into effect only after a substantial passage of time. That is, 

the subtitle C regulations require an extended administrative process before they become 

effective and federally enforceable (except in the very few states not authorized for RCRA). The 

RCRA hazardous waste implementation and authorization process is described in detail in 

sections VIII and IX of this preamble. But to summarize, new “more stringent” federal 

regulations do not go into effect and become federally enforceable until RCRA-authorized 

states101 have adopted the requirements under their own state laws, and EPA has authorized the 

state revisions. Under RCRA regulations, states are required to adopt new more stringent 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. EPA will place a high priority on ensuring that states promptly 

pick up the new rules and promptly 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).102 

 2. Subtitle D Approach 

 

101 Currently, all but two states are authorized for the base RCRA program. 

102 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. 

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EPA is not proposing, but is soliciting comment on an approach under which the May 2000 

Regulatory Determination would remain in place, and EPA would issue regulations governing 

the management and disposal of CCRs under RCRA sections 1008(a), 4004 and 4005(a) (i.e., 

Subtitle D). Under a subtitle D approach, EPA would establish basic national standards for CCR 

management imposing self-implementing requirements that address major environmental 

concerns identified in the risk assessment and the damage cases. Specifically, EPA would 

develop criteria relating to location restrictions and requirements for unit design, ground water 

monitoring, run-on and run-off controls, and closure and post-closure care, as well as criteria 

restricting the wet handling of CCRs in certain surface impoundments. Regarding financial 

assurance requirements, EPA might rely on our authority under section 108 (b) of CERCLA. 

Many states already have some if not most of these requirements (with the exception of the 

phase-out of wet handling), under their current subtitle D programs, and they generally 

implement the requirements through permits. EPA and certain commenters, however, have 

identified significant gaps in state programs and current practices. The subtitle D approach 

would fill gaps and ensure national minimum standards. The details of a possible subtitle D 

approach are discussed below. 

Location Restrictions. To provide for no reasonable probability of adverse effects, EPA believes 

that any subtitle D regulation would need to ensure that new disposal units were appropriately 

sited, just as subtitle D requirements address the siting of municipal solid waste landfills. Under 

the subtitle D approach, the regulations would prohibit the placement of regulated CCRs below 

the natural water table, as defined in the proposed subtitle C regulation. Additionally, consistent 

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with the existing MSW landfill subtitle D requirements, new CCR disposal units would be 

prohibited in 100-year floodplains, wetlands, fault areas, seismic impact areas, and unstable 

areas, unless the facility prepares a report documenting that engineering measures have been 

incorporated into the unit’s design to mitigate potential adverse impacts from the disposal of 

CCRs in these areas. Unstable areas would be defined as areas with poor soils and foundation 

conditions, areas susceptible to mass movements, and karst terrain. The regulations would 

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 would require a registered professional engineer to certify either that the new unit is not in a 

prohibited area, as defined by the regulation, or that the demonstration meets the regulatory 

standards. 

Design Requirements. The CCR damage cases and EPA’s risk assessment on CCRs clearly 

show the need for effective liners – namely composite liners – to ensure against a reasonability 

probability of damage. The subtitle D design standards would require that new landfills have a 

composite liner and leachate collection and removal system that meets the municipal solid waste 

landfill liner requirements under 40 CFR part 258. (Note: This is the same design that is being 

proposed under the subtitle C proposed approach.) The composite liner would consist of two 

components: an upper component consisting of a minimum 30-mil flexible membrane liner 

(FML), and a lower component consisting of at least a two-foot layer of compacted soil with a 

hydraulic conductivity of no more than 1×10−7

cm/sec. The FML component would be installed 

in direct and uniform contact with the compacted soil component. (In other words, the new 

landfill would be required to have a liner and leachate collection and removal system meeting the 

DRAFT DO NOT CITE OR QUOTE 158 of 324 10/16/09 
standards of 40 CFR 258.40(a)(2). EPA solicits comment, however, on whether any subtitle D 

option should allow approval of an alternative design for new disposal units that EPA would 

approve through a site-specific notice-and-comment proceeding consistent with the criteria of 

section 258.40(c). 

Prohibition/phase-out of surface impoundments. Given the groundwater risks associated with 

surface impoundments without composite liners, the damage cases associated with unlined 

disposal units, the size of these units, and the potential for catastrophic failure of such surface 

impoundments as occurred at TVA’s facility in Kingston, TN, EPA believes that any subtitle D 

regulation should also address the issue of continued disposal of wet-handled CCRs in surface 

impoundments. Thus, in the subtitle D regulations, EPA would consider prohibiting the 

construction of new surface impoundments without a composite liner and leachate collection 

system after the effective date of the rule. In addition, because of the enormous size of these 

surface impoundments, and the practical implications or challenges of retrofitting existing 

surface impoundments to include a composite liner, EPA is also considering requiring the 

closure of existing surface impoundments that did not have a composite liner or leachate 

collection and removal system within five years of the effective date of the rule, although the 

Agency solicits comments on whether it should allow existing surface impoundments the 

opportunity to retrofit such surface impoundments. (See discussion on the liner design 

requirements under subtitle C of RCRA for further explanation of the potential to retrofit such 

management units.) As noted in the risk discussion of the preamble, unlined and clay lined 

surface impoundments present a significant risk such that without a composite liner system in 

place, such that EPA believes that there is a “. . .reasonable probability of adverse effects on 

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health and the environment. . .” from the disposal of CCRs in such disposal units. As we 

discussed under subtitle C, EPA believes that five years is an appropriate lead time to phase out 

existing surface impoundments given the practical difficulties in closing such units immediately 

and given the significant risks associated with surface impoundments. However, EPA solicits 

comments on the issues discussed under the subtitle C approach (e.g., time allowed for closure, 

possibility of site-specific variances, etc.) as they might apply under the subtitle D approach. 

Stability requirements for surface impoundments. In its recent assessment of surface 

impoundments managing CCRs, EPA has identified deficiencies in units currently receiving wethandled CCRs. To address these concerns, EPA solicits comments on a subtitle D approach that 

would require annual assessments of impoundment stability, conducted by independent experts 

in dam safety. 

Ground water monitoring/Correction action. The rule would require facilities to install a ground 

water monitoring system at landfills and surface impoundments within one year of the effective 

date of the regulation. The regulation would require the system to have a sufficient number of 

wells, installed at appropriate locations and depths, to yield groundwater samples from the 

uppermost aquifer, as defined in the subtitle C interim status requirements at section 265.90 that 

represents the quality of background groundwater that has not been affected by contaminants 

from the CCR disposal unit. The rule would require the facility to make available a report 

describing the groundwater monitoring system, and certification by a registered professional 

hydrologist or engineer that the groundwater monitoring system met this standard. The rule (like 

DRAFT DO NOT CITE OR QUOTE 160 of 324 10/16/09 
EPA’s current subtitle C interim status regulations) would also require, at a minimum, one up 

gradient and three down gradient wells. 

The rule would also require that the facility institute a detection monitoring program to detect 

releases to groundwater of CCR constituents of concern, at a minimum, including antimony, 

arsenic, barium, beryllium, cadmium, chromium, lead, molybdenum, mercury, nickel, selenium, 

silver, and thallium. (EPA solicits comment on whether this is the appropriate list of 

constituents.) Monitoring would be required quarterly. 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. The rule would require the facility to 

develop a summary of its assessment monitoring program, including a certification by a 

registered professional engineer or hydrologist that the monitoring programs were adequately 

designed to identify the presence of the above constituents of concern above MCLs. The 

engineer or hydrologist would also certify that the statistical techniques used to identify increases 

over background met acceptable statistical standards for groundwater monitoring. If an 

assessment monitoring program is triggered, the owner or operator of the disposal units would be 

required to 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 as indicated by the 

sampling of wells, and initiate an assessment of corrective measures within 90 days and be 

completed within 90 days. 

While the rule would require the facility to assess corrective measures, it would not require a 

specific response on the part of the owner or operator of the disposal unit where releases 

DRAFT DO NOT CITE OR QUOTE 161 of 324 10/16/09 
exceeded MCLs. In this respect, this approach differs significantly from the subtitle C approach. 

EPA considered including specific corrective action requirements, but we did not, because we 

have found that control of releases to groundwater is very site specific and not appropriate for 

national prescriptive standards. Frequently – but not always – such responses involve close 

oversight of regulatory agencies, either EPA or the state. The subtitle D approach would be 

based on the theory that, in the case of CCR disposal sites, the critically important step is that 

groundwater releases be identified. EPA agrees with environmental group commenters who 

have argued that EPA’s damage cases are limited because effective monitoring systems have not 

been installed at all facilities for all units. A subtitle D approach rule would address that 

deficiency, and provide information needed so that such releases are addressed. EPA notes that, 

where releases have been identified in damage cases, either EPA or the state (or the facility 

responsible) has taken appropriate corrective action. Therefore, EPA has focused this subtitle D 

approach on ensuring that adequate monitoring systems are installed, as certified by registered 

professional hydrologists or engineers, and that releases are reported to the local public, local 

authorities, the state, and the appropriate EPA regional office. States typically have broad 

authority to address threats to groundwater, and many states already have similar requirements 

under state subtitle D programs. EPA could invoke the RCRA or CERCLA imminent-andsubstantial-endangerment authorities where the requisite statutory standards for action were met. 

EPA also notes that, if existing surface impoundments are phased out, a major potential source of 

release will have been eliminated. 

This approach, which relies on registered professional engineers to certify the adequacy of 

groundwater monitoring, of course, does not provide the level of EPA and authorized state 

DRAFT DO NOT CITE OR QUOTE 162 of 324 10/16/09 
oversight that the proposed regulation provides, and EPA is only soliciting comment on this 

approach as an option. EPA does note, however, that groundwater science and professional 

practices have progressed significantly since EPA issued the RCRA ground water monitoring 

regulations in 1982, which gives EPA more confidence in certification by professional experts. 

EPA has also issued extensive technical groundwater monitoring and cleanup guidance under 

both RCRA and CERCLA, which has helped standardize the practices. EPA broadly solicits 

comment on the approach of relying on certifications by registered professional hydrologists or 

engineers. The Agency also solicits comments on whether a more prescriptive approach could or 

should be developed under subtitle D of RCRA. 

Run-on and run-off controls. Run-off is one of the major sources of hazardous constituent 

releases from mismanaged waste management units. EPA solicits comment on whether, under a 

subtitle D approach, the run-on and run-off controls applied to municipal solid waste are needed 

to provide for no reasonable probability of release. Under a Subtitle D approach, the regulation 

might, like the subtitle D MSW regulations, require 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. Additionally, run-off control systems from the active portion of CCR 

disposal units would be required to collect and control at least the water volume resulting from a 

24-hour, 25-year storm. The facility would be required to prepare a report, available to the 

public, documenting how relevant calculations were made, and how the control systems met the 

standard. Also, a registered professional engineer would have to certify that the control systems 

met the standard. Run-off causing a discharge of pollutants into waters of the United States, 

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including wetlands, that violates any requirements of the Clean Water Act, including the NPDES 

requirements would be prohibited. 

Closure and post-closure care. In regulating municipal solid waste and hazardous waste, EPA 

has come to the conclusion that effective cover and post-closure care requirements are essential 

to ensuring the long-term safety of disposal units. Thus, any subtitle D regulation would need to 

ensure safe closure. When a unit closes, the subtitle D regulation would likely require 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 would also require an infiltration layer that contains a 

minimum of 18-inches of earthen material. (These are the standards that apply to subtitle C 

landfills.). The regulations might require 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. The regulation would require certification by a registered professional 

engineer that these standards were met. Alternatively, evapo-transpiration covers may be an 

effective alternative, which are not appropriately evaluated based on permeability alone. For 

example, a 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, EPA might rely on the certification of the registered 

professional engineer, or we might rely on a specific waiver approved by EPA through a siteDRAFT DO NOT CITE OR QUOTE 164 of 324 10/16/09 
specific notice and comment rulemaking, against the standard that the alternative cover 

minimized infiltration at least as effectively as the “design” cover described above. 

Following closure of the CCR management unit, a subtitle D approach would require the owner 

or operator of the disposal unit to conduct post-closure care for 30 years. The owner/operator of 

the disposal unit would be 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 

and collection and removal system requirements described above, and monitor the groundwater 

in accordance with the groundwater monitoring requirements described above. 

Financial Assurance. In EPA’s experience, financial assurance requirements, to be effective, 

require considerable regulatory oversight, and therefore EPA believes that subtitle D authority is 

generally not well suited to requiring facility-specific financial assurance requirements (except in 

the case of MSW landfills, where EPA is given explicit authority). 

Given this difficulty, EPA broadly solicits comments on whether financial assurance should be a 

key program element under a subtitle D approach. At the same time, EPA is developing a 

Federal Register notice under CERCLA section 108(b) authority identifying which industry 

sectors warrant priority financial assurance regulation under that section. This notice is 

scheduled for publication in late 2009. 

Thus, if EPA decides against finalizing today’s proposed subtitle C approach and instead 

determines that subtitle D is the most appropriate and effective authority for regulating the 

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disposal of CCRs, the Agency might establish financial assurance requirements for facilities 

managing CCR wastes under CERCLA section 108(b) – assuming EPA’s analysis in its 

forthcoming Federal Register notice on section 108(b) concluded that financial requirements 

were a priority for that industry segment. Since these regulations would be issued under 

CERCLA authority, EPA would implement them directly, although EPA solicits comment on 

how it might coordinate its regulatory oversight with existing state waste programs and 

requirements. 

Off-site disposal. Under a subtitle D regulation, regulated CCR wastes shipped off-site for 

disposal would have to be sent to facilities that met the standards above, or they would have to 

be sent and disposed of in units permitted by the states under subtitle D of RCRA that met the 40 

CFR Part 258 standards. 

Discussion. In our discussion of the proposed subtitle C approach earlier, EPA describes the 

reasons why it is proposing to regulate CCRs under subtitle C of RCRA. In particular, the 

subtitle C approach is the only approach that ensures federal enforcement and a permitting 

program. Under subtitle D of RCRA, EPA has the authority to issue national minimum 

standards for CCR disposal, which could be directly enforced by citizens or states, but not by 

EPA. Instead, EPA could only rely on RCRA’s or CERCLA’s imminent and substantial 

endangerment authorities, or under other federal authorities, such as the Clean Water Act, to 

address those circumstances where the requisite standards for action had been met. EPA also 

does not have the authority under subtitle D of RCRA to establish a program for these wastes 

that would require states to enforce or implement the minimum national standards, or that would 

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require or approve state permit programs. However, one approach that EPA would consider in 

implementing a subtitle D rule under RCRA is whether the notification, by every CCR generator 

and TSD subject to the rule, to EPA, the state waste director, and the public within the vicinity of 

the facility, of the following information would be useful and/or appropriate: quantities and 

types of subject waste generated, the types and location of disposal units in which CCRs are 

managed, and the results of groundwater monitoring (on an annual basis), as well as any 

confirmed exceedances of MCLs or other health-based limits at the point of compliance. EPA is 

also considering the mechanism and authorities that could be used to develop such notification. 

Such notification would provide transparency, which is particularly important because of the 

critical role of the state and citizens’ actions in ensuring that facilities comply. Also, the 

notification would provide EPA with information on releases that would be useful in determining 

whether to exercise its authorities under RCRA or CERCLA, in cases of imminent and 

substantial endangerment. 

At the same time, EPA believes there are certain advantages to a subtitle D approach that 

establishes specific self-implementing requirements that utilities and others managing regulated 

CCRs would have to comply with, even in the absence of permitting or direct regulatory 

oversight. At the same time, EPA recognizes that many of the states have regulatory programs in 

place for the disposal of CCRs, and that industry practices have been improving. The subtitle D 

approach would complement existing state programs and practices by filling in gaps, and 

ensuring that all disposal of regulated CCRs meets national minimum standards that are designed 

to address key risks identified in damage cases and the risk assessment – including the risk of 

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surface impoundment failure, which has been identified as a concern appropriate for control 

under waste regulations. 

The subtitle D option is less costly than the proposed option, according to EPA’s Regulatory 

Impact Assessment – although, as discussed earlier, the cost differences are relatively minor 

considering the overall cost of the regulation. In addition, the subtitle D approach would 

eliminate two concerns that industry and state commenters have expressed to date: (1) that a 

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 requirements 

of a subtitle C regulation led to more off-site disposal – would overwhelm existing subtitle C 

capacity. Related to the capacity issue, these same commenters have also argued that, under 

subtitle C, future cleanup of poorly sited or leaking disposal sites (including historical or legacy 

sites) would be considerably more expensive, especially where off-site disposal was chosen as 

the option. (EPA’s RIA does not quantify this last issue, since it is speculative, but the RIA does 

discuss two recent cases as examples.) As stated earlier, EPA is not convinced of the stigma 

argument, and it does not at this point have reason to assume that off-site disposal will increase 

significantly. However, to help the Agency evaluate the different regulatory options as it moves 

forward, it seeks specific and targeted comments on these two issues. 

EPA also notes that many of the requirements discussed above would go into effect more 

quickly. Under subtitle D of RCRA, EPA would set a specific nationwide compliance date – 

typically 6 months after promulgation – and industry would be subject to the requirements on 

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that date. The one possible exception could be for any financial assurance requirements 

established pursuant to CERCLA 108(b), given that a separate rulemaking process would be 

required. (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 subtitle C rule.) 

States have expressed concern that subtitle C requirements will be considerably more expensive 

to implement than a subtitle D regulation. For example, the states have reported that regulation 

under subtitle C, versus subtitle D, would cost them an additional $17 million per year to 

implement; these costs would be distributed unequally, depending on the location of facilities 

requiring permits. EPA has sympathy for this concern, especially given current state budgets; 

however, we believe that most states will be able to address shortfalls through fees, and those 

states that have higher hazardous waste generator or disposal fees may actually receive more 

money under a subtitle C option. The states have also expressed concern that any federal 

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

implemention 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 re-permit disposal 

units under subtitle C of RCRA. A subtitle D approach like the one outlined above would 

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eliminate or significantly reduce these concerns. EPA acknowledges these concerns, and 

certainly does not wish to force the states to go through extra processes unnecessarily. EPA, 

however, believes that the significant benefits of direct federal enforcement and a nationwide 

permitting requirement outweigh any identified disruptions of state programs, or procedural 

difficulties, associated with a subtitle C approach. 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. 

Additionally, EPA does not have authority under subtitle D of RCRA to regulate storage of nonhazardous waste. Moreover, as discussed above, under subtitle D, EPA has limited authority to 

establish financial assurance. 

 3. Combination Subtitle C & D Approach 

 

EPA is also not proposing, but is seeking comment on additional approaches, relying on a 

combination of RCRA subtitles C and D. 

Under one such approach, wet-handled CCRs—that is, those CCRs managed in surface 

impoundments or similar management units would be regulated as a hazardous waste under 

RCRA subtitle C, while dry handled CCRs—that is, those CCRs managed in landfills would be 

regulated under RCRA subtitle D. Wet-handled CCR wastes would be regulated under the 

subtitle C option described above, while dry-handled CCRs would be regulated under the RCRA 

subtitle D approach. In addition, EPA would retain the existing Bevill exemption for CCRs that 

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are beneficially used. Under this approach, EPA would establish modified requirements for wethandled CCRs, pursuant to RCRA 3004(x), as laid out in the proposed option. EPA would 

establish federal standards under RCRA subtitle D applicable to dry CCRs managed in landfills 

as discussed for the subtitle D approach above. (In the economic analysis, EPA costed this option 

as Option 4.) 

This approach would have many of the advantages of both the Agency’s preferred option, as well 

as the alternative subtitle D option. For example, this option 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 

storage method presents the greatest risks (i.e., surface impoundments). On the other hand, dry 

handled CCRs in landfills provide significantly lower risk, according to the risk assessment and, 

therefore, a subtitle D approach might be more easily justified. Also, landfills are not likely 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 would largely address the 

concerns of commenters who expressed stigma concerns on beneficial uses and off-site capacity 

for subtitle C disposal. EPA’s understanding is that CCRs sent for beneficial use are dry to begin 

with, or, if not, they are typically dried before being shipped off-site for beneficial uses; 

similarly, CCR wastes shipped off-site for disposal are shipped dry, in EPA’s experience. 

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, 

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portions of the rules applicable to surface impoundments would not become enforceable upon 

publication (or shortly thereafter). 

Under another approach considered by EPA, the Agency would issue the proposed subtitle C 

regulations, but they would go into effect three years after promulgation. The rule would include 

a condition that would exclude CCRs from regulation in states that (l) had developed final 

enforceable subtitle D regulations, identical or equivalent to the subtitle C regulations issued by 

EPA, (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 notice and comment, 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 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 wastes in certain states, while in other states, they could be 

managed as non-hazardous wastes. EPA solicits comments on this option, both generally and 

with respect to the specific time frames. 

Finally, commenters have suggested an approach similar to that proposed for CKD in an August 

20, 1999 proposed rule (see 64 FR 45632 available at http://www.epa.gov/fedrgstr/EPAWASTE/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 waste. However, CCRs that were in 

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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 as a hazardous 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) 

EPA solicits comments on all of the approaches discussed above. The Agency is still 

considering all of these alternative approaches, and will continue to do so as we move toward 

finalizing regulations applicable to the disposal of CCRs. 

V. Proposed Special Requirements for CCRs 

As described previously in section IV, EPA is proposing to regulate those CCRs that are being 

listed as a hazardous waste under the existing subtitle C requirements—that is those 

requirements at 40 CFR parts 260-268 and 270-272 – with some exceptions. As also noted, the 

Agency is modifying certain of the technical requirements because of the volume of CCRs that 

are generated and the special characteristics they pose. This section discusses the modified 

requirements and the reason for modifying them, as well as certain of the other requirements 

being proposed today. 

A. Modification of Technical Standards Under 3004(x) 

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Section 3004(x) of RCRA authorizes the Administrator to modify the minimum technology 

requirements of section 3004(o) of RCRA in the case of landfills or surface impoundments 

receiving 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 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 land disposal restrictions, and the 

surface impoundment retrofit requirements. 

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

Liner and Leak Detection Requirements. 

The minimum technology mandated in RCRA Section 3004(o)(1)(A)(i) requires that hazardous 

waste landfills and surface impoundments 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 the installation of a leak detection system. Landfills and surface impoundments 

covered under the hazardous waste 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 section IV.B.1. 

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As described in section IV, EPA is proposing to modify the double liner and leachate collection 

and removal system requirement by substituting the requirement to install a composite liner and 

leachate collection and removal system. 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 1×10−7cm/sec. FML 

components consisting of high density polyethylene (HDPE) shall be at least 60-mil thick. The 

FML component must be installed in direct and uniform contact with the compacted soil 

component. The leachate collection system must be designed and constructed to maintain less 

than a 30-cm depth of leachate over the liner. 

Both EPA’s review of the damage cases, as well as the risk assessment show that these liner and 

leachate collection standards will be protective of human health and the environment,in the case 

of CCR disposal. Thus, we are proposing to establish the CCR surface impoundment and 

landfill liner and leachate collection and removal system requirements by amending the current 

requirements of 40 CFR 264.220, and 264.300. The proposed composite liner and leachate 

collection system requirements will be revised by the addition of special requirements for K179 

wastes, which are described below under section E of this proposal, in a new subpart FF of 40 

CFR part 264. 

EPA requests comment on whether a performance standard also should be included which allows 

for a variety of liner designs, including clay liners, based on a site specific risk assessment. 

Owners or operators of CCR disposal units would then have the option of complying with the 

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performance standard, evidenced by ground water monitoring results, or installing a composite 

liner. EPA also solicits comment and data on the hydraulic conductivity of clay liners associated 

with coal ash disposal units, and information on clay liner designs based on site specific analysis. 

B. Fugitive Dust Controls. 

 

The proposed subtitle C approach would require that surface impoundments and landfills be 

managed in a manner that does not violate any applicable requirements developed under a State 

Implementation Plan (SIP) or issued by EPA under section 110 of the Clean Air Act. The 

requirements for controlling fugitive dust include covering or otherwise managing CCRs to 

control wind dispersal of dust, emplacement as wet conditioned CCRs to control wind dispersal, 

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. 

C. Special Requirements for Stability of CCR Surface Impoundments. 

To detect and prevent potential catastrophic releases, EPA is proposing requirements for periodic 

inspections of surface impoundments. The Agency believes that such a requirement is critical to 

ensure that the owner and operator of the surface impoundment becomes aware of any problems 

that may arise with the structural stability of the unit before they occur and, thus, prevent the 

types of catastrophic releases that have occurred in the past, such as at Martins Creek, 

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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). 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, and 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 a 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 reviewing these standards, the Agency believes that the types of 

requirements included in the MSHA standards are appropriate and necessary and would allow 

the owner or operator of the unit to ensure the stability of the impoundment, and thus, ensure 

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protection of human health and the environment. In making this judgment, we would note that 

MSHA has nearly 40 years of experience in writing rules and inspecting dams associated with 

coal mining, and thus, we believe that the Agency should take advantage of that experience. 

However, the Agency requests comments on the option of adopting the MSHA standards (with 

limited modifications to deal with issues specific to CCR impoundments) to address surface 

impoundment integrity under RCRA. 

The second option 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. 

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 

USDA, the Department of Defense, DOE, the Nuclear Regulatory Commission, the Department 

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of Interior, and the Department of Labor, Mine Safety and Health Administration (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 was created as a result of the dam failure at Buffalo Creek, West Virginia on February 

26, 1972. (This failure released 138 million gallons of waste water. Moreover, in this event, 125 

persons were 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 and thus, EPA believes that we, as another federal agency, should take 

advantage of that experience. 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, these 

requirements will prevent the catastrophic release of CCRs from surface impoundments, as 

occurred at TVA’s facility in Kingston, Tennessee, and will generally meet RCRA’s mandate to 

ensure the protection of human and the environment. Thus, we have modeled our proposal on 

the MSHA regulations in 30 CFR Part 77 and we have placed the text of the salient portions of 

the MSHA regulations in the docket for this rulemaking. 

MSHA’s regulations cover impoundments 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. 

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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. 

D. Wet-Handling of CCRs and Interim Status for Surface Impoundments. 

Where a nonhazardous waste surface impoundment is storing a waste that becomes newly 

subject to RCRA hazardous waste requirements, RCRA subtitle C and the implementing 

regulations require these surface impoundments either to be closed or upgraded to meet 

minimum technology requirements within four years. RCRA section 3005 (j) (6), implemented 

by 40 CFR 268.14. The exemption in 40 CFR 268.14 allows owners and operators of newly 

regulated surface impoundments to continue managing hazardous wastes without complying 

with minimum technology requirements for a period of up to four years before upgrading or 

closing the unit. In order to be eligible for this exemption, the unit must be in compliance with 

the applicable groundwater monitoring provision under Part 40 CFR 265 Subpart F within 12 

months of the promulgation of the new hazardous listing or characteristic. 

 

RCRA section 3005 (j)(11) allows placement of untreated hazardous waste 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 

treatment standards or which remain classified as hazardous are removed from the impoundment 

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within one year. See the implementing rules in 40 CFR section 268.4. EPA has interpreted this 

provision 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 years period, it must then be in compliance with 40 CFR 268.4 (Treatment 

Surface Impoundment Exemption). 

Section 3005(j) of RCRA generally requires that existing surface impoundments cannot obtain 

interim status and continue to receive or store newly regulated hazardous waste for more than 

four years after the promulgation of the listing – unless the facility owner retrofits the unit by 

installing a liner that meets the requirements of section 3004(o)(1)(A), or meets the conditions 

specified in section 3005(j)(2). Under section 3005(j)(2), a surface impoundment may obtain 

interim status and continue to receive or store hazardous waste after the four-year deadline if (1) 

the unit has at least one liner, and there is no evidence it is leaking, (2) is located more than onequarter mile from an underground source of drinking water; and (3) complies with the 

groundwater monitoring requirements applicable to permitted facilities. In this case, under 

section 3005(j)(9), the facility owner, at the closure of the unit, would have to remove or 

decontaminate all waste residues, all contaminated liner material, and contaminated soil to the 

extent practicable. 

As a practical matter, EPA believes that owners of facilities where CCRs are managed in existing 

surface impoundments being brought under 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), 

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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).103

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 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. We also believe that a 

slightly extended time frame, as described below, will be protective of human health and the 

environment, as required by section 3004(x). 

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 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 seven years rather than four years. EPA 

believes that the four-year deadline in RCRA section 3005(j) receiving CCRs will be 

 

103 The HSWA surface impoundment retrofit requirements, as they applied to impoundments in existence at the time 

RCRA was amended in 1984, went into effect in 1988. EPA is not aware of any facility owner/operator managing 

an existing surface impoundment at the time who chose to retrofit its impoundment, rather than to close it. EPA 

believes facilities managing surface impoundments today, will similarly choose to close the surface impoundment 

rather than retrofit. 

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extraordinarily difficult if not impractical 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 process changes, e.g., to convert from 

wet- to dry-handling of wastes, and they may have 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 close out existing units. 

In 1984, Congress only allowed surface impoundments four years to close; given the enormously 

greater volume of waste involved with CCR surface impoundments, EPA believes it is necessary 

and reasonable to increase the time for closure by three years, as it is proposing. (As noted 

below, facilities in most states will have significantly more time for planning, because the rules 

will not become effective in states authorized for the RCRA program before those states have 

amended their requirements consistent with today’s rule; the state regulatory process will likely 

take several years.) On the other hand, as the risks predicted in the risk assessment are 

extraordinarily high (up to 2 x 10-2), EPA believes a longer time period is not justified, and 

indeed, as a general matter, closure within the shortest practicable time is important. 

Any modifications of section 3005(j) will have to meet the section 3004(x) stricture that the 

modification must still “assure protection of human health and the environment (42 USC 

6924(x).” EPA believes that allowing three additional years for closure, under today’s proposal, 

would be protective because surface impoundments subject to the closure requirement would be 

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required to have groundwater monitoring systems, sufficient to detect releases of hazardous 

constituents into the groundwater, and corrective action would be required where releases were 

detected above drinking water levels. The small additional timeframe that EPA is proposing to 

allow – needed to address practical realities – will amount to a minimal increase in risk. 

EPA recognizes that the costs of these requirements will be significant, especially for existing 

surface impoundments and similar units that handle wet CCRs. At this same time, the Agency 

notes that TVA and potentially other utilities have already decided, or are being required by 

states, to close existing impoundments, regardless of the requirements of today’s rule. As a 

result, EPA believes today’s proposal would have less real effect than industry commenters 

argue because some facilities may be making these changes anyway and they reflect best 

management practices in today’s environment. 

EPA 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.104 USWAG 

points to the extensive engineering work that utilities would have to carry out, not just in closing 

out impoundments, but also in potentially having to make process changes at the power plants 

and constructing new landfills to replace the impoundments. Where location standards or on-site 

space limitations restrict the opportunity for siting new units at the generating facility, according 

 

104 In developing cost estimates for closing its surface impoundments, TVA also assumed that the process would 

take place over ten years. 

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to USWAG, it may be difficult for utilities to find off-site disposal facilities able to receive 

hazardous wastes in the volumes in question. USWAG also argued that the limited 

manufacturing capacity for key conversion equipment and the time necessary for designing, 

constructing, and permitting new landfills to accommodate CCRs that are diverted from wet 

handling to dry handling supports a 10-year implementation period.105 

EPA is not persuaded by these comments. It appreciates the cost considerations but also believes 

it is important that these surface impoundments cease receiving wet-handled CCRs and proceed 

promptly to closure. However, EPA solicits comments on whether five years from the effective 

date to implement these provisions is an achievable time for facilities to comply. EPA is 

interested in comments on procedural as well as technical issues (e.g., time to allow permit 

modifications for new capacity or EPA or state approval of closure plans). As stated earlier, 

EPA does note that, in the 1984 amendments to RCRA, Congress required existing hazardous 

waste surface impoundments without liners to retrofit within four years. As a practical matter, 

this meant that all but a very few surface impoundments closed 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 previous Congressional direction on appropriate time periods to 

phase out the management of CCRs in surface impoundments. Further, 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 

 

105 USWAG also commented that some utilities co-manage CCRs with wastewater and stormwater runoff in surface 

impoundments. If they close these impoundments as a result of today’s rule, USWAG argues that utilities would 

have to construct new impoundments to manage facility stormwater runoff. 

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effective (with some estimates as long as eight years), giving facilities substantial advance 

notice. (See discussion on when the rules become effective in section VIII of this preamble.) 

For commenters who argue 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 

facility’s 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 we should provide for a 

variance process 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). In such cases, the wastes might also meet current LDR treatment 

standards. 

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E. Proposed Land Disposal Restrictions. 

Through RCRA sections 3004 (d), Congress has prohibited the land disposal of hazardous waste 

unless the waste meets treatment standards established by EPA before the waste is disposed, 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 regulations, 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 exceptions for surface impoundments being discussed in the preceding subsection). 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 so-called 

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Universal Treatment Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever 

technically and legally possible, the Agency adopts the same technology-based numerical limit 

for a hazardous constituent regardless of the type of hazardous waste in which the constituent is 

present. See 63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS, in 

turn, reflect the performance of Best Demonstrated Available Technologies (BDAT) of the 

constituents in question. Although, 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). 

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 this proposed listing, EPA is proposing to prohibit the land disposal of 

CCRs, unless the CCRs meet the applicable treatment standards. In addition, although CCRs 

could be disposed 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 strongly 

doubts that such a unit could exist, given the volumes of CCRs and their many (documented) 

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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. 

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

For non-wastewaters (i.e., dry CCRs), EPA is proposing that the CCRs be subject to 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 indicate that a great portion (if not virtually all) 

dry CCRs meet these standards as generated. 

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

EPA is also proposing standards for wastewater CCRs. As an initial matter, EPA is proposing to 

adopt a specific and different definition of wastewater for CCRs. Under the existing rule, a 

wastewater 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 

section 268.2 (f)). Functionally, the current definition of wastewaters would not include slurried 

fly ash or FGD from wet air pollution control systems. EPA needs to distinguish between 

nonwastewaters which involve dry coal ash and surface impoundment systems that are 

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commonly viewed as involving wastewaters. EPA is proposing to create the distinction between 

wastewater and nonwastewater CCRs by classifying CCRs as wastewaters if the moisture 

content exceeds 50%. Thus, if there is more water than solids, the material is a wastewater. 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. 

EPA is proposing that these wastewaters undergo solids removal so that the wastewaters contain 

no greater than 100 mg/l total suspended solids (TSS). 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).106 

Solids separation is a base level water pollution control technology, which insures that the vast 

majority of coal ash and associated contaminants are removed and managed in landfills, which 

pose less risks. 

In addition, EPA is proposing that wastewaters meet the UTS at 40 CFR Part 268.48 as the 

treatment standard for the liquid fraction. (The CCR solids removed from the wastewater stream 

 

106 Although TSS is not a hazardous constituent, it is a reasonable surrogate of effective treatment performance here 

because TSS necessarily contain the metal hazardous constituents which are the object of treatment, and these 

metals will necessarily be removed as TSS are removed. See e.g. National Lime Ass’n v. EPA, 234 F. 3d 625, 639 

(D.C. Cir. 2000) (even though particulate matter is not a hazardous air pollutant, it can be used as a permissible 

surrogate for treatment of hazardous air pollutant metals since those metals are removed by treatment as PM is 

removed). 

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would be a non-wastewater and would be subject to the UTS for non-wastewaters.) EPA 

believes dry disposal of the CCR solids will protect human health and the environment. As 

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 

and has resulted in the majority of damage cases and the CCR landfill risk assessment and CCR 

landfill damage case assessments. 

The Agency believes the proposed treatment methods will 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. If 

finalized, EPA will add new treatment method codes to the table of Technology Codes and 

Description of Technology-Based Standards at 40 CFR 268.42. EPA seeks comments on the 

proposed treatment standards. 

3. Effective Date of the LDR Prohibitions. 

Land disposal prohibitions are to be effective immediately unless EPA finds that there is 

insufficient alternative protective treatment, recovery or disposal capacity for the wastes. RCRA 

section 3004 (h)(2). National capacity variances can be for up to two years from the date of the 

prohibition. During the duration of a national capacity variance, the wastes do not require 

treatment in order to be land disposed. If they are disposed of in a landfill or surface 

impoundment, however, that unit must meet the minimum technology requirements of RCRA 

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section 3004 (o). RCRA section 3004 (h) and 40 CFR section 268.5 (h).107 In this case, EPA is 

proposing that the prohibition and treatment standards for nonwastewaters take effect within 6 

months. We are proposing the 6 months to allow the 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. 

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 for impoundment retrofitting, 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 V.D above, the statute allows 

owners and operators up to four years to retrofit existing service impoundments to meet 

minimum technology requirements, and EPA has interpreted this provision as applying to 

treatment surface impoundments receiving hazardous wastes otherwise prohibited from land 

 

107 EPA is also authorized to grant up to a one-year extension, renewable for another year, of a prohibition effective 

date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants must demonstrate that adequate alternative 

treatment, recovery, or disposal capacity for the petitioners waste cannot reasonably be made available by the 

effective date due to circumstances beyond the applicant’s control, and that the petitioner has entered into a binding 

contractual commitment to construct or otherwise provide such capacity. 40 CFR section 268.5. 

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disposal. See sections 3005 (j)(6) and 3005 (j)(11). As further explained above, EPA believes 

that an additional one year is needed for owners and operators to accomplish this task and is thus 

proposing a five year period for impoundment retrofitting, under the authority of section 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 minimum technology requirements, but requires that residues in the impoundment be 

dredged at least annually for management elsewhere. In addition to the time needed to convert 

to dry handling, additional time is needed to find capacity to manage any solids dredged from 

impoundments. Given the enormous volume of CCRs currently managed in surface 

impoundments, estimated at 27.7 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, EPA believes annual dredging is impractical and would defeat 

the purpose of providing additional time to convert to the dry handling of CCRs. As discussed 

earlier in the section on surface impoundment minimum technology requirements, EPA believes 

this approach will be protective and pose minimal additional risk. 

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 

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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.108

F. CERCLA Designation and Reportable Quantities. 

All hazardous wastes listed under RCRA and codified in 40 CFR 261.31 through 261.33, 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, the Agency is proposing to list this waste 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, 

 

108 EPA notes in addition that it is authorized under section 3004 (x) to modify the requirements of LDR prohibitions 

under section 3004 (g), and EPA views capacity variances related to such prohibitions as within the scope of that 

section 3004 (x) authorization. 

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would report depending on his estimate of the amount of arsenic or other constituents contained 

in the release. 

Typically, when EPA lists a new hazardous waste, the statutory one-pound RQ is applied to the 

waste. However, EPA is proposing two alternative methods to adjust the 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 K179. 

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 

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-to-Know Act 

(EPCRA) requires owners or operators of certain facilities to report releases of extremely 

hazardous substance and CERCLA hazardous substances to state and local authorities. The 

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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 hazardous wastes. 

In order to coordinate the RCRA and CERCLA rulemakings with respect to the new hazardous 

waste listing, the Agency is also proposing adjustments to the one-pound statutory RQs for this 

hazardous 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 

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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 4 presents the RQ for each of the constituents of 

concern in CCRs. 

Table 4. Reportable Quantities of Constituents of Concern 

Hazardous Waste 

No. 

Constituent of Concern RQ Pounds 

(Kg) 

K179 Antimony.........................................................

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

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

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

5000 (2270) 

 1 (0.454) 

No RQ 

 10 (4.54) 

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

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

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

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

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

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

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

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

 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 hazardous wastes is based on an 

analysis of the hazardous constituents of the waste streams. The constituents of each RCRA 

hazardous waste are identified in 40 CFR part 261, Appendix VII. EPA determines an RQ for 

each constituent within the waste stream and establishes the lowest RQ value of these 

constituents as the adjusted RQ for the waste stream. In this notice, EPA is proposing a onepound 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. 

2. Application of the CERCLA Mixture Rule to Listed CCR. 

Although EPA is proposing a one-pound RQ for listed hazardous CCR wastes, we are also 

proposing to allow the owner or operator to use the maximum observed concentrations of the 

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constituents within the listed hazardous CCR wastes in determining when to report releases of 

the waste. 

For listed hazardous CCR wastes, where the actual concentrations of the hazardous constituents 

in the CCRs are not known and the waste meets the K179 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 5 below). This 

application of the mixture rule is the same as that codified for K169, K170, K171, and K172 at 

40 CFR 302.6 (b) (1) (iii). 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.109 Table 5 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 5. 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

 

109 EPA’s CCR constituent concentrations database is available in the docket to this notice. 

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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 hazardous 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 5. 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 hazardous CCR waste would need to be released to reach the RQ for arsenic. 

As applied to listed hazardous CCR waste, EPA’s proposed approach reduces the burden of 

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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 hazardous 

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 rule as proposed becomes final, EPA may 

modify 40 CFR part 302.6(b)(1) to extend the modified interpretation of the mixture rule to 

include listed hazardous CCR wastes. 

 3. 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 

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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 K179). 

VI. Is the EPA Soliciting Comments on Specific Issues? 

Throughout today’s preamble, the Agency has identified various issues for which it is soliciting 

comment with supporting data. Specifically, EPA seeks comments on the following. 

• The regulatory approach proposed in this notice and the alternative approaches discussed in 

Section IV.B of the preamble. 

• EPA seeks quantitative data and other information on how the proposed approach, which 

would regulate the disposal of CCRs as a hazardous wastes, but maintain the Bevill exclusion 

for CCRs that are benefically used would affect beneficial uses. 

• 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 for the wet 

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handling of CCRs—that is, prohibit the placement of wet handled CCRs in surface 

impoundments. 

• 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 is not banned? 

• As part of this action, EPA is proposing dam safety requirements under RCRA. We solicit 

comments on whether this issue is more appropriately dealt with in the context of NPDES 

permits under the Clean Water Act. With appropriate dam safety provisions in NPDES 

permits, federal enforceability could also be addressed as an alternative to the RCRA 

regulations 

• EPA solicits comments and data regarding the existence of drinking water wells that are 

down-gradient of CCR disposal units, and the potential of these wells to be intercepted by 

surface waterbodies. 

• EPA used porewater data to represent leachate from surface impoundments in its risk 

analyses. These data were site-averaged and randomly selected during model runs. EPA 

solicits comment on whether this data was representative of leachate from surface 

impoundments. 

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• EPA has performed a screening-level analysis titled Inhalation of Fugitive Dust: A Screening 

Assessment of the Risks Posed by Coal Combustion Waste Landfills (US EPA 2009b, a copy 

of which is in the docket for this proposed rule), 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. EPA requests data on the 

results of ambient air monitoring for particulate matter, 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. 

• We are interested in whether there are incentives that could be provided that would increase 

the amount of CCRs that are beneficially used and solicit comment on specific incentives that 

EPA could adopt that would further encourage the beneficial use of CCRs. 

• EPA's Compliance Incentives are a set of policies and programs that eliminate, reduce or 

waive penalties under certain conditions for business, industry, and government facilities 

which voluntarily discover, promptly disclose, correct noncompliance, and prevent future 

environmental violations. Information about these incentives, self-disclosure programs, 

related tools, such as environmental audit protocols, Environmental Management Systems, 

Pollution Prevention, other innovation projects and programs and the environmental benefits 

achieved by such programs are located at 

http://www.epa.gov/compliance/incentives/index.html. EPA is committed to exploring new 

and creative ways of achieving environmental results utilizing innovative enforcement and 

DRAFT DO NOT CITE OR QUOTE 204 of 324 10/16/09 
compliance approaches and solicits comments on how these innovative approaches might be 

integrated into a regulatory program for the management of CCRs. 

VII. Impacts of the Proposed Rule. 

A. What are the Potential Environmental and Public Health Impacts of the Proposed Rule? 

The proposed rule would result in the potential for many positive impacts to both the 

environment and public health. These impacts are a result of the proposed liner and ground 

water monitoring requirements, the proposed fugitive dust controls, the proposed requirements 

for surface impoundments, including the requirement for inspections, and the proposed land 

disposal restrictions and the likely ban new surface impoundments and the phase-out of surface 

impoundments as a result of the proposed treatment standard for CCR wastewaters (dewatering). 

1. Public Health Impacts 

Impacts on Current and Future Cancer Rates 

One of the most substantial impacts on public health will be the reduction of excess cancer cases 

associated with constituents from CCRs. These include cancer risks from arsenic ingested 

through drinking water, arsenic consumed in fish, and hexavalent chromium inhaled from the air. 

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Since over six million individuals are estimated to live near coal-fired power plants affected by 

this proposed rule,110 the potential population health effects may be quite large. 

Inhalation of hexavalent chromium has been shown to cause lung cancer.111 The impact of the 

LDRs on new and existing surface impoundments will necessitate additional fugitive dust 

controls as waste management practices shift to dry handling. 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. 

Ingestion of arsenic has been shown to cause skin cancer, liver cancer, bladder cancer, and lung 

cancer. 112 EPA’s estimates of cancer risks vary widely depending on the waste management 

unit characteristics. The risk assessment shows that some units appeared to present greater risks 

(unlined surface impoundments managing CCRs together with coal preparation/washing refuse) 

than others. These higher risk waste management units showed 90th percentile lifetime cancer 

risk estimates as high as 1 in 50 and median risks of 6 in ten thousand, while units with less risky 

characteristics (composite-lined, ash-only, landfills, etc.) showed much lower risks because the 

contaminants are expected to remain within the waste management unit, or migrate extremely 

slowly. The proposed rule requires liners for new units, groundwater monitoring and corrective 

action for all units, fugitive dust requirements, and phase-out of wet handling of CCRs. By 

 

110 US EPA. Regulatory Impact Analysis for EPA’s Proposed Regulation of Coal Combustion Wastes Generated by 

the Electric Utility Industry, 2009. Office of Resource Conservation and Recovery. 

111 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

112 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

DRAFT DO NOT CITE OR QUOTE 206 of 324 10/16/09 
largely eliminating possible exposure to the arsenic and other hazardous constituents in CCRs, 

the potential for these cancers in the future will be greatly reduced. 

Non-cancer Health Impacts 

Other long-term toxic effects associated with constituents from CCRs will be avoided through 

application of the proposed regulations. Current and future populations drinking water from 

wells located down gradient of unlined disposal units (and potentially in some cases of clay-lined 

units) may be at risk of ingesting cobalt, cadmium, lead, and molybdenum at levels that may 

exceed drinking water standards or reference doses. The proposed rule’s standard for liners 

placed in waste management units should mitigate these risks. Cobalt, with the highest HQ in 

the risk assessment, is known to cause lung and heart effects, as well as dermatitis.113 Effects 

associated with the remaining constituents include: kidney disease, lung disease, fragile bones, 

decreased nervous system function, high blood pressure, anemia, and others.114 Traditional 

surface impoundments, where waste is not co-disposed, may also pose risks for nitrate/nitrite and 

selenium. Nitrate is associated with pregnancy complications and methemoglobinemia (blue 

baby syndrome),115 while selenium is associated with selenosis.116 The proposed regulations 

would mitigate these potential risks by significantly decreasing the potential to exposure to 

contaminated drinking water. If ground water monitoring identifies exceedances for these 

 

113 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

114 Ibid 

115 ATSDR CSEM. Available at: http://www.atsdr.cdc.gov/csem/nitrate/no3physiologic_effects.html 

116 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

DRAFT DO NOT CITE OR QUOTE 207 of 324 10/16/09 
constituents, pursuant to the proposed corrective action provisions, facilities will be required to 

address them. 

While the risk assessment did not estimate excessive risks for the median unlined landfill, the 

risk assessment did estimate excessive risks of non-cancer effects at the 90th percentile for 

unlined landfill. For clay-lined units that disposed of ash only, the risk assessment estimated 

only a relatively small exceedence for thallium. Thallium exposure is associated with hair loss, 

as well as nervous and reproductive system damage.117 For unlined landfills, the potential for 

non-cancer health effects was estimated to be slightly higher for thallium. Excessive risks of 

non-cancer health effects for unlined landfills also existed for molybdenum (when ash is 

managed with or without coal refuse) and antimony (when ash is managed on its own). 

Excessive molybdenum levels have been associated with gout-like symptoms.118 Antimony is 

associated with altered glucose and cholesterol levels, myocardial effects, and spontaneous 

abortions.119 The proposed regulations would mitigate these potential risks by significantly 

decreasing the potential for exposure by reducing/preventing likely migration of these 

contaminants. If ground water monitoring identifies exceedances for these constituents, pursuant 

to the proposed corrective action provisions, facilities will be able to address the contamination. 

The remaining 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 

 

117 Ibid 

118 Toxicity Summary for Molybdenum, Risk Assessment Information System, U.S. Department of Energy, Oak 

Ridge National Labortory available at http://rais.ornl.gov/tox/profiles/molybdenum_f_V1.shtml#te 

119 ATSDR ToxFAQs. Available at: http://www.atsdr.cdc.gov/toxfaq.html 

DRAFT DO NOT CITE OR QUOTE 208 of 324 10/16/09 
to particulate matter exposure include cardiovascular morbidity, respiratory morbidity, and 

mortality, reproductive and developmental effects, and cancer.120 The potential for and extent of 

adverse health effects due to fugitive dusts from dry handling of CCRs was demonstrated in US 

EPA 2009b, “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal 

Combustion Waste Landfills.” The proposed rule’s fugitive dust controls would serve to manage 

such potential risks by bringing them to acceptable levels. 

Children’s Environmental Health 

EPA has found that, based on the human health exposures evaluated in the probabilistic 

modeling of the supporting Risk Analysis, children rather than adults had the higher exposures 

for the non-cancer health effects in the groundwater-to-drinking-water pathway and in the fish 

consumption pathways. That is, because, even though at a given exposure point (e.g., a drinking 

water well located a certain distance and direction down-gradient from the landfill or surface 

impoundment), the modeled groundwater concentration is the same regardless of whether the 

receptor is an adult or a child, the other variables in the exposure equations (i.e., 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 hazardous 

constituents than adults. Typically young children (ages 0-5) tend to be the most exposed age 

groups because they tend to ingest larger amounts of food and water per their body weight than 

do teenagers or adults. In addition, it is not unusual for infants or young children to be more 

 

120 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. 

DRAFT DO NOT CITE OR QUOTE 209 of 324 10/16/09 
sensitive to chemical exposures as metabolic detoxification processes in the young are still 

developing. Children also were estimated to have the highest cancer risks for arsenic through 

fish consumption, but not for ingestion of groundwater.

The public is invited to submit comments or identify peer-reviewed studies and data that assess 

effects of early life exposure to constituents of CCRs in landfills and surface impoundments. 

2. Environmental Impacts 

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 Groundwater 

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The liner requirements in the proposed rule, together with the requirement to dewater 

wastewaters, should substantially reduce infiltration and migration into aquifers of CCR toxic 

constituents. By decreasing the load of CCR constituents, the proposed regulation would help to 

preserve groundwater resources for future generations of humans and wildlife. 

Impacts on Surface Water 

The proposed regulation requires surface impoundment inspections and prohibits land disposal 

of CCRs unless the CCRs meet the treatment standards; i.e., meet the UTS for non-wastewaters 

and solids removal and meet the UTS treatment standards for wastewaters. These requirements 

will have the ancillary environmental and public health impacts of decreasing, and potentially 

eliminating, the potential for CCR disposal to result in CWA violations like that in the TVA 

damage case discussed above. Additionally, EPA expects that most facilities will be required to 

switch to dry handling of CCRs, which will significantly reduce the State Pollutant Discharge 

Elimination System (SPDES) and NPDES discharges from wet handling, it should reduce the 

quantity of wastewater discharged to surface waters. 

Impacts on Ambient Air 

The requirements to dewater wastewaters and to implement fugitive dust controls will also have 

ancillary effects on ambient air concentrations. That is, the use of dry handling of CCRs would 

likely increase fugitive dust emissions from transportation, loading, unloading, and wind if 

particulate controls were not included in the proposed rule. This could lead to higher levels of 

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particulates in the ambient air. The proposed rule requirements for fugitive dust controls are 

expected to result in particulate matter emissions that are lower than current emission levels from 

CCR management practices, despite an increase in the quantity of CCRs that would be handled 

in dry, rather than wet, form. Thus, the proposed regulation will improve the quality of the 

ambient air. 

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.121 Additionally, fine 

particulates are known to contribute to haze.122 Thus, the fugitive dust controls contained in the 

proposed rule would improve visibility, and reduce the environmental impacts discussed above. 

 B. What are the Potential Economic Impacts of the Proposed Rule? 

EPA prepared an analysis of the potential costs and benefits associated with this action contained 

in the “Regulatory Impact Analysis” (RIA). A copy of this RIA is available in the docket for this 

action and the analysis is briefly summarized here. The RIA evaluated baseline management of 

CCRs by the electric utility industry, consisting of two components: disposal methods and 

beneficial uses in industrial applications. The RIA estimated the cost of baseline CCR disposal 

practices, as well as monetized value of baseline economic and environmental net benefits 

 

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

122 Ibid 

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associated with baseline beneficial uses of CCRs. The RIA estimated the incremental cost 

associated with the regulatory options described in today’s action. Although not completely 

quantified or monetized, the RIA also presents a description of three categories of potential 

future benefits of the RCRA regulation for community safety, human health, and ecosystems. 

The monetized cost and benefit findings from each of these main sections of the RIA are 

summarized below. 

• Characterization of Baseline Affected Entities and CCR Management Practices 

Today’s action will potentially affect CCRs generated by coal-fired electric utility plants in 

NAICS code 221112 (i.e., Fossil Fuel Electric Power Generation). Based on 2007 electricity 

generation data published by the Energy Information Administration (EIA) of DOE, the RIA 

estimated a total of 495 operational coal-fired electric utility plants could be affected by this 

action. These plants are owned by 200 entities consisting of 121 companies, 18 cooperative 

organizations, 60 state or local governments, and one Federal agency, of which 51 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 plants, these 495 plants generate about 

140 million tons of CCRs annually, of which 311 plants dispose of approximately 57 million 

tons in company-owned landfills, 158 plants dispose of approximately 22 million tons in 

company-owned surface impoundments (which are sometimes referred to as ponds, dams, 

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embankments, or lagoons), and an estimated 149 plants may send upwards of 15 million tons of 

CCRs to offsite landfills owned by other companies (e.g., NAICS 562 commercial waste 

management service companies). Because some plants use more than one disposal method, 

these counts exceed 495 total plants. Based on the estimates developed for the RIA, total CCR 

disposal is about 94 million tons annually which is about two-thirds of annual CCR generation. 

(EPA notes that the CCR generation and disposal estimates; 131 million tons and 75 million 

tons, respectively, used elsewhwere in this preamble, were derived from ACAA and EIA data.) 

In addition, 272 of the 495 supply some CCR which is not disposed for beneficial uses in at least 

14 industries, of which 28 electric utility plants solely supply CCR for beneficially uses. As of 

2005, CCR beneficial uses (i.e., industrial applications) involved around 47 million tons annually 

representing about one-third of annual CCR generation, which the RIA estimates may grow to an 

annual quantity of 62 million tons by 2009. 

• Estimated Cost of Baseline CCR Disposal 

For each of the 467 operating electric utility plants which dispose of 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 each type of disposal. The baseline is defined as existing 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. 

Existing conditions were determined based on review of current state government regulations of 

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CCR disposal practices in some states, as well as limited survey information on CCR disposal 

units from studies published in 1995, 1996, and 2006 about voluntary engineering controls 

installed at some plants. The 10 baseline engineering controls evaluated are (1) groundwater 

monitoring, (2) bottom liners, (3) leachate collection and removal system, (4) dust controls, (5) 

rainwater run-on and run-off controls, (6) financial assurance for corrective action, closure, and 

post-closure care, (7) disposal unit siting restrictions, (8) closure capping of units, (9) postclosure monitoring, and (10) storage design and operating standards (Note: Although listed here 

this element was not estimated in the RIA). This specific set of engineering controls represents 

the elements of the RCRA 3004(x) custom-tailored technical standards proposed in today’s 

notice under each regulatory option. The eight ancillary elements are (11) offsite disposal 

manifest trucking, (12) structural integrity inspections, (13) facility-wide environmental 

investigations, (14) corrective action requirements, (15) waste disposal permits, (16) 

enforcement inspections, (17) remediation requirements, and (18) recordkeeping and reporting to 

regulatory agencies. Some states require many of these technical standards for future newlyconstructed CCR disposal units, whereas some require them for existing units. A number of the 

ancillary elements evaluated in the baseline and proposed in today’s action are currently not 

required by state governments 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 

proposed in today’s action. The percentage of CCR landfills with baseline controls ranged from 

61% to 81%, and while 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 

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year for meeting state-required and company voluntary environmental standards for CCR 

disposal. 

• Estimated Benefits of Baseline CCR Beneficial Use 

In addition to evaluating baseline CCR disposal practices, the RIA also estimated the baseline 

cost and net benefits associated with the beneficial uses of CCRs generated by electric utility 

industry (i.e., CCRs which are not disposed). CCRs are beneficially used nationwide as material 

ingredients in at least 14 industrial applications including: (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 minfilling 

operations,123 (12) wallboard, (13) waste solidification, and (14) agriculture. The baseline 

annual sales revenues 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, virgin stone aggregate, lime, gypsum) 

would cost industries $2,477 million per year. Thus the beneficial use of CCRs provide $2,300 

million in annual cost savings to these industrial applications. From an environmental 

perspective, although only based on limited data representing 47% of the annual CCR beneficial 

use tonnage involving only three of the 14 industrial applications (i.e., concrete, cement and 

wallboard), the baseline environmental benefits of beneficially using CCRs compared to 

 

123 While today’s rule does not deal directly with the minefilling of CCRs, the RIA includes it as a beneficial use. 

However, as noted previously in the preamble, the Agency will develop regulations, working with OSM of the 

Department of Interior, for the placement of CCRs in minefill operations in the future. 

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substitute ingredient industrial materials are (a) $4,888 million per year in energy savings, (b) 

$81 million per year in water savings, (c) $365 million per year in greenhouse gas (i.e., carbon 

dioxide and methane) emissions reduction, and (d) $19,263 million per year in other air pollution 

reduction. All together, the beneficial use of CCRs provides $25 billion in annual national 

economic and environmental benefits. 

• Estimated Cost for RCRA Regulation of CCR Disposal 

The RIA estimated the potential future cost for three regulatory options: Option 1: RCRA 

Subtitle C regulation of CCR disposal as “K179 hazardous waste” but with RCRA 3004(x) 

custom-tailored engineering controls and retaining the Bevill exemption for CCRs that are 

beneficially used; Option 2: Subtitle D regulation of CCR disposal as RCRA Subtitle D “nonhazardous waste” based with the same or similar engineering controls as Option 1; and Option 3: 

Hybrid Subtitle C & D regulation involving regulating wet-handled CCR disposal (i.e., 

impoundments) under Option 1 and dry-handled CCR disposal (i.e., landfills) under Option 2. In 

addition to these three main options, the RIA evaluated the potential cost of the proposed land 

disposal treatment requirement (i.e., CCR dewatering) as a sub-option under each of the three 

main options. Today’s notice also presents two other regulatory approaches. One of the 

approaches is the same as Option 2 but egregious violators would be regulated under subtitle C 

of RCRA or Option 1, and the second approach is the same as Option 2 in states which develop 

in two-years an implementing program and for which EPA authorizes one-year later, but the 

same as Option 1 or subtitle C control in all other states. Because both approaches are hybrids of 

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Option 1 and Option 2, the RIA did not separately evaluate them because their impacts would be 

expected to fall between the impacts of Option 1 and Option 2. 

The estimated potential cost for each of the three options is incremental to the baseline cost (i.e., 

in addition to the baseline cost), and is estimated in the RIA as an average annualized future cost 

over the 50-year period-of-analysis (2012 to 2061) using a 7% discount rate. Furthermore, the 

cost estimates for each regulatory option involved two alternative cost estimates, both without 

and with the added cost for meeting the land disposal treatment standards (i.e., dewatering CCRs 

for dry disposal), presented as a sub-option in the RIA. The baseline and regulatory option costs 

evaluated in the RIA include the same engineering controls and the same ancillary elements 

evaluated in the baseline. 

As summarized in Table 6 below, the RIA estimates the costs for the regulatory options may 

range from $492 million to $2,274 million on an average annualized basis. This range reflects 

the lowest cost Option 2 involving RCRA Subtitle D non-hazardous waste regulation for CCRs 

without the land disposal treatment sub-option, to the highest cost Option 1 involving RCRA 

subtitle C hazardous waste regulation for CCRs with the added cost for the treatment sub-option. 

These cost estimates include both electric utility industry costs plus state and local government 

costs. 

Table 6. Summary of Annualized Cost Estimates for RCRA Regulatory Options 

($million average annual over 50-year period 2012-2061 @7% discount rate) 

Regulatory Cost Elements Option 1 Option 2 Option 3 

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Subtitle C Subtitle D Hybrid C&D 

1. Engineering controls $491 $491 $491 

2. Ancillary costs $107 $1 $9 

3. Sub-option: land disposal treatment 

(CCR dewatering) 

$1,676 $1,676 $1,676 

Total cost without treatment (1+2) = $598 $492 $500 

Total cost with treatment (1+2+3) = $2,274 $2,168 $2,176 

• Cost Estimation Uncertainties 

It is important to point-out that there is a relatively high degree of uncertainty in these regulatory 

cost estimates. The RIA solely relied on secondary sources of information and data, some of 

which provided very limited information and data with respect to the universe of affected plants 

and CCR disposal units, requiring EPA to apply assumptions or rough estimation techniques for 

some numerical factors used in the cost calculations and associated numerical analyses of the 

RIA. Major uncertainties identified in the RIA are: 

(1) Data quality: EPA did not collect new primary data for the RIA. All of the cost and benefit 

analyses presented in the RIA are based on secondary sources of published information and data 

spanning the years 1981 to 2009, many of which only provided limited data or inconsistent data. 

For example, the RIA combined baseline data from the Energy Information Administration for 

two data years (2005 for CCR tonnages and 2007 for plant counts). Consequently, the RIA 

attempted to take into account numerous sources of data quality uncertainty and other 

uncertainty factors, which are summarized below. Because of CERCLA legal limitations on its 

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use for regulatory development, the information collected from EPA’s March 2009 CCR surface 

impoundment structural integrity assessment letters sent to 210 electric utility facilities and 

companies, and associated electricity plant site visits, could not be used for the RIA. Some 

examples of data quality uncertainty factors are (a) inconsistent or outdated data years of some 

secondary data sources spanning 1994 to 2007, (b) unknown possible differences in CCR 

tonnage data as metric tons, long tons, or short tons, (c) incomplete baseline information about 

onsite and offsite CCR disposal methods and engineering controls for all 495 electric utility 

plants, (d) incomplete information about baseline state requirements for CCR disposal. As an 

overall indicator of data quality uncertainty to encompass all of these factors, the RIA assigns a 

range of -25% to +40% uncertainty level to each regulatory option cost estimate, although this 

range is not shown in the Table here. 

(2) CCR beneficial use: RCRA regulation of CCR may affect baseline beneficial uses. For 

example, listing CCR as “hazardous waste” (Options 1 and 3) could create market stigma, state 

regulatory barriers, or regulatory compliance cost barriers which could reduce future beneficial 

use in some industrial applications (e.g., non-encapsulated uses). Such reduction could increase 

economic demand and possibly induce higher prices for substitute industrial materials, effects 

which are not included in the cost estimates of this RIA. On the other hand, some electricity 

plants may attempt to minimize RCRA regulatory costs by supplying increased annual CCR 

quantities for beneficial uses. 

(3) Landfill prices & capacity: Regulation of CCR as hazardous waste (Options 1 and 3) will 

require a national mix of (a) new RCRA Subtitle C permits for electricity plants, and (b) 

expansion of commercial hazardous waste landfill capacity. Possible short-term price hikes and 

capacity constraints are not factored into the cost estimates in the RIA. 

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(4) Land disposal dewatering treatment: The cost estimate for this proposed regulatory element 

is based on extrapolation of an estimate developed by a single electric utility plant (Kingston 

TN). Furthermore, the total count of plants recently or soon converting from wet- to dryhandling and disposal is unknown. For example, the Tennessee Valley Authority (TVA) 

announced in August 2009 a proposed plan to convert all 11 of its coal-fired electric utility plants 

to dry disposal in absence of this proposed RCRA regulation. If finalized, TVA’s plan could 

reduce the estimated costs for the regulatory options of today’s notice by roughly 7% (i.e., 11 of 

495 plants). 

(5) Incomplete cost elements: Because of lack of data or difficulty, the RIA did not formulate 

annualized cost estimates for three regulatory elements: (a) CCR storage tank and container 

design and operating requirements, (b) RCRA facility-wide corrective action under Options 1 

and 3, and (c) added cost for cleanup of future CCR disposal unit failures as hazardous waste 

under Options 1 and 3. 

EPA seeks comment on the cost estimates and associated analyses presented in the RIA, as well 

as on the uncertainty factors. 

 VIII. How Will the Proposed Requirements be Implemented? 

A. Effective Dates 

This rule, as is the case with all RCRA subtitle C rules, will become effective six months after 

promulgation by the appropriate regulatory authority-- that is, six months after promulgation of 

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the federal rule in States and other jurisdictions where EPA implements the hazardous waste 

program (Iowa, Alaska, Indian Country, and territories, except for Guam) and in authorized 

States, six months after the State promulgates its regulations [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 rule, 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 

hazardous waste program or whether they are in a State authorized to administer the RCRA 

program. 

To summarize, 

(1) In States and jurisdictions where EPA administers the RCRA program (Iowa, Alaska, 

territories [except Guam], and Indian Country), all 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 nonwastewaters in part 268. However, 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 

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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 State Authorization section 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 as soon as the State has regulated CCRs as a hazardous waste -- that is, 

they are federally enforceable without waiting for authorization of the program revision. 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 ability to decide 

not to promulgate those less stringent requirements. 

B. What are the requirements with which facilities must comply? 

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It is EPA’s intention that this proposed rule will be implemented in the same manner as previous 

regulations under 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 hazardous waste. While in this notice EPA has described the major subtitle C 

requirements, EPA has not undertaken a comprehensive description of all of the hazardous waste 

requirements which may be applicable; therefore, we encourage commenters to refer to the 

hazardous waste regulations at 40 CRR parts 260 – 268, 270, 271, 273, and 279 for details. 

1. Generators and Transporters. 

i. Requirements 

 

Under this proposed regulation, regulated CCRs destined for disposal become a newly listed 

hazardous waste. Persons that generate newly identified hazardous wastes are required to notify 

EPA within 90 days after the wastes are identified or listed as hazardous wastes124 (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 

 

124 See section 3010 of RCRA. 

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part 262. These requirements include standards for hazardous 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 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). Permit requirements are described 

in the next section. 

Transporters of CCRs destined for disposal will be transporting a hazardous waste on the 

effective date of this regulation. These persons who transport newly identified hazardous wastes 

will be required to obtain an EPA identification number as described above and must comply 

with the transporter requirements set forth in 40 CFR part 263 on the effective date of the final 

rule. 

ii. Effective Dates and Compliance Deadlines. 

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Generators must notify EPA within 90 days after the date that CCRs are identified or listed as 

hazardous (by EPA or the state). The other requirements for generators and transporters (in parts 

262 and 263) are effective and generators and transporters must be in compliance with these 

requirements on the effective date of the final rules. The effective date of these rules is six 

months after promulgation of the federal rule in non-authorized States and in authorized 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 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. 

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Pursuant to RCRA section 3010 and 40 CFR 270.1(b), facilities managing hazardous wastes 

must notify EPA of their hazardous waste management activities within 90 days after the wastes 

are identified or listed as hazardous. (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 hazardous waste by the state, unless the state provides an alternative timeframe). This 

requirement may be applied even to those treatment, storage, and disposal facilities (TSDs) that 

have previously notified EPA with respect to the management of other 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 other 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 hazardous, 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 by any person who has not applied for and 

received a RCRA permit is prohibited. Existing facilities, however, may satisfy the permit 

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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 CCRs subject to the proposed rule at the time it becomes 

effective would generally be eligible for interim status pursuant to section 3005 of RCRA.(see 

section 3005(e)(1)(A)(ii) of RCRA).125 EPA believes all utilities generating CCRs and most if 

not all off-site disposal sites will be in this situation. In order to obtain interim status based on 

treatment, storage, or disposal of such newly listed CCRs, eligible facilities are required to 

comply with 40 CFR 270.70(a) and 270.10(e) (or more likely with state analogous 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 

 

125 Section 3005(e) of RCRA states, in part, that “Any person who. . . .is in existence on the effective date of 

statutory or regulatory changes under this Act that render the facility subject to the requirement to have a permit 

under this section . . . .shall be treated as having been issued such permit until such time as final administrative 

disposition of such application is made, unless the Administrator or other plaintiff proves that final administrative 

disposition of such application has not been made because of the failure of the applicant to furnish information 

reasonably required or requested in order to process the application. 

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publication of 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 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 base 

requirements of this proposal are RCRA requirements, authorized state regulations will govern 

the process, and the date those regulations become effective in the relevant state will trigger the 

process. 

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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 hazardous wastes 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)). 

3. Permitted Facilities 

EPA also believes that no utility treating, storing, or disposing of CCRs currently has a RCRA 

permit for its CCR management unit(s), nor is EPA aware of CCRs being disposed of 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 

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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. 

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 regulation, except as noted 

below. Moreover, all units in which newly identified hazardous wastes are treated, stored, or 

disposed of after the effective date of the final 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, surface impoundments, or land treatment units 

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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). 

Except as noted below, existing facilities are required to be in compliance with the surface 

impoundment stability requirements, the LDR treatment standards for non-wastewaters, and the 

fugitive dust controls on the effective date of the final rule. 

For certain of the other requirements, existing facilities will have: 

(a) 60 days from the effective date of the final rule to install a permanent identification marker 

on each surface impoundment as required by 40 CFR 264.1304(d) and 40 CFR 265.1304(d). 

(b) 1 year from the effective date of the final rule: 

 to submit plans 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 in 40 CFR 264.1305 and 40 CFR 265.1305. 

(c) 2 years from the effective date of the final rule: 

to comply with the ground water monitoring requirements in 40 CFR 264 Subpart F and 265 

Subpart F; 

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 to install, operate, and maintain run-on and run-off controls as required by 264.1304(g) and 

265.1304(g) for surface impoundments and by 264.1307(d) and 265.1307(d) for landfills: 

and; 

(d) 5 years from the effective date of the final rule to comply with the LDR wastewater treatment 

standard. 

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 following summarizes these requirements: 

CCR Rule Requirements 

(1) The final rule will be effective in non-authorized States 6 months after promulgation of the 

final rule. 

(2) The final rule will be effective in authorized States 6 months after promulgation of the State 

rule (unless the State specifies an earlier date.) 

(3) New units, including lateral expansions of existing units (as defined in the regulation must be 

incompliance with the final regulation before CCRs can be placed in the unit.) 

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(4) Existing surface impoundments and landfills must comply with the following requirements 

on by the following dates: 

CCR Rule Requirements 

Compliance Date 

Non Auth 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 

Haz Waste 

Same Same 

Notification 

(generators and 

TSDs) 

90 days after rule 

promulgation (that is, the 

date the CCRs are 

identified or listed as 

hazardous waste 

90 days after State rule promulgation 

(that is, the date the CCRs are identified 

or listed as 

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 noted. 

Install a 

permanent 

identification 

60 days from the effective 

date of the final rule 

60 days from the effective date of the 

State regulation. 

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marker on each 

surface 

impoundment as 

required by 40 

CFR 264.1304(d) 

and 40 CFR 

265.1304(d). 

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. 

2 years from the effective 

date of the final rule 

2 years from the effective date of the 

State regulation. 

Install, operate, 

and maintain 

run-on and runoff controls as 

required by 

264.1304 (g) and 

265.1304 (g) for 

surface 

impoundments 

and by 264.1307 

(d) and 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. 

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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. 

IX. 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 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 

were 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. 

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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 non-HSWA, that are considered less stringent than 

previous federal regulations. 

This proposed rule 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. 

B. Effect on State Authorization 

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This proposal would affect state authorization in the same manner as any new RCRA subtitle C 

requirement; i.e., (1) this proposal is considered to be broader in scope and more stringent than 

the current federal program, so authorized states must adopt regulations so that their program 

remains at least as stringent as the federal program; and (2) they must receive authorization from 

EPA for these program modifications. The process and requirements for modification of state 

programs at 40 CFR 271, specifically 271.21, will be used. 

However, this process is made more complex due to the nature of this particular rulemaking and 

the fact that some of the provisions are proposed 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). 

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As noted above, the provisions in today’s notice are proposed pursuant in part to HSWA 

authority and in part to non-HSWA or RCRA base program authority. The majority of today’s 

proposal is proposed pursuant to non-HSWA authority. This includes, for example, the listing of 

CCRs destined for disposal as a hazardous waste 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 

hazardous wastes, until the states revise their programs and become authorized to regulate CCRs 

as a listed hazardous waste, the land disposal restriction requirements would apply only in those 

States that currently do not exclude CCRs from hazardous waste regulation (that is, CCRs are 

regulated as a hazardous waste if they exhibit one or more of the hazardous waste characteristics) 

and the CCRs in fact exhibited one or more of the characteristics of hazardous waste. However, 

once the state has the authority to regulate CCRs as a hazardous waste, the LDR requirements 

become federally enforceable in all States. 

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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 Subtitle C requirements, States would not be required to 

promulgate regulations for these less stringent standards – should a State decided 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), 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 self-implementing. Until the states receive authorization for 

the more stringent HSWA provisions, EPA would implement them, as described above. In 

implementing the HSWA requirements, EPA will work closely with the states to avoid 

duplication of effort. Once authorized states adopt an equivalent rule and receive authorization 

for such rule from EPA, the authorized state rule will apply in that state as the RCRA Subtitle C 

requirement in lieu of the equivalent federal requirement. 

EPA expects states to adopt all the provisions of this new rulemaking in a timely manner and 

will work aggressively with states toward this end. 

X. Executive Orders and Laws Addressed in This Action.

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 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. As described in the RIA, the estimated cost of the three 

regulatory options ranges from $492 million to $2,274 million on an average annualized basis 

over a 50-year period-of-analysis (2012 to 2061) using a 7% discount rate. 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 proposes to list CCRs as hazardous wastes under Subtitle C of the Resource 

Conservation and Recovery Act (RCRA) when these materials are destined for disposal, which 

contains mandatory information collection requirements. The listing would also trigger 

DRAFT DO NOT CITE OR QUOTE 241 of 324 10/16/09 
mandatory emergency notification requirements for releases of hazardous substances to the 

environment under the Comprehensive Environmental Response, Compensation, and Liability 

Act (CERCLA) and the Emergency Planning and Community Right to Know Act (EPCRA). 

The labor hour burden and associated cost for these requirements are estimated in the ICR 

"Supporting Statement" for today's action. The Supporting Statement identifies and estimates 

the burden for the following nine categories of information collection: 

1. Groundwater monitoring 

2. Post-closure groundwater monitoring 

3. RCRA manifest cost 

4. Added cost of RCRA Subtitle C permits for all offsite CCR landfills 

5. Structural integrity inspections 

6. RCRA facility-wide investigation 

7. RCRA TSDF hazardous waste disposal permit 

8. RCRA enforcement inspection 

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 2,883,823 hours, with an average 

annual cost of $192.9 million per year. One-time capital and hourly costs are included in these 

estimates based on a three-year annualization period. The estimated number of likely 

respondents ranges from 90 to 495, depending on the category enumerated above. Burden is 

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defined at 5 CFR 1320.3(b). An agency may not conduct or sponsor, and a person is not 

required to respond to, a collection of information unless it displays a currently valid OMB 

control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 

CFR part 9. 

To comment on the Agency's need for this information, the accuracy of the provided burden 

estimates, and any suggested methods for minimizing respondent burden, EPA has established a 

public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA2009-0640-XXXX. Submit any comments related to the ICR to EPA and OMB. See 

ADDRESSES section at the beginning of this notice for where to submit comments to EPA. 

Send comments to OMB at the Office of Information and Regulatory Affairs, Office of 

Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office 

for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days 

after [Insert date of publication in the Federal Register], a comment to OMB is best assured 

of having its full effect if OMB receives it by [Insert date 30 days after publication in the 

Federal Register]. The final rule will respond to any OMB or public comments on the 

information collection requirements contained in this proposal. 

 C. Regulatory Flexibility Act. 

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 

DRAFT DO NOT CITE OR QUOTE 243 of 324 10/16/09 
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 is not expected to 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%) 

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may be classified as small entities, consisting of 33 small municipal governments, 11 small 

companies, 6 small cooperatives, plus 1 small county government. 

Based on the Subtitle D option without dewatering land disposal treatment as representing the 

lowest-cost option, and based on the Subtitle C option with dewatering treatment, 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 on the other owner 

entities for the 495 plants: 

o 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 

o 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. 

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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 rule 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. 

Accordingly, EPA has prepared under section 202 of the UMRA a “Written Statement” (an 

appendix to the RIA) which is summarized below. Today’s proposed rule 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 three options, which exceeds 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 cost 

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). 

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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’s Office of Resource Conservation & Recovery (ORCR) consulted with 

small governments according to EPA’s UMRA interim small government consultation plan 

developed pursuant to section 203 of 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 ORCR’s process for developing 

today’s proposal, ORCR implemented a small government consultation process consisting of two 

consultation components. 

o A series of meetings in calendar year 2009 were held with the purpose of acquiring small 

government technical input, including: (1) February 27 meeting with the Association of State 

and Territorial Solid Waste Management Officials (ASTSWMO) Coal Ash Workgroup 

(Washington, DC); (2) March 22-24 meeting with the Environmental Council of States (ECOS) 

at their Spring Meeting (Alexandria VA); (3) April 15-16 meeting with ASTSWMO at their 

Mid-Year Meeting (Columbus OH), (4) May 12-13 meeting at the EPA Region IV State 

Directors Meeting (Atlanta, GA), (5) June 17-18 meeting at the ASTSWMO Solid Waste 

Managers Conference (New Orleans, LA), (6) July 21-23 meeting at ASTSWMO’s Board of 

Directors Meeting (Seattle, WA), and (7) 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 

DRAFT DO NOT CITE OR QUOTE 247 of 324 10/16/09 
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 ORCR received letters in mid-2009 from 22 state governments, as well 

as a letter from ASTSWMO expressing their stance on CCR disposal regulatory options. 

o 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. 

Consistent with section 205, EPA identified and considered a reasonable number of regulatory 

alternatives. Today’s proposed rule identifies three regulatory options, and EPA’s RIA estimates 

that the average annual direct cost to industry across these four options 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. The lead option of today’s notice (i.e. 

RIA Option 1 with the CCR dewatering land disposal treatment sub-option) is estimated at 

$1,999 million in annual direct cost to the private sector, which is almost five times more costly 

DRAFT DO NOT CITE OR QUOTE 248 of 324 10/16/09 
than the least-cost option (i.e., RIA Option 2 without dewatering treatment sub-option) of $415 

million to the private sector. The lead option is also estimated at $97 million in annual direct 

cost to small governments, which is 1.7 times more costly than the least-cost option of $56 

million to small governments. The justification for the higher-cost lead option is that it provides 

the added benefit of Federal enforceability and mandatory implementation, compared to the 

least-cost option for which while EPA would issue a national subtitle D rule, it does not have to 

be enacted by the states, and thus, may be viewed as a “voluntary action.” Based on the past 10 

years where the states and industry have been operating under state regulations and policies, the 

management of CCRs has created risks to human health and the environment. Thus, the Agency 

believes that maintaining a subtitle D approach would not be protective of human health and the 

environment, although the Agency solicits comment on this finding. 

 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.” 

 

DRAFT DO NOT CITE OR QUOTE 249 of 324 10/16/09 
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. 

Based on the estimates in EPA’s RIA for today’s action, the proposed regulatory options, if 

promulgated, may have federalism implications because the options may impose between $56 

million to $97 million in annual direct compliance costs on 60 state or local governments. These 

60 state and local governments consist of 33 small municipal government jurisdictions, 19 nonsmall municipal government jurisdictions, 7 state government jurisdictions, and one county 

government jurisdiction. In addition, the 48 state governments with RCRA-authorized programs 

for the proposed regulatory options may incur between $0.05 million to over $5.4 million in 

added annual administrative costs involving the 495 electric utility plants for reviewing and 

enforcing: (a) CCR disposal unit structural integrity inspections, (b) RCRA facility-wide 

investigations and possible corrective actions, (c) RCRA waste disposal permit applications, (d) 

RCRA compliance inspections, (e) RCRA general standards, and (f) RCRA biennial hazardous 

DRAFT DO NOT CITE OR QUOTE 250 of 324 10/16/09 
waste reports. Based on these estimates, the expected annual cost to state and local governments 

for all 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 proposed rule 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. If promulgated, today’s proposed rule 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 

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Generating Units in the United States by State, Company and Plant 2007.” Based on information 

published by the Center for Media and Democracy,126 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, and 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 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. 

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

Risks. 

 

126 The Center for Media and Democracy (CMD) was founded in 1993 as an independent, non-profit, non-partisan, 

public interest organization. Information about electric utility plants located on tribal lands is from CMD’s 

SourceWatch Encyclopedia at: 

http://www.sourcewatch.org/index.php?title=Coal_and_Native_American_tribal_lands 

DRAFT DO NOT CITE OR QUOTE 252 of 324 10/16/09 
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 action, 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 proposed rule 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 

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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 at or above levels of concern. 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 

CCR 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 in the section of this notice titled “What Are the Environmental and Health Effects 

Associated with Disposing of CCRs in Landfills and Surface Impoundments?” EPA found that 

for the non-cancer health effects in the groundwater-to-drinking-water pathway and in the fish 

consumption pathways evaluated in the probabilistic modeling, children rather than adults had 

the higher exposures. This result stems from the fact that while at a given exposure point (e.g., a 

drinking water well located a certain distance and direction down-gradient from the landfill or 

surface impoundment), the modeled groundwater concentration is the same regardless of whether 

the receptor is an adult or a child. Thus, the other variables in the exposure equations (that relate 

drinking water intakes or fish consumption rates and body weight to a daily “dose” of the 

constituent) mean that, on a per-kilogram-body-weight basis, children are exposed to higher 

levels of constituents than adults. 

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G2. Evaluation of children’s population Census data surrounding affected electric utility plants 

The RIA for today’s 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, 383 plants (77%) operate CCR disposal units on-site (i.e., onsite landfills or onsite 

surface impoundments), 84 plants solely transport CCRs to offsite disposal units operated by 

other companies (e.g., commercial waste management companies), and 28 other 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 

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benchmark percentages range from 21.5% (ME) to 30.9% (UT) 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 

a plant is equal to the statewide average, a ratio greater than 1.00 indicates the child population 

percentage near the 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 plants (63%) have surrounding child populations which 

exceed their statewide children benchmark percentages, whereas 185 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 

plants have surrounding child population percentages which exceed their statewide benchmark. 

Using the state-by-state aggregation basis, 27 of the 47 states (57%) where the 495 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 plants in all 47 states where the plants are 

located, 6.08 million people reside near these 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 also ratio indicates a slightly higher 

disproportionate child population surrounding the 495 plants. 

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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 described in today’s notice, may have a disproportionately 

higher effect on child populations. This finding, therefore, supports selection of the more 

stringent and more costly RCRA subtitle C regulatory option over the lower-cost Subtitle D 

approach. 

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 proposed rule, if promulgated, may be a “significant energy action” as defined in Executive 

Order 13211 (66 FR 28355, May 22, 2001), because the proposed approach, as well as some of 

the alternative regulatory options described in today’s preamble may 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 RIA for this proposed rule. For this reason, EPA has prepared 

a “Statement of Energy Effects” (an appendix to the RIA) as required by Section 1 of the 

Executive Order. The following is a summary of that Statement. 

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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 

“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 this proposed rule 

(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). 

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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 (ID & WY) to 

$0.1892 (HI) per kilowatt-hour, and the nationwide average for the 495 plants was $0.0884 

(however, the nationwide average for the 495 electricity plants was $0.0987). 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 plants, as well as on a state-by-state sub-total basis and 

on a nationwide basis across all 495 plants. 

The RIA indicates that on a nationwide basis for all 495 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 plants by 0.172% to 0.795% across the three regulatory 

options; the high-end is the estimate associated with a regulatory cost pass-thru scenario increase 

for the 495 plants for the lead option proposed in today’s notice. Although all options are 

expected to result in less than the 1% price increases which is applied in the RIA as an indicator 

of potential “significant energy effect,” EPA prepared the “Statement of Energy Effect” because 

a number of uncertainty factors identified in the RIA may result in regulatory costs being lower 

or higher than estimated. 

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For actions likely to have a significant adverse energy effect, Section 2 of EO 13211 requires 

agencies to consider reasonable alternatives to the action. Part 7 of OMB’s July 13, 2001 

guidance memorandum (i.e., Memorandum M-01-27) for implementing EO 13211 lists seven 

examples of alternatives, of which the fifth example “Alternative Levels of Stringency” is 

included in today’s notice, as well as in the RIA underlying this energy analysis. The alternative 

regulatory options described in today’s notice and in the RIA represent alternative stringency 

levels of regulation, as evidenced by their terms and conditions, as well as the relatively broad 

range in estimated industry and state/local government costs for each option 

 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. 

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This proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards. 

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

Populations and Low-Income Populations. 

Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental justice part of their mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations and lowincome (i.e., below poverty line) populations in the United States. 

Furthermore, Section 3-302(b) of EO 12898 states that Federal agencies, whenever practicable 

and appropriate, shall collect, maintain and analyze information on minority and low-income 

populations for areas surrounding facilities or sites expected to have substantial environmental, 

human health, or economic effects on the surrounding populations, when such facilities or sites 

become the subject of a substantial Federal environmental administrative or judicial action. 

While EO 12898 does not establish quantitative thresholds for this “substantial effect” criterion, 

EPA has collected and analyzed population data for today’s proposed rule because of the 

substantial hazards and adverse risks to the environment and human health described elsewhere 

in today’s notice. 

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The RIA for today’s action presents comparisons of minority and low-income population Census 

data for each of the 495 electric utility plant locations, to respective statewide population data, in 

order to identify whether these two demographic groups may disproportionately reside near 

electric utility plants. The result of these comparisons indicate (a) whether existing hazards 

associated with CCR disposal at electric 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 proposed rule may disproportionately affect minority and low-income 

populations. 

Of the 495, 383 plants (77%) operate CCR disposal units onsite (i.e., onsite landfills or onsite 

surface impoundments), 84 plants solely transport CCRs to offsite disposal units operated by 

other companies (e.g., commercial waste management companies), and 28 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 

proposed rule 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. 

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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 comparison to 

statewide percentages, (b) state-by-state aggregation comparisons, and (c) nationwide aggregate 

comparison. There are year 2000 Census data for 464 (94%) of the 495 plants which the RIA 

used for these comparisons and extrapolated to all 495 plants. Statewide minority population 

benchmark percentages range from 3.1% (ME) to 75.7% (HI) with a nationwide average of 

24.9%, and statewide low-income population percentages range from 7.3% (MD) to 19.3% (NM) 

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 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 a plant is equal to the statewide average, a ratio greater than 1.00 indicates the group 

population percentage near the 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 plants (28%) have surrounding minority populations 

which exceed their statewide minority benchmark percentages, whereas 357 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 

plants have surrounding minority population percentages which disproportionately exceed their 

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statewide benchmarks. Also on a plant zip code basis, 256 plants (52%) have surrounding lowincome 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 

disproportionate number of 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, state ratios revealed that 24 of the 47 states (51%) have higher minority 

percentages, and 29 of the 47 states (62%) have higher low-income percentages surrounding the 

495 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 plants in all 47 states where the 

plants are located, 6.08 million people reside near the 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 

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aggregate ratios indicate a disproportionate lower minority population surrounding the 495 

plants, and a disproportionate higher low-income population surrounding the 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 notice, may have a 

disproportionately lower effect on minority populations and may have a disproportionately 

higher effect on low-income 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 involves the RCRA Subtitle C based regulatory options 

described in today’s proposed rule, 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 hazardous waste operating permits may also switch to RCRA-permitted 

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commercial hazardous waste landfills. Another fraction of annual CCR generation which could 

also switch to offsite commercial RCRA-permitted landfills are CCRs which are currently 

supplied for industrial beneficial use applications if such use is curtailed. 

The future addition of any or all of these three fractions of CCR generation to offsite commercial 

hazardous waste landfills could exceed their capacity considering that a much smaller quantity of 

about 2 million tons per year of existing RCRA-regulated hazardous waste is currently disposed 

of in RCRA Subtitle C permitted landfills in the US. As of 2009, there are 19 commercial 

landfills with RCRA hazardous waste permits to receive and dispose of RCRA-regulated 

hazardous wastes located in 15 states (AL, CA, CO, ID, IL, IN, LA, MI, NV, NY, OH, OK, OR, 

TX, UT). This potential shift could have a disproportionate effect on populations surrounding 

these locations, and in particular, minority and low-income populations surrounding commercial 

hazardous waste facilities, for the reason that a recent (2007) study determined that minority and 

low-income populations disproportionately live near commercial hazardous waste facilities. 

However, the study included other types of commercial hazardous waste treatment and disposal 

facilities in addition to commercial hazardous waste landfills. 

The siting of new landfills is another potential effect due to possible changes in the management 

of CCRs, especially if the switch to offsite commercial hazardous waste landfills causes a 

capacity shortage (as described above). 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 

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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 plants. 

List of Subjects in 40 CFR Part xxx 

Environmental Protection, coal combustion products, coal combustion residuals, coal 

combustion waste, beneficial use, disposal, hazardous waste, landfill, surface impoundment. 

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40 CFR 261 

Hazardous waste, Recycling, Reporting and recordkeeping requirements. 

40 CFR 264 

Air pollution control , Hazardous waste, Insurance, Packaging and containers, Reporting and 

recordkeeping requirements, Security measures, Surety bonds 

40 CFR 268 

Hazardous waste, Reporting and recordkeeping requirements. 

40 CFR 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 302 

Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental 

relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water 

pollution control, Water supply. 

Dated: 

_______________________________________ ____________________ 

Lisa P. Jackson, Administrator 

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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.127 

Four of the proven ground water damage cases were from unlined landfills, five were from 

unlined surface impoundments, one involved a surface impoundment for which it is not clear 

whether the unit was lined, and the remaining six were from unlined sand and gravel pits. 

Another 43 alleged cases were determined to be potential damage cases to ground water or 

surface water. However, four of these potential damage cases were attributable to oil 

combustion wastes, which are outside the scope of this notice. Therefore, we have determined 

that there were a total of 39 potential damage cases attributable to CCRs. (The concern with 

 

127 Of the 16 proven cases of damages to ground water, the Agency has been able to confirm that corrective action 

has been completed in seven cases and are ongoing in the remaining nine cases. Corrective action measures at these 

CCR management units vary depending on site specific circumstances and include formal closure of the unit, 

capping, re-grading of ash and the installation of liners over the ash, ground water treatment, groundwater 

monitoring, and combinations of these measures. 

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wastes from the combustion of oil involved unlined surface impoundments. Prior to the May 

2000 Regulatory Determination, the unlined oil ash impoundments were closed, and thus EPA 

decided regulatory action to address oil ash was unnecessary.) These cases are discussed in more 

detail in the document “Coal Combustion Wastes Damage Case Assessments” available in the 

docket to the 2007 NODA at 

www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015. Four sites have been listed on EPA’s National Priorities List. 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), (3) Lemberger Landfill, Wisconsin 

(http://www.epa.gov/region5/superfund/npl/wisconsin/WID980901243.htm), and (4) U.S. 

Department of Energy Oak Ridge Reservation, Tennessee 

(http://www.epa.gov/region4/waste/npl/npltn/oakridtn.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 I.D.), 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 

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date of damage cases assessed by the NODA’s companion documents). For the most part, these 

cases involve activities that are different from the prior damage cases and the focus of the 

regulatory determination on groundwater contamination from landfills and surface 

impoundments. Specifically: 

o Two of the new alleged cases involve the structural failure of surface impoundments; i.e., 

dam safety and structural integrity issues, which were not a consideration at the time of 

the May 2000 Regulatory Determination. In both cases, there were Clean Water Act 

violations. 

o One other alleged case involves the failure of an old discharge pipe, and is clearly a 

regulated NPDES permit issue. 

o Two other alleged cases involve the use of coal ash in large scale structural fill 

operations, one of which involves an unlined sand and gravel pit. The Agency is 

considering whether to regulate this method of disposal as a landfill or whether to address 

the issue separately as part of its rulemaking to address minefilling. EPA is soliciting 

comments on those alternatives. 

The Agency has classified three of the five new cases as proven damage cases (BBBS Sand and 

Gravel Quarries, Martins Creek Power Plant, TVA Kingston Power Plant), one as a potential 

damage case (Battlefield Golf Course), and the other as not being a damage case under RCRA 

(TVA Widows Creek). Several of the recently submitted damage cases are discussed briefly 

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 

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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),128 and thallium (6)]. 

The actual number of wells affected by fly ash and bottom ash is undetermined since some of the 

 

128 It is uncertain whether lead exceedances were due to CCRs or lead in plumbing and water holding tanks. 

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sample results may reflect natural minerals in the area. SMCLs were exceeded in 63 wells 

[aluminum (44), manganese (14), and sulfate (5)]. MDE concluded that leachate from the 

placement of CCRs at the site resulted in the discharge of pollutants to waters of the state. Based 

on these findings, as well as an MDE consent order, EPA has concluded that the Gambrills site is 

a proven case of damage to ground water resulting from the placement of CCRs in unlined sand 

and gravel quarries. 

Under the terms of the consent order, the defendants are required to pay a fine, remediate the 

ground water in the area and provide replacement water supplies for 40 properties. A retail 

development is now planned for the site with a cap over the fill designed to reduce infiltration 

and subsequent leaching from the site. An MDE fact sheet on this site is available at 

www.mde.state.md.us/assets/document/AA_Fly_Ash_QA.pdf. 

Battlefield Golf Course - Chesapeake, Virginia 

On July 16, 2008, the City of Chesapeake, Virginia sent a letter to the EPA Region III Regional 

Administrator requesting assistance to perform an assessment of the Battlefield Golf Course. 

The 216 acre site was contoured with 1.5 million tons of fly ash 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 

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City of Chesapeake initiated a drinking water well sampling assessment at residences 

surrounding the golf course. The results of this initial testing did not indicate levels of 

contamination above drinking water standards with the exception of two anomalies, which can 

possibly be attributed to other sources. Following this sampling, monitoring wells were installed 

on the golf course. Because elevated levels of metals contamination were found in these wells, 

the City of Chesapeake determined that additional assessment work was necessary. 

Therefore, in August of 2008, EPA performed a two-part assessment on and around the 

Battlefield Golf Course (See www.epaosc.net/polrep_profile.asp?site_id=4254). The first part of 

the assessment included sampling on and around the golf course. Three monitoring wells on the 

site were sampled. Additionally, 13 monitoring points were installed around the site. These 

monitoring points were installed at the toe of the golf course where the course levels off to 

natural soils. No monitoring points were installed through the fly ash area to avoid creating an 

additional path of contaminant migration. 

Samples were collected along the edges and at the corners of the golf course. Soils from the 

borings were analyzed, as well as ground water from these points. For the ground water samples 

around the site, the highest arsenic level (downgradient from the golf course) was 19.8 

micrograms/liter (μg/L); this levels exceeds EPA’s drinking water MCL of 10 ug/L, although 

this monitoring point is not a drinking water well. The highest lead level in the ground water 

samples collected from around the site (downgradient from the golf course) was 28.3 μg/L in one 

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of the monitoring points which is above the action level for lead of 15 μg/L129. A total of 70 

residential wells were also sampled. Four samples had concentrations of lead greater than the 

federal action level; however, it is unknown whether the lead originated from the fly ash used as 

structural fill at the golf course or, for example, from lead solder used in metal water holding 

tanks and pipes. In particular, lead in one of the upgradient well samples was higher than in the 

downgradient wells (with the exception of the four wells with lead exceeding the action level).130

While the exceedance for lead in the upgradient well indicates a source other than the fly ash, the 

source of the lead in the four down gradient wells with lead exceedances is unknown, such that 

the fly ash can not be ruled as the source. The highest result for boron, which is not a regulated 

drinking water contaminant, in wells on or around the site was 52.5 μg/L. Boron levels were 

higher in some of the residential wells. None of the other residential well samples exceeded the 

MCL for any other detected analyte. 

Than in late 2008, the City of Chesapeake conducted additional ground water and surface water 

sampling. Ground water samples were collected at 24 residential drinking water wells. None of 

the residential well samples exceeded the primary drinking water standards (based on 

information as of August 13, 2008). 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 (0.14 mg/L to 0.24.mg/L and 5.0 mg/L to 13.0 

 

129 Lead and copper are regulated by a Treatment Technique that requires systems to control the corrosiveness of 

their water. If more than 10% of tap water samples exceed the action level, water systems must take additional 

steps. For copper, the action level is 1300 μg/L, and for lead is 15 μg/L. 

130 “Final Trip Report for the Battlefield Golf Fly Ash Assessment, City of Chesapeake, Virginia,” December 11, 

2008. 

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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 also 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. 

Results of the City of Chesapeake ground water and surface water sampling are available at 

http://cityofchesapeake.net/services/citizen_info/battlefieldgolfclub/index.shtml. 

In summary, sampling conducted to date does not indicate levels of contamination above 

drinking water standards in the residential wells. However, 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. There also are exceedances of 

primary drinking water standards in on-site ground water for contaminants found in fly ash at 

this site. In addition, there are exceedances of secondary drinking water standards in both on-site 

and off-site ground water, and elevated levels of metals in on-site and off-site surface water. 

Since documented exceedances of primary drinking water standards have not been demonstrated 

at a sufficient distance from the site to indicate that the CCR constituents had migrated to the 

extent that they could cause human health concerns, EPA has categorized the Battlefield Golf 

Club site as a potential damage case. 

Martins Creek Power Plant – Martins Creek, Pennsylvania 

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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 100 million gallons of coal-ash and contaminated water into the Oughoughton 

Creek and the Delaware River. 

Ground-water monitoring results from approximately 20 on-site monitoring wells found 

selenium concentrations exceeding Pennsylvania’s Statewide Health Standards and Federal 

primary drinking water standards. There was also one exceedance of the primary MCL for 

chromium and two exceedances of the secondary MCL for iron. 

Surface water samples were also taken from a number of locations along the Delaware River 

upstream and downstream of the spill. Sampling began soon after the spill in August 2005 and 

continued through November 2005. Several samples exceeded the Federal Water Quality 

Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see 

www.epa.gov/waterscience/criteria/wqctable/index.html). Four samples also exceeded the WQC 

for arsenic – three of which were taken near the outfall to the river. Lead, nickel and zinc were 

also detected above the WQC in samples taken near the outfall to the river. Sampling results are 

available from the Pennsylvania Department of Environmental Protection (PADEP) at 

www.depweb.state.pa.us/northeastro/cwp/view.asp?a=1226&q=478264&northeastroNav=| 

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As a result of the exceedances of primary and secondary MCLs in on-site ground water, and 

exceedances of federal water quality criteria in off-site surface water, in addition to a PADEP 

consent order for clean up, the Agency considers this site to be a proven damage case. 

TVA Kingston – Harriman, Tennessee 

On December 22, 2008, a failure of the northeastern dike used to contain fly ash occurred at the 

dewatering area of the Tennessee Valley Authority’s (TVA’s) Kingston Fossil Plant in 

Harriman, Tennessee. Subsequently, approximately 5.4 million cubic yards of fly ash sludge 

was released over an approximately 300 acre area and into a branch of the Emory River. The ash 

slide disrupted power, ruptured a gas line, knocked one home off its foundation and damaged 

others. The state-issued NPDES permit requires that TVA properly operate and maintain all 

facilities and systems for collection and treatment, and expressly prohibits overflows of wastes to 

land or water from any portion of the collection, transmission, or treatment system other than 

through permitted outfalls. Therefore, the release was a violation of the NPDES permit. A rootcause analysis report developed for TVA, accessible at 

http://www.tva.gov/kingston/rca/index.htm, established that the dike failed because it was 

expanded by successive vertical additions, to a point where a thin, weak layer of fly ash (‘slime’) 

on which it had been founded, failed by sliding. Additional information on the TVA Kingston 

incident is available at www.epa.gov/region4/kingston/index.html and www.tva.gov/kingston/. 

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 

DRAFT DO NOT CITE OR QUOTE 278 of 324 10/16/09 
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.131 Sampling results also showed average arsenic levels above the EPA Region 

4 Residential Removal Action Level (RAL)132 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 

 

131 Soil screening levels (SSLs) for contaminants in soil are used to identify sites needing further investigation. 

SSLs alone do not trigger the need for a response action or define “unacceptable” levels of contaminants in soil. 

Generally, at sites where contaminant concentrations fall below the SSLs, no further action or study is warranted 

under CERCLA. However, where contaminant concentrations equal or exceed the SSLs, further study or 

investigation, but not necessarily cleanup, is warranted. 

132 RALs are used to trigger time-critical removal actions. 

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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. 

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On January 12, 2009, TDEC issued an order to TVA to, among other things, continue to 

implement measures to prevent the movement of contaminated materials into waters of the state 

and, where feasible, minimize further down-stream migration of contaminated sediments. 

Than on May 11, 2009, TVA agreed to clean up more than 5 million tons of coal ash spilled 

from its Kingston Fossil Fuel Plant under an administrative order and agreement on consent. 

TVA and EPA entered into the agreement under CERCLA. The order requires TVA to perform 

a thorough cleanup of coal ash from the Emory River and surrounding areas and EPA will 

oversee the removal. Based on the consent order, EPA has identified this site as a proven 

damage case. 

TVA Widows Creek – Stevenson, Alabama 

On Friday, January 9, 2009, a cap in an unused discharge pipe became dislodged, resulting in a 

discharge from an FGD pond at a Tennessee Valley Authority (TVA) coal-burning power plant 

in Stevenson, Alabama. FGD is a residual of a process that reduces sulfur dioxide emissions 

from coal-fired boilers An unknown quantity 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. Information on the TVA Widows Creek incident is 

available at 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 

DRAFT DO NOT CITE OR QUOTE 281 of 324 10/16/09 
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. Therefore, EPA has not classified the TVA Widows Creek fly ash release as 

a damage case. 

Summary

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In summary, as discussed above, the Agency has documented evidence of proven damages to 

ground water or surface water in 27 cases133 - 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.134 Another two cases were determined to be potential ecological 

damage cases. Finally, the more recently documented damage cases also provide evidence that 

current management practices can pose additional risks that EPA had not previously studied--that 

is, from catastrophic releases due to the structural failure of CCR surface impoundments. These 

cases all support a conclusion that additional federal oversight associated with regulation under 

Subtitle C is warranted. 

 

133 The 24 cases identified in the Damage Cases Assessment report, plus Martin Creek, PA; Gambrills, MD; and 

Kingston/TVA, TN. 

134 The 39 cases of potential damages from CCR identified in the Damage Cases Assessment report (excludes the 4 

damage cases from oil combustion wastes), plus the Battlefield Golf Course, Chesapeake, Virginia. 

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For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is 

proposed to be amended as follows: 

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 

1. 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. 

2. Section 261.4 is amended by revising paragraph (b)(4) to read as follows. 

§ 261.4 Exclusions. 

* * * * * 

(b) * * * 

(4)(i) Fly ash, bottom ash, slag, and flue gas emission control residuals, generated primarily 

from the combustion of coal for the purpose of generating electricity, if the coal ash is 

beneficially used, placed in minefilling operations, or generated by facilities outside the electric 

power sector (i.e., not included in NAICS code 221112). Beneficial Use of Coal Combustion 

Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an 

alternative material, conserving natural resources that would otherwise need to be obtained 

through practices such as extraction; and meets relevant product specifications and regulatory 

standards (where these are available). CCPs that are used in excess quantities, placed as fill in 

sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, 

are not considered beneficial uses. 

DRAFT DO NOT CITE OR QUOTE 284 of 324 10/16/09 
(ii) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste, 

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. 

3. Section 261.32 is amended by: 

a. In the table by adding a new entry in alphanumeric order (by first column) under the new 

heading ‘‘Coal Combustion Residuals,’’ and 

b. Adding paragraphs (e) and (f) to read as follows: 

§ 261.32 Hazardous wastes from specific sources. 

(a) * * * 

Industry and EPA 

hazardous waste No. 

Hazardous waste 

Hazard 

code 

* 

Coal Combustion 

Residuals: 

* 

K179 .......... 

* 

* * * * * 

* * * * * 

Coal combustion residuals generated by the electric power 

sector (Electric Utilities and Independent Power 

Producers). 

* * * * * 

* 

* 

(T) 

* 

DRAFT DO NOT CITE OR QUOTE 285 of 324 10/16/09 
(e) For the purposes of this listing, the electric power sector is defined as electricity-only and 

combined-heat-and-power (CHP) plants whose primary business is to sell electricity, or 

electricity and heat, to the public; i.e., NAICS code 22 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 (f), (2) beneficially used as 

defined in § 264.1, (3) placed in minefilling opearations, (4) generated by facilities outside the 

electric power sector, or (5) generated from clean-up activities that are conducted as part of a 

state or federally required clean-up that commenced prior to the effective date of this rule. 

(f) Uniquely associated wastes are low-volume wastes other than those defined as CCRs in 

paragraph (e) 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. 

4. Appendix VII to part 261 is amended by adding the following entry in alphanumeric order (by 

the first column) to read as follows. 

APPENDIX VII TO PART 261—BASIS FOR LISTING HAZARDOUS WASTE 

EPA hazardous 

waste No. 

Hazardous constituents for which listed 

* * * * * * * 

DRAFT DO NOT CITE OR QUOTE 286 of 324 10/16/09 
K179 .......... 

* 

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 

5. The authority citation for part 264 continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925. 

6. 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 Hazardous Waste Number K179, 

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 Hazardous Waste 

Number K179. 

* * * * * 

7. Section 264.140 is amended by revising paragraph (a) to read as follows: 

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§ 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, except as provided otherwise in this section, or in 

264.1. 

* * * * * 

8. Part 264 is amended by adding subpart FF to read as follows: 

Subpart FF – Special Requirements for K179 Wastes

§ 264.1300 Applicability 

The regulations in this subpart apply to owners or operators of hazardous waste facilities that 

treat, store or dispose of EPA Hazardous Waste Number K179. 

§ 264.1302 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 

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(CCWs) and fossil fuel combustion (FFC) wastes, when destined for disposal, and as coal 

combustion products (CCPs) when beneficially used. 

CCR Landfill means an engineered area where waste; e.g., coal combustion residuals, are placed 

into or on the land without the presence of free liquids. For purposes of this proposed rule, 

landfills also include piles, sand and gravel mines, pits, quarries, and/or large scale fill 

operations. 

CCR Surface Impoundment means any disposal unit including a lateral expansion, or installation 

from which there is or may be placement of CCRs with the presence of free liquids, and which is 

not an injection well. Examples of surface impoundments are holding, storage, settling, and 

aeration pits, ponds, and lagoons. CCR surface impoundments receive CCRs that have been 

sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution 

control devices. 

Existing CCR Landfill means a landfill which was in operation or for which construction 

commenced prior to promulgation of the federal management standards which are applicable to 

such landfill. A CCR landfill 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 either 

(2) (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 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 promulgation of federal management standards 

DRAFT DO NOT CITE OR QUOTE 289 of 324 10/16/09 
which are applicable to such surface impoundment. A CCR 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 either 

(2) (i) A continuous on-site, physical construction program has begun; or 

(ii) 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 accepted engineering 

practice. 

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 date on which the federal management standards 

which are applicable to such landfill become effective in the state where the landfill is located. 

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 date on which the 

federal management standards which are applicable to such surface impoundment become 

effective in the state where the landfill is located. 

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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. 

§ 264.1303 Reporting 

(a) Except as provided in paragraph (b) of this section, every twelfth month following the date of 

the initial plan approval required in § 264.1304 of this subpart, the person owning or operating, a 

CCR surface impoundment that has not been 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 a registered professional engineer that all construction, operation, and 

maintenance are in accordance with the approved plan. 

(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 a registered 

DRAFT DO NOT CITE OR QUOTE 291 of 324 10/16/09 
professional engineer that there have been no changes under paragraphs (a)(1) through (a)(6) of 

this section to the CCR surface impoundment. 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. 

§ 264.1304 Surface Impoundments. 

(a) In addition to the requirements in subpart K of this part, EPA Hazardous Waste No. K179 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 [insert date one year after the effective date of the final 

rule]. 

(d) A permanent identification marker, at least six feet high and showing the identification 

number of the CCR surface impoundment as assigned by the Regional Administrator, the name 

associated with the CCR surface impoundment and the name of the person owning or operating 

the structure, shall be located on or immediately adjacent to each CCR surface impoundment by 

[insert date 60 days after the effective date of the final rule]. 

(e) The plan specified in paragraph (b) of this section, shall contain at a minimum the following 

information: 

DRAFT DO NOT CITE OR QUOTE 292 of 324 10/16/09 
(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; and the identification number of the CCR 

surface impoundment as assigned by the Regional Administrator. 

(2) The location of the CCR surface impoundment indicated on the most recent USGS 

71/2minute or 15 minute topographic quadrangle map, or a topographic map of equivalent scale 

if a USGS map is not available. 

(3) A statement of the purpose for which the CCR surface impoundment is being used. 

(4) The name and size in acres of the watershed affecting the CCR surface impoundment. 

(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 

DRAFT DO NOT CITE OR QUOTE 293 of 324 10/16/09 
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) A statement of the runoff attributable to the probable maximum precipitation of 6-hour 

duration and the calculations used in determining such runoff. 

(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. 

(12) A description of the spillway and diversion design features and capacities and calculations 

used in their determination. 

(13) The computed minimum factor of the safety range for the slope stability of the CCR surface 

(14) 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 a 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 designed 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 a 

registered professional engineer, including what provisions have been made to carry out such 

work in addition to a schedule for completion of such work. 

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(f) Any changes or modifications to the plans for CCR surface impoundments shall be approved 

by the Regional Administrator prior to the initiation of such changes or modifications. 

(g) Effective [insert date two years after the effective date of the final rule], all existing CCR 

surface impoundments that receive CCRs shall be operated and maintained with: 

(1) A run-on control system to prevent flow onto the active portion of the CCR surface 

impoundment during the peak discharge from a 24-hour, 25-year storm; 

(2) A run-off control system from the active portion of the CCR surface impoundment to collect 

and control at least the water volume resulting from a 24-hour, 25-year storm. Run-off from the 

active portion of the CCR surface impoundment must be handled in accordance with § 264.1308 

of this subpart. 

§ 264.1305 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 § 264.1304(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 rain event approved by the Regional Administrator. 

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(4) All inspections required by this paragraph shall be performed by a qualified person, as 

defined in paragraph (g) of this section, designated by the person owning or operating the CCR 

surface impoundment. 

(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; 

(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. 

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(e) Within [insert date one year after the effective date of the final rule], the person owning 

or operating a CCR surface impoundment which meets the requirements of § 264.1304 of this 

subpart shall adopt a program for carrying out the requirements of paragraphs (a) and (b) of this 

section. The program shall be submitted for approval to the Regional Administrator. The 

program shall include as a minimum: 

(1) A schedule and procedures for inspecting the CCR surface impoundment by a designated 

qualified person; 

(2) A schedule and procedures for monitoring any required or approved instrumentation by a 

designated qualified person; 

(3) Procedures for evaluating hazardous conditions; 

(4) Procedures for eliminating hazardous conditions; 

(5) Procedures for notifying the Regional Administrator; 

(6) Procedures for evacuating personnel from the owner or operator’s property which may be 

affected by the hazardous condition. 

(f) Before making any changes or modifications in the program approved in accordance with 

paragraph (e) of this section, the person owning or operating the CCR surface impoundment 

shall obtain approval of such changes or modifications from the Regional Administrator. 

(g) 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. 

§ 264.1306 Requirements for Surface Impoundment Closure. 

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(a) Prior to the closure of any CCR surface impoundment which meets the requirements of § 

264.1304(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 based on 

current, prudent engineering practices. 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 CCR slurry. 

§ 264.1307 Landfills. 

(a) Owners or operators of CCR landfills are exempt from the double liner and leachate 

collection system requirements of § 264.301(c) of this part, and the requirements of § 264.302 of 

this part, provided the owner or operator is in compliance with the requirements of paragraph (b) 

of this section. 

(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. 

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(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.) 

(d) Effective [insert date two years after the effective date of the final rule], all existing 

landfills that receive CCRs shall be operated and maintained with: 

(1) A run-on control system to prevent flow onto the active portion of the CCR landfill during 

the peak discharge from a 24-hour, 25-year storm; 

(2) A run-off control system from the active portion of the CCR landfill to collect and control at 

least the water volume resulting from a 24-hour, 25-year storm. Run-off from the active portion 

of the CCR landfill must be handled in accordance with § 264.1308 of this subpart. 

§ 264.1308 Surface Water Requirements. 

(a) CCR surface impoundments and CCR landfills 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 

Act. 

(2) Cause the discharge of a nonpoint source of pollution to waters of the United States, 

including wetlands, that violates any requirement of an area-wide or state-wide water quality 

management plan that has been approved under section 208 or 319 of the Clean Water Act, as 

amended. 

§ 264.1309 Air Requirements. 

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(a) CCR surface impoundments and CCR landfills must be managed in a manner that does not 

violate any applicable requirements developed under a State Implementation Plan (SIP) 

approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as 

amended. 

(b) CCR surface impoundments must be managed to control wind dispersal of dusts. 

(c) CCR landfills must be managed to control wind dispersal of dusts. 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) Tanks, containers, buildings and pads used for the storage must be managed to control the 

dispersal of dust. Pads must have wind protection. 

(f) CCRs transported in trucks or other vehicles must be covered or otherwise managed to 

control the wind dispersal of dust. 

PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 

HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES 

9. 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. 

10. Section 265.1 is amended by adding paragraph (g) to read as follows: 

§ 265.1 Purpose, scope, and applicability. 

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* * * * * 

(g) Owners or operators who treat, store or dispose of EPA Hazardous Waste Number K 179, 

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 Hazardous Waste 

No. K 179. 

* * * * * 

11. Section 265.140 is amended by revising paragraph (a) to read as follows: 

§ 265.140 Applicability. 

The requirements of §§ 265.142, 265.143 and 265.147 through 265.150 apply to owners or 

operators of all hazardous waste facilities, except as provided otherwise in this section, or in 

265.1. 

* * * * * 

12. Part 265 is amended by adding Subpart FF to read as follows: 

Subpart FF – Special Requirements for K179 Wastes

§ 265.1300 Applicability. 

The regulations in this subpart apply to owners or operators of hazardous waste facilities that 

treat, store or dispose of EPA Hazardous Waste Number K179. 

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§ 265.1302 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 an engineered area where waste; e.g., coal combustion residuals, are placed 

into or on the land without the presence of free liquids. For purposes of this proposed rule, 

landfills also include piles, sand and gravel mines, pits, quarries, and/or large scale fill 

operations. 

CCR Surface Impoundment means any disposal unit including a lateral expansion, or installation 

from which there is or may be placement of CCRs with the presence of free liquids, and which is 

not an injection well. Examples of surface impoundments are holding, storage, settling, and 

aeration pits, ponds, and lagoons. CCR surface impoundments receive CCRs that have been 

sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution 

control devices. 

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Existing CCR Landfill means a landfill which was in operation or for which construction 

commenced prior to promulgation of the federal management standards which are applicable to 

such landfill. A CCR landfill 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 either 

(2) (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 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 promulgation of federal management standards 

which are applicable to such surface impoundment. A CCR 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 either 

(2) (i) A continuous on-site, physical construction program has begun; or 

(ii) 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 accepted engineering 

practice. 

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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 date on which the federal management standards 

which are applicable to such landfill become effective in the state where the landfill is located. 

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 date on which the 

federal management standards which are applicable to such surface impoundment become 

effective in the state where the landfill is located. 

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 

§ 265.1303 Reporting. 

(a) Except as provided in paragraph (b) of this section, every twelfth month following the date of 

the initial plan approval required in § 265.1304 of this subpart, the person owning or operating a 

CCR surface impoundment that has not been abandoned 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. 

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(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 a registered professional engineer that all construction, operation, and 

maintenance are in accordance with the approved plan. 

(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 a registered 

professional engineer that there have been no changes under paragraphs (a)(1) through (a)(6) of 

this section to the CCR surface impoundment. 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. 

§ 265.1304 Surface Impoundments. 

(a) In addition to the requirements in subpart K of this part, EPA Hazardous Waste No. K179 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 

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(2) Impound CCRs to an elevation of 20 feet or more above the upstream toe of the structure. 

(c) Plans required under paragraph (b) of this section shall be submitted in triplicate to the 

Regional Administrator on or before [insert date one year after the effective date of the final 

rule]. 

(d) A marker, at least six feet high and showing the identification number of the CCR surface 

impoundment as assigned by the Regional Administrator, the name associated with the CCR 

surface impoundment and the name of the person owning or operating the structure, shall be 

located on or immediately adjacent to each CCR surface impoundment permanent identification 

by [insert date 60 days after the effective date of the final rule]. 

(e) The plan specified in paragraph (b) of this section, shall contain at a minimum the following 

information: 

(1) The name and address of the persons owning or operating the CCR surface impoundment; the 

name associated with the CCR surface impoundment; and the identification number of the CCR 

surface impoundment as assigned by the Regional Administrator. 

(2) The location of the CCR surface impoundment indicated on the most recent USGS 

71/2minute or 15 minute topographic quadrangle map, or a topographic map of equivalent scale 

if a USGS map is not available. 

(3) A statement of the purpose for which the CCR surface impoundment is being used. 

(4) The name and size in acres of the watershed affecting the CCR surface impoundment. 

(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 

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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) A statement of the runoff attributable to the probable maximum precipitation of 6-hour 

duration and the calculations used in determining such runoff. 

(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. 

(12) A description of the spillway and diversion design features and capacities and calculations 

used in their determination. 

(13) The computed minimum factor of the safety range for the slope stability of the CCR surface 

impoundment, including methods and calculations used to determine each factor of safety. 

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(14) 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 a 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 designed 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 a 

registered professional engineer, including what provisions have been made to carry out such 

work in addition to a schedule for completion of such work. 

(f) Any changes or modifications to the plans for CCR surface impoundments shall be approved 

by the Regional Administrator prior to the initiation of such changes or modifications. 

(g) Effective [insert date two years after the effective date of the final rule], all existing 

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 § 265.1308 

of this subpart. 

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§ 265.1305 Inspection Requirements for Surface Impoundments. 

(a) In addition to the inspection requirements in § 265.226, all CCR surface impoundments that 

meet the requirements of § 265.1305(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 rain event approved by the Regional Administrator. 

(4) All inspections required by this paragraph shall be performed by a qualified person, as 

defined in paragraph (g) of this section, designated by the person owning or operating the CCR 

surface impoundment. 

(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; 

(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 

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(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) Within [insert date one year after the effective date of the final rule], the person owning 

or operating a CCR surface impoundment which meets the requirements of § 265.1304 of this 

subpart shall adopt a program for carrying out the requirements of paragraphs (a) and (b) of this 

section. The program shall be submitted for approval to the Regional Administrator. The 

program shall include as a minimum: 

(1) A schedule and procedures for inspecting the CCR surface impoundment by a designated 

qualified person; 

(2) A schedule and procedures for monitoring any required or approved instrumentation by a 

designated qualified person; 

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(3) Procedures for evaluating hazardous conditions; 

(4) Procedures for eliminating hazardous conditions; 

(5) Procedures for notifying the Regional Administrator; 

(6) Procedures for evacuating personnel from the owner or operator’s property which may be 

affected by the hazardous condition. 

(f) Before making any changes or modifications in the program approved in accordance with 

paragraph (e) of this section, the person owning or operating the CCR surface impoundment 

shall obtain approval of such changes or modifications from the Regional Administrator. 

(g) 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. 

§ 265.1306 Requirements for Surface Impoundment Closure. 

(a) Prior to the closure of any CCR surface impoundment which meets the requirements of § 

265.1304(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 based on 

current, prudent engineering practices. 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 CCR slurry. 

§ 265.1308 Landfills. 

(a) Owners or operators of CCR landfills are exempt from the double liner and leachate 

collection and removal system requirements of § 265.301(c) of this part, and the requirements of 

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§ 265.302 of this part, provided the owner or operator is in compliance with the requirements of 

paragraph (b) of this section. 

(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 purpose of this subpart, hydraulic conductivity means the rate at which water can move 

through a permeable medium. (i.e., the coefficient of permeability.) 

(d) Effective [insert date two years after the effective date of the final rule], all existing 

landfills that receive CCRs shall be operated and maintained with: 

(1) A run-on control system to prevent flow onto the active portion of the CCR landfill during 

the peak discharge from a 24-hour, 25-year storm; 

(2) A run-off control system from the active portion of the CCR landfill to collect and control at 

least the water volume resulting from a 24-hour, 25-year storm. Run-off from the active portion 

of the CCR landfill must be handled in accordance with § 265.1308 of this subpart. 

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§ 265.1308 Surface Water Requirements. 

(a) CCR surface impoundments and CCR landfills 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 

Act. 

(2) Cause the discharge of a nonpoint source of pollution to waters of the United States, 

including wetlands, that violates any requirement of an area-wide or state-wide water quality 

management plan that has been approved under section 208 or 319 of the Clean Water Act, as 

amended. 

§ 265.1309 Air Requirements. 

(a) CCR surface impoundments and CCR landfills must be managed in a manner that does not 

violate any applicable requirements developed under a State Implementation Plan (SIP) 

approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as 

amended. 

(b) CCR surface impoundments must be managed to control wind dispersal of dusts. 

(c) CCR landfills must be managed to control wind dispersal of dusts. 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) Tanks, containers, buildings and pads used for the storage must be managed to control the 

dispersal of dust. Pads must have wind protection. 

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(f) CCRs transported in trucks or other vehicles must be covered or otherwise managed to 

control the wind dispersal of dust. 

PART 268 - LAND DISPOSAL RESTRICTIONS 

13. The authority citation for part 268 continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924. 

Subpart C - Prohibitions on Land Disposal 

14. Subpart C is amended by: 

(a) amending § 268.2 by amending paragraph (f), 

 (a) amending § 268.14 by adding paragraph (d), 

(b) adding § 268.21, and 

(c) adding and reserving §§ 268.22 through 268.29. 

§ 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 residues, [waste 

code K179], which are wastewaters if the moisture content exceeds 50%. 

§ 268.14 Surface impoundment exemptions. 

* * * * * 

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(d) The waste specified in 40 CFR Part 261 as EPA Hazardous Waste Number K179 may 

continue to be placed in an existing CCR surface impoundment in accordance with paragraphs 

(b) and (c) of this subpart for 60 months after the promulgation date of listing that 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. 

§ 268.21 Waste specific prohibitions – Coal combustion residuals. 

(a) Effective [insert date six months after the effective date of the final rule], nonwastewaters 

specified in 40 CFR Part 261 as EPA Hazardous Waste Number K179 are prohibited from land 

disposal. 

(b) Effective [insert date 60 months after the effective date of the final rule], wastewaters 

specified in 40 CFR Part 261 as EPA Hazardous Waste Number K179 are prohibited from land 

disposal. 

(c) The requirements of paragraphs (a) and (b) of this subpart do not apply if: 

(1) The wastes meet the applicable treatment standards specified in subpart D of this Part; 

(2) Persons have been granted an exemption from a prohibition pursuant to a petition under 

§ 268.6, with respect to those wastes and units covered by the petition; 

(3) The wastes meet the applicable treatment standards established pursuant to a petition granted 

under § 268.44; 

(4) Persons have been granted an extension to the effective date of a prohibition pursuant to 

§ 268.5, with respect to these wastes covered by the extension. 

DRAFT DO NOT CITE OR QUOTE 315 of 324 10/16/09 
15. In § 268.40, the Table of Treatment Standards is amended by adding in alphanumeric order 

the new entry for K179 to read as follows: 

§ 268.40 Applicability of treatment standards. 

* * * * * 

TREATMENT STANDARDS FOR HAZARDOUS WASTES 

[Note: NA means not applicable] 

Regulated hazardous 

constituent Wastewaters Nonwastewaters 

Waste code Waste description and 

treatment/ 

regulatory 

subcategory1

Common 

name 

CAS2 number Concentration in 

mg/L3, or 

technology 

code 4

Concentration in 

mg/kg 5 unless 

noted as ‘‘mg/L 

TCLP’’, or 

technology 

code 

K179 Coal combustion 

wastes generated by 

the electric power 

sector. For purposes 

of this listing, the 

electric power sector 

Antimony.... 

Arsenic...... 

Barium...... 

Beryllium.... 

Cadmium.... 

Chromium.... 

7440-36-0 

7440-38-2 

7440-39-3 

7440-41-7 

7440-43-9 

7440-47-3 

TSS of 100mg/l 

and meet 

§ 268.48. 

Meet § 268.48 

DRAFT DO NOT CITE OR QUOTE 316 of 324 10/16/09 
is defined as 

electricity-only and 

combined-heat-andpower (CHP) plants 

whose primary 

business is to sell 

electricity, or 

electricity and heat, to 

the public; i.e., 

NAICS code 221112 

plants. For the 

purposes of this 

listing, coal 

combustion wastes are 

defined as fly ash, 

bottom ash, boiler 

slag, fluidized bed 

combustion materials, 

and flue gas 

desulfurization 

materials generated by 

the electric power 

sector. This listing 

Lead.... 

Mercury.... 

Nickel.... 

Selenium.... 

Silver.... 

Thallium.... 

7439-92-1 

7439-97-6 

7440-02-0 

7782-49-2 

7440-22-4 

7440-28-0 

DRAFT DO NOT CITE OR QUOTE 317 of 324 10/16/09 
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 clean-up that 

commenced prior to 

the effective date of 

this rule. 

* * * * * 

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16. In § 268.42, the Table of Technology Codes and Description of Technology-Based Standards 

is amended by adding in alphanumeric order the new technology codes and description of the 

technology-based standards for K179 to read as follows: 

§ 268.42 Treatment standards expressed as specified technologies. 

* * * * * 

Table 1—Technology Codes and Description of Technology-Based Standards 

Technology code Description of technology-based standards 

RSLDS: Removal of solids and meet § 268.48 treatment levels. 

PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS 

WASTE PROGRAMS 

17. The authority citation for part 271 continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), and 6926. 

18. Section 271.1(j) is amended by adding the following entries to Table 1 and Table 2 in 

chronological order by date of publication to read as follows. 

§ 271.1 Purpose and scope. 

* * * * * 

DRAFT DO NOT CITE OR QUOTE 319 of 324 10/16/09 
(j) * * * 

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE 

AMENDMENTS OF 1984 

Promulgation date Title of regulation Federal Register reference Effective date 

* * 

[insert date of 

signature of final 

rule] 

* * 

 * * 

Listing of Hazardous 

Waste K179 

 * * 

 * * 

[insert federal register page 

numbers for final rule] 

 

 * * 

 * 

[insert effective 

date of final rule] 

 * 

TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE 

AMENDMENTS OF 1984 

Effective date Self-implementing 

provision 

RCRA citation Federal Register 

reference 

* * 

[insert effective 

date of final rule] 

 * * * * * 

Prohibition on land 

disposal of K179 waste 

with free liquids and 

prohibition on the 

disposal o K179 waste 

below the natural water 

3001(b)(3)(A) and 

3004(g)(4)(C) 

 

[insert date of 

publication date 

of final rule 

Federal Register 

page numbers] 

[FR page 

DRAFT DO NOT CITE OR QUOTE 320 of 324 10/16/09 
* * 

table. For purposes of 

this provision, free 

liquids means liquids 

which readily separate 

from the solid portion of 

a waste under ambient 

temperature and pressure. 

 

 * * * * 

numbers]. 

 

 * 

PART 302—DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION 

19. 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. 

20. In section 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] 

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Hazardous substance CASRN Statutory 

code† 

RCRA 

waste No. 

Final RQ 

pounds (Kg)

* 

K179f ........................................ 

Coal combustion residuals generated by 

the electric power sector (Electric 

Utilities and Independent Power 

Producers) 

* 

* 

........... 

* 

* 

4 

* 

* 

K179 ........ 

* 

* 

1 (0. 4536) 

* 

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

f

 * * * 

21. Section 302.6 is amended by revising the table in paragraph (b)(1)(iii) to read as follows: 

§ 302.6 Notification requirements. 

* * * * * 

 (b) * * * 

 (1) * * * 

 (iii) For waste streams K169, K170, K171, K172, K174, K175, and K179, 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 

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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

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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

K179................................... 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

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