ENVIRONMENTAL PRO TECTION 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 HA ZARDOUS 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 inde pendent 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 C CRs 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 require ments in this proposal to CCRs from state or federally required clean-ups commenced prior to the e ffective 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

DRAFT DO NOT CITE OR QUOTE 1 of 324 10/16/09(UTS). For wastewaters, EPA is proposing to re quire 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 propos ing 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 im poundments to prevent catastrophic releases.

The effect of this listing woul d be to prohibit CCRs from land disposal unless and until CCRs meet the proposed treatment standards. In addi tion, 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 notifi cation 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 proposi ng Reportable Quantity (RQ) adjustments which would establish the level of release that trigge rs 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, a lthough it is clarifying this dete rmination and seeking comment on potential refinements (see secti on 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.

DRAFT DO NOT CITE OR QUOTE 2 of 324 10/16/09The Agency solicits comment on all aspects of th is 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 re ceived on or before [insert 90 days after publication in the Federal Register.] ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2009- 0640 , by one of the following methods:

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

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

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

• Mail: Send your comments to the Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Disposal of Coal Combustion Residuals From Electric Utilities and CERCLA Hazar dous Substance Designation and Reportable Quantities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640 , Environmental

DRAFT DO NOT CITE OR QUOTE 3 of 324 10/16/09Protection Agency, Mailcode: 5305T, 1200 Pe nnsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies.

• Hand Delivery: Deliver two copies of your comments to the Hazardous Waste Management System; Identification and Listi ng of Hazardous Waste; Disposal of Coal Combustion Residuals From Electric U tilities 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 in cluded in the public docket without change and may be made available online at www.regulations.gov , including any personal information provided, unless the comment includes informa tion claimed to be Confidential Business Information (CBI) or other information whose disclo sure is restricted by st atute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact inform ation unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be auto matically captured and in cluded as part of the comment that is placed in the public doc ket and made available on the Internet. If you submit an electronic comment, EPA recommends th at you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA

DRAFT DO NOT CITE OR QUOTE 4 of 324 10/16/09cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should a void the use of special characters, any form of encryption, and be free of any defects or viru ses. For additional information about EPA’s public docket, vi sit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to the SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not pub licly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material , such as copyrighted material, will be publicly available only in hard copy. P ublicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Hazardous Waste Management System; Identification and Listi ng 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 Pr otection Agency, 5304P; telephone number: (703) 308-7251; fax number: (703) 605-0595; email addre ss: livnat.alexander@epa.gov. For technical

DRAFT DO NOT CITE OR QUOTE 5 of 324 10/16/09information on the CERCLA aspects of this ru le, contact Lynn Beasley, Office of Emergency Management, Regulation and Policy Developmen t Division (5104A), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460, [E-mail address and telephone number: Beas ley.lynn@epa.gov (202-564-1965).] For more information on this rulemaking please visit http://www.epa.gov/epawaste/nonhaz/i ndustrial/special/fossil/index.htm.

SUPPLEMENTARY INFORMATION:

A. Does this Action Apply to Me?

The proposed rule would apply to all coal co mbustion residuals (CCRs) generated by electric utilities and independent power producers. Ho wever, this proposed rule will not address the placement of CCRs in minefills. The U. S. De partment 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 be neficially 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 to day’s proposed rule. EPA will decide on an appropriate action for these wastes afte r completing this rulemaking effort.

1 National Academy of Sciences. Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, D.C., 2006.

DRAFT DO NOT CITE OR QUOTE 6 of 324 10/16/09The proposed rule may affect the following entiti es: electric utility faci lities and independent power producers that fall under the North Ameri can Industry Classifica tion System (NAICS) code 221112, and hazardous waste treatment and dis posal facilities that fall under NAICS code 562211. The industry sector(s) identified above ma y not be exhaustive; other types of entities not listed could also be affected. The Agency’s aim is to provide a guide for readers regarding those entities that pote ntially could be affected by this action. To determine whether your facility, company, business, organi zation, etc., is affected by this action, you should refer to the applicability criteria in Sec tion I.C.2 of this preamble a nd 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 th e person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

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

1. Submitting confidential business information (CBI)

. Do not submit information that you consider to be CBI through http://www.regulations.gov or by e-mail. Send or deliver information identified as CBI only to the fo llowing address: RCRA CBI Document Control 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). Informa tion so marked will not be disclosed, except in

DRAFT DO NOT CITE OR QUOTE 7 of 324 10/16/09accordance 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 th e outside of the disk or CD ROM clearly that it does not contain CBI . Information not marked as CBI will be included in the public docket and EPA’s electron ic public docket withou t prior notice. If you have questions about CBI or the procedures fo r claiming CBI, please contact: LaShan Haynes, Office of Solid Waste (5305P), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington DC 20460-0002, te lephone (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 Regist er date and page number).

• Follow directions - The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulati ons (CFR) part or section number.

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

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

DRAFT DO NOT CITE OR QUOTE 8 of 324 10/16/09• If you estimate potential costs or burd ens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

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

• Explain your views as clearly as possible.

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

3. Docket Copying Costs

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

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

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

Beneficial Use of Coal Combustion Products (CCPs) means the use of CCPs that provides a functional benefit; replaces the use of an altern ative material, conserving natural resources that would otherwise need to be obtained through prac tices such as extraction; and meets relevant product specifications and regulator y standards (where these are av ailable). CCPs that are used in excess quantities, placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, ar e not considered beneficial uses.

DRAFT DO NOT CITE OR QUOTE 9 of 324 10/16/09Boiler slag means the molten bottom ash collected at the base of slag tap and cyclone type furnaces that is quenched with water. It is made up of hard, black, angular particles that have a smooth, glassy appearance.

Bottom ash means the agglomerated, angular ash partic les, formed in pulverized coal furnaces that are too large to be carried in the flue ga ses 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 propo sed 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 installa tion from which there is or may be placement of CCRs with the presence of free liq uids, and which is not an injection well. Examples of surface impoundments are holding, stor age, 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 th at are beneficially used.

DRAFT DO NOT CITE OR QUOTE 10 of 324 10/16/09Coal 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 Util ities and Independent Power Producers) means that sector of the power generating industry that comprises electricity-only and co mbined-heat-and-power (CHP) plants whose primary business is to sell el ectricity, or electricity and heat, to the public; i.e., facilities classifi ed in NAICS code 22.

Flue Gas Desulfurization (FGD) material means the material pr oduced through a process used to reduce sulfur dioxide (SO 2 ) emissions from the exhaust gas syst em of a coal-fired boiler. The physical nature of these materials varies fr om a wet sludge to a dry powdered material, depending on the process, and their composition comp rises either sulfites, sulfates or a mixture thereof.

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.

DRAFT DO NOT CITE OR QUOTE 11 of 324 10/16/09Hazard potential means the possible adverse incrementa l consequences that result from the release of water or stored contents due to failu re of a dam (or impoundment) or mis-operation of the dam or appurtenances. 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 huma n life, but can cause economic loss, environment damage, disruption of life line facilities, or imp act other concerns.

Low hazard potential surface impoundment means a surface impoundment where failure or mis-operation results in no probable loss of human life and low economic and/or environmental losses. Losses are principall y limited to the surface impoundment owner’s property. Such dams must: 1) exceed 25 feet in height 3 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 proba ble loss of human life or economic or environmental losses.

2 The Hazard Potential Classificati on System for Dams was developed by the Interagency Committee for Dam Safety (ICODS).

3 Dam height is measured from the lowest point on the cr est of the dam or berm to the lowest point on the natural undisturbed ground or toe of the dam.

DRAFT DO NOT CITE OR QUOTE 12 of 324 10/16/09Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or CCR surface impoundment made afte r the effective date of the final rule.

Maximum Contaminant Level (MCL) means the highest level of a c ontaminant that is allowed in drinking water under the safe drinki ng water act. MCLs are set as close to the MCL goals as feasible using the best availabl e treatment technology and taking co st into consideration. MCLs are enforceable standards for drinking water.

Natural water table means the natural level at which wate r stands in a shallow well open along its length and penetrating the surf icial deposits just deeply enough to encounter standing water at the bottom. This level is uni nfluenced by groundwater pumping or other engineered activities.

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 suffi cient 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.

DRAFT DO NOT CITE OR QUOTE 13 of 324 10/16/09Proven damage case means those cases with (i) documented exceedances of primary maximum contaminant levels (MCLs) or other health-b ased standards measur ed in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study provides documented evidence of another type of damage to human health or 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 gui delines 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 atmo sphere (rivers, lakes, reservoirs, ponds, streams, impoundments, seas, estuaries, etc.).

Uniquely associated wastes means low-volume wastes other than those defined as CCRs that are related to the coal combustion process. Examples of uniquely associated wastes are precipitation

DRAFT DO NOT CITE OR QUOTE 14 of 324 10/16/09runoff from coal storage piles at the facility, wa ste coal or coal mill rejects that are not of sufficient quality to burn as a fuel, and wastes from cleaning boilers used to generate steam.

CCPs Coal Combustion Products CCRs Coal Combustion Residuals CFR Code of Federal Regulations CERCLA Comprehensive Environmental Re sponse, Compensation, and Liability Act EPA U.S. Environmental Protection Agency EPCRA Emergency Planning and Community Right-to-Know Act MCL Maximum Contaminant Level mg/L milligrams per liter NPDES National Pollutant Discharge Elimination System NRC National Response Center PDWS Primary Drinking Water Standard OSM Office of Surface Mining Reclamation a nd Enforcement, U.S. Department of the Interior RCRA Resource Conservation and Recovery Act (42 USCA 6901) RQ Reportable Quantity SDWS Secondary Dri nking Water Standard SMCRA Surface Mining Control and Reclamation Act
μ g/L micrograms per liter WQC Federal water quality criteria

DRAFT DO NOT CITE OR QUOTE 15 of 324 10/16/09D. The contents of this notice ar e 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 Th at 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 Exempt ion, Listing, and Special Requirements for Disposal of CCRs from Electric Utilities.

DRAFT DO NOT CITE OR QUOTE 16 of 324 10/16/09A. What is the Basis for Our Proposal to Remove CCRs from the Bevill Exemption for Disposal of CCRs from Electric Utiliti es 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 De terminations with Regard to Disposal of
CCRs. 2. EPA Is Not Proposing to Reverse the Ma y 2000 Regulatory Determination Regarding Beneficial Use. 3. Placement of CCRs in Minefilling Operations 4. EPA is Not Proposing to Revise the Bev ill Determination for CCRs Generated by NonUtilities. 5. EPA is Not Proposing to Apply the New Re quirements 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 Li sting 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?

DRAFT DO NOT CITE OR QUOTE 17 of 324 10/16/091. 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 Surf ace 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 fo r 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 Econom ic Impacts of the Proposed Rule?

DRAFT DO NOT CITE OR QUOTE 18 of 324 10/16/09VIII. 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: Regul atory Planning and Review. B. Paperwork Reduction Act. C. Regulatory Flexibility Act. D. Unfunded Mandates Reform Act. E. Executive Order 13132: Federalism. F. Executive Order 13175: Consultation and Co ordination with Indian Tribal Governments. G. Executive Order 13045: Protection of Child ren from Environmental Health & Safety Risks.

DRAFT DO NOT CITE OR QUOTE 19 of 324 10/16/09H. Executive Order 13211: Acti ons that Significantly Affect Energy Supply, Distribution, or
Use. I. National Technology Transfer and Advancement Act. J. Executive Order 12898: Fede ral Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. APPENDIX to the Preamble: Documented Damages from CCR Man agement Practices.

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 amen ded by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazar dous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921 and 6924. Thes e statutes, combined, are commonly referred
to as “RCRA.”

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

RCRA section 3001(b) requires EPA to list particul ar wastes that will be subject to the requirements established under Subtitle C. (42 U.S.C. 6921(b)). The regulation listing such

DRAFT DO NOT CITE OR QUOTE 20 of 324 10/16/09wastes must be based on the listing criteria esta blished pursuant to section 3001(a), and codified
at 40 C.F.R. 261.11.

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

Section 3004 of RCRA generally re quires EPA to establish standards applicable to the treatment, storage, and disposal of hazardous waste to ensu re that human health and the environment are protected 42 U.S.C. 6924. Sections 3004(c) and (d) prohibit free liquids in hazardous waste landfills, and prohibit land di sposal 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 wa ste, 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 secti ons 3004 (c), (d), (e), (f), (g), (o), and (u), and section 3005(j), to take into account the specia l characteristics of th e wastes, the practical difficulties associated with implementation of such requirements, and site-specific characteristics, including but not limited to the climate, geol ogy, hydrology and soil chemistry at

DRAFT DO NOT CITE OR QUOTE 21 of 324 10/16/09the site. EPA may only make such modificatio ns, provided the modified requirements assure protection of human health and the e nvironment. (42 U.S.C. 6924(x)).

B. Identification of Haza rdous Wastes Under RCRA

EPA's regulations establish two ways of iden tifying solid wastes as hazardous under RCRA. A waste may be considered hazardous if it exhibits certain hazardous proper ties (“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 pos e substantial present or potential hazards to human health or the environment. EPA's regulat ions 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 genera tor, you must determine whether or not a waste exhibits any of these characteristics by te sting the waste, or by using your knowledge of the process that generated the waste (see §262.11(c)). While you ar e not required to sample your waste, you will be subject to enforcement acti ons if you are found to be improperly managing materials that are characte ristic 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 lis t 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 posi ng 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 10/16/09transported, or disposed of, or otherwise ma naged.” 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 lis ting the waste to 40 CFR part 261, Appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contai n the various hazardous wastes that EPA has listed to date. Se ction 261.31 lists wastes generated fromnon-specific sources, known as “Fwastes,” and contains wastes that are usually generated by va rious industries or types of facilities, such as “wastewa ter 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-w astes,” 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 char acteristic or is listed as a haza rdous 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 person s 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 de signation for that part of RCR A 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 10/16/09environment. 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 RCR A 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 es tablish 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 subtit le 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 wa ste 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 la ndfills that accept municipal solid waste (“municipal solid waste landfills”) are at 40 CFR Part 258.

DRAFT DO NOT CITE OR QUOTE 24 of 324 10/16/09For 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 immi nent and substantial endangerment. Subtitle D prohibits disposal in violati on of EPA’s disposal regulations, and this prohibition can be enforced through citizen su its 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 regulati ons under their state laws. EPA’s subtitle D disposal regulations are recommended to st ates 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 th e Bevill exclusion or exemption) excluded certain large-volume wastes generated primarily fr om the combustion of coal or other fossil fuels from being regulated as hazardous waste under subtitle C of RCRA, pending completion of a Report to Congress required by Section 8002(n) of RCRA and a dete rmination by the EPA Administrator either to promulga te regulations under RCRA subtitle C or to determine that such regulations are unwarranted.

DRAFT DO NOT CITE OR QUOTE 25 of 324 10/16/09In 1988, EPA published a Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants (EPA, 1988). The report, however, did not address co-managed utility CCRs, other fossil fuel wastes that are gene rated by utilities, and wa stes from non-utility boilers burning any type of fossil fuel. Furthe r, because of other priorities, EPA did not complete its Regulatory Determination on fossil fuel combustion (FFC) wa stes at that time.

In 1991, a suit was filed against EPA for failure to complete a Regulatory Determination on FFC wastes (Gearhart v. Reilly Civil No. 91- 2345 (D.D.C.), and on June 30, 1992, the Agency entered into a Consent Decree th at established a schedule for EP A to complete the Regulatory Determinations for all FFC wastes. Specifically, FFC wastes were divided into two categories: (1) fly ash, bottom ash, boiler slag, and flue gas emission control waste from the combustion of coal by electric utilities and i ndependent commercial power pr oducers, and (2) all remaining wastes subject to RCRA Sections 3001(b)(3)(A)( i) and 8002(n) - that is, large volume coal combustion wastes generated at el ectric utility and i ndependent power produc ing facilities that are co-managed together with certain other co al combustion wastes; co al combustion wastes generated at non-utilities; coal combustion wastes generated at facilities with fluidized bed combustion technology; petroleum coke combusti on wastes; wastes from the combustion of mixtures of coal and other fuels (i.e., co-burning of coal with ot her fuels where coal is at least 50% of the total fuel); wastes from the combustion of oil; and wastes from the combustion of natural gas.

On August 9, 1993, EPA published its Regulatory Dete rmination for the first category of wastes (58 FR 42466, http://www.epa.gov/epawaste/nonh az/industrial/specia l/mineral/080993.pdf),

DRAFT DO NOT CITE OR QUOTE 26 of 324 10/16/09concluding that regulation under subtitle C of RC RA for these wastes was not warranted. To make an appropriate determination for the second category, or “rem aining wastes,” EPA concluded that additional study was necessary. Under the court-ordered deadlines, the Agency was required to complete a Report to Congr ess by March 31, 1999, and issue a Regulatory Determination by October 1, 1999.

In keeping with its court-or dered schedule, and pursuant to the requirements of Section 3001(b)(3)(A)(i) and Section 8002 (n) of RCRA, EPA prepared a Report to Congress on 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 Dete rmination 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 Determ ination, EPA concluded that the remaining wastes were la rgely identical to the high-vo lume monofilled wastes, which remained exempt based on the 1993 Regulatory Dete rmination. The high volume wastes simply dominate the waste characteristics even when co -managed with other wastes, and thus the May 2000 Regulatory Determination addressed not on ly the remaining wastes, but effectively reopened the decision on CCRs that went to monofills.

EPA concluded that these wastes could pose risk s 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 10/16/09quantitative risk modeling was sufficient to rely on). EPA also identified and discussed a number of documented proven damage cases, as we ll 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, botto m ash, boiler slag (all composed predominantly of silica and aluminosilicates), and flue gas de sulfurization materials (predominantly Ca-SOx compounds).

Fly ash is a product of burning finely ground coal in a boiler to produce el ectricity. Fly ash is removed from the plant exhaust gases primarily by electrostatic precipitators or baghouses and secondarily by wet scrubber systems. Physical ly, fly ash is a very fine, powdery material, composed mostly of silica and nearly all particles ar e spherical in shape.

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

DRAFT DO NOT CITE OR QUOTE 28 of 324 10/16/09Boiler slag is the molten bottom ash collected at th e base of slag tap and cyclone type furnaces that is quenched with water. When the molten sl ag comes in contact with the quenching water, it fractures, crystallizes, and forms pellets. This boiler slag material is made up of hard, black, angular particles that have a smooth, glassy appearance.

Flue Gas Desulfurization (FGD) material is produced through a pr ocess used to reduce sulfur dioxide (SO 2 ) emissions from the exhaust gas system of a coal-fired boiler. The physical nature of these materials varies from a wet sludge to a dry powdered material, depending on the process. The wet sludge from a lime-based r eagent, wet scrubbing process is predominantly calcium sulfite, while the wet sludge from a limes tone-based reagent, we t scrubbing process is predominantly calcium sulfate. The dry powdere d material from dry scru bbers that is captured in a baghouse consists of a mixt ure of sulfites and sulfates.

CCRs are managed in either wet or dry disposal systems. In wet systems, materials are generally sluiced via pipe to a surface impoundment. The mate rial can be generated wet, such as FGD, or generated dry and water added to 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 10/16/09constituents 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 thal lium. Although these metals rarely exceed the RCRA hazardous waste toxicity char acteristic (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 indi cates 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 indicati ng that the toxicity ch aracteristic 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 pollu tion control technologies in co al-fired power plants. These technologies include flue gas desu lfurization (FGD) systems for SO 2 control, selective catalytic reduction (SCR) systems for NO X control, and activated carbon injection systems for mercury control. These technologies are be ing installed or are expected to be installed in response to federal regulations [e.g., Clean Air Interstate Ru le (CAIR)], state regulations, legal consent

DRAFT DO NOT CITE OR QUOTE 30 of 324 10/16/09decrees, and voluntary actions take n by industry to adopt more stri ngent air pollution controls. Use of more advanced air polluti on control technology reduces air emissions of metals and other pollutants in the flue gas of a coal-fired power plant by capturi ng and transferring pollutants to the fly ash and other air pollution control residue s. The impact of ch anges 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 De velopment (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 implem entation of multi-pollutant control at coal-fired power plants.

In cooperation with Electric Power Research Institute (EPRI) and th e 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-com bustion NOx controls (i.e., selective catalytic reduction), FGD scrubbers, and enhanced sorbents fo r mercury capture. A se ries of reports have been (or are being) developed to document the results from the ORD research: The first report (Characterization of Mercury-Enriched Coal Com bustion Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Co ntrol, 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 fr om 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 10/16/09http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf) was developed to evaluate residues from the expanded use of wet scrubbers.

A third report (Characterizati on of Coal Combustion Residuals from Electric Utilities Using Multi-Pollutant Control Technology – Leach ing and Characterization Data, EPA-600/R09/XXX) will update, once the report has been rel eased 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 da ta on the higher volume CCRs is provided for 34 fly ashes (Table 1) and 20 FGD gyp sum samples (Table 2). The report provides analysis of other types of CCRs (i.e., non-gypsum scrubber resi dues (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 reporte d (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 comparis on to field leachate data.

An initial focus of the ORD research was to iden tify appropriate leach testing methods to assess constituent release potential unde r 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 te sts that do not reflect the range

DRAFT DO NOT CITE OR QUOTE 32 of 324 10/16/09of actual conditions under which wastes are plausibly managed. 4 Because metal leaching rates change with changing environmental conditions (esp ecially pH), single point tests may not be the most accurate predictor of potential environmenta l release of mercury or other metals because they do not provide estimates of leaching under some disposal or reuse conditions that can plausibly occur. In response to these concerns, a review of available leaching test methods was conducted. A leaching test method 5 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 appr oach has been used to eval uate 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 u tility, the methods have been drafted into the appropriate format and are being evaluated for inclusion in EPA’s waste analytical methods guidance, SW-846 7

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.; Garr abrants, A.C., An Integrat ed Framework for Evaluating Leaching in Waste Management and Utiliz ation of Secondary Materials. Envi ronmental 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 F unction 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 doc ket closure), and because of the amount of data generated by this testing, an electronic spre adsheet for each method has been developed that provides for data management, including da ta entry, analysis, and viewing.

The test methods were developed to identify differences in the c onstituent 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 environm ent) 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 ma terials tests designed to evaluate constituent leaching from the exposed surface (leaching of constituen ts 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 si tuation, since when rainfall perc olation 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 Dete rmining Consistency in Leaching Behavior

DRAFT DO NOT CITE OR QUOTE 34 of 324 10/16/09environment is slow, the consti tuent concentration in the wa ter passing through the materials may reach, or nearly reach equilibrium. Testi ng of solid (or “monolithic”) materials evaluates constituent leaching from materi als of low permeability for whic h 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 conduc ted, to understand the likely initial rates of leaching from the monolith (while it remain s solid), and the upper bound on likely leaching, when the monolith degrades over time, exposing mo re surface area to percolating rainwater, and typically, higher constituent leaching rates. It may also be possibl e to avoid the co st 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 met hods that identify changes in leaching at different pH and liquid/solid ratio values were used to ev aluate CCRs resulting from different air pollution controls at coal-fired power plants. This allowe d evaluation of leaching potential over a range of field conditions under which CCRs are anticipated to be managed during either disposal or beneficial use applications. Landfill field leachate data from EPA 8 and EPRI 9 studies were used to establish this range. From this datase t and excluding the extreme values (below 5 th percentile and above 95 th percentile), a pH range of 5.4 and 12.4 wa s determined to repr esent 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 10/16/09plausible 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. Theref ore, these results might understate CCR leaching potential if actual field c onditions are not within the pH range of 5.4 and 12.4.

In Tables 1 and 2, the total meta ls content of the fly ash and FGD gypsum samples evaluated is provided along with the leach test re sults. Reference indicators (i.e., TC 10 , MCL 11 , and
DWEL 12 ) are also provided to provide some contex t in understanding the leac h results. It is critical to bear in mind that the leach test resu lts represent a distribution of potential constituent release from the material as disposed or used on the land. The data presented do not include any attempt to estimate the amount of constituent that may reach an aquifer or drinking water well. Leachate leaving a landfill is i nvariably diluted in ground water to some degree when it reaches the water table, or constituent concentrations are attenuated by sorption and other chemical reactions in groundwater and sedi ment. Also, groundwater pH may be different from the pH at the site of contaminant release, and so the solubility and mobility of leached contaminants may change when they reach groundwater. None of these dilution or at tenuation processes is incorporated into the leaching values presented. Thus, compar isons 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 chemical s that have a significant carcinogenic potential and provides risk manager with evaluation on non-cancer endpoint s, but infers that carcinogenicity should be considered the toxic effect of greatest concern (http://w ww.epa.gov/safewater/pubs/gloss2.html#D).

DRAFT DO NOT CITE OR QUOTE 36 of 324 10/16/09values, particularly drinking water values, mu st 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 orde rs 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 fa il to consider actual management conditions, lead to inaccurate conclusions about expected leaching in the field. (2) Comparison of the ranges of totals values and leachate data from the complete data set supports earlier conclusions 13 , , 14 15 that the rate of constituent leaching cannot be reliably estimated based on total consti tuent 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, dis tinctive patterns in leaching behavior have been identified over the range of pH values that would pl ausibly be encountered for CCR disposal, depending on the type of material sampled and the element. This reinforces the above conclusions based on the summary data. (4) Based on the data (summarized in Table1), on the leach results from evaluation of 34 fly ashes across the plausible mana gement pH range of 5.4 to 12.4,

o The leach results at the upper end of th e leachate concentration range exceed the TC values for As, Ba, Cr, and Se (indicat ed by the shading in the table). (5) Based on the data (summarized in Table 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 th e leachate concentration ranges exceed the TC value for Se. (6) The variability in total content and the leach ing of constituents within a material type (e.g., fly ash, gypsum) is such that, while leaching of many samples exceeds one or more of the available health indicat ors, many of the other samples within the material type may be lower than the available regulatory or health indicators. Additional or more refined assessment of the dataset may allow some distinctions regarding release potential to be made among particular sources of some CCRs, which may be particularly useful in evaluating CCRs in reuse applications.

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

DRAFT DO NOT CITE OR QUOTE 38 of 324 10/16/09EPA anticipates development of a fourth report that presents such addi tional analysis of the leaching data to provide more insight into cons tituent 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 modeling 16 (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 a ssessing additional CCR samples. Therefore, we intend to make the full dataset ava ilable as a database, in the form of a leaching assessment tool, to provide easier access to the le ach 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 refine d 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 approa ch for estimating the release of contaminants under field management scenarios. Waste Management 25(5), 643-472 (2005).

DRAFT DO NOT CITE OR QUOTE 39 of 324 10/16/09Total in Material (mg/kg) 0.01 –
1.5 3 - 14 17 -
510 590 – 7,000 NA 0.3 –
1.8 66 -
210 16 -
66 24 -
120 6.9 - 77 1.1 -
210 0.72
- 13

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

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

Note: The dark shading is used to indicate wh ere there could be a potential concern for a metal when comparing the leach results to the MCL, DW EL, or concentration level used to determine the TC. Note that MCL and DWEL values represent well concentrations; leachate dilution and attenuation processes that would occur in ground water 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 10/16/09Leach results (ug/L) <0.01-
0.66 <0.3

- 330 0.32

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

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

TC (ug/L) 200

- 5,000 100,000

- 1,000 5,000

- 5,000

- 1,000

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

Note: The dark shading is used to indicate wh ere there could be a potential concern for a metal when comparing the leach results to the MCL, DW EL, or concentration level used to determine the TC. Note that MCL and DWEL values represent well concentrations; leachate dilution and attenuation processes that would occur in ground water 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 Dete rmination, new information and data have become available, including additional damage cases, new risk modeling, updated information on management practices and stat e 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 10/16/0949714 (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 Determin ation, the Agency was aware of 14 cases of proven damages 17 and 36 cases of potential damages result ing from the disposal of CCRs. The Agency has since learned of an additional 13 ca ses of proven damages and 4 cases of potential damages so, in total, EPA has documented 27 cases of proven damages and 40 cases of potential damages resulting from the disposal of CCRs. S ee 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 Ma y 2000 Regulatory Determination for CCR, EPA prepared a draft quantitativ e risk assessment. However, because of time constraints the Agency was unable to address public comments on the dr aft risk assessment in time for the Regulatory Determination. Between 2000 and 2006, EPA addressed the public comments and updated the quantitative risk assessment for the manageme nt of CCR in landfills and surface impoundments and was made available in the draf t report titled “Human and Ecological Risk Assessment of Co al Combustion Wastes.”

In the May 2000 Regulatory Determination, the Agen cy concluded that the utility industry had made significant improvements in its waste manageme nt 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 ecol ogical damage, one of which has now been reclassified as a potential damage case.

DRAFT DO NOT CITE OR QUOTE 42 of 324 10/16/09the 1999 Report to Congress, and that most stat e regulatory programs had similarly improved. To verify its conclusion, in 2005, the U.S. Depa rtment of Energy (DOE) and EPA conducted a joint study to collect more recent informati on on the management practices for CCRs by the electric power industry, and state programs in 11 states. The resu lts of the study were published in the report titled “Coal Combustion Wast e 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 en forceable regulations pursuant to RCRA. A copy of the petition is available at http://www.regulations.gov/fdmspublic/c omponent/main?/main=DocumentDetail&o=09000064 801cf8d1. In January 2007, environmental and citizens groups submitted to EPA a “Proposal for the Federal Regulation of Coal Combustion Waste.” The propos al 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 sec ond 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 Determinati on ...which quantify the wa ste’s toxicity, threat to human health and the environment, inadequa te 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 Envir onmental Law Center; and Kentucky Resources Council.

DRAFT DO NOT CITE OR QUOTE 43 of 324 10/16/09caused by mismanagement.” A copy of the petition is available in the docket to this proposal. With this proposed rule EPA is proposing to gran t 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 regardi ng the placement of CCRs in minefills as the Agency will work with OSM to a ddress 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 thei r trade association, the Utility Solid Waste Activities Group (USWAG) submitted to EPA a “Utility Industry Action Plan for the Management of Coal Combustion Products.” The plan outlines the utility industry’s commitment to adopt groundwater performa nce standards and monitoring, conduct risk assessments prior to placement of CCRs in sand and gravel pits, and to consider dry-handling prior to constructing new disposal units.

In January 2007, environmental and citizens groups submitted to EPA a “Proposal for the Federal Regulation of Coal Combustion Waste. ” The proposal provides a framework for comprehensive regulation under subtitle D 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 10/16/09information we received since the May 2000 Re gulatory Determination through 2007, except for the July 2009 petition entitled, Petition for Rulemaking Pursuant to Section 7004(a) of the Resource Conservation and Recovery Act Concerni ng the Regulation of Coal Combustion Waste and the Basis for Reconsideration of the 2000 Regulatory Determination Concerning Wastes from the Combustion of Fossil Fuels . The new information included the joint DOE and EPA report entitled: Coal Combustion Waste Management at Landfills and Surface Impoundments,
1994–2004 ; the draft risk assessment; and EPA’s dama ge case assessment. EPA also included in the docket to the NODA the February 2004 Petition for Rulemaking submitted by a number of citizens’ groups to prohibit the placement or disposal of CCRs into ground water and surface water; and two suggested approaches for mana ging CCRs in landfills and surface impoundments. One approach is the Voluntary Action Plan that was formulated by the el ectric utility industry. The second approach was the January 2007 framew ork prepared by a number of environmentalgroups 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 ci tizens and citizen and environmental groups, 16 industry groups, and 5 state and local government organizations. In general, ci tizens, citizens groups, and environmental groups commented that state regulations are in adequate and called on EPA to develop enforceable regulations for the disposal of CCRs under the hazardous waste provisions of RCRA. Industry groups, on the ot her hand, stated that the significant recent improvement in industry management and st ate regulatory oversight of CCR disposal demonstrates that the conditions that once le d 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 Septem ber 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 ha ve 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, docke t number EPA-HQ-RCRA-2006-0796.

Finally, in July and August of 2008, EPA conduc ted a peer review of the 2007 draft risk assessment “Human and Ecological Risk Assessment of Coal Com bustion Wastes.” The review was conducted by a team of five expert peer revi ewers. 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. Al so see section II below and the document titled “What Are the Environmental and Health Effect s 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 dete rmination, the Agency has (1) documented an additional 17 cases of damage from the dispos al of CCRs (13 proven and 3 potential); (2) gathered additional information on industry practic es; (3) 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 citi zens groups; and (6) received a proposal for regulating the management of CCRs in landfill s 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 10/16/09RCRA subtitle C establishes two means by which wastes become hazardous and thereby subject to subtitle C regulation: iden tification and listing. RCRA secti on 3001. A waste is identified as hazardous, if it exhibits one of f our 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 char acteristics by testing the waste, or by using your knowledge of the process that generated the wa ste (see §262.11(c)). Wastes are listed as hazardous if EPA specifically includes it on a specifi c list of wastes based on the criteria set out in 40 CFR 261.11. Of particular relevance to th is 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 presen t or potential hazard to human health or the environment when improperly treated, store d, transported, or dispos ed of, or otherwise managed.” We place a chemical on the list of hazardous constituents on Appendix VIII only if scientific studies have shown a ch emical has toxic effects on humans or other life forms. When listing a waste, we also add the hazardous constituen ts that serve as the basis for listing the waste to 40 CFR part 261, Appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contai n the various hazardous wastes the EPA has listed to date. Se ction 261.31 lists wastes generated fromnon-specific sources, known as “Fwastes,” and contains wastes that are usually generated by va rious industries or types of facilities, such as “wastewa ter 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 10/16/09production” (see EPA Hazardous Waste No. K088). Section 261.33 contains lists of commercial chemical products and other materials, known as “P-wastes” or “U-w astes,” 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 ch aracteristic or is listed as a h azardous 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 proc edural 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 RCR A 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 substan ce at or above its RQ within a 24-hour period must report the release to the National Response Center, as requi red in CERCLA Section 103. In addition, Section 304 of the Emergency Planni ng 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. T oday's rule proposes to establish RQs for the newly listed wastes.

J. Regulation of Solid Wastes Th at Are Not RCRA Hazardous Wastes

DRAFT DO NOT CITE OR QUOTE 48 of 324 10/16/09If 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 sub title D facilities. These facilities are regulated at the state level and generally impose less string ent requirements on the management of wastes. Subtitle D is the statutory desi gnation for that part of RCRA that deals with disposal of solid waste. EPA regulations affec ting subtitle D facil ities are found at 40 CFR parts 240 thru 247, and 255 thru 258. Regulations for subtitle D land fills 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 impoundment s are regulated under the states water programs. However, there are limited regul ations of CCRs at the federal level.

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

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

As discussed in section I.D, since publication of the May 200 0 Regulatory Determination, a lot of new information and data have become av ailable, including EPA’s risk modeling, the assessment of additional damage cases, and updated information on the management practices and state regulations associated with the dispos al 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, st ates and others in re sponse 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 a ssessment 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 th e risks were equivocal. Rather, EPA noted that

DRAFT DO NOT CITE OR QUOTE 50 of 324 10/16/09we had not definitively assessed the ground water risk s, due to the criticisms of our draft risk assessment, but still concluded that there were "risks from arsenic that we cannot dismiss." Largely what drove the risks in the original risk assessment were the old units that lacked liners and ground water monitoring (for landfills, only 57% of the units had liners and 85% of the units had ground water monitoring, while for surface im poundments, only 26% of the units had liners and only 38% of the units had ground water monitoring).

Between 2000 and 2006, EPA addressed public co mments and updated the quantitative risk assessment for the management of CCRs in la ndfills and surface impoundments. The purpose of the risk assessment is to identify CCR constituents, waste types, liner types, receptors, and exposure pathways with potential risks and to provide information that EPA can use as we continue to evaluate the risks posed by CCRs disposed of in la ndfills and surface impoundments. The risk assessment was designed to develop nati onal human and ecological risk estimates that are representative of onsite CCR management setti ngs throughout the United States. A revised draft risk assessment was made available to th e public through the Augus t 2007 NODA (which is discussed in other sect ions of the preamble) and is available at http://www.regulations.gov/fdmspublic/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 A ssessment of Coal Combustion Wastes,” (September 2009) reflecting peer review comments is availa ble 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 10/16/09assessment, taking into account public and peer re view comments, in a final report titled “Human and Ecological Risk Assessment of Coal Combus tion 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 ta rget level of protecti on for human health to be an incremental lifetime cancer risk of no greater than one in 100,000 (10 -5 ) for carcinogenic chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals. The hazard quotient is the ratio of an individual’s chronic daily dose of a constituent to the reference dose for that constituent, where the reference dos e is an estimate of the daily dose that is likely to be without appreciable risk of deleterious effects over a lifetime. These ar e the target levels that EPA typically uses in its listing decisions.

The results of this risk assessment provides furt her confirmation of the high risks presented in the mismanagement of CCRs disposed of in landfills and surface impoundments. The assessment does confirm that appropriately ma naged 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 fr om unlined surface impoundments.

Specifically, the revised draft CCR risk assessment presents results at a typical exposure (50th percentile), as well as a high- end exposure (90th percentile) risk based on a probabilistic analysis. The revised draft CCR risk assessment re sults at the 90th percen tile suggest that the management of CCRs in unlined or clay-lined waste management units (WMUs) result in risks

DRAFT DO NOT CITE OR QUOTE 52 of 324 10/16/09greater than the ri sk criteria of 10 -5 for excess cancer risk to humans or an HQ greater than 1 for noncancer effects to both human a nd 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-drin king-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 ri sks 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 th e 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 criteri a 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 90t h percentile risks above the criteria for antimony. However, unlined FBC landfills differe d in that they only exceeded the risk criteria for arsenic. 20 At the 50th percentile, only triv alent arsenic from CCRs codisposed with coal refuse exceeded the risk cr iteria with cancer risks of 1 in 50,000.

19 EPA’s hazardous waste listing determination policy is desc ribed 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 10/16/09Arsenic 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 sh ow 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 exceed ed 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 ri sks 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 asse ssment, 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 t housands 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 10/16/09o For humans exposed via the groundwater-to-surf ace-water (fish consumption) pathway, unlined and clay-lined surface impoundments pos ed risks above the criteria at the 90th percentile. For CCRs managed alone in surface impoundments, th ese exceedences came from selenium (HQs of 3 and 2 for unlined a nd 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, respec tively). 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 assessment 21 also showed risks from inhalation of chromium in fugitive dust but at levels below the criteria. 22

EPA recognizes that there are signi ficant uncertainties in national ri sk assessments of this nature, although it did attempt to address potential uncertainties through Monte Carlo and sensitivity analyses. 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/specia l/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 10/16/09than 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 hydrauli c conductivity of coal ash can be reduced with the appropriate addition of moisture followed by compaction to a ttain 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 anal ysis that would reflect long-term performance, as well as the appropriateness of a performance st andard that would allow such control measures in lieu of composite liners.

In characterizing CCRs and utilizing such data fo r the risk analysis, EPA gathered a variety of data over a long period of time. As a general ma tter, EPA finds these data to be an accurate characterization, and that the values are in line with recent studies EPA has conducted to characterize new air pollution controls. However, with respect to a few of the highest surface impoundment porewater concentrations (for arsenic in particular), questi ons have been raised

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 ht tp://www.flyash.info/2009/025- daniels2009.pdf and in the docket to this proposal.

DRAFT DO NOT CITE OR QUOTE 56 of 324 10/16/09regarding the representativeness of these individual data points. In one case, a facility with the highest arsenic pore wate r concentration (86.0 mg/L ) involved values that were measured in a section of a surface impoundment where coal refuse (defined as coal waste from coal handling, crushing, and sizing operations) was disposed of at the water surface. Pore water samples taken in the coal ash sediment beneath the coal refuse involved concentrations of arsenic as low as 0.003 mg/L. Thus, there is the question of whethe r those pore water samples measured in the coal refuse represent what leaches out of the bottom of the surface impoundment.

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

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

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

DRAFT DO NOT CITE OR QUOTE 57 of 324 10/16/09• Are there any additional data that are repr esentative of CCR constituents in surface impoundment or landfill leachate (from literature , state files, industry or other sources) that EPA has not identified?

• EPA understands that the disposal practices associated with coal refuse in surface impoundments may have improved based on th e development of an industry guide. 25 EPA solicits information on the degree to whic h coal refuse management practices have changed and the impacts of those changes.

• For CCR surface impoundments, are there any exam ples of pore water concentrations for arsenic increasing orders of magnit ude 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 “Hum an 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 wa ste” categories of RCRA, EPA was statutorily required to examine “documented cases in whic h danger to human health or the environment from surface runoff or leachate has been proved” from the disposal of coal combustion wastes (RCRA Section 8002(n)). The criteria used to determine whether danger to human health and

25 Guidance for Comanagement of Mill Rejects at Coal-Fired Power Plants, Electric Power Research Institute, 1999. Available in the docket to this proposal.

DRAFT DO NOT CITE OR QUOTE 58 of 324 10/16/09the environment has been proven are descri bed in detail in the May 2000 Regulatory Determination at 65 FR 32224. 26

At the time of the May 2000 Regulatory De termination, the Agen cy was aware of 11 documented cases of proven damage to ground wa ter and 36 cases of poten tial damage to human health and the environment from the improper management of CCRs in landfills and surface impoundments. Additionally, the Agency 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; therefor e, 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 receiv ed information on 135 alleged damage cases. In contrast to the Regulatory Dete rmination which referred to ecol ogical 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.

DRAFT DO NOT CITE OR QUOTE 59 of 324 10/16/09for purposes of this proposed rule, EPA consider s an ecological damage to be a proven damage case. Six of the alleged damage cases have b een 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, fi ve coming from unlined surface impoundments, one was from a surface impoundment where it was unclear whether it was lined, and the remaining six cases coming from unlined sand and gr avel pits. Another 43 cases (which includes the 36 potential damage cases from the May 2000 Re gulatory Determination) were determined to be potential damages to groundwater or surface wa ter; however, four of the potential damage cases were attributable to oil combustion wastes and are outsid e the scope of this proposal; therefore, resulting in 39 CCR pot ential damage cases. The remaining 10 alleged damage cases were not considered to be prove n or potential damage cases due to a lack of evidence that damages were uniquely associated with CCRs; ther efore, they were not considered to be CCR damage cases.

Finally, the Agency has become aware or has be en informed of an additional five cases of claimed damage within the past four years. Two of the cases involve the st ructural 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 th e May 2000 Regulatory Determinati on. In both cases, there were

DRAFT DO NOT CITE OR QUOTE 60 of 324 10/16/09Clean Water Act violations. Another case involv ed the failure of a di scharge pipe, and is a potential NPDES permit violation, and the two othe r 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 cas es 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 bri ngs 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/mai n?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015.

III. Proposed Removal of the Bevill Exempt ion, Listing, and Special Requirements for Disposal of CCRs from Electric Utilities.

EPA is proposing to remove the Bevill exemption fo r 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 cr adle-to grave hazardous waste requirements at 40 CFR parts 260 through 268 and 270 to 273, in cluding the generator and transporter requirements and the requirements for facilities that treat, store or dis pose of CCRs, such as siting, liners (with modification), run-on and run- off controls, groundwater monitoring, fugitive

DRAFT DO NOT CITE OR QUOTE 61 of 324 10/16/09dust controls, financial assuran ce, corrective action, including facility-w ide 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 rel eases from surface impoundments, we also are proposing requirements for dam safety and stabili ty. Finally, we are pr oposing 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 Utiliti es in Surface Impoundments and Landfills?

Based on new risk analyses (discussed in sectio n II.A), and further eval uation of damage cases (including the recent spill in Kingston, Te nnessee and the ground water contamination in Gambrills, Maryland), manageme nt practices, and state regula tions, 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 Determin ation where the Agency stated that it would continue to review available information to de termine 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 a ll of the RCRA Section 8002(n) study factors and

DRAFT DO NOT CITE OR QUOTE 62 of 324 10/16/09the three considerations specifically identified in the May 2000 Regulatory Determination (65 FR 32218).

EPA’s risk analyses have shown th at disposal in unlined waste un its, 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 es timated 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 line rs and ground water monitoring systems. Additionally, according to a 2009 ASTSWMO survey of states with coal ash generation 28 (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 mo nitoring requirements for landfills and 61% do not have groundwater monitoring requirements for surface impoundments. 29

Results of the joint DOE and EPA study enti tled, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994–2004 indicate s 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 woul d appear that the i ndustry 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.

DRAFT DO NOT CITE OR QUOTE 63 of 324 10/16/09(97%) identified in the survey that were c onstructed between 1994 and 2004 were constructed with liners. Regarding the prevalence of gr oundwater monitoring at ex isting units, the joint DOE/EPA study suggests that nearly all ne w landfills (98%) and most new surface impoundments (81%) constructed between 1994 and 2004 were constructed with groundwater monitoring systems. Moreover, the frequency of dry handling in landfil ls appears to have increased, with approximately two-thirds of th e new units being landfills, while the other onethird are surface impoundments. Nevertheless, de spite the improvements by the electric utility industry and by some states, EPA st ill has concerns with the overall regulatory picture--that is, that the states appear not to have sufficiently a ddressed the gaps that EPA had identified in its May 2000 Regulatory Determination to conclude th at 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 c oncentrations 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 lim ited number of states, and may not address all regulatory authorities that the st ates 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 20 09 ASTSWMO survey indicates that the states

DRAFT DO NOT CITE OR QUOTE 64 of 324 10/16/09still have not regulated surface impoundments ade quately, with, for example, only 33 percent of the states requiring liners for surface impoundments, only 39 per cent of the states requiring groundwater monitoring for surface impoundments, only 36 percent of the states regulating the structural stability of surface im poundments, 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 clea rly indicate that there continues to be serious gaps in state regulatory programs for the mana gment 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 surv ey.) Finally, we woul d note that the EPA/DOE report concluded that approximately 30 percent of the net disposab le 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 comme nts on the extent to which the states used alternative regulatory authorities to control th ese units and imposed a ppropriate regulatory requirements. That is, if states are regulat ing surface impoundments under their Clean Water Act authority, but only regulate the discharge of the effluent from such im poundments, EPA does not consider such alternative regulat ory authority equivalent to what is necessary to protect human health and the environment.

1. RCRA Section 8002(n) Study Factors.

DRAFT DO NOT CITE OR QUOTE 65 of 324 10/16/09Section 8002(n) of RCRA requires the Administrator to conduct a detailed and comprehensive study and submit a report on the adverse effects on human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other by-product materials generated primarily from the combustion of coal or other fossil fuels. The study was to include an analysis of the eight factors required under section 8002(n) of RCRA. EPA addressed thes e study factors in the 1988 and 1999 Reports to Congress. The findings of these two Reports to Congress were the basis for our decisions in the August 1993 and the May 2000 Regulatory Determinati ons to maintain the Bevill exemption for CCRs. In considering whether to retain or to reverse the 1993 and 2000 Regulatory Determinations regarding the Bevill exempti on of CCRs destined for disposal, we have reexamined the RCRA section 8002(n) study factors against the data on which we made the May 2000 Regulatory Determination, as well as the mo st recent data we have available.

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 pl ants), 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.

DRAFT DO NOT CITE OR QUOTE 66 of 324 10/16/09Present disposal and utilization practices: In 2007, 36% (47.4 million tons) of CCRs were landfilled, 21% (27.7 million tons) were disp osed of in surface impoundments, 38% (49.3 million tons) were beneficially used (excludi ng 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 dispos ed 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 ap proximately 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 – particul arly 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 impoundme nts identified in today’s rule reflects an actual change of practice, but rath er more stringent defi nitions, as well as possibly more accurate information being available. For example, mu ch of the increase in surface impoundments likely results from including involves c ounting units that receive wastewat er 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.

DRAFT DO NOT CITE OR QUOTE 67 of 324 10/16/09with 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 hum an health and the environment fr om the disposal and reuse of
CCRs: The contaminants of concern in CCRs include antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, seleni um, silver and thallium. Potential human exposure pathways for these contaminants fr om the disposal of CCRs are ground water ingestion, inhalation, and the consumption of fish exposed to contaminants. Ecological impacts include surface water contamination, contaminat ion of wetlands, and aquatic life exposure to contaminants of concern. With very few exceptions, the risks modeled for the 2009 risk assessment correspond with ground water exceedan ces of constituents observed in EPA’s damage case assessments. Additionally, as discusse d in section I.F.2, the po tential exists for the chemical characteristics of certain CCRs (e.g., fl y 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 ha ve not seen evidence of damages from those beneficial uses of CCRs for wh ich 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 re duction, energy conservation, reduc tion in land disposal (i.e., avoidance of potential CCR disposal impacts), an d reduction in the need to mine and process virgin materials and the associated environmenta l impacts. At the same time, there are cases where large quantities of CCRs have been “used” indiscriminately as unencapsulated “fill,” e.g.,

DRAFT DO NOT CITE OR QUOTE 68 of 324 10/16/09to fill sand and gravel pits or quarries, or as general fill (e.g., Pines, I ndiana 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 signifi cant 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 ha s identified 27 proven damage cases - 17 cases of damage to groundwater, and ten ca ses 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 da mage cases to ground water and surface water. These numbers compare to 14 proven damage cases and 36 potential cases of damage when the Agency announced its Regulatory Determination in May 2000. The Agency believes that these numbers likely underestimate the number of proven and potential damage cases and that it is likely that additional cases of damages would be found if a more comprehensive evaluation was conducted, particularly since much of this wast e 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 Ag ency 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 ha ve occurred in Martins Creek, Pennsylvania and Kingston, Tennessee.

DRAFT DO NOT CITE OR QUOTE 69 of 324 10/16/09Alternatives to current disposal methods: There are no meaningful disposal alternatives other than land disposal. Improved disposal mana gement practices are practical (e.g., liners, groundwater monitoring, dust cont rol), 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 ma jority 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 pr oposing), EPA estimates that the average annual cost discounted at 7% at $2.274 billion, a s ubtitle 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 deta il in the regulatory impact analysis section of this preamble (Section VII.B).

The impact of the alternative di sposal 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 wastewat ers. Therefore, if facilities switch from wet to dry handling of CCRs construc tion of alternative wastewater treatment systems could become

DRAFT DO NOT CITE OR QUOTE 70 of 324 10/16/09necessary for other wastewaters, especially if they involved acid ic 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 operati ons) and 5% (6.7 million tons) were placed in minefills. (This compares to 16.4% of CCRs be ing beneficially used, excluding minefilling, at the time of the 2000 Regulatory Determination, whic h is a significant increase.) As discussed elsewhere in the preamble, EPA believes that th e proposed regulations wi ll 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 provisi ons that encourage facilities to switch from wetto dry-handling, would not be expected to adversel y affect beneficial uses of CCRs and, in fact, would likely increase the benefici al use as CCRs managed dry are more amenable to beneficial uses. In comparison, the states and the electric utility industr y, 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 mini mal amounts of CCPs would be beneficially used. If true, this could substantially increase the am ount of CCRs that are disposed of. In addition, the states have argued that there may be i ndirect effects on the be neficial use of CCPs , including the possible adverse effects on st ate beneficial use programs; how ever, 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 leve l 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.

DRAFT DO NOT CITE OR QUOTE 71 of 324 10/16/092. 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 th e wastes.” (See 65 FR 32218.) Since publication of the May 2000 Regulat ory Determination, additional information has confirmed EPA’s original risk concerns. Re cent 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 orig inally identified have not been sufficiently mitigated, and the gaps in state oversight have no t been adequately remedied over the past eight years. Finally, EPA believes that it can effec tively mitigate concerns over any potential chilling effect on beneficial reuses result ing from association with classify ing CCRs as hazardous wastes.

Consequently, EPA is proposing to revi se its August 1993 and May 2000 Regulatory Determinations. Based on the current situati on, including the changes that have taken place since the Agency made its May 2000 Regulat ory Determination, we now believe that management and disposal of CCRs should be regu lated under the hazardous waste provisions of RCRA, and believe that continuing to regul ate such CCRs under the non-hazardous waste provisions of RCRA, even with the promulgation of a national s ubtitle D rule, would not be protective.

DRAFT DO NOT CITE OR QUOTE 72 of 324 10/16/09Part of the reason EPA decided in May 2000 that regulation under subtitle C was not warranted was that the risk information was limited, althoug h 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 info rmation 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 wh at drove the risks were th e old units that lacked liners and groundwater monitoring (for surface im poundments, only 26% of all units had liners and only 38% of all units ha d groundwater monitoring).

More recent information available since th e May 2000 Regulatory Determination provides further confirmation of the risks presented in that Determination. Nor have these risks appreciably decreased over the pa st several years. As discusse d in section II.A., EPA’s revised CCR risk assessment 34 estimates the cancer risk from arse nic 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 de signed, in that they are lined and have installed

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

DRAFT DO NOT CITE OR QUOTE 73 of 324 10/16/09groundwater monitoring systems, a nd therefore the total percenta ges of unprotected units have decreased, there is still a large amount of waste bei ng disposed of in units that lack the necessary protections of liners, and gr oundwater monitoring. Although ne w units appear to be better designed, in that they are lined and have installed groundwater mon itoring systems, and therefore the total percentages of unprotec ted units have decreased, there is still a large amount of waste being disposed of in unlined units. Furthermor e, 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 pr acticable, and not one where contamination is not prevented, but cleanup is undertaken af ter 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 efficac y of the existing state re gulatory systems. The original Reports to Congress and Regulatory Determ inations 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 th e TVA facility. The estimated costs to clean up the damage from this spill ra nge from $933 million to $1.2 billion. 36 All of these factors raise serious questions as to EPA’s original determinati on that the risks from disposal of these wastes would be adequately mitigated by regulat ions 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 mon itoring, and combinations of these measures.

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

DRAFT DO NOT CITE OR QUOTE 74 of 324 10/16/09Thus, in summary, the Agency’s basis for this d ecision 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 show n to have catastrophic impacts on human health and the environment if not properly controlled; an d (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 si gnificant risks to hum an health and the environment. EPA also notes that recent resear ch indicates that traditional leach procedures (e.g., TCLP and SPLP) may underestimate the actu al leach rates of toxic constituents under different field conditions. Furt her, 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 continue s to see cases of ina ppropriate management or absence of key protections (e.g., groundwater monitoring at existing units). Thus, EPA concludes that, without strong fe deral 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 measur e by concerns that the link to subtitle C would tend to discourage the purchase and re-use of th ese wastes. However, the nature and magnitude of these impacts is uncertain. EPA continues to believe that the benefici al use, when performed properly, is the environmentally preferable practice for these wastes and therefore remains concerned over any potential stigma that mi ght 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

DRAFT DO NOT CITE OR QUOTE 75 of 324 10/16/09might be associated with the subtitle C link, and to encourag e 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 Dete rmination for disposal of CCRs, and is proposing to regulate them as hazardous waste under RCR A subtitle C. As stated previously, EPA concluded in the May 2000 Regulatory Determina tion that these wastes could pose risks to human health and the environment if not prope rly managed, although the risk information was limited. There were several bases for that conc lusion. EPA identified an d discussed a number of documented damage cases, as well as cases indica ting 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 ex istence of damage cases was focu sed on a subset of states that only accounted for approximately 20% of coal fi red 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 so me basic environmental controls, especially

DRAFT DO NOT CITE OR QUOTE 76 of 324 10/16/09groundwater monitoring, other cases of proven and potential damage are likely to exist” (65 FR 32216).

EPA also explicitly stated in the May 2000 Regul atory Determination that the Agency would continue to review the issues, a nd would reconsider its decision that subtitle C regulations were unwarranted based on a number of factors. EP A noted that its ongoing review would include (1) “the extent to which [the wast es] have caused damage to human health or the environment;” (2) the adequacy of existing regulation of the wastes ; (3) the results of an NAS report regarding the adverse human health effects of mercury; 37 and (4) “risk posed by managing coal combustion solid wastes if levels of mercur y or other hazardous constituents change due to any future Clean Air Act air pollution control requirements for coal burning utilities” and that these efforts could result in a subsequent revision to the Regulatory Determination. 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 Ma y 2000 Regulatory Determination Regarding Beneficial Use.

In the May 2000 Regulatory Determination, EPA st ated: “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.

DRAFT DO NOT CITE OR QUOTE 77 of 324 10/16/09additional 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 res ources 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 us es as covered by the May 2000 dete rmination. In particular, EPA stated that: “Beneficia l 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 material s), 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 Wa stes 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 huma n 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 unnecessa ry barriers on the beneficial uses of coal combustion wastes so they can be used in applic ations that conserve na tural 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 note d below. Instead, it generally described the uses and benefits of CCRs, and cited the importance of beneficially using secondary materials and of

DRAFT DO NOT CITE OR QUOTE 78 of 324 10/16/09resource conservation, as an alternative to dis posal. However, EPA did conduct a detailed risk assessment of certain ag ricultural 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 provi ded 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 justifica tion for regulating these uses at the federal level.

Since EPA’s Regulatory Determination in May 2 000, 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-NO X controls), changes include: (1) a significant increase in the use of CCRs in a wide range of applications, and the development of established commercial s ectors that utilize and depend on the beneficial use of CCRs, (2) the recognition that the benefici al use of CCRs (and, in particular, specific beneficial uses of CCRs, such as using fly as h as a substitute for portland cement in the production of concrete) provide significant environmental benef its, 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 othe rs 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

DRAFT DO NOT CITE OR QUOTE 79 of 324 10/16/09not accurately represen t the performance of varying t ypes of CCRs under variable field conditions, (5) new studies and research by academ ia and federal agencies on the use of CCRs, including studies on the performance of CCR-derived material s 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 recogniti on that the beneficial use of CCRs is a critical component in strategi es to reduce GHG emissions); other developments raise critical questions regardi ng this determination (e.g., the po tentially changing composition of CCRs as a result of improved air pollution contro l 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 thes e issues and the information available to us at this time, EPA believes that the most appropriate approach toward beneficial use is to leave the May 2000 Regulatory Determination in place, as the Agency, other federal agencies, academia, and society more broadly investigate these critical questions and clarify the appropriate beneficial use of these materials . 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 benefici al uses, although as discussed throughout this

DRAFT DO NOT CITE OR QUOTE 80 of 324 10/16/09section, EPA is also soliciting comment on cer tain uses of CCRs and whether they should continue to be exempted as a bene ficial use under the Bevill exemption.

EPA is proposing this approach in recognition th at some uses of CCRs, such as encapsulated uses in concrete, and use as an ingredient in the manufacture of wallboard, provide enormous benefits and raise minimal health or environmenta l 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 ag ricultural 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 specif ications and material re quirements rather than landfilling techniques, are very di fferent from land disposal. EPA also notes that stakeholders, such as Earthjustice have petitioned EPA to ba n particular uses of CCR; for example, the placement of CCRs in direct contact with water bodies.

Due to such issues as the changing characteri stics of CCRs due to requirements of more widespread use of air pollution control technologies and the ne w information becoming available on the leaching of metals from CCRs, we are c onsidering such approaches as better defining beneficial use or developing de tailed guidance on the beneficial use of CCRs to supplement the regulations. The Agency solicits comments on these and other appr oaches that EPA could take in identifying when uses of CCRs constitute a “beneficial use.”

DRAFT DO NOT CITE OR QUOTE 81 of 324 10/16/09Other alternative approaches – for example, to regulate the beneficial use of CCRs under the RCRA hazardous waste regulations th at apply to “use constituting disposal,” to prohibit certain uses outright (e.g., “unencapsulated” uses, includ ing 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 leac h tests prior to CCR management decisions - could address concerns that have been expre ssed over the land placement of CCRs. However, EPA is trying to balance concer ns 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 protec tion of human health and the environment.

At the same time, EPA recognizes that a numbe r of proven damage cases involving the largescale placement, akin to disposal, of CCRs has o ccurred under the guise of “beneficial use” -- the “beneficial” use being the filling up of old quarries or gravel pits, or the regrading of landscape with large quantities of CCRs. EPA did not consider this type of use as a “beneficial” use in its May 2000 Regulatory Determination, and does not cons ider this type of use to be covered by the exclusion. Therefore, today’s proposed rule ex plicitly removes these t ypes of uses from the category of beneficial use, 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-encapsula ted CCRs on the land—e.g., agricultural uses. Alternatively, EPA is also so liciting comment on whether th e Agency should promulgate standards allowing such uses, on a site-specific basi s, based on a site specific risk assessment, taking into consideration, inter alia, the CCRs character and com position, their leaching potential

DRAFT DO NOT CITE OR QUOTE 82 of 324 10/16/09under the range of conditions unde r 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 re sources, provide improved material properties, reduce greenhouse gas emissions, lessen the ne ed for waste disposal units, and provide significant domestic economic benef its (as noted below in section III.B.2). At the same time, EPA recognizes that there are impor tant issues and uncertainties asso ciated with specific uses of specific CCRs, that there has been considerable recent and ongoing resear ch 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 rem oval of hazardous air po llutants (e.g., arsenic, mercury, selenium) from utility stacks being rele ased back into the soil and groundwater media through inappropriate “b eneficial” uses.

EPA has received numerous comments on specific uses of CCRs, and we have been working with states to help them develop effective benefi cial use programs (which apply to a wide range of secondary materials, not just CCRs). EP A, other federal agencies, and academia have conducted research on specific uses, and have pr ovided guidance and best management practices on using CCRs in an environmentally sound manner in a range of applica tions. For example, EPA, working with the Federal Highway Admi nistration (FHWA), DOE, the American Coal Ash Association (ACAA), and USWAG issued guida nce in April 2005 on th e appropriate use of coal ash in highway construction. EPA understand s that the composition of CCRs, the nature of

DRAFT DO NOT CITE OR QUOTE 83 of 324 10/16/09different CCR uses, and the specific environmen t in which CCRs are used, can affect the effectiveness and the environmenta lly sound use of particular projec ts. In today’s proposal, EPA is suggesting that an ap propriate balance can be met by (1) determining that the placement of CCRs in sand and gravel pits, as well as the use of large volumes of CCRs in restructuring the landscape to constitute disposal, rather than the be neficial use of CCRs, and at the same time (2) leaving in place its determination that the benefi cial uses of CCRs – e.g., those identified in the May 2000 Regulatory Determination as clarified in th is notice -- should not be prohibited from continuing. As described later in this sect ion of today’s notice, EPA solicits comment on whether an alternative approach is appropriate, particularly fo r unencapsulated uses of CCRs on the land.

Before discussing the rationale behind EPA’s appr oach, and concerns with specific “beneficial” uses, we describe below the current a nd anticipated beneficial uses of CCRs.

i. What Kind of Beneficial Uses are Occurring?

As described earlier, the May 2000 Regulatory Determination identifi ed the following beneficial uses: waste stabilization; benefi cial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structural fill, blas ting grit, wallboard, insula tion, roofing materials); agricultural applications (e.g., as a substitute for li me); 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. Additiona lly, it is possible that uses could shift

DRAFT DO NOT CITE OR QUOTE 84 of 324 10/16/09in the future because the composition and characteristics of CCRs are likely to change substantially due to the additi on of new air pollution controls at coal-fired utilities.

We would note that for some of the benefici al uses, CCRs are a raw material used as an ingredient in a manufact uring process that have never been “discarded 39 ,” and thus, would not be solid wastes under the existing h azardous waste rules. For ex ample, 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 contro l devices to produce an optimal product, including oxidation of the FGD to produce synthetic gypsum. In this ex ample, after its production, the utility treats FGD as a valuable input in to a production process, i.e., as a product, rather than as something that is intended to be discarded. Wallboard plants are sited in close proxim ity to power plants for access to raw material, with a c onsiderable 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 specifica tions would not be affect ed 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 wa rrant federal regulati on 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.

DRAFT DO NOT CITE OR QUOTE 85 of 324 10/16/09EPA stated in the May 2000 Regulatory Determin ation, “In the [Report to Congress], we were not able to identify damage cases associated with these types of benefici al uses, nor do we now believe that these uses of coal combustion wastes present a significant ri sk to human health and the environment. While some commenters disa greed 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. Therefor e, we conclude that none of the beneficial uses of coal combustion wastes listed above pose risk s of concern.” (See 65 FR 32230.) Since that time, EPA is not aware of data or other informa tion to indicate that exis ting 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 not ed. Therefore, at this time, EPA is not proposing to reverse that determination. Specifi cally: (1) EPA believes today’s proposal will ensure that “sham” beneficial use situations, lik e the Gambrills, MD site , will be regulated as disposal under subtitle C; (2) many states ar e 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 va luable material without a demonstration of an environmental or health threat.

EPA continues to believe that th e 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 unde r which the CCRs will be managed, is the environmentally preferable outcome for CCRs a nd, therefore, is concer ned about regulatory decisions that would limit legitimate beneficial uses, including research on beneficial uses.

DRAFT DO NOT CITE OR QUOTE 86 of 324 10/16/09Thus, 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 th at 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 a ssociated with some beneficial uses. At the same time, EPA recognizes the potential environmenta l 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 a nd data demonstrating where the federal and state programs are or have been inadequate in be ing environmentally pr otective and, conversely, where states have, or are devel oping, increasingly effective bene ficial use programs. Comments should include clear criteria for EPA to enforce ag ainst any uses inconsistent with the exemption.

Some stakeholders have argued th at EPA should not regu late CCRs when disposed of in landfills or surface impoundments as a hazar dous waste, because such an approach would stigmatize the beneficial use of CCRs, and these uses would di sappear. 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 comm enters 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 acti on of state laws that prohibit

DRAFT DO NOT CITE OR QUOTE 87 of 324 10/16/09hazardous 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 coll apse of the recycling of these materials. Rather, we believe that regulati ng the disposal of CCRs as hazardous waste, but allowing CCRs that are properly ch aracterized 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 benefici al use of these materials. Thus, while EPA appreciates the concerns of the commenters on this issue, wh ich 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 cu rrently produces products out of materials that, when discarded, woul d be hazardous waste, and consumers buy products which contain ingredients that would require ma nagement as a hazardous waste when disposed ( e.g., solvents).

At the same time, EPA is convinced that re gulating the beneficial use of CCRs under RCRA subtitle C as hazardous waste woul d 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 regula ting 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 haza rdous 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 stor age. In addition, ready-mix operators would

DRAFT DO NOT CITE OR QUOTE 88 of 324 10/16/09be subject to land disposal rest rictions notices and other require ments. EPA instead is proposing an approach that would allow be neficial 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 te ntatively do not believe that an approach that eliminates a wide range of uses that would add considerably to the costs of the rule, and that would disrupt and potentially close ongoing busine sses legitimately using CCRs is justified, on the strength of the ex isting evidence.

EPA’s May 2000 Regulatory Determination not to regulate various beneficial uses under the hazardous waste requirements, and today’s proposal to leave that determination in place, does not conflict with EPA’s view that certain beneficial uses, e.g. , use in road construction or agriculture, should be conducted wi th care, according to appropriate management practices, and with appropriate characterization of the materi al and the site where the materials would be placed. In this respect, CCRs are similar to othe r materials used in this manner – including raw materials derived from quarried aggregates, seco ndary materials from othe r industrial processes, and materials derived from natural ores. Rather , EPA concludes that, ba sed on our knowledge of how CCRs are used, that potential risks of these uses do not wa rrant federal regulation, but can be addressed, if necessary, in other ways. As examples of efforts that address environmental issues associated with beneficial uses: the St ate of Wisconsin has an extensive beneficial use program that supports the use of CCRs in a va riety of circumstances, including road base and agriculture, provided certain criter ia are met and EPA is working with the U.S. Department of Agriculture to develop guidance on the us e of FGD gypsum in agriculture.

DRAFT DO NOT CITE OR QUOTE 89 of 324 10/16/09Environmental Benefits

The beneficial use of CCRs in a wide range of applications offers significant environmental benefits, including greenhouse ga s reduction, energy conservation, reduction in land disposal (i.e., avoidance of potential CCR disposal impact s), 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 wi dely recognized CCR application to reduce GHG emissions is the use of coal fly ash as a supplem entary cementitious material. Its use avoids the need to burn the energy equivalent of 55 gallons of oil to produ ce 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 per cent of the cement in concrete with even higher percentages used for mass concrete placem ents. According to the National Ready Mixed Concrete Association, approximately 450 million c ubic yards (881 million tons) of concrete are produced per year 40 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 CO 2 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

DRAFT DO NOT CITE OR QUOTE 90 of 324 10/16/09barrels. 42 As an added benefit, depending on the am ount of fly ash used to replace the cement, the use of fly ash can make the concrete strong er 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, th ereby avoiding the invasive and en ergy-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 l eads to a reduction in GHG emissions, as well as a host of other environmental benefits includi ng the avoidance of impacts to groundwater and surface water. Aggregates and cl ay are difficult to obtain locally in some parts of the country, and CCRs can be a valuable altern ative (e.g., aggregate used in Ca lifornia 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 landf ill space and any risks associated with their disposal. In particular, the U.S. annually disp oses 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 en ergy and environmental benefits estimates in the EPA report titled: “Study on Increasing the Usage of R ecovered 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

DRAFT DO NOT CITE OR QUOTE 91 of 324 10/16/09Benefits 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 ap plications requires mini ng 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 one s, while simultaneously reducing waste and environmental footprints. Reduc ing mining, processing and transpor t of virgin materials also conserves energy, avoids GHG emissions, and reduces impacts on communities.

While the Agency recognizes the need for regula tions for the management of CCRs in landfills and surface impoundments, we strongly suppor t the beneficial use of CCRs in an environmentally sound manner because of the envi ronmental benefits that accrue both locally and globally.

As discussed below in section VII.B, the benefi cial 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 materi als 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 methan e) emissions reduction, and (d) $19,263 million

DRAFT DO NOT CITE OR QUOTE 92 of 324 10/16/09per year in other air pollution reduction. All t ogether, 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 us ed, we believe it is nece ssary and appropriate to distinguish between beneficial use and sham opera tions that would constitu te disposal operations – such as large volumes of CCRs that are used in sand and gravel pits or for restructuring the landscape. EPA believes the followi ng 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 ex actly the same function in wallboard as gypsum from ore, and meets all commercia l specifications; CCRs as a soil amendment adjusts the pH of soil to promote plant growth.

o The material substitutes for the use of a virg in material, conserving natural resources that would otherwise need to be obtained through pr actices, such as extraction. For example, the use of FGD gypsum in the manufacture of wallboard (drywall) de creases the need to mine natural gypsum, thereby conserving the na tural resource and conserving energy that

DRAFT DO NOT CITE OR QUOTE 93 of 324 10/16/09otherwise would be needed to mine natural gyps um; the use of fly ash in lieu of portland cement reduces the need for cement. CCRs us ed in road bed replace quarried aggregate or other industrial materials. These CCRs substitute for another ingredient in an industrial or commercial product.

o Where relevant product specifications or regulatory standards are available, the materials meet those specifications, and where such sp ecifications or standards have not been established, they are not being used in exce ss quantities. Typically, when CCRs are used as a commercial product, the amount of CCRs used is controlled by product specifications, or the demands of the user. Fl y ash used as a stabilized base course in highway construction is part of many engine ering considerations, such as the ASTM C 593 test for compaction, the ASTM D 560 fr eezing and thawing test, and a seven day compressive strength above 2760 (400 psi). If excessive volumes of CCRs are used than were necessary for a specific project, that co uld 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 applicat ion of biosolids. While the management scenarios differ between biosludge applica tion and the use of CCRs as soil amendments, EPA would consider application of CCRs for agriculture uses not to be a legitimate beneficial use if they occurred at constituent levels or loading rates greater than EPA’s biosolids regulations allow. EPA also rec ognizes that the characte ristics of CCRs are such that total concentrations of metals, as biosolids are assessed, may not be the most

DRAFT DO NOT CITE OR QUOTE 94 of 324 10/16/09appropriate standard, as CCRs have been shown to leach metals with significant variability.

EPA is proposing that these criteria be included in the regulations as part of the definition of beneficial use. EPA requests comment on these cr iteria, as well as suggestions for other criteria which may need to be included to ensure le gitimate 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 bene ficial. The discussion that follows provides a brief summary of how certain of th e beneficial uses meet the various criteria. In the docket to today’s proposal, we provide a matrix which addr esses each of the beneficial uses and describes how they meet the various criteria. Alternativ ely, EPA solicits comment on the need to provide a formal listing of all beneficial us es. The concern with such an a lternative is that new, innovative, uses that are not on the list would be subject to hazardous waste regulations.

The uses where the CCR is encap sulated in the product, such as cement, concrete, brick and concrete products, wallboard, a nd roofing materials – the CCRs provide a functional benefit - that is, the CCRs provide a cementitious or struct ural function, the CCRs substitute for cement, gypsum, and aggregate and thus save resources that would otherwise need to be mined and processed, and the CCRs are subject to product specifications, such as ASTM standards. Some of the uses, such as CCRs in paints and plas tics not only provide benefits, but EPA generally does not consider materials used in these ways to be waste. Use of CCRs in highway projects is

DRAFT DO NOT CITE OR QUOTE 95 of 324 10/16/09a significant practice covering road bed and em bankments. As mentioned above, CCRs in the highway setting are part of extensiv e engineering considerations that insure the material provides an appropriate function, is replac ing material that would otherwis e 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 Pi ts and Large Scale Fill Operations is Not Considered a Beneficial Use.

As indicated earlier, EPA has identified severa l proven damage cases associated with the placement of CCRs in sand and gravel pits. Th ere has also been significant community concern with large scale fill operations. Because of the damage cases and the appearance that sand and gravel pits and large scale fill operations are es sentially landfills under a different name, EPA is proposing to define the placement of CCRs in sand a nd 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 a ppropriate criteria to distinguish between legitimate beneficial uses and sham operations, su ch 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 v itreous material often used as an abrasive – is reused, although industry has reported that the demand for boiler slag products is high, and virtually all of the slag is currently used.

DRAFT DO NOT CITE OR QUOTE 96 of 324 10/16/09of the materials would allow their safe use for a pa rticular 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 majo r issues associated with the placement of CCRs on the land for beneficial use has involved th e Gambrills, MD site which involves a sand and gravel pit and the Battlefield golf course, which was a large scale fill operation. These are the types of operations that EPA is proposing to regulate under the hazard ous waste regulations. However, because the Gambrills and Battlefield sites involved the unencapsulated placement of CCRs on the land, it raises questi ons regarding the bene ficial use of unencapsulated uses of CCRs, which the Agency has reviewed and, information on the issues is presente d in this section.

First, we identify the array of environmental is sues associated with unencapsulated uses. CCRs can leach toxic metals at levels of concern, so depending on the characteristics of the CCR, the amount of material placed, how it is placed, a nd the site conditions, there is a potential for environmental concern.

• The importance of characterizing CCRs prior to their utilization is that CCRs from certain facilities may be acceptable under particular beneficial use scenarios, while the same material type from a different facility or from the same facili ty, but generated under different operating conditions (e.g., different air pollution cont rols or configurations) may not be acceptable for the same management scenario. Cha nges in air pollution controls

DRAFT DO NOT CITE OR QUOTE 97 of 324 10/16/09will result in fly ash and other CCRs presen ting new contaminant issues (e.g., hexavalent chromium from post-NOx controls). Additiona lly, as described in se ction I.C.2, there is significant variability in total metals content and leach characteristics.

• The amount of material placed can signi ficantly impact whether placement of unencapsulated CCRs causes environmental risk s. There are great differences between the amount of material disposed of in a la ndfill 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 wher e 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.

DRAFT DO NOT CITE OR QUOTE 98 of 324 10/16/09Second, 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 environmenta l 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 reporti ng States, or 85 percent, indicated they had either formal or informal decision-making pr ocesses or beneficial use programs relating to the use of solid wastes.” 44 (http://www.astswmo.org/files/publicatio ns/solidwaste/2007BU SurveyReport11-30- 07.pdf) For example, Wisconsin’s Department of Natural Resources has developed a regulation (NR 538 Wis. Adm. Code), which 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 dete rmination database can be found on the Northeast Waste Management Officials’ Association (NEWMOA) website at http://www.newmoa.org/solidwaste/bud.cfm. This database helps states share information on beneficial use decisions providing for more consistent and informed decisions.

DRAFT DO NOT CITE OR QUOTE 99 of 324 10/16/09• EPA developed an easy to use risk model fo r assessing the use of recycled industrial materials in highways. This model is shared with states to facilitate assessments to determine if such beneficial use projec ts will be environmentally protective. 45

• There is also considerable study and research by states and academic institutions, which EPA views as valuable in not only guiding th e parties to appropriate uses, but also in informing EPA. A few examples are:

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

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

o Sauer JJ, Benson CH, Edil TB. Metals l eaching from highway test sections constructed with industrial byproducts. Un iversity of Wisconsin – Madison, Madison, WI: Geo Engineering, Department of Civil and Environmental Engineering; 2005 December 27, Geo Engineering Report No. 05-21.

Overall, federal agencies, states, and others are doing a great amount of work to promote environmentally sound beneficial use practices, to advance our understand ing, and to consider emerging science and practices. Furthermore, the beneficial use of CCRs is a world wide

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/par tnerships/c2p2/pubs/iwem-report.pdf and the Industrial Waste Management Evaluation Model (IWEM) at h ttp://www.epa.gov/osw/nonhaz/industrial/tools/iwem.

DRAFT DO NOT CITE OR QUOTE 100 of 324 10/16/09activity, so there is also consider able work and effort from around the globe. In Europe, nearly all CCRs are beneficially used, and when used are considered to be products rather than wastes. Sweden, for example, actively supports the use of CCRs in road construction, and has conducted long-term tests of its use in this manner. EPA believes, by regulating sand and gravel pits and large scale fills as disposal, the risks from benefi cial use will be adequately addressed such that further federal regulations are not warranted at this time.

While recognizing the many beneficial use opport unities for CCRs, EPA believes it is imperative to gather a full range of views on the issue of unencapsulated uses in order to ensure the protection of human health and the environment. EPA is fully prepared to reconsider our proposed approach for these uses if comments provi de information and data to demonstrate that it is inappropriate. For example, previous risk analyses do not a ddress many of the use applications currently bei ng implemented, and have not addressed the changes to CCR composition with more advanced air pollution control methods and improved leachate characterization. In addition, some scientific li terature indicates that the uncontrolled (i.e., excessive) application of CCRs can lead to the potentially toxic accumulation of metals (e.g., in agricultural applications 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 a pproach 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 peti tion process where appropria te characterization of

DRAFT DO NOT CITE OR QUOTE 101 of 324 10/16/09the material to be used (incl uding 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 thes e uses under RCRA hazardous waste authority is deemed warranted, the risk assessm ent 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 un encapsulated 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 te st methods described in Section I.F and other tools (e.g., USEPA’s Industrial Waste Manage ment Evaluation Model (IWEM)) to aid prospective beneficial users in calcula ting potential release rates over a specified period of time for a range of management s cenarios, including us e 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 th is area. The Agency is interested in comments relating to the focus of these assessmen ts, the use of historical data, the impact of pH on leaching potential of metals, the sc ope 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.

DRAFT DO NOT CITE OR QUOTE 102 of 324 10/16/09EPA/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 re quired, what type of character ization 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 re levant? 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 t oxicity characteristic.

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

• Historically, EPA has proposed or imposed cond itions on other types of hazardous wastes destined for land placement (e.g., maximu m application rates and risk-based concentration limits for cement kiln dust us ed as a liming agent in agricultural applications (see 64 FR 45639; Augus t 20, 1999); maximum allowable total concentrations for non-nutritive and toxic me tals in zinc fertilizers produced from recycled hazardous secondary materials (see 67 FR 48393; July 24, 2002). Comments are solicited as to whether EPA s hould establish national standards or

DRAFT DO NOT CITE OR QUOTE 103 of 324 10/16/09maximum/minimum thresholds, or rely on implementing Agencies to impose CCR-/sitespecific limits based on front-end characterization that ensures individu al beneficial uses remain protective.

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

3. Placement of CCRs in Mi nefilling Operations

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

The report concluded that the “p lacement 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 char acterization, site characterizati on, management and engineering design of placement activities, and design and im plementation of monitoring is required to reduce the risk of contamination moving from the mine site to the ambient environment.” The

DRAFT DO NOT CITE OR QUOTE 104 of 324 10/16/09NRC report recommended that enforceable federal standards be established for the disposal of CCRs in minefills to ensure that states have spec ific authority and that st ates 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 defe r a decision on the July 9, 2009 petition submitted by environmental and citizens groups that petitio ned 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 revi se the Bevill exclusion for CCRs generated at facilities that are not pa rt of the electric power sector a nd, 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 a ssessed 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, ma nufacturing, transportation, and education. The electricity that they generate is mainly for th eir own use, but any excess may be sold in the

DRAFT DO NOT CITE OR QUOTE 105 of 324 10/16/09wholesale market. 47 According to the Energy Inform ation Administration (EIA), CHPs produced 2.7% of the total electricity generated from coal combustion in 2007 48 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 ut ilities, which generate131 million of tons of CCRs annually, or an averag e of approximately 265,000 ton per facility. In addition, these manufacturing facilities generate other types of wast e, 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 a ny 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 characte rization, 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 fl exibility analysis as required under the Regulatory Flex ibility Act for rules that may impact a significant number of small entities. Therefore, the Agency has decide d to assess these operatio ns after addressing the electric power sector, and will instead focus on th e 97% of CCRs generated at electric utilities.

5. EPA is Not Proposing to Apply the New Requirements to CCRs from Certain OnGoing State or Federa lly Required Cleanups.

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

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

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

50 http://www.eia.doe.gov/cneaf/e lectricity/epa/epaxlfile2_3.pdf

DRAFT DO NOT CITE OR QUOTE 106 of 324 10/16/09The Agency is proposing to allow state or fede rally-required cleanups commenced prior to the effective date of the final rule to be complete d in accordance with the requirements determined to be appropriate for the specific cleanup. EPA’s ra tionale for this decision is two-fold. First, for state or federally required cleanups that al ready commenced and are continuing, the state or federal government has entered into an administ rative agreement with the facility owner or operator which specifies remedies , clean-up goals, and timelines th at were determined to be protective of human health and the environmen t, 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 si gnificant 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 Cont aminated 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 hazar dous waste by amending 40 CFR Part 261.32 (a), “Hazardous wastes from specific sources,” by addi ng coal combustion residuals generated by the electric power sector, as defined in toda y’s proposed regulation, as EPA Hazardous Waste Number K179 in the list of hazardous wastes under a new category titled “Coal Combustion

DRAFT DO NOT CITE OR QUOTE 107 of 324 10/16/09Residuals.” 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 dis posed 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 proposi ng to grant this portion of the petition. As described previously in this preamble, the pr oposed listing would not apply to CCPs that are beneficially used, CCRs that are part of a state or federally re quired cleanup that commenced prior to the effective date of the final rule, or CCRs generated by facili ties 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 re lying 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 discu ssion in the earlier units. In addition, EPA is relying on the various risk assessments conducte d on CCRs to provide significant support for EPA’s listing determination. EPA’s risk assessm ent work includes four analyses: (1) U.S. EPA 1998, “Draft Final Report: Non-groundwater Path ways, 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/spe cial/fossil/ngwrsk1.pdf); (2) preliminary groundwater and ecological risk screening of selected constituen ts in U.S. EPA 2002,

DRAFT DO NOT CITE OR QUOTE 108 of 324 10/16/09“Constituent Screening for Coal Combustion Wast es,” (contractor deliverable dated October 2002, available in docket EPA-HQ-RCRA-2006- 0796 as Document # EPA-HQ-RCRA-2006- 0796-0470); referred to hereafter as the 2002 scr eening analysis; (3) U.S. EPA 2009a, “Human and Ecological Risk Assessment of Coal Combus tion Wastes” (September 2009) available in the docket for this proposed rule, and referred to he reafter as the 2009 risk assessment; and (4) U.S. EPA 2009b, “Inhalation of Fugitive Dust: A Screen ing Assessment of the Risks Posed by Coal Combustion Waste Landfills” 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 cons iders 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, transporte d or disposed of or otherwise managed.” Nine of these factors, as de scribed 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.

DRAFT DO NOT CITE OR QUOTE 109 of 324 10/16/09o Constituent concentrations (Sec. 261.11(a)(3)(ii )) and the quantities of waste generated (Sec. 261.11(a)(3)(vii i)) are combined in the calcul ation of the levels of the CCR constituents that pose a hazard.

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

o Two of the factors, plausible mismanagemen t and the regulatory actions taken by other governmental entities based on the damage caused by the constituents ((§§261.11(a)(3)(vii) and 261.11(a)(3)(x)), were used in establishing the waste management scenario(s) modeled in the risk assessment.

One of the remaining factors of the eleven listed in 261.11(a)(3) is consideration of damage cases (§261.11(a)(3)(ix)); these are discusse d in section II. B. The final factor allows EPA to consider other factors as appropria te (§261.11(a)(3)(xi)).

As discussed earlier, EPA conducted analyses of the risks posed by CCRs and determined that it meets the criteria for listing set forth in 40 CF R 261.11(a)(3). The criteria for listing hazardous wastes found at 40 CFR Part 261.11 re quire the Administrator to list a solid waste as a hazardous waste upon determining that the solid waste meet s one of three criteri a in 40 CFR 261.11(a)(1)- (3). The criteria considered by EPA in determ ining that listing is warranted pursuant to 40 CFR 261.11(a)(3) are:

DRAFT DO NOT CITE OR QUOTE 110 of 324 10/16/09 Whether the waste contains any of the toxic c onstituents listed in Appendix VIII of 40 CFR part 261 (Hazardous Waste Consti tuents) and, after consideri ng the following factors, the Administrator concludes that the waste is capab le of posing a substant ial present or potential hazard to human health or the environment wh en improperly treated, stored, transported or disposed of, or otherwise managed: (i) The nature of the toxicity presented by the constituent. (ii) The concentration of the constituent in the waste. (iii) The potential of the cons tituent or any toxic degradati on product of the constituent to migrate from the waste into the environm ent under the types of improper management considered in paragraph (vii). (iv) The persistence of the constituent or a ny toxic degradation product of the constituent. (v) The potential for the constitu ent or any toxic degradation product of the constituent to degrade into non-harmful constituen ts and the rate of degradation. (vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems. (vii) The plausible types of improper manageme nt to which the waste could be subjected. (viii) The quantities of the waste generated at individual generation sites or on a regional or national basis. (ix) The nature and severity of the human hea lth and environmental damage that has occurred as a result of the improper management of wastes containing the constituent. (x) Action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent. (xi) Such other factors as may be appropriate.

DRAFT DO NOT CITE OR QUOTE 111 of 324 10/16/09i. 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 rel eases from landfills a nd surface impoundments include: leaching to ground water; overland transport from erosion and runoff; and air emissions. The potential of exposure from any one of these exposure pathways for a particular chemical is dependent on the physical and chemical characte ristics of the chemical , the properties of the waste stream, and the environmental setti ng. EPA has conducted a peer-reviewed risk assessment of potential human health risks from CCR constituents leachi ng 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 assessment s 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 ex posure situation, and a high end estimate that represents conditions likely to be encountered by i ndividuals 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 infl uence a nearby resident’s exposure are the residence’s distance from a CCR waste mana gement unit, and an individual’s behavior or activity patterns. In the 2009 risk assessment, the high e nd risk estimates are the 90 th percentile estimates from a probabilistic analysis.

The comparisons that EPA uses to judge whether either a high end or central tendency estimated risk is of concern are the risk criteria. For an in dividual’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 (expr essed as a ratio of the estimated exposure to the exposure at which it is likely that there woul d be no adverse health eff ects; this ratio is also called a hazard quotient (HQ), and a risk of c oncern equates to a HQ greater than one, or, in

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

52 See 40 CFR 300.430.

53 EPA’s hazardous waste listing determination policy is desc ribed in the notice of proposed rulemaking for wastes from the dye and pigment industries at 59 FR 66072.

DRAFT DO NOT CITE OR QUOTE 113 of 324 10/16/09certain 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 reside nts’ groundwater ingestion an d air inhalation, and fish consumption by recreational fishers.

Ecological Risks

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

Two types of exposures can occur for ecologi cal receptors: exposures in which ecological receptors inhabit a waste management unit di rectly, and exposures in which CCRs or its chemical constituents migrate, or move, out of the waste management unit and contaminate nearby soil, surface water, or sediment.

ii. Consideration of Individual Listing Criteria.

DRAFT DO NOT CITE OR QUOTE 114 of 324 10/16/09CCRs contain the following Appendix VIII toxi c constituents: antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, ni ckel, selenium, silver, and thallium. These Appendix VIII constituents are frequently found in CCRs, as has been reported by the U.S. EPA (1988, 1999, 2002, 2006, 2008, and 2009). 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 Resear ch Triangle Institute for Office of Solid Waste, Washington, DC. September. U.S. EPA (Environmental Protection Agency). 2006. Characterization of Mercury-Enriched Coal Combustion Residuals from Electric Utilities Using Enhanced Sorbents for Mercury Control . EPA 600/R-06/008. Office of Research and Development. Resear ch Triangle Park, NC. January. U.S. EPA (Environmental Protection Agency). 2008. Characterization of Coal Combustion Residuals from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control . EPA/600/R-08/077. Report to U.S. EPA Office of Research and Development, Air Pollution Control Division. Research Triangle Park, NC. July. 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.

DRAFT DO NOT CITE OR QUOTE 115 of 324 10/16/09Toxicity is considered in deve loping the health benchmarks used in risk assessment modeling. The Agency for Toxic Substances and Disease Registry (ATSDR) ToxFAQs,TM 55 the EPA Integrated Risk Information System (IRIS), 56 and the Toxicology Data Network (TOXNET) of the National Institutes of Health 57 are all sources of toxicological data on the Appendix VIII constituents found in CCRs. (The information fr om 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 produ ce appreciable risk of harmful effects over a lifetime. The constituents of concern associat ed with CCRs include antimony, arsenic, barium, beryllium, cadmium, cobalt, hexavalent ch romium, 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 th e metals identified are sufficiently toxic that they are capable of posing a substantial presen t or potential hazard to human health and the environment when improperly treated, stored, tr ansported disposed of, or otherwise managed. A brief summary of the effects associated with these constituents is presented below.

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

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

57 http://toxnet.nlm.nih.gov/cgi-bin/sis/htmlgen?HSDB

DRAFT DO NOT CITE OR QUOTE 116 of 324 10/16/09Ingestion of arsenic has been shown to cause sk in 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, le ad, and molybdenum include: kidney disease, lung disease, fragile bones, decreased nervous sy stem function, high blood pressure, anemia, and others. 61 Thallium exposure is associated with hair loss, as well as ne rvous and reproductive system damage. 62 Antimony is associated with alte red glucose and cholesterol levels, myocardial effects, a nd spontaneous abortions. 63 Traditional surface impoundments, where waste is not co-disposed, may al so pose risks for nitrate/nitr ite 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 weak ness 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 hi gh enough (greater than 1000 μg/m 3 ), an acute condition can result. This condition resembles pneumonia and is called acute beryllium

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

59 Ibid

60 Ibid

61 Ibid

62 Ibid

63 Ibid

64 ATSDR CSEM. Available at: http://www.atsdr.c dc.gov/csem/nitrate/no3physiologic_effects.html

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

66 Ibid

DRAFT DO NOT CITE OR QUOTE 117 of 324 10/16/09disease. 67 The most common harmful health effect of nickel in humans is an allergic reaction. Approximately 10-20% of the population is sensitiv e to nickel. The most common reaction is a skin rash at the site of contact. Less frequent ly, some people who are sensitive to nickel have asthma attacks following exposure to nickel. Some sensitized people react when they consume food or water containing nickel or breathe dust containing it. 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 fo r 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 increa sed 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

69 Ibid

70 Ibid

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

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

72 ACAA (American Coal Ash Association). 2008. 2007 Coal Combustion Product (CCP) Production & Use Survey Results (Revised)

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

DRAFT DO NOT CITE OR QUOTE 118 of 324 10/16/09stream 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 containe d 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/inforeso urces/data/br07/national07.pdf.

74 Additional data on the waste characteristics of fly ash and FGD is presented in section I.F.

DRAFT DO NOT CITE OR QUOTE 119 of 324 10/16/09Nickel 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 me tals are contained in CCRs at relatively high concentrations, such that if CCRs were impr operly managed, they could leach out and pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed. The risk assessment that was conducted confirms this finding, as do the many damage cases that have been documented and presented in today’s proposal, including documents contained in the docket to today’s proposed rule.

Migration, Persistence, Degradat ion, 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 environm ent are all factors that EPA considered and evaluated in the design of the fate and transp ort models that were used in assessing the concentrations of the toxic constituents to which humans and ecological receptors may be exposed. However, before discussing the hazar dous constituents in the fate and transport models, the Agency would note that the toxi c constituents for CCRs are all toxic metals— antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver and thallium, which do not decompose or de grade with the passage of time. Thus, these

DRAFT DO NOT CITE OR QUOTE 120 of 324 10/16/09toxic metals will persist in the e nvironment for very long periods of time, and if they escape from the disposal site, will continue to provide a potential source of long-term contamination.

The purpose of the risk assessment was to use th e fate and transport models to assess likely migration of the CCR toxic constituents from 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 envir onment. To estimate the risks posed by the management of CCRs in landfills and surface im poundments, the risk assessment estimated the release of the CCR toxic constituents fr om landfills and surface impoundments, the concentrations of these constituents in 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 tr ansport model in which constituents leached to groundwater consumed as drinking water, migrated to surface water and bioaccumulated in recreationally caught and consumed fish, and on di rect 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 significan t 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 electr ic utilities.

DRAFT DO NOT CITE OR QUOTE 121 of 324 10/16/09Ingestion of Groundwater: The risk assessment predicted that CCRs pose an estimated trivalent arsenic cancer risk of 4 in 10,000 for unlined land fills and 2 in 10,000 for clay-lined landfills at the 90 th percentile. No cancer risks a bove 1 in 100,000 were found at the 50 th percentile. 90 th 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 90 th percentile ingestion of twice the reference dose.

CCRs co-managed with coal refuse in landfills ar e estimated to pose arsenic cancer risks of 5 in 10,000 for an unlined landfill and 2 in 10,000 for a clay-lined landfill at the 90 th percentile. EPA estimates that arsenic poses a 2 in 100,000 risk of cancer at the 50 th percentile for unlined landfills, but poses cancer risks of less than 1 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 90 th percentile, but did not exceed the reference dose at the 50 th 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 90 th percentile. For clay-lin ed landfills managing FBC waste, arsenic is estimated to have a cancer risk of 6 x 10 -5 (six in one hundred thousand) at the
90 th percentile, while thallium is estimated to ha ve 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

DRAFT DO NOT CITE OR QUOTE 122 of 324 10/16/09peak well water concentrations are estimated to occur is approximately 2,800 to 9,700 years for arsenic, 2,600 to 10,000 years for selenium, a nd 2,300 years for thallium. For clay-lined landfills, the median estimated time until peak well concentrations is approximately 4,000 to 10,000 years for arsenic, 5,100 to more than 10,000 years for selenium, and 4,300 years for thallium. Of the contaminated groundwater plumes that are estimated to reach the receptor wells from composite-lined units, the constituent conc entrations were not estimated to reach peak concentrations in the 10,000 year time period that was modeled. 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 90 th percentile. For unlined surface impoundments at the 90 th percentile, selenium’s hazard quotient is two and lead’s is three. At the 50 th percentile, none of the constituents assessed for non-cancer effects exceed their reference dose in any scenar io, 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 di d not exceed cancer risks of 1 in 100,000, nor did selenium exceed its reference dose.

Co-disposed CCRs and coal refuse managed in surface impoundments resulted in the highest risks. For the 90 th percentile, arsenic’s estimated cancer risk is 2 in 100 and 7 in 1,000 for 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 10/16/09unlined and clay-lined surf ace impoundments, respectively. 76 At the 50 th percentile, these units still resulted in estimated arsenic cancer risks of 6 in 10,000 for the unlined surface impoundment and 2 in 10,000 for the clay-lined surface impoundment. Cadmium and lead both are estimated to exceed the reference dose by nine times at the 90 th percentile for unlined surface impoundments. In clay-lined surface impoundments, cadmium has an estimated cadmium hazard quotient of 3. When managed in surf ace impoundments with com posite liners, these constituents’ estimated cancer risks did not exce ed 1 in 100,000, nor are they estimated to exceed their reference doses.

As with landfills, the modeling shows differing arrival times of various constituents at the modeled well locations. Due to di fferences in behaviors when interacting in soil, some chemical constituents move more quickly than others th rough the subsurface environment. For unlined surface impoundments, the median number of year s until peak well water concentrations would occur is estimated to be 74 years for hexavalent selenium and 78 years for arsenic. For 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 mate rials 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 10/16/09While 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 50 th and 10 th percentiles. Here, attenuation refers to the dilution of the concentra tion of a constituent. Thus, 10 th percentiles (not 90 th percentiles) were developed to represent the high-end risks. These risk attenuation fact ors were calculated by dividing the screening risk result s by the full-scale risk results, across all unit types combined, for the constituents modeled in the full-scale asse ssment. Using the risk attenuation factors, none of the constituents were estimated to exceed an HQ of 1 at either the 50 th or 10 th percentile for landfills. For surface impoundments, hexavalent chromium was estimated to exceed an HQ of 1 at the 50 th percentile, while hexavalent chromium and vanadium were estimated to exceed an HQ of 1 at the 10 th percentile. The HQ for nickel under the surface impoundment scenario was less than 1 using the 50 th and 10 th percentile values. However, the use of risk attenuation factors in

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 incorpora ting new waste characterization data received since 1998 and by applying current data and methodologies to the risk an alyses. The initial step in this process is screening and constituent selection for a more detailed analysis. The goal of screening is to identify CCR constituents, waste types, receptors, and exposure pathwa ys with risks below the level of concern and eliminate those combinations from further analysis. The screenin g analysis (U.S. EPA, 2002) compared the 90th percentile leachate values directly to the human health benchmarks identified above . In other words, it was assumed that a human receptor was drinking leachate direc tly from a CCR landfill or surface impoundment with no attenuation or variation in
exposure.

DRAFT DO NOT CITE OR QUOTE 125 of 324 10/16/09place of probabilistic fate and transport modeling increases the uncertainty associated with these results. This analysis was conducted onl y for the drinking water exposure pathway.

Consumption of Recreationally Caught Fish: For the unlined, clay-lin ed, or composite-lined landfills, none of the modeled Appendix VIII constituents posed a cancer risk greater than 1 in100,000, nor did they exceed their reference doses. However, for surface impoundments codisposing of CCRs and coal re fuse, trivalent arsenic’s 90 th percentile estimates are 3 in 100,000 and 2 in 100,000 excess cancer risk for unlined and clay-lined un its, respectively. Pentavalent arsenic’s 90 th percentile estimate is 2 in 100,000 excess ca ncer risk for unlined impoundments. For all other liner and management unit scenarios at the 90 th percentile, and all scenarios at the
50 th percentile, there were no arse nic cancer risks above 1 in 1 00,000. 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 impoundme nt scenarios, respectively, at the 90 th percentile. However, selenium is not estimated to exceed the reference dose in the composite lined scenario at the 90 th percentile, or any scenario at the 50 th percentile.

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 erosi on. Air inhalation expos ures may cause adverse human health effects, either due to inhala tion 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 fo r particulate matter has been established, under the CAA), or due to the toxic effect s of these respirable particles.

DRAFT DO NOT CITE OR QUOTE 126 of 324 10/16/09To evaluate the potential exposure of residents to particulate matter that li ve near landfills that have disposed of CCRs, EPA has performed a screening-level analysis using the SCREEN3 model. This analysis, in Inhalation of Fugitive Dust: A Screen ing Assessment of the Risks Posed by Coal Combustion Waste Landfills (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, wher e air monitoring stations are located near CCR landfills, along with information on any techniqu es, 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 fo r 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 ov erall particulate matter size distribution, 80 but used the total constituent concentrations to represent the con centrations of constituents present on the inhaled particulate matter. Based on the analysis, at la ndfills, the highest estimated risk value was an individual excess lifetime risk of 4 in one million for the farmer, due to inhalation of chromium

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 Co mbustion Products: Amounts and Form of Emissions and Evaluation of Carcinogenicity and Mutagenicity.” Env Health Perspec 1983: 47(201-225).

DRAFT DO NOT CITE OR QUOTE 127 of 324 10/16/09(all chromium present in the particulate matter wa s assumed to be in the more toxic, hexavalent form). For surface impoundments, the highest risk value was 2 in one million for the farmer (again assuming all chromium present was hexa valent). The Agency requests comment on the analysis, as presented in the draft final report, as well as any data, incl uding air monitoring data that may be available regarding th e potential for residents to be exposed to toxic constituents by this exposure pathway.

Ecological Exposure: For instances where species were directly exposed to surface impoundments, the risk assessment found ecological risks due to seleni um, 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 lea d, selenium, arsenic, barium, antimony, and cadmium at the 90 th percentile, but not at the 50 th 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 migr atory 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 ma nagement units, many being 100’s of acres to one that is about 2600 acres, receptors can often inha bit these waste management units. There are a number of recent references in the peer-reviewed scientific lite rature 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 10/16/09pertinent information of potential ecol ogical damage. Hopkins, et al. (2006) 81 observed deformities and reproductive effects in amphibi ans 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 C CR surface impoundment management practices’ on aquatic organisms and communities. Examples of studi es cited in Rowe, et al. (2002) that illustrates the impact of CCRs on aquatic organisms in direct contact wi th 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 lo cal 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 10/16/09constituent 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 f actors developed for the 50 th and 10 th percentiles in the same manner as described above. The only exceedance of the HQ of 1 was for silver at the 10 th percentile under the landfill scenario. The only exceedances of the ecological cr iteria for surface impoundments was for chromium, copper and vanadium at the 10 th percentile. Since full-scale modeling was not conducted, the results for these constituen ts are uncertain.

Nature and Severity of Effects from Mism anagement 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 landf ills and 38% of the CCR surface impoundments had liners compared to 57% and 26%, respectivel y, 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 accumulati on, 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 10/16/09likely 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 ev idence of proven and potential damages to groundwater and surface water from 67 disposal site s, 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 a ssessment, 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 concer n 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 reflec t surface water discharges. Five damage cases resulted in selenium fish consum ption 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 lin ked to CCR disposal at this time, the risk assessment predicts that selenium will migrate faster than arsenic.

DRAFT DO NOT CITE OR QUOTE 131 of 324 10/16/09In addition to the impacts on human health fr om groundwater and surface water, the damage cases have also shown the following adverse effect s to plants and wildli fe: 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 surf ace water above, the risk assessment generally agreed with the damage cases because it some times 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 dispos al sites have been listed on the EPA’s National Priorities List (NPL). The NPL is the list of national priority sites wi th known releases or threatened releases of hazardous substances, po llutants, or contaminants throughout the United States and its territories. Th e Hazard Ranking System (HRS), the scoring system EPA uses to assess the relative threat associ ated 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 rel ease; (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 prioritizi ng the releases that may pose th reats 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.

DRAFT DO NOT CITE OR QUOTE 132 of 324 10/16/09helps 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. Specifica lly, in addition to placi ng sites on the NPL due to the disposal or indiscriminant placement of CCRs, at least 12 st ates have issued admi nistrative orders for corrective actions at CCR disposal sites.

Other Factors – Factor (xi)

The damage cases and the risk assessment al so found excess risks for human and ecological receptors that resulted from non- Appendix VIII (Part 261) constituents. 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) c onstituents 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, coba lt, copper, cyanide, fluoride, iron, lithium, manganese, molybdenum, nitrate/nitrite, strontium, sulfate, vanadium, and zinc.

DRAFT DO NOT CITE OR QUOTE 133 of 324 10/16/09Therefore, based on our examination of CCRs ag ainst 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 imprope rly 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., w ithout 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; th e 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 dispos al of CCRs in unlined and clay-lined CCR landfills and surface impoundments far exceeding accep table levels (e.g., exceeding a cancer risk threshold of 1 x 10 -5 ) 92 and non-cancer risk thre shold (HQ greater than 1). EPA now believes regulations under RCRA subtitle C are warranted fo r 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 protecti on 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 lis ting for wastes from the dye and pigment in dustries, December 22, 1994; 59 FR 66072).

DRAFT DO NOT CITE OR QUOTE 134 of 324 10/16/09EPA is proposing to revise a portion of its August 1993 and May 2000 Regulatory Determinations, which concluded th at regulation of CCRs from el ectric 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 th e risks from disposal of these CCRs are such that the exclusion from hazardous waste regulations s hould 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 su rface 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 pro posing not to modify th e standard subtitle C requirements as they apply to CCRs, except as sp ecifically discussed below and in section V of this preamble. Accordingly, fo r those regulatory requirements th at remain unmodified, EPA is not proposing to reopen any aspect of those requi rements, and will not respond to any unsolicited comments submitted during this rulemaking.

Subtitle C requirements would require that new di sposal units meet the existing hazardous waste siting requirements, and that a ll units meet the hazardous wast e monitoring, corrective action, and financial assurance requirement s. 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 Trea tment Standards (UTS) at 40 CFR part 268.48 prior to disposal as the treatment standard, while for wastewaters, EPA is proposi ng to require solids removal and

DRAFT DO NOT CITE OR QUOTE 135 of 324 10/16/09that CCRs meet the UTS as the treatment standa rd. 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 impoundment s after the effective date of the rule, and will effectively phase out existing surface impound ments within the five years before these requirements become effective.

The Agency is also proposing to modify a nd adopt design and inspection requirements for surface impoundments to address dam safety and stab ility issues similar to the Mine Safety and Health Administration (MSHA) design requireme nts for slurry impoundments at 30 CFR Part 77.216 (EPA has placed a copy of the MSHA regul ations in the docket for this proposed rulemaking). As noted previously, the proposed la nd disposal restrictions will require facilities to close existing impoundments, and not to c onstruct new CCR surface impoundments. EPA is proposing that CCRs sent to ex isting landfills and surface impoundme nts would be required to be in compliance with the final LDR treatment standard s within two years after the effective date of the final rule, with the exception of the LDR wast ewater treatment standards for which five years is provided to achieve compliance. New landfill s, surface impoundments, and lateral expansions of new or existing landfills a nd 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 disc ussion of this action, see the Proposed Special Requirements for CCRs sect ion (section V) below.

A. What is EPA Proposing to Regulate?

DRAFT DO NOT CITE OR QUOTE 136 of 324 10/16/09EPA is proposing to list and re gulate CCRs generated by the electri c power sector, as defined in today’s proposed regulation, as hazardous wastes under the authority of RCRA subtitle C, with certain modifications of the t echnical 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 busine ss is to sell electric ity, or electricity and heat, to the public.

The proposal does not cover CCRs generated by indus tries 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 re tain 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 deta iled discussions of non-utility CCRs, beneficial uses, and minefilling.

As discussed in the May 2000 Regulatory Determin ation, facilities that generate CCRs also generate other low-volume wastes that are rela ted to the coal combustion process, commonly referred to as uniquely associat ed wastes. Examples of thes e 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

DRAFT DO NOT CITE OR QUOTE 137 of 324 10/16/09Determination, the uniquely associated wastes are no longer associated with a Bevill exempt waste and, therefore, are no longer exempt fr om 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 re gulation appropriate for the management of CCRs, taking into account both the need for regulations to prot ect human health and the environment and the practical difficulties associated with implementa tion of such regulations, the Agency considered 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 comb ination 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 fo r liners and ground water monitoring would be established. Additionally, under all of the approach es considered, EPA would require annual inspections of all CCR surface impoundments by a regist ered professional engi neer to assure that the design, operation, and maintenance of th e surface impoundment is in accordance with generally accepted engineering standards. Howeve r, the degree and extent of federal oversight,

DRAFT DO NOT CITE OR QUOTE 138 of 324 10/16/09including enforcement, varies based on wh ether 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 va rious approaches discussed below, including any advantages and disadvantages with the variou s alternatives, as well as how the alternative approaches to a RCRA subtitle C approach w ould meet EPA’s goal of ensuring protection of human health and the environment for the manageme nt 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 subj ect to the current subti tle C regulations at 40 CFR part 260 through 265, 267, and 268. These regul ations establish location restrictions; standards for liners, leachate collection and removal systems, and groundwater monitoring for land disposal units; fugitive dus t control; closure and post-closur e care requirements; storage requirements, corrective action; financial assurance; waste characterization; and permitting requirements. They would also impose hazard ous 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 withou t modification. However, for those existing

93 The discussion below primarily focuses on the techni cal requirements for the management of CCRs and not the administrative or tracking requirements that may also be applicable.

DRAFT DO NOT CITE OR QUOTE 139 of 324 10/16/09requirements for which EPA has determined that the practical difficulties of implementation or the special characterist ics of these wastes warrant change s, EPA is proposing to add new requirements or to modify existing requirement s to account for these considerations See generally 42 USC 6924(x).

The specific requirements of the propos ed approach are summarized below.

General TSD Requirements, incl uding Location Restrictions. Under existing regulations, all of the following requirements would apply: the general facility standa rds of parts 264/265/267 (Subpart B), the preparedness and prevention st andards 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 require ments of parts 264/265/267 (Subpart E). Consistent with section 264.18, the regulations w ould 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 seismi c impact areas would be prohibited.

Landfill/Surface Impoundment Design Requirements. Pursuant to section 3004(x), 94 EPA is proposing to modify the standard RCRA st atutory minimum-technology requirements for

94 Section 3004(x) of RCRA provides EP A authority to modify the statutor y minimum technology standards for disposal units receiving Bevill wastes, including CCRs, ta king 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 an d the environment.

DRAFT DO NOT CITE OR QUOTE 140 of 324 10/16/09liners/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 leach ate 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 require ment. Thus, we are proposing to exclude CCR surface impoundments and landfills from the double li ner and leak detection requirements of 40 CFR part 264 by amending 40 CFR 264.220 and 264.300.

EPA has concluded that the crite ria in section 3004(x) for modi fying these requirements have been met in this case and, therefore, EPA is proposing to modify these double liner requirements for landfills and surface impoundments receivi ng hazardous waste and replace them with standards specific for CCRs in landfills and surface impoundments. EPA believes these modifications are appropriate, gi ven that they reflect the specif ic characteristics of CCRs (i.e., they do not contain volatile organi cs, 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 su ch great volume, requiring enormous amounts of liner materials. Also, EPA concludes that the protectiveness stan dard of section 3004(x) will be met under this approach.

DRAFT DO NOT CITE OR QUOTE 141 of 324 10/16/09Based on its risk analyses and the damage cas es, EPA has concluded that a single composite liner system for CCR landfills and surface impou ndments will protect human health and the environment from releases of contaminants to groundwater. None of the proven damage cases involved lined landfills or surf ace impoundments (with the possible exception of one unit, which in any case did not have a compos ite liner) and that the risk anal ysis 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 hazard ous wastes. In addition, these requirements are the design standards for composite liners specif ied 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 ri sk analyses are discussed in section I.F.4 and in the full risk assessment, which is pl aced in the docket for this rulemaking.

Although EPA has not confirmed damage cases invol ving the failure of clay liners, it is not proposing to allow new disposal un its to be built solely with clay liners. EPA’s modeling in its risk assessment indicated that clay liners could be of concern; EPA also believes that composite liners reflect today’s best practices for new 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, toge ther with location characteristics, will prevent the migration of any hazardous constituents into ground or surf ace water at least as e ffectively as the doubleliner system (42 USC 6924(o)(2)). EPA solicit s 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.

DRAFT DO NOT CITE OR QUOTE 142 of 324 10/16/09also 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 infiltra tion rates are low, or where alternative liner systems provide an equiva lent level of protection.

Subtitle C of RCRA requires only new hazardous waste landfills (or new portions of existing landfills) to meet the minimum technology requir ements for liners and leachate collection and removal systems. The statute does not requir e existing landfills that are brought into the hazardous waste system because they are recei ving newly listed hazardous wastes to be retrofitted with a new minimum-technology liner/le achate 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 ex isting units would have to meet groundwater monitoring, corrective action, and other requirements of Subtit le C, to ensure that any groundwater releases from the unit were identified and promptly remediated. Congress specifically established this a pproach 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 addresse d in the later section titled “Wet-handling and treatment requirements.”

DRAFT DO NOT CITE OR QUOTE 143 of 324 10/16/09Ground water monitoring/correcti ve action for regulated units. Today’s proposed rule would require the current ground wate r monitoring and corrective acti on requirements of parts 264/265 for regulated landfills and surface impoundments, w ithout 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 effectiv e date of these regulations. The facility would operate under the self-implementing interim stat us 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 locatio ns and depths, to yield ground wa ter samples from the uppermost aquifer that represent the qua lity of background groundwater th at 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 liste d 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 Admi nistrator or, more typi cally the authorized state, and required in the RCRA permit. If any of the constituents listed in the facility permit are detected at levels that constitute statistically significant evidence of contamination, the owner or operator must initiate a compliance monitoring pr ogram 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 list ed in the permit for the groundwater protection

DRAFT DO NOT CITE OR QUOTE 144 of 324 10/16/09standard, the owner or operator would have to initiate correc tive action to achieve compliance with the groundwater protection standards.

Dry-handling and treatment requirements.

For non-wastewaters (i.e., dry CCRs), EPA is propos ing that the CCRs be subject to UTS. As EPA has found repeatedly, this standard refl ects the performance of Best Demonstrated Available Technology) and so satisfies th e 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 tw o specific requirements addressing wet-handling of CCRs: (1) under section 3005(j), new and existing surface impoundments are required to meet minimum-te chnology requirements, and (2) hazardous wates must meet the land disposal treatment requirements of s ection 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

DRAFT DO NOT CITE OR QUOTE 145 of 324 10/16/09by requiring facilities operating surface impoundments receiving CCRs to stop receiving those CCRs no later than five years after the effective da te 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-hand led CCRs undergo solids removal so that the resulting wastewater contains no greater th an 100 mg/l total suspended solids (TSS), which represents the Best Pr acticable Control Technol ogy Currently Available for the Electric Power Generating Point Source Categor y (40 CFR 423.12). The resulting wastewater would also be required to meet the Universal Treatment Sta ndards (UTS) at 40 CFR 268.48. The CCR material removed from the slurry would be a non-wastewat er and would be subject to the non-wastewater treatment standard that requires non-was tewater CCRs to meet the UTS.

The practical effect of today’s proposed rule woul d be to prevent facilities from continuing to manage wet forms of CCRs, a nd would result in facilities operating surface impoundments to stop receiving CCRs no later than fi ve years after the eff ective 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 un it within seven years.

Stability Requirements for Surface Impoundments. The proposed regulati on would require that a registered professional engineer certify that design of the im poundment 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

DRAFT DO NOT CITE OR QUOTE 146 of 324 10/16/09ensure 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, ex isting impoundments will be required to close within seven years of the rule’s effective date. However, we neverthe less believe that ongoing inspections by registered professional engineer s 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 part s 264/265/267 storage standards without modification. These regulations establish de sign and operating requirements for containers, tanks, and buildings used to treat or store hazar dous wastes. For cont ainers, 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 storag e area is sloped or is otherwise designed and operated to drain and remove liqui d resulting from precipitation or the containers are elevated or otherwise protected from contact with accumulated liquid.

For new tanks, owners or operators must submit to EPA or the authorized states an assessment certified by a registered professional engineer that the f oundation, structural support, seams, connections, and pressure controls (if applicab le) are adequately desi gned and that the tank system has sufficient structural strength, compatibili ty with the waste(s) to be stored or treated, and corrosion protection to ensure that the tank will not collapse, r upture, or fail. Tank systems are required to have secondary containment under section 264.193, unless they receive a specific

DRAFT DO NOT CITE OR QUOTE 147 of 324 10/16/09variance; however, tanks that contain no free liqui ds and are in buildings with an impermeable floor do not require secondary containment. Ne w tanks (that are require d to have secondary containment) must have secondary containmen t 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 sec ondary containment required, an d the variance process.

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

Recently, representatives of the utility industry have stated their view that CCRs cannot be practically or cost effectively managed under the existing parts 264/265/267 storage standards, and that these standards impose significant cost s 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 infras tructure already in place that might have to be retrofitted if the existing pa rts 264/265/267 storage requ irements 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 w ith respect to those standards.

DRAFT DO NOT CITE OR QUOTE 148 of 324 10/16/09the owner or operator would be re quired to construct a building with an impermeable floor, or construct a secondary containment system around th e silo (alternatively, they could go through a variance process with the regulatory agency).

EPA believes that the variance process allowing alternatives to seconda ry containment would address the concerns raised by industry. The Agency, however, recognizes that the variance process imposes time and resource burdens not on ly on industry, but on the regulatory agencies. EPA notes that, in the case of larger volume, higher toxicity mineral pr ocessing materials being reclaimed, the Agency developed special 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 require d 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 manufact ured of a material suitable for storage of its contents, and meet appropriate sp ecifications, such as those esta blished 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 stru ctures 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 Second ary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood Pres erving Wastewaters; Final Rule (http://www.epa.gov/EPA-WASTE/1998/May/Day-26/f989.htm).

DRAFT DO NOT CITE OR QUOTE 149 of 324 10/16/09EPA solicits comments on the practicality of th e 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 st orage 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 stor age 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 Implemen tation 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 tr ucks 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 dus t controls, there could be exceedances of the National Ambient Air Quality Standards 98 for fine particulate matter in the air at residences near CCR landfills. 99

Closure and Post-Closure Care. Under today’s proposal, the curr ent subtitle C requirements for closure and post-closure care of landfills a nd 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 availa ble 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.

DRAFT DO NOT CITE OR QUOTE 150 of 324 10/16/09cover must have a permeability less than or equa l 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 closur e-plan or permit approval process. Also, the regulations require 30 years of post-closure care, including mainte nance of the cap and ground-water monitoring, unless an alternative post-closure period is esta blished by EPA or the authorized state.

Corrective action Today’s proposed rule woul d subject treatment, storag e, and disposal facilities (TSDs) to corrective action, in cluding facility-wide correctiv e 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 requireme nts for TSDs managing CCRs, including facilitywide corrective action; however, EPA does not s ee a compelling reason to change the corrective action requirements. Imposing corrective action re quirements, including facility-wide corrective action will assure that closed and inactive units at the f acility are properly characterized and, if necessary, remediated, especially since many of these closed or inactive units are unlined. Nevertheless, EPA solicits comment on whethe r EPA should modify the corrective action requirements under sect ion 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. Financia l assurance must be adequate to cover the estimated costs of closure and pos t-closure care, and specific leve ls of financial assurance are required to cover liability for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from opera tions of the facility. Allowable financial assurance mechanisms are trust funds, surety bonds, letters of credit , insurance policies,

DRAFT DO NOT CITE OR QUOTE 151 of 324 10/16/09corporate guarantees, and demonstrations and do cumentation that owners or operators of the facility have sufficient assets to cover closure, post-closure care, and li ability. The regulations also require financial assurance fo r 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 te st similar to that in 40 CFR 258.74(f) in the Criteria for Municipal Solid Waste Landfills shoul d be established for local governments that own and operate coal-f ired power plants.

Permitting requirements. Under subtitle C, TSDs that manage hazardous wastes (in this case, facilities with landfills and surf ace impoundments, and other possible management units used to store or dispose of CCRs, or gene rating facilities that store CCRs destined for off-site disposal) must obtain a hazardous waste management permit fr om EPA or the authorized state. Parts 124, 264, 267 and 270 detail specific procedures for the issuance and modification of permits, including public part icipation, and through the permit pro cess regulatory agencies impose technical design and management standards of part s 264/267. TSDs that are in existence on the effective date of the regulation (which in this case would generally be th e effective date of the state regulations establishing the federal CCR requi rements) 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.

DRAFT DO NOT CITE OR QUOTE 152 of 324 10/16/09Beneficial 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 questio ns that specific beneficial uses may raise, are discussed in section IV of this preamble. Under this appr oach, CCRs being used for beneficial uses would not be subject to regulation from the point of their generation, or fr om the point they are recovered from landfills or surf ace impoundments, to the point they are beneficially used.

Discussion. Given the potential risks from the mism anaged 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 (includi ng gaps in state progr ams) strongly support the proposal.

While several alternatives are di scussed below, the subtitle C approach proposed today is the only option that provides full cr adle-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 authori zed to regulate CCRs in lieu of EPA. In addition, the subtitle C option is the only opti on 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 scruti nize the design of di sposal units and the management practices of the permit applicant, they allow the regulator to impose specific conditions where it deems current or proposed faci lity practices to be inadequate, and they ensure participation of the public and the local community in regulatory de cisions. Furthermore,

DRAFT DO NOT CITE OR QUOTE 153 of 324 10/16/09the subtitle C approach is the onl y approach that allows direct fe deral 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 cont rol and oversight at the federal level.

At the same time, EPA acknowledges legitimate con cerns 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 standard s 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. Als o, as noted above, prom ulgating 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 co mmenters’ concerns that sub title 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 potenti al costs of the rule is associated with the restrictions on wet-handling of CCRs, which would be requir ed 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.)

DRAFT DO NOT CITE OR QUOTE 154 of 324 10/16/09Commenters 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 subtit le 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 us es 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 se ction H.2 of the preamble.

On the question of hazardous waste disposal capac ity, 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 conve rt 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 indica tes that approximately two million tons of hazardous waste are disposed of annually in h azardous waste landfills, and EPA estimates that the current national commercial hazardous wast e 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 cu rrent capacity, not annual capacity.

DRAFT DO NOT CITE OR QUOTE 155 of 324 10/16/09implementation of today’s rule, if finalized as proposed, will take place over a number of years, providing time for industry and state permitti ng 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 onl y after a substantial passage of time. That is, the subtitle C regulations require an extende d 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 authoriz ation 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

states 101 have adopted the requirements under their ow n state laws, and EPA has authorized the state revisions. Under RCRA regulations, states are required to adopt ne w 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 adop t new regulations promptly, EPA’s only r ecourse 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 aut horized, and EPA will work aggressively toward this end. Three decades of hist ory in the RCRA program, however, suggest that th is process will take two to five years (if not longer). 102

2. Subtitle D Approach

101 Currently, all but two states are au thorized 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 proces s, although presumably the facility might remain under state solid waste permits, depending on state law.

DRAFT DO NOT CITE OR QUOTE 156 of 324 10/16/09EPA is not proposing, but is soliciting comment on an appr oach under which the May 2000 Regulatory Determination would remain in pl ace, and EPA would issue regulations governing the management and disposal of CCRs unde r RCRA sections 1008(a), 4004 and 4005(a) (i.e., Subtitle D). Under a subtitle D approach, EPA would esta blish basic nationa l 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 lo cation restrictions and requireme nts for unit design, ground water monitoring, run-on and run-off controls, and closur e and post-closure care, as well as criteria restricting the wet handling of CCRs in certain surface impound ments. 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 curren t subtitle D programs , and they generally implement the requirements through permits. EPA and certain commenters, however, have identified significant gaps in state programs a nd current practices. The subtitle D approach would fill gaps and ensure national minimum sta ndards. The details of a possible subtitle D approach are discussed below.

Location Restrictions. To provide for no reasonable probabilit y of adverse effects, EPA believes that any subtitle D regulation woul d need to ensure that new dis posal units were appropriately sited, just as subtitle D require ments address the siting of munici pal 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

DRAFT DO NOT CITE OR QUOTE 157 of 324 10/16/09with the existing MSW landfill subtitle D requi rements, new CCR disposal units would be prohibited in 100-year floodplains, wetlands, fault areas, seismic impact areas, and unstable areas, unless the facility prep ares a report documenting that en gineering 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 availa ble a written demonstratio n that such engineering measures have been incorporated into the unit’ s design to mitigate any potential adverse impact, and would require a registered prof essional 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 com posite liners – to ensure against a reasonability probability of damage. The subti tle D design standards would require that new landfills have a composite liner and leachate collection and remova l system that meets the municipal solid waste landfill liner requirements under 40 CFR part 258. (Not e: 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 le ast 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 10/16/09standards 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, th e damage cases associated with unlined disposal units, the size of thes e units, and the potential for catas trophic failure of such surface impoundments as occurred at TVA’s facility in Kingston, TN, EPA believes that any subtitle D regulation should also address th e issue of continued disposal of wet-handled CCRs in surface impoundments. Thus, in the subtitle D regul ations, 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 implica tions or challenges of retrofitting existing surface impoundments to include a composite line r, EPA is also considering requiring the closure of existing surface impoundments that di d 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 s hould allow existing surface impoundments the opportunity to retrofit such surface impoundments. (See discussion on the liner design requirements under subtitle C of RCRA for furthe r explanation of the pot ential to retrofit such management units.) As noted in the risk disc ussion of the preamble, unlined and clay lined surface impoundments present a signif icant risk such that without a composite liner system in place, such that EPA believes that there is a “. . .reasonable probability of adverse effects on

DRAFT DO NOT CITE OR QUOTE 159 of 324 10/16/09health and the environment. . .” from the dispos al of CCRs in such disposal units. As we discussed under subtitle C, EPA be lieves that five years is an appr opriate lead time to phase out existing surface impoundments given the practical di fficulties in closing such units immediately and given the significant risks associated with surface impoundments. However, EPA solicits comments on the issues discussed under the subti tle C approach (e.g., time allowed for closure, possibility of site-specific vari ances, 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 defi ciencies in units cu rrently receiving wethandled CCRs. To address these concerns, EPA so licits comments on a sub title 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 f acilities 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 requ ire the system to have a sufficient number of wells, installed at appropriate locations and depths, to yiel d groundwater samples from the uppermost aquifer, as defined in the subtitle C interim status requirements at section 265.90 that represents the quality of bac kground groundwater that has not b een affected by contaminants from the CCR disposal unit. The rule would re quire the facility to make available a report describing the groundwater monitoring system, a nd certification by a regi stered professional hydrologist or engineer that the groundwater monitoring system met this standard. The rule (like

DRAFT DO NOT CITE OR QUOTE 160 of 324 10/16/09EPA’s current subtitle C interim status regula tions) would also require, at a minimum, one up gradient and three down gradient wells.

The rule would also require that the facility in stitute a detection monito ring 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 quar terly. When a statistical ly significant increase over background levels is detected for any of th e monitored constituents, the rule would require the facility to begin an assessm ent monitoring program. The rule would require the facility to develop a summary of its assessment monito ring program, including a certification by a registered professional engineer or hydrologist that the monito ring 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 us ed to identify increases over background met acceptable st atistical standards for gro undwater monitoring. If an assessment monitoring program is triggered, the owne r 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 contaminan ts have migrated off-site as indicated by the sampling of wells, and initiate an assessment of corrective measures w ithin 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 10/16/09exceeded MCLs. In this respect, this approach differs significantly from the subtitle C approach. EPA considered including specific corrective acti on 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 ca se of CCR disposal sites, the cr itically important step is that groundwater releases be identi fied. 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 adequa te monitoring systems are instal led, as certified by registered professional hydrologists or engin eers, and that releases are re ported 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 alre ady have similar requirements under state subtitle D programs. EPA c ould invoke the RCRA or CERCLA imminent-andsubstantial-endangerment authorities where the requi site statutory standards for action were met. EPA also notes that, if existi ng surface impoundments are phased out, a major potential source of release will have been eliminated.

This approach, which relies on re gistered professional engineers to certify the adequacy of groundwater monitoring, of course, does not prov ide the level of EPA and authorized state

DRAFT DO NOT CITE OR QUOTE 162 of 324 10/16/09oversight that the proposed regulation provides, and EPA is only soliciting comment on this approach as an option. EPA does note, howev er, that groundwater sc ience and professional practices have progressed si gnificantly since EPA issued the RCRA ground water monitoring regulations in 1982, which gives EPA more confid ence in certification by pr ofessional experts. EPA has also issued extensive technical groundwater monitoring and cleanup guidance under both RCRA and CERCLA, which has helped standa rdize the practices. EPA broadly solicits comment on the approach of rely ing 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 un its. EPA solicits comment on whether, under a subtitle D approach, the run-on a nd run-off controls applied to m unicipal solid waste are needed to provide for no reasonable probability of releas e. 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 la ndfill or surface impoundment duri ng the peak discharge from a 24-hour, 25-year storm. Additionally, run-off c ontrol systems from the active portion of CCR disposal units would be required to collect and co ntrol 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 ca lculations were made, and how the control systems met the standard. Also, a registered prof essional 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,

DRAFT DO NOT CITE OR QUOTE 163 of 324 10/16/09including 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 requ irements are essential to ensuring the long-term safety of disposal units. Thus, any sub title D regulation would need to ensure safe closure. When a unit closes, the subtitle D regulation woul d 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 requ ire an infiltration layer that contains a minimum of 18-inches of earthen material. (The se 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 sustaini ng native plant growth as a way to minimize erosion of the final cover. The regulation would requ ire certification by a re gistered professional engineer that these standards were met. Alte rnatively, 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 alternat ive cover design that prevents the same level of in filtration as the system descri bed above (i.e., no greater than
1×10 − 5 cm/sec, etc) , based on: (1) hydrologic mode ling and lysimetry or instrumentation using a field scale test section, or (2) hydrologic m odeling 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 certificati on 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 10/16/09specific notice and comment rulemaking, against the standard that th e alternative cover minimized infiltration at least as effectiv ely 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 dispos al unit to conduct post-closure care fo r 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 re moval system in accordance with the leachate and collection and removal system requirement s described above, and monitor the groundwater in accordance with the groundwater mon itoring requirements described above.

Financial Assurance. In EPA’s experience, financial assu rance requirements, to be effective, require considerable regulatory oversight, and therefore EPA believe s 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 comme nts 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 appropr iate and effective authority for regulating the

DRAFT DO NOT CITE OR QUOTE 165 of 324 10/16/09disposal of CCRs, the Agency might establish fi nancial assurance requir ements 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 re gulatory oversight with exis ting state waste programs and requirements.

Off-site disposal . Under a subtitle D regulation, regul ated CCR wastes shipped off-site for disposal would have to be sent to facilities that met the standa rds above, or they would have to be sent and disposed of in units permitted by th e states under subtitle D of RCRA that met the 40 CFR Part 258 standards.

Discussion. In our discussion of the pr oposed 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 th at ensures federal enforcement and a permitting program. Under subtitle D of RCRA, EPA ha s 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 RCR A’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 en force or implement the minimum na tional standards, or that would

DRAFT DO NOT CITE OR QUOTE 166 of 324 10/16/09require or approve state permit programs. Howeve r, one approach that EPA would consider in implementing a subtitle D rule under RCRA is wh ether the notification, by every CCR generator and TSD subject to the rule, to EPA, the state wast e director, and the public within the vicinity of the facility, of the following info rmation 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 gr oundwater monitoring (on an an nual 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 certai n advantages to a subt itle D approach that establishes specific self-implementing requirement s that utilities and others managing regulated CCRs would have to comply with, even in th e 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, a nd that industry practices have been improving. The subtitle D approach would complement existing state pr ograms and practices by filling in gaps, and ensuring that all disposal of regulated CCRs meets national mini mum standards that are designed to address key risks identified in damage cases and the risk assessment – including the risk of

DRAFT DO NOT CITE OR QUOTE 167 of 324 10/16/09surface impoundment failure, which has been iden tified as a concern ap propriate for control under waste regulations.

The subtitle D option is less costly than th e proposed option, accordi ng to EPA’s Regulatory Impact Assessment – although, as discussed earlie r, the cost differences are relatively minor considering the overall cost of the regulation. In addition, th e subtitle D approach would eliminate two concerns that industry and state co mmenters have expressed to date: (1) that a subtitle C approach would inappropriately s tigmatize 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 CC R 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, thes e same commenters have also argued that, under subtitle C, future cleanup of poorly sited or leak ing disposal sites (includi ng historical or legacy sites) would be considerably more expensive, es pecially where off-site disposal was chosen as the option. (EPA’s RIA does not quantify this last issue, since it is specu lative, but the RIA does discuss two recent cases as examples.) As stat ed 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 eval uate the different regulat ory options as it moves forward, it seeks specific and targ eted 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 promul gation – and industry would be subject to the requirements on

DRAFT DO NOT CITE OR QUOTE 168 of 324 10/16/09that 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 monito ring or the requirement that new surface impoundments be constructed with composite liners could be impos ed substantially sooner than under a subtitle C rule.)

States have expressed concern that subtitle C re quirements will be considerably more expensive to implement than a subtitle D regulation. For ex ample, the states have reported that regulation under subtitle C, versus subtitle D, would co st them an additional $17 million per year to implement; these costs would be distributed unequ ally, depending on the location of facilities requiring permits. EPA has sympathy for this co ncern, especially give n current state budgets; however, we believe that most states will be ab le to address shortfalls through fees, and those states that have higher hazardous waste generato r or disposal fees may actually receive more money under a subtitle C option. The states ha ve 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 thei r 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 regul ations 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

DRAFT DO NOT CITE OR QUOTE 169 of 324 10/16/09eliminate or significantly re duce these concerns. EPA ac knowledges these concerns, and certainly does not wish to force the states to go through extra processe s unnecessarily. EPA, however, believes that the signifi cant benefits of direct fede ral 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 fo r procedural difficulties for state programs, and measures that EPA might adopt to try to mitigate these effects.

Additionally, EPA does not have au thority under subtitle D of RC RA 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 co mment 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 wo uld 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-handl ed CCR wastes would be regulated under the subtitle C option described above, while dry-ha ndled CCRs would be regulated under the RCRA subtitle D approach. In addition, EPA would reta in the existing Bevill exemption for CCRs that

DRAFT DO NOT CITE OR QUOTE 170 of 324 10/16/09are beneficially used. Under this approach, EP A would establish modified requirements for wethandled CCRs, pursuant to RCRA 3004(x), as la id 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 op tion. For example, this option pr ovides 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 hi gher 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 lowe r risk, according to the risk assessment and, therefore, a subtitle D approach might be more eas ily 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 be lieves this approach would largely address the concerns of commenters who expressed stigma con cerns on beneficial uses and off-site capacity for subtitle C disposal. EPA’s unde rstanding is that CCRs sent for beneficial use are dry to begin with, or, if not, they are typically dried befo re 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 sh ares the disadvantages of the sub title C approach, as it applies to surface impoundments, and of the subtitle D appro ach, as it applies to la ndfills. For example,

DRAFT DO NOT CITE OR QUOTE 171 of 324 10/16/09portions of the rules applicable to surface impoundments would not become enforceable upon publication (or shor tly thereafter).

Under another approach considered by EPA, th e Agency would issue th e proposed subtitle C regulations, but they would go into effect three years after promulgation. Th e rule would include a condition that would exclude CCRs from regula tion 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, a nd (3) EPA had approved within one year, through a process allowing notice and comment, comparab le 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 e ffective. Under this alternative, each state would be evaluated individually, which c ould 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 solicit s 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 availabl e at http://www.epa.gov/fedrgstr/EPAWASTE/1999/August/Day-20/f20546.ht m). 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 haza rdous waste. However, CCRs that were in

DRAFT DO NOT CITE OR QUOTE 172 of 324 10/16/09egregious violation of these requirements, such as disposal in land-based di sposal 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 tailor ed 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/specia l/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 se ction 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 becaus e of the volume of CCRs that are generated and the special ch aracteristics 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 Techni cal Standards Under 3004(x)

DRAFT DO NOT CITE OR QUOTE 173 of 324 10/16/09Section 3004(x) of RCRA authorizes the Admi nistrator 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 de termines to regulate as hazardous, to take into account the special characteristics of the wastes, the pr actical difficulties associated with implementation of such requirements, and site-s pecific characteristics, including, but not limited to the climate, geology, hydrology and soil chemistry at the site, 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 detectio n system requirements, the land disposal restrictions, and the surface impoundment retr ofit requirements.

1. Modification of CCR Landfills and Surf ace Impoundments from the section 3004(o) Liner and Leak Detection Requirements.

The minimum technology mandated in RCRA Sec tion 3004(o)(1)(A)(i) re quires 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 dete ction 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.

DRAFT DO NOT CITE OR QUOTE 174 of 324 10/16/09As 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 upp er component must consist of a minimum 30-mil flexible membrane liner (FML), and the lower co mponent must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil thick. The FML component must be installed in direct and uniform contact with the compacted soil component. The leachate collecti on 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 collect ion 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 specia l 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 st andard 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

DRAFT DO NOT CITE OR QUOTE 175 of 324 10/16/09performance standard, evidenced by ground water monitoring results, or installing a composite liner. EPA also solicits comment and data on th e hydraulic conductivity of clay liners associated with coal ash disposal units, and information on cl ay liner designs based on site specific analysis.

B. Fugitive Dust Controls.

The proposed subtitle C approach would requ ire that surface impoundments and landfills be managed in a manner that does not violate any ap plicable requirements developed under a State Implementation Plan (SIP) or issued by EPA und er section 110 of the Clean Air Act. The requirements for controlling fugitive dust in clude covering or othe rwise managing CCRs to control wind dispersal of dust, emplacement as wet conditioned CCRs to control wind dispersal, or storage in tanks or buildings. For purpos es of the proposal, wet conditioning means wetting CCRs with water to a moisture content that prev ents wind dispersal, fa cilitates 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 pr oposing requirements for periodic inspections of surface impoundments. The Agency believes that such a requirement is critical to ensure that the owner and opera tor of the surface impoundment becomes aware of any problems that may arise with the structural stability of the unit before they occu r and, thus, prevent the types of catastrophic releases that have occurr ed in the past, such as at Martins Creek,

DRAFT DO NOT CITE OR QUOTE 176 of 324 10/16/09Pennsylvania and TVA’s Kingston, Tennessee faci lity. Therefore, EPA is proposing that inspections be conducted every seven days by a pe rson qualified to recognize specific signs of structural instability and othe r hazardous conditions by visual obs ervation 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 aut horized State Director; and notif y and prepare to evacuate, if necessary, all personnel from the property which may be affected by the potentially hazardous condition(s). Reports of inspecti ons are to be maintained in th e facility operating record.

To address surface impoundment (or impoundment) in tegrity (dam safety), EPA considered two options. One option, and the option proposed in this notice, is to es tablish standards under RCRA for CCR surface impoundments similar to those promulgated for coal slurry impoundments regulated by the Mine Safety an d Health Administration (MSHA) at 30 CFR 77.216. Facilities relying on CCR impoundments woul d need to (1) submit to EPA or the authorized state plans for the design construc tion, and maintenance of existing impoundments, (2) submit to EPA or the authorized state plans for closure, (3) conduct periodic inspections by trained personnel who are knowledgeable in impound ment design and safety, and (4) provide an annual certification by a register ed 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 st andards, the Agency believes that the types of requirements included in the MSHA standards ar e appropriate and necessary and would allow the owner or operator of the unit to ensure th e stability of the impoundment, and thus, ensure

DRAFT DO NOT CITE OR QUOTE 177 of 324 10/16/09protection of human health and the environment. In making this judgment, we would note that MSHA has nearly 40 years of experience in writi ng rules and inspecting dams associated with coal mining, and thus, we believe that the Agen cy 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 sp ecific 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 regulatio ns at 40 CFR 122.41(e) require that permittees properly operate and maintain all facilities of treatment and cont rol used to achieve compliance with their permits. In add ition, regulations at 40 CFR 122.44 (k) allow the use of best management practices for the control and abatem ent of the discharge of toxic pollutants. Guidance could be developed to use best ma nagement practices to address impoundment construction, operation, and maintenance, consis tent with the require ments 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 releva nt 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 sa fety and structural integrity.

In developing these proposed regulations fo r structural integrity of CCR impoundments, EPA sought advice from the federal agencies charged with managing the safety of dams in the United States. Many agencies in the federal governme nt are charged with dam safety, including the USDA, the Department of Defense, DOE, the Nuclear Regulatory Commission, the Department

DRAFT DO NOT CITE OR QUOTE 178 of 324 10/16/09of 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 c over “water, sediment or slurry impoundments” so they include dams for waste disposal, freshwat er 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 injure d, 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 da ms used in surface impoundments at coal-fired utilities to manage CCRs. We also believe th at, 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 ge nerally 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 im pound 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.

DRAFT DO NOT CITE OR QUOTE 179 of 324 10/16/09EPA 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 e ither to be closed or upgraded to meet minimum technology requirements within four year s. 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 ma naging hazardous wastes without complying with minimum technology requirements for a peri od of up to four years before upgrading or closing the unit. In order to be eligible for th is exemption, the unit must be in compliance with the applicable groundwater monito ring provision under Part 40 CFR 265 Subpart F within 12 months of the promulgation of the ne w 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 pr ovided the impoundments meet the minimum technology requirements and provide d that any treatment residue s which either do not meet treatment standards or which remain classified as hazardous are removed from the impoundment

DRAFT DO NOT CITE OR QUOTE 180 of 324 10/16/09within one year. See the impl ementing rules in 40 CFR section 268.4. EPA has interpreted this provision not to nullify the provi sions of section 3005 (j)(6), th e upshot being that impoundments receiving newly identified or listed wastes would have four years to clos e or retrofit under all circumstances. See 56 FR 37194. If the surf ace impoundment continues to treat hazardous wastes after the four year s period, it must then be in compliance with 40 CFR 268.4 (Treatment Surface Impoundment Exemption).

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

As 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., re trofit or clean closure),

DRAFT DO NOT CITE OR QUOTE 181 of 324 10/16/09given 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 sect ion are met. In today’s notice, EPA is proposing to modify the time required for retrofitting su rface impoundments under section 3005 (j), because of the special characteristics of CCRs and the prac tical 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 pr oposal would require faci lities operating surface impoundments receiving CCRs to stop receiving t hose CCRs no later than five years after the effective date of the final regulation and to clos e 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 ex istence at the time RCRA was amended in 1984, went into effect in 1988. EPA is not aware of any facility owner/operator managing an existing surface impoundment at the time who chose to re trofit its impoundment, rather than to close it. EPA believes facilities managing surface impoundments today, will similarly choose to cl ose the surface impoundment rather than retrofit.

DRAFT DO NOT CITE OR QUOTE 182 of 324 10/16/09extraordinarily difficult if not impractical for many facilities to meet, give n the size of the units and limitations in available alternative subtitle C disposal capacity. Faci lity owners choosing to close surface impoundments may have to make signi ficant 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 cap acity to receive the wastes divert ed from surface impoundments. Also, facilities that use surface impoundments re ceiving 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 f our years to close; given the enormously greater volume of waste involved with CCR surfa ce 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 sign ificantly 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 regulato ry 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 th e shortest practicable time is important.

Any modifications of section 3005( j) will have to meet the sec tion 3004(x) stricture that the modification must still “assure protection of human health and the environment (42 USC 6924(x).” EPA believes that allowing three addi tional years for closure, under today’s proposal, would be protective because surface impoundments subject to the closure requirement would be

DRAFT DO NOT CITE OR QUOTE 183 of 324 10/16/09required to have groundwater monitoring systems, sufficient to detect releases of hazardous constituents into the groundwat er, and corrective acti on would be required where releases were detected above drinking water levels. The small additional timeframe that EPA is proposing to allow – needed to address pract ical realities – will amount to a minimal increase in risk.

EPA recognizes that the costs of these requireme nts 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 ot her utilities have already deci ded, or are being required by states, to close existing impoundment s, regardless of the requirem ents of today’s rule. As a result, EPA believes today’s propos al would have less real effe ct 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 impoundme nts 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, industr y 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 impo undments. 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 assu med that the process would take place over ten years.

DRAFT DO NOT CITE OR QUOTE 184 of 324 10/16/09to 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 eq uipment 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 appreci ates the cost considera tions but also believes it is important that these surface impoundments cease receiving wet-handled CCRs and proceed promptly to closure. However, EPA solicits co mments on whether five years from the effective date to implement these provisions is an achieva ble 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 ap proval of closure plans) . As stated earlier, EPA does note that, in the 1984 amendments to RCRA, Congress required existing hazardous waste surface impoundments without lin ers to retrofit within four y ears. As a practical matter, this meant that all but a very few surface impoundm ents closed within this time period. Thus, a requirement that surface impoundments cease receivi ng liquid wastes in five years and close in seven years is consistent with previous Congressional direction on appropriate time periods to phase out the management of CCRs in surf ace 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 u tilities co-manage CCRs with wastewat er 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.

DRAFT DO NOT CITE OR QUOTE 185 of 324 10/16/09effective (with some estimates as long as eigh t years), giving facilitie s substantial advance notice. (See discussion on when the rules become effective in section VIII of this preamble.) For commenters who argue a longer time peri od is needed, EPA solicits comment on how a longer time period would meet the section 3004(x) risk standard.

Whatever time period EPA selects, the Agency solicits comment on whether it should include a provision that would allow the re gulatory agency to provide a dditional time on a case-by-case basis because of site-specific issues (e.g., pa rticular technical di fficulties or equipment availability outside the utility’s control, as we ll as permitting delays). This provision might be modeled after the provision of 40 CFR 264.112 and 265.112 (Amendment of Plans), allowing 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. Fo r example, existing impoundments theoretically may already have a composite liner, and present mi nimal threat of release (e.g., because they are below grade or not far above grade). EPA solic its 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 catastr ophic release (e.g., as in dicated by a low potential hazard rating under the Federal Guidelines for Da m Safety established by the Federal Emergency Management Agency). In such cases, the wa stes might also meet current LDR treatment standards.

DRAFT DO NOT CITE OR QUOTE 186 of 324 10/16/09E. Proposed Land Disposal Restrictions.

Through RCRA sections 3004 (d), Congress has prohi bited the land disposal of hazardous waste unless the waste meets treatment standards establis hed 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 st andards 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 thr eats to human health and the environment are minimized (RCRA section 3004(m)). If the hazardous waste has been treate d 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 di scussed 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 he re), EPA is required to determine whether the waste shall be prohibited from one or more methods of land dispos al within six months after the date of such identification or listing, and if EPA determines that one or more methods are prohibited, the Agency is also required to specif y treatment levels or methods of treatment for the waste. RCRA section 3004 (g)(4).

In an effort to make treatment standards as uniform as possible, while adhering to the fundamental requirement that the standards mu st minimize threats to human health and the environment before hazardous wastes can be land disposed, EPA developed the so-called

DRAFT DO NOT CITE OR QUOTE 187 of 324 10/16/09Universal Treatment Standards (UTS) (codified at 40 CFR 268.48). Under the UTS, whenever technically and legally possible, the Agency adopts the same technology-based numerical limit for a hazardous constituent regardless of the type of hazardous waste in which the constituent is present. See 63 FR 28560 (May 26, 1998); 59 FR 47982 (September 19, 1994). The UTS, in turn, reflect the performance of Best Demons trated Available Technologies (BDAT) of the constituents in question. Although, these treat ment 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 Ad ministrator 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 implem entation of the requirements, and site-specific characteristics, so long as such modified requir ements 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 trea tment standards. In addition, although CCRs could be disposed without treatment in landfil ls and impoundments from which there will be no migration of hazardous constituents for as l ong as the waste remains hazardous, EPA strongly doubts that such a unit could exist, given the volumes of CCRs and th eir many (documented) release pathways. In any case, no-migration determinations ar e necessarily made on a case-byDRAFT DO NOT CITE OR QUOTE 188 of 324 10/16/09case 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 fo r Non-Wastewaters (Dry CCRs).

For non-wastewaters (i.e., dry CCRs), EPA is propos ing that the CCRs be subject to UTS. As EPA has found repeatedly, this standard refl ects the performance of Best Demonstrated Available Technology) and so satisfies th e 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 sta ndards should be achie vable by application of various available technologies, although data indicate that a grea t portion (if not virtually all) dry CCRs meet these standards as generated.

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

EPA is also proposing standards fo r wastewater CCRs. As an init ial matter, EPA is proposing to adopt a specific and different de finition of wastewater for CCRs. Under the existing rule, a wastewater contains less than 1% by weight total organic car bon (TOC) and less than 1% by weight total suspended solids (i.e., the current wastewater defini tion for purposes of LDRs; see section 268.2 (f)). Functionally, the current defin ition of wastewaters would not include slurried fly ash or FGD from wet air po llution control systems. EPA needs to distinguish between nonwastewaters which involve dry coal as h and surface impoundment systems that are

DRAFT DO NOT CITE OR QUOTE 189 of 324 10/16/09commonly 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 beli eves 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 so lids removal so that th e wastewaters contain no greater than 100 mg/l total susp ended 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 leve l water pollution control technology, which insures that the vast majority of coal ash and associated contaminan ts are removed and managed in landfills, which pose less risks.

In addition, EPA is proposing that wastewater s 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 tr eatment performance here because TSS necessarily cont ain the metal hazardous cons tituents which are the object of treatment, and these metals will necessarily be removed as TSS are removed. See e.g. National Lime Ass’n v. EPA, 234 F. 3d 625, 639 (D.C. Cir. 2000) (even though particulate matter is not a hazardous air pollutant, it can be used as a permissible surrogate for treatment of hazardous air pollutant metals since those metals are removed by treatment as PM is removed).

DRAFT DO NOT CITE OR QUOTE 190 of 324 10/16/09would be a non-wastewater and would be subj ect to the UTS for non-wastewaters.) EPA believes dry disposal of the CCR solids will prot ect human health and the environment. As previously discussed, this is borne out by the resu lts of the Agency’s risk assessment and damage case assessments, which show that wet disposal poses the greatest risks of contaminant releases 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 threat s to human health and the en vironment 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 unl ess EPA finds that there is insufficient alternative protective treatment, recovery or disposal capacity for the wastes. RCRA section 3004 (h)(2). National capac ity variances can be for up to two years from the date of the prohibition. During the duration of a national capacity variance, the wastes do not require treatment in order to be land disposed. If th ey are disposed of in a landfill or surface impoundment, however, that unit must meet th e minimum technology requirements of RCRA

DRAFT DO NOT CITE OR QUOTE 191 of 324 10/16/09section 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 standa rds for nonwastewaters take effect within 6 months. We are proposing the 6 months to allo w 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 standa rds 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 retrofitti ng, and is being proposed for many of the same reasons. Surface impoundments, of course, are th e 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 existi ng service impoundments to meet minimum technology requirements, and EPA has in terpreted this provis ion as applying to treatment surface impoundments receiving hazar dous wastes otherwise prohibited from land

107 EPA is also authorized to grant up to a one-year exte nsion, renewable for another year, of a prohibition effective date on a case-by-case basis. RCRA section 3004 (h)(3). Applicants must demonstrate that adequate alternative treatment, recovery, or disposal capacity for the petitioners waste cannot reasonably be made available by the effective date due to circumstances beyond the applicant’s control, and that the petitioner has entered into a binding contractual commitment to construct or otherwise pr ovide such capacity. 40 CFR section 268.5.

DRAFT DO NOT CITE OR QUOTE 192 of 324 10/16/09disposal. 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 fo r impoundment retrofitting, unde r the authority of section 3004 (x) (which specifically authori zes modification of the section 3005 (j) requirements). Section 3005 (j) (11) allows untreated wastewaters to be managed in surface impoundments that do not meet minimum technology require ments, but requires that re sidues in the impoundment be dredged at least annually for management elsewher e. 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 y ear (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 capacit y, EPA believes annual dredging is impractical and would defeat the purpose of providing additiona l time to convert to the dry handling of CCRs. As discussed earlier in the section on surf ace impoundment minimum technology requirements, EPA believes this approach will be protective and pose minimal additional risk.

As this discussion clarifies, the issue of a nationa l capacity extension for CCR wastewaters is really an issue of how long it will take to c onvert to dry handling and to find management capacity for solids dredged from impoundments, i. e. issues arising under section 3005 (j)(11) of

DRAFT DO NOT CITE OR QUOTE 193 of 324 10/16/09the statute. EPA, therefore, beli eves it has the authority and that it is appropriate to use section 3004 (x) to extend the national capacity peri od in order to convert to dry handling. 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 fr om regulation as a hazardous waste under 40 CFR 261.4(b) and that exhibits one or more of th e 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 hazar dous 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 with in a 24-hour period, the release must be reported immediately to the National Response Cent er (NRC) pursuant to CERCLA section 103.

Thus, the Agency is proposing to list this wa ste as a CERCLA hazardous substance in Table 302.4 of 40 CFR 302.4. The key constituents of concer n in CCRs are already listed as hazardous substances under CERCLA (i.e., arsenic, cadmi um, mercury, selenium), and therefore persons who spill or release CCRs alrea dy have reporting obligations, de pending on the volume of the spill. Typically, under current CERCLA require ments, a person releasing CCRs, for example,

108 EPA notes in addition that it is authorized under sectio n 3004 (x) to modify the requirements of LDR prohibitions under section 3004 (g), and EPA views capacity variances re lated to such prohibitions as within the scope of that section 3004 (x) authorization.

DRAFT DO NOT CITE OR QUOTE 194 of 324 10/16/09would 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 altern ative methods to adjust the one-pound statutory RQ. The first method, one tradit ionally utilized by the Agenc y, 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-evaluat e 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, a nd 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 Pl anning and Community Right-to-Know Act (EPCRA) requires owners or opera tors of certain facilities to report releases of extremely hazardous substance and CERCLA hazardous substan ces to state and local authorities. The

DRAFT DO NOT CITE OR QUOTE 195 of 324 10/16/09EPCRA section 304 notification must be given immediately after the release of an RQ (or more) within a 24-hour period to th e 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 stat e likely to be affect ed by the release.

Under section 102(b) of CERCLA, all hazardous substances (as defined by CERCLA section 101(14)) have a statutory RQ of one pound, unless and until the RQ is adjusted by regulation. In this rule, EPA is proposing to list CCRs that ar e generated by electric utility and independent power producers that are intended fo r disposal (and not 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 ad justments to the one-pound statutory RQs for this hazardous waste stream.

2. Basis for RQs and Adjustments

EPA’s methodology for adjusting th e RQs of individual hazardous substances begins with an evaluation of the intrinsic physical, chemical, and toxicological propert ies of each hazardous substance. The intrinsic properties examined, ca lled "primary criteria," are aquatic toxicity, mammalian toxicity (oral, dermal, and inhalation) , ignitability, reactivit y, chronic toxicity, and potential carcinogenicity.

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

DRAFT DO NOT CITE OR QUOTE 196 of 324 10/16/095,000 pounds. The data for each hazardous substan ce are evaluated using the various primary criteria; each hazardous substance may receiv e several tentative RQ values based on its particular intrinsic properties. The lowest of the tentative RQs becomes the ‘‘primary criteria RQ’’ for that substance.

After the primary criteria RQ are assigned, the substances are further evaluated for their susceptibility to certain degrada tive processes, which are used as secondary adjustment criteria. These natural degradative processes are biodegra dation, hydrolysis, and photolysis (BHP). If a hazardous substance, when released into the envi ronment, degrades relatively rapidly to a less hazardous form by one or more of the BHP proce sses, its RQ (as determined by the primary RQ adjustment criteria) is generally raised by one level. Conversely, if a hazardous substance degrades to a more hazardous product after its release, the original substance is assigned an RQ equal to the RQ for the more hazardous substance, which may be one or more levels lower than the RQ for the original substance. Table 4 pr esents 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)

DRAFT DO NOT CITE OR QUOTE 197 of 324 10/16/09Cadmium......................................................... 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 RQ s 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 met hod for adjusting the RQ of the CCR wastes also can be used in lieu of the one pound RQ.

2. Application of the CERCLA Mi xture Rule to Listed CCR.

Although EPA is proposing a one-pound RQ for lis ted hazardous CCR wastes, we are also proposing to allow the owner or operator to us e the maximum observed concentrations of the

DRAFT DO NOT CITE OR QUOTE 198 of 324 10/16/09constituents within the listed hazardous CCR wast es in determining when to report releases of the waste.

For listed hazardous CCR wastes, where the actual concentrations of th e hazardous constituents in the CCRs are not known and the waste meet s the K179 listing description, EPA is proposing that persons managing CCR waste have the opt ion of reporting on the basis of the maximum observed concentrations that have been iden tified 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 actua l 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.

DRAFT DO NOT CITE OR QUOTE 199 of 324 10/16/09Barium.......................................... 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 ar e 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 wa ste 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 hazar dous constituent is released.

Where the concentration levels of all hazardous constituents are known, the traditional mixture rule would apply. Under this scenario, if the actual concentr ation of arsenic is 100 ppm, 10,000 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

DRAFT DO NOT CITE OR QUOTE 200 of 324 10/16/09notification requirements for the regulated commun ity and adequately prot ects human health and the environment.

The modified interpretation of the mixture rule (40 CFR 302.6) as it a pplies 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 concen trations for the constituents of the petroleum refining wastes in determining when to report rel eases of the four wastes. EPA codified this change to its mixture rule inte rpretation 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 exis ting table that provided the maximum observed constituent concentrations fo r petroleum refining wastes (K169, K170, K171, and K172) was

DRAFT DO NOT CITE OR QUOTE 201 of 324 10/16/09inadvertently replaced instead of amended to add the maximum observed constituent concentrations for the chlorinated aliphatic pr oduction wastes (K174 and K175). Therefore, the Agency is at this time proposing to correct th at inadvertent removal of the petroleum refining wastes by publishing a complete table that includes, the petroleum refining wastes, the chlorinated aliphatic production wastes, and now the CCR wastes (e.g., K169, K170, K171, K172, K174, K175, and K179).

VI. Is the EPA Soliciting Comments on Specific Issues?

Throughout today’s preamble, the Agency has identif ied 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 th e 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 hazard ous wastes, but maintain the Bevill exclusion for CCRs that are benefically used would affect beneficial uses.

• The Agency has documented, through proven dama ge cases and risk analyses, that the wet handling of CCRs in surface impoundments poses higher risks to human health and the environment than the dry handling of CCRs in landfills. EPA seeks comments on the standards proposed in this noti ce to protect human health an d the environment for the wet

DRAFT DO NOT CITE OR QUOTE 202 of 324 10/16/09handling of CCRs—that is, prohibit the pl acement 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 emerge ncy response plans to the regulatory authority if wet handling is not banned?

• As part of this action, EPA is proposing da m safety requirements under RCRA. We solicit comments on whether this issue is more approp riately dealt with in the context of NPDES permits under the Clean Water Act. With a ppropriate 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 wa s representative of leachate from surface impoundments.

DRAFT DO NOT CITE OR QUOTE 203 of 324 10/16/09• EPA has performed a screeni ng-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 ru le), which indicates th at, without fugitive dust controls, there could be exceedances of the Na tional 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 particul ate matter, where air monitoring stations are located near CCR landfills, along with informa tion 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 sp ecific incentives that EPA could adopt that would further en courage the benefici al use of CCRs.

• EPA's Compliance Incentives are a set of polic ies 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 pr otocols, Environmental Management Systems, Pollution Prevention, other innovation projects a nd programs and the environmental benefits achieved by such programs are located at http://www.epa.gov/compliance/in centives/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 10/16/09compliance approaches and solicits comments on how these innovative approaches might be integrated into a regulatory progr am 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 pot ential 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 f ugitive 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 treatm ent standard for CCR wast ewaters (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. Th ese include cancer risks from arsenic ingested through drinking water, arsenic cons umed in fish, and hexavalent chromium inhaled from the air.

DRAFT DO NOT CITE OR QUOTE 205 of 324 10/16/09Since 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 inhalati on exposure to hexavalent chromium near waste management units that are not currently re quired to control fugitive dust.

Ingestion of arsenic has been shown to cause sk in 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 a ssessment shows that some units ap peared to present greater risks (unlined surface impoundments managing CCRs togeth er with coal preparation/washing refuse) than others. These higher risk waste management units showed 90 th percentile lifetime cancer risk estimates as high as 1 in 50 and median risk s 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 fo r 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: h ttp://www.atsdr.cdc.gov/toxfaq.html

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

DRAFT DO NOT CITE OR QUOTE 206 of 324 10/16/09largely eliminating possible exposure to the ar senic 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. Curre nt and future populations drinking water from wells located down gradient of unlin ed disposal units (and potentiall y in some cases of clay-lined units) may be at risk of ingesting cobalt, cadm ium, 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 incl ude: kidney disease, lung disease, fragile bones, decreased nervous system function, hi gh blood pressure, anemia, and others. 114 Traditional surface impoundments, where waste is not co-dispose d, may also pose risks fo r nitrate/nitrite and selenium. Nitrate is associated with pre gnancy complications and methemoglobinemia (blue baby syndrome), 115 while selenium is associated with selenosis. 116 The proposed regulations would mitigate these potential risks by significan tly decreasing the potential to exposure to contaminated drinking water. If ground wate r monitoring identifies exceedances for these

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

114 Ibid

115 ATSDR CSEM. Available at: http://www.atsdr.c dc.gov/csem/nitrate/no3physiologic_effects.html

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

DRAFT DO NOT CITE OR QUOTE 207 of 324 10/16/09constituents, pursuant to the proposed corrective action provisions, facilitie s 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 90 th percentile for unlined landfill. For clay-lined units that disposed of ash only, the risk assessment estimated only a relatively small exceedence for thallium. Th allium 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 sli ghtly higher for thallium. Excessive risks of non-cancer health effects for un lined 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 cholestero l levels, myocardial e ffects, and spontaneous abortions. 119 The proposed regulations would mitigate these potential risks by significantly decreasing the potential for exposure by reduc ing/preventing likely migration of these contaminants. If ground water monitoring identifie s exceedances for these constituents, pursuant to the proposed corrective action provisions, facili ties 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 e ffects 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://rai s.ornl.gov/tox/profiles/molybdenum_f_V1.shtml#te

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

DRAFT DO NOT CITE OR QUOTE 208 of 324 10/16/09to particulate matter exposure include cardiova scular morbidity, respiratory morbidity, and mortality, reproductive and deve lopmental 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 Screen ing 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 An alysis, children rather than a dults 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 exposur e point (e.g., a drinking water well located a certain distance and direc tion down-gradient from the landfill or surface impoundment), the modeled groundwater concentra tion is the same regardless of whether the receptor is an adult or a child, the other variable s 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, childre n 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 amoun ts 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 Pa rticulate Matter: First External Re view Draft. EPA/600/R-08/139. Research Triangle Park, NC: U.S. E nvironmental Protection Agency, Office of Research and Development. 2008.

DRAFT DO NOT CITE OR QUOTE 209 of 324 10/16/09sensitive to chemical exposures as metabolic detoxification processes in the young are still developing. Children also were estimated to have th e highest cancer risks for arsenic through fish consumption, but not fo r ingestion of groundwater.

The public is invited to submit comments or iden tify peer-reviewed studies and data that assess effects of early life exposure to constituen ts of CCRs in landfills and surface impoundments.

2. Environmental Impacts

Impacts on Plants and Wildlife

The risk assessment estimated significant risk of a dverse effects to plants and wildlife, which is confirmed by the many impacts seen in the existi ng damage cases and field studies published in the peer-reviewed scientific literature. These include: elevated selenium levels in migratory birds, wetland vegetative damage, fish kills, amphibian deformities, snake metabolic effects, plant toxicity, elevated contamin ant levels in mammals as a result of environmental uptake, fish deformities, and inhibited fish reproductive capac ity. Requirements in the proposed rule should prevent or reduce these impacts in the future by limiting the extent of environmental contamination and thereby reducing the levels directly available.

Impacts on Groundwater

DRAFT DO NOT CITE OR QUOTE 210 of 324 10/16/09The liner requirements in the proposed rule, together with the requirement to dewater wastewaters, should substantially reduce infiltra tion and migration into aquifers of CCR toxic constituents. By decreasing the load of CCR co nstituents, the proposed regulation would help to preserve groundwater resources for futu re 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 stan dards; i.e., meet the UTS for non-wastewaters and solids removal and meet the UTS treatment st andards for wastewaters. These requirements will have the ancillary environm ental and public health impacts of decreasing, and potentially eliminating, the potential for CCR disposal to re sult in CWA violations like that in the TVA damage case discussed above. Addi tionally, EPA expects that most facilities will be required to switch to dry handling of CCRs, which will signi ficantly reduce the State Pollutant Discharge Elimination System (SPDES) and NPDES discha rges 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 incl uded in the proposed rule. This could lead to higher levels of

DRAFT DO NOT CITE OR QUOTE 211 of 324 10/16/09particulates in the ambient air. The proposed rule requirements for fugitive dust controls are expected to result in particulat e 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 pr oposed regulation will impr ove the quality of the ambient air.

Particles can also be carried ove r long distances by wind and then settle on ground or water. The effects of this settling include : changing the pH of lakes and streams; changing the nutrient balance in coastal waters and large river basins ; depleting nutrients in soil; damaging sensitive forests and farm crops; and affecting the diversity of ecosystems. 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 reduc e the environmental impacts discussed above.

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

EPA prepared an analysis of the potential costs a nd benefits associated w ith this action contained in the “Regulatory Impact Analysis” (RIA). A copy of 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, consisti ng of two components: disposal methods and beneficial uses in industrial ap plications. The RIA estimated the cost of baseline CCR disposal practices, as well as monetized value of baseline economic a nd environmental net benefits

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

122 Ibid

DRAFT DO NOT CITE OR QUOTE 212 of 324 10/16/09associated with baseline beneficial uses of CCRs. The RIA estimated the incremental cost associated with the regulatory options descri bed 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 comm unity 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 aff ect 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 Inform ation Administration (EIA) of DOE, the RIA estimated a total of 495 operational coal-fired elec tric utility plants coul d 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 smalle r 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 ar e sometimes referred to as ponds, dams,

DRAFT DO NOT CITE OR QUOTE 213 of 324 10/16/09embankments, 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 plan ts. Based on the estimates developed for the RIA, total CCR disposal is about 94 million tons annually whic h is about two-thirds of annual CCR generation. (EPA notes that the CCR generation and dispos al estimates; 131 million tons and 75 million tons, respectively, used elsewhwere in this pream ble, were derived from ACAA and EIA data.) In addition, 272 of the 495 supply some CCR which is not disposed for benefici al 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., i ndustrial applications) involv ed around 47 million tons annually representing about one-third of annual CCR genera tion, 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 fo r beneficial use and not disposal), the RIA estimated baseline engineering controls at CCR di sposal units and associated baseline disposal costs for each type of disposal. The baseline is defined as existi ng conditions with respect to the presence or absence of 10 types of environm ental engineering contro ls and eight ancillary regulatory elements, plus projection of future ba seline conditions of CCR disposal units without regulation over the 50-year fu ture period-of-analysis - 2012 to 2061 - applied in the RIA. Existing conditions were determined based on revi ew of current state gove rnment regulations of

DRAFT DO NOT CITE OR QUOTE 214 of 324 10/16/09CCR disposal practices in some states, as we ll as limited survey information on CCR disposal units from studies published in 1995, 1996, and 2006 about voluntary engineering controls installed at some plants. Th e 10 baseline engineering contro ls 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) financ ial assurance for correc tive action, closure, and post-closure care, (7) disposal unit siting restrictions, (8) closure capping of units, (9) postclosure monitoring, and (10) stor age design and operating standa rds (Note: Although listed here this element was not estimated in the RIA). This specific set of engineer ing controls represents the elements of the RCRA 3004(x) custom-tailo red technical standards proposed in today’s notice under each regulatory option. The eight an cillary 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 require ments, and (18) recordkeeping and reporting to regulatory agencies. Some states require many of these technical standards for future newlyconstructed CCR disposal units, whereas some requi re 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 t hus 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 aver age of $5.6 billion per

DRAFT DO NOT CITE OR QUOTE 215 of 324 10/16/09year for meeting state-required and compa ny 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 benefi cial 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 industr ial applications including: (1) concrete, (2 ) cement, (3) flowable fill, (4) structural fill, (5) ro ad base, (6) soil modification, (7 ) mineral filler in asphalt, (8) snow/ice control, (9) blasting grit, (10) r oofing granules, (11) placement in minfilling operations, 123 (12) wallboard, (13) waste solidificati on, and (14) agricultu re. The baseline annual sales revenues received by the electric utility industry for sale of CCRs used in these industrial applications are es timated at $177 million per year. In comparison, substitute industrial ingredient materials (e.g., portland cement, virgin st one 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 industr ial applications. From an environmental perspective, although only based on limited data representing 47% of th e annual CCR beneficial use tonnage involving only three of the 14 indus trial applications (i.e., concrete, cement and wallboard), the baseline environmental benefi ts of beneficially using CCRs compared to

123 While today’s rule does not deal directly with the mine filling of CCRs, the RIA includes it as a beneficial use. However, as noted previously in the preamble, the Ag ency will develop regulations, working with OSM of the Department of Interior, for the placement of CCRs in minefill operations in the future.

DRAFT DO NOT CITE OR QUOTE 216 of 324 10/16/09substitute ingredient industrial materials ar e (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 op tions: Option 1: RCRA Subtitle C regulation of CCR disposal as “K179 hazardous waste” but with RCRA 3004(x) custom-tailored engineering cont rols and retaining the Bevill exemption for CCRs that are beneficially used; Option 2: Subtitle D regulat ion of CCR disposal as RCRA Subtitle D “nonhazardous waste” based with the same or similar e ngineering 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 ev aluated the potential co st of the proposed land disposal treatment requirement (i.e., CCR dewate ring) 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 othe r states. Because both ap proaches are hybrids of

DRAFT DO NOT CITE OR QUOTE 217 of 324 10/16/09Option 1 and Option 2, the RIA did not separately evaluate them because their impacts would be expected to fall between the im pacts 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-analysi s (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 di sposal treatment standa rds (i.e., dewatering CCRs for dry disposal), presented as a sub-option in th e RIA. The baseline a nd regulatory option costs evaluated in the RIA include the same engineer ing controls and the same ancillary elements evaluated in the baseline.

As summarized in Table 6 below, the RIA estim ates the costs for the regulatory options may range from $492 million to $2,274 million on an averag e annualized basis. This range reflects the lowest cost Option 2 involving RCRA Sub title D non-hazardous waste regulation for CCRs without the land disposal treatment sub-opti on, to the highest cost Option 1 involving RCRA subtitle C hazardous waste regulati on for CCRs with the added cost for the treatment sub-option. These cost estimates include both electric utility industry costs plus st ate 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

DRAFT DO NOT CITE OR QUOTE 218 of 324 10/16/09Subtitle 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 second ary sources of information and data, some of which provided very limited information and data w ith respect to the univers e 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 seco ndary sources of published information and data spanning the years 1981 to 2009, many of which only pr ovided limited data or inconsistent data. For example, the RIA combined baseline data fr om the Energy Information Administration for two data years (2005 for CCR t onnages and 2007 for plant counts). Consequently, the RIA attempted to take into account numerous sour ces of data quality uncertainty and other uncertainty factors, which are summarized below. Because of CERCLA legal limitations on its

DRAFT DO NOT CITE OR QUOTE 219 of 324 10/16/09use for regulatory development, the informa tion collected from EPA’s March 2009 CCR surface impoundment structural integrity as sessment letters sent to 210 el ectric 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 engin eering controls for all 495 electric utility plants, (d) incomplete informati on about baseline state requiremen ts 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 eachregulatory 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 applicati ons (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 regul atory 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 electr icity plants, and (b) expansion of commercial hazar dous waste landfill capacity. Possi ble short-term price hikes and capacity constraints are not factored in to the cost estimates in the RIA.

DRAFT DO NOT CITE OR QUOTE 220 of 324 10/16/09(4) Land disposal dewatering trea tment: The cost estimate for this proposed regulatory element is based on extrapolation of an estimate devel oped 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 exampl e, the Tennessee Valley Authority (TVA) announced in August 2009 a proposed plan to convert a ll 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 opt ions of today’s notice by roughly 7% (i.e., 11 of 495 plants). (5) Incomplete cost elements: Because of lack of data or difficulty, th e RIA did not formulate annualized cost estimates for three regulator y elements: (a) CCR storage tank and container design and operating requirements, (b) RCRA fa cility-wide corrective action under Options 1 and 3, and (c) added cost for cleanup of future CCR disposal unit failu res as hazardous waste under Options 1 and 3.

EPA seeks comment on the cost estimates and associ ated 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 author ity-- that is, six months after promulgation of

DRAFT DO NOT CITE OR QUOTE 221 of 324 10/16/09the federal rule in States a nd other jurisdictions where EPA implements the hazardous waste program (Iowa, Alaska, Indian Country, and terr itories, except for Guam) and in authorized States, six months after the St ate 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 th e 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 additi onal 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), al l 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, exis ting CCR landfills and surface impoundments (as defined in this regulation) will be given additi onal time to comply with several of the proposed requirements as specified late r in this section. Any new CCR landfills, including lateral

DRAFT DO NOT CITE OR QUOTE 222 of 324 10/16/09expansions (as defined in the re gulation), 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 promulga ted under the authority of RCRA and not the HSWA amendments) will not be effective unti l the State develops and promulgates its regulations. Once those regulations are effective in the States, they are enforceable as a matter of State law and facilities must co mply with those requirements under the schedule established by the State. These RCRA base requirements will become part of the RCRA authorized program and enforceable as a matter of federal la w once the State submits and EPA approves a modification to the State’s authorized program. (See State Authorization section for a more detailed discussion.) The requirements that ar e more stringent or broa der 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 re gulated 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., modificatio ns 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 aut horized), 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?

DRAFT DO NOT CITE OR QUOTE 223 of 324 10/16/09It is EPA’s intention that this proposed rule will be implemented in the same manner as previous regulations under subtitle C have been. The foll owing 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, transpor ting, 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 comprehens ive 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 de stined for disposal become a newly listed hazardous waste. Persons that generate newly id entified hazardous wastes are required to notify EPA within 90 days after the wastes ar e identified or liste d as hazardous wastes 124 (by EPA or the state) and obtain an EPA identification numbe r if they do not alrea dy have one in accordance with 40 CFR 262.12. (If the person who ge nerates regulated CCRs already has an EPA identification number, EPA is proposing not to requi re that they re-notify EPA; however, EPA is seeking comment on this issue.) Moreover, on the eff ective 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.

DRAFT DO NOT CITE OR QUOTE 224 of 324 10/16/09part 262. These requirements include standard s 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 gene rator accumulation provisions of 40 CFR 262.34 allow generators to accumulate hazardous wastes without obtaining in terim status or a permit only in units that are container accumulation units, tank systems or cont ainment buildings; the re gulations 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 re quired to obtain inter im status and seek a permit (or modify interim status or a permit, as appropriate). Permit re quirements 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 requ irements set forth in 40 CFR part 263 on the effective date of the final rule.

ii. Effective Dates and Compliance Deadlines.

DRAFT DO NOT CITE OR QUOTE 225 of 324 10/16/09Generators must notify EPA within 90 days after the date that CCRs are identified or listed as hazardous (by EPA or the state). The other requirem ents for generators and transporters (in parts 262 and 263) are effective and gene rators and transporters must be in compliance with these requirements on the effective date of the final rule s. The effective date of these rules is six months after promulgation of the fe deral rule in non-authorized St ates 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 Di sposal Facilities (TSDs)

i. Requirements

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

C. RCRA Section 3010 Notification.

DRAFT DO NOT CITE OR QUOTE 226 of 324 10/16/09Pursuant to RCRA section 3010 and 40 CFR 270.1( b), facilities managing hazardous wastes must notify EPA of their hazardous waste manageme nt 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 st ate provides an alternat ive 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 notificati on 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 a nd 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 dispos e of CCRs. However, any person who treats, stores, or disposes of CCRs and has not previously received an EPA id entification number for other waste must obtain an identification number pursuant to 40 CFR 262.12 to generate, transp ort, 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 promulga tion 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. Existi ng facilities, however, may satisfy the permit

DRAFT DO NOT CITE OR QUOTE 227 of 324 10/16/09requirement by submitting part A of the permit application. Timely submission of Part A and the notification qualifies a faci lity for interim status under sectio n 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, stor e, or dispose of CCRs subject to th e proposed rule at the time it becomes effective would generally be eligible for interi m status pursuant to section 3005 of RCRA.(see section 3005(e)(1)(A )(ii) of RCRA). 125 EPA believes all utilitie s generating CCRs and most if not all off-site disposal sites will be in this s ituation. In order to obtain interim status based on treatment, storage, or disposal of such newly listed CCRs, eligible faci lities are required to comply with 40 CFR 270.70(a) and 270.10(e) (or mo re 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 pa rt, that “Any person who. . . .is in existence on the effective date of statutory or regulatory changes under th is Act that render the facility subject to the requirement to have a permit under this section . . . .shall be treated as having been issued such permit until such time as final administrative disposition of such application is made, unless the Administrator or other plaintiff proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application.

DRAFT DO NOT CITE OR QUOTE 228 of 324 10/16/09publication of regulations which firs t require them to comply with the standards. (In most cases, these would be the state regulations implementi ng the federal program; however, in those States and jurisdictions where EPA implements the pr ogram, 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 th an 12 months after the effective da te of the regulations that render the facility subject to the requirement to ha ve 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 certi fy that the facility is in compliance with all applicable ground water monitoring a nd financial responsibility requirements. If the facility fails to submit these certifications and the Part B pe rmit application, interim status will terminate on that date.

2. Existing Interim Status Facilities

EPA is not aware of any utilities or CCR treatme nt or disposal sites in RCRA interim status currently, and therefore EPA does not believe the standard federa l rules on changes in interim status will apply. However, in case such a si tuation exists, EPA describes below the relevant provisions. Again, EPA is describing the federal requirements, but because the base requirements of this proposal are RCRA requireme nts, authorized state regulations will govern the process, and the date those re gulations become effective in the relevant state will trigger the
process.

DRAFT DO NOT CITE OR QUOTE 229 of 324 10/16/09Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste mana gement facilities (as defined in 40 CFR 270.2) that treat, store, or dispose of newly identified hazardous wastes and are currently operating pursuant to interim status under section 30 05(e) of RCRA, must file an amended Part A permit application with EPA no later than the effective date of the final rule in the State where the facility is located. By doi ng this, the facility may continue managing 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, stori ng, or disposing of CC Rs 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 latte r situation is a possibility. Federal procedures for how permitted hazardous waste f acilities manage newly listed hazardous wastes are described below, but again in practice (with the exception of those jurisdictions in which EPA administers the hazardous waste program), th e authorized state regulations will govern the
process.

Under 40 CFR 270.42(g), facilities that already have RCRA permits must request permit modifications if they want to continue managing the newly listed wa stes (see 40 CFR 270.42(g) for details). This provision states that a permittee may continue managing the newly listed

DRAFT DO NOT CITE OR QUOTE 230 of 324 10/16/09wastes by following certain requirements, including submitting a Class 1 permit modification request on or before the date on which the wast e or unit becomes subject to the new regulatory requirements (i.e., the effective date of the fina l federal rule in those jurisdictions where 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 su bpart B, the preparedness and prevention requirements in subpart C, the contingency plan and emergency procedure requirements in subpart D, the manifest, recordke eping and reporting requirements in subpart E, the corrective action requirements, including facili ty-wide corrective action in subpart F, and the financial assurance requirements in Subpart H, ar e applicable to TSDs and TSDs must be in compliance with those requirements on the effectiv e date of the final re gulation, except as noted below. Moreover, all units in which newly iden tified 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 part s 264 and 265 and the unit-specific closure requirements set forth in the a pplicable unit technical standard s in subparts 40 CFR parts 264 or 265 (e.g., subpart N for landfill units). In additio n, EPA promulgated a final rule that allows, under limited circumstances, regulated landfills , surface impoundments, or land treatment units

DRAFT DO NOT CITE OR QUOTE 231 of 324 10/16/09to cease managing hazardous waste, but to delay s ubtitle C closure to allow the unit to continue to manage non-hazardous waste for a period of ti me 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 requirement s. Dates and procedures for submittal of necessary demonstrations, permit applications, and revised applic ations are detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e).
Except as noted below, existing facilities are re quired to be in compliance with the surface impoundment stability requirements, the LDR treat ment standards for non-wastewaters, and the fugitive dust controls on the effective date of the final rule.

For certain of the other requirement s, existing facilities will have: (a) 60 days from the effective date of the final rule to install a permanent identification marker on each surface impoundment as required by 40 CFR 264.1304(d) a nd 40 CFR 265.1304(d). (b) 1 year from the effective date of the final rule: to submit plans required by 264.1304(b) and 265.1304(b). to adopt and submit to the Regional Administ rator a plan for carrying out the inspection requirements 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;

DRAFT DO NOT CITE OR QUOTE 232 of 324 10/16/09to 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 fina l 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-author ized 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 e xpansions of existing units (as de fined in the regulation must be incompliance with the final regulation be fore CCRs can be placed in the unit.)

DRAFT DO NOT CITE OR QUOTE 233 of 324 10/16/09(4) Existing surface impoundments a nd 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 th e 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.

DRAFT DO NOT CITE OR QUOTE 234 of 324 10/16/09marker 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 maintainrun-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.

DRAFT DO NOT CITE OR QUOTE 235 of 324 10/16/09Comply 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 Ru le in Authorized States

Under section 3006 of RCRA, EPA au thorizes qualified states to administer their own hazardous waste programs in lieu of the federal program w ithin the state. Following authorization, EPA retains enforcement authority under s ections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement re sponsibility. The standards and requirements for state authorization are found at 40 CFR Part 271.

Prior to enactment of the H azardous and Solid Waste Amendm ents 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 requirement s no longer apply in the authorized state, and EPA could not issue permits for any facilitie s in that state, since only the state was authorized to issue RCRA permits. Wh en new, more stringent federal requirements were promulgated, the state was obligated to enac t equivalent authorities within specified time frames (one to two years). The new more stringent federal requireme nts did not take effect in the authorized state until the state adopted the fe deral requirements as state law, and the state requirements are not federally enforceable until EPA authorized the state program.

DRAFT DO NOT CITE OR QUOTE 236 of 324 10/16/09In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA aut hority take effect in authorized states at the same time that they take e ffect in unauthorized states. EP A is directed by the statute to implement these requirements and prohibitions in authorized states, unt il the state is granted authorization to do so. While states must still adopt new more stringent HSWA related provisions as state law to retain final author ization, EPA implements the HSWA provisions in authorized states until the states do so.

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

This proposed rule is considered more stringe nt and broader in scope than current federal regulations and therefore States would be requ ired to adopt regulations and modify their
programs.

B. Effect on State Authorization

DRAFT DO NOT CITE OR QUOTE 237 of 324 10/16/09This proposal would affect stat e authorization in the same ma nner 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 progr am; and (2) they must receive authorization from EPA for these program modifications. The proce ss 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 propos ed 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 pr eviously, is that the new require ments do not become enforceable as a matter of federal law in authorized states until states adopt the re gulations, modify their programs, and receive authorization from EPA. For HSWA requirements, the general rule is that HSWA requirements are enforceable on the effectiv e date of the final federal rule. If an authorized State has not promulgated regulati ons, 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 occu rring during the “12 months preceding the previous July 1”. Therefore, for example, if the federal rule is promulgated in December 2011, the states would have until July 1, 2013 to modify their progra ms. States may have an additional year to modify their programs if an amendment to a stat e statute is needed. See 40 CFR 271.21(e)(2)(v).

DRAFT DO NOT CITE OR QUOTE 238 of 324 10/16/09As noted above, the provisions in today’s not ice 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 authorit y. This includes, for example, the listing of CCRs destined for disposal as a hazardous wast e 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 prom ulgates the regulations and they will become a part of the authorized RCRA program and t hus federally enforceab le, once the state has submitted a program modification and received au thorization 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 dispos al restrictions apply to those CCRs that are hazardous wastes, until the states revise their pr ograms and become authorized to regulate CCRs as a listed hazardous waste, the land disposal re striction requirements would apply only in those States that currently do not exclude CCRs from hazardous wast e 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 th e 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.

DRAFT DO NOT CITE OR QUOTE 239 of 324 10/16/09In addition, the tailored manage ment standards promulgated pu rsuant to sec tion 3004(x) of RCRA are also proposed pursuant to HSWA authority. However, as these tailored standards are less stringent than the existing Subtitle C requi rements, States would not be required to promulgate regulations for these less stringen t standards – should a State decided not to promulgate such regulations, the fa cilities in that state would be required to comply with the full Subtitle C standards. Theref ore, the tailored management st andards will be effective in authorized States only when States promulgate such regulations.

Therefore, the Agency would add this rule to Table 1 in 40 CFR 271.1(j), which identifies the federal program requirements that are promulgate d 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-implemen ting. Until the states re ceive authorization for the more stringent HSWA provisions, EPA woul d 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 adop t an equivalent rule and receive authorization for such rule from EPA, the authorized state rule will apply in that stat e 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.

DRAFT DO NOT CITE OR QUOTE 240 of 324 10/16/09A. Executive Order 12866: Regul atory Planning and Review.

Under section 3(f)(1) of Ex ecutive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is an "economically signifi cant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more (secti on 3(f)(1)). This determination is based on the regulatory cost estimates provided in EPA’ s “Regulatory Impact An alysis” (RIA) which is available in the docket for this propo sal. 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 docum ented 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 thes e materials are destined for disposal, which contains mandatory information collection re quirements. The listi ng would also trigger

DRAFT DO NOT CITE OR QUOTE 241 of 324 10/16/09mandatory emergency notification requirements fo r 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 fo r 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 cate gories 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 ap plied in the "Regulatory Impact Analysis" (RIA) for today's action, but using the burden estimation methods for ICRs, the ICR "Supporting Statement" estimates an average annual labo r hour burden of 2,883,823 hours, with an average annual cost of $192.9 million per ye ar. One-time capital and hourly costs are included in these estimates based on a three-year annualizati on period. The estimated number of likely respondents ranges from 90 to 495, depending on the category enumerated above. Burden is

DRAFT DO NOT CITE OR QUOTE 242 of 324 10/16/09defined 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 informa tion 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 mini mizing respondent burden, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA2009-0640-XXXX. Submit any comments relate d 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 Info rmation 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 d ecision 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 10/16/09not have a significant economic impact on a substa ntial number of small entities. Small entities include small businesses, small organizati ons, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities in the electric utility industry, small entity is defined as: (1) a small fossil fuel electr ic utility plant as defined by NAICS code 221112 with a threshold of less than four million megawatt-hours of electricity output generated per year (based on Small 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 a nd is not dominant in its field.

EPA certifies that this action is not expected to have a si gnificant economic impact on a substantial number of small entities (i.e., no SISNOSE). EP A nonetheless continues to be interested in the potentia l impacts of the proposed rule on sm all entities and welcomes comments on issues related to such impacts, including our estimated count of sma ll entities that own the 495 electric utility plants covere d by this rule. This certification is based on the small business analysis contained in the RIA for today’s proposal, which contai ns the following findings and estimates.

The RIA identifies 495 electric utility plants lik ely 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%)

DRAFT DO NOT CITE OR QUOTE 244 of 324 10/16/09may be classified as small entities, consis ting 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 grea ter 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. Th ese percentages constitute the basis for today’s no-SISNOSE certification.

As analyzed in the RIA, there are two electricit y market factors which may be expected to reduce or eliminate these potential revenue impacts on small entities, as well as on the other owner entities for the 495 plants:

o electric utility plants have a mechanism to cover operating cost in creases via rate hike petitions to public utility commi ssions in states which regulate public utilities, and via market price increases in the 18 states (as of 2008) which have de-r egulated electric utilities, and o the residential, commercial, industrial, and transportation se ctor economic demand for (i.e., consumption of) electricity is relatively price inelas tic, which suggests that electric utility plants may succeed in passing through most or all regulat ory costs to their electricity customers.

DRAFT DO NOT CITE OR QUOTE 245 of 324 10/16/09However, because the Agency is sensitive to an y potential impacts its regulations may have on small entities, the Agency requests comment on its an alysis, and its finding th at this action is not expected to have a significant economic imp act on a substantial number of small entities.

D. Unfunded Mandates Reform Act.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires Federal agencies, unless otherwis e prohibited by law, to assess th e effects of their regulatory actions on State, local, and trib al governments and the private sector. This rule contains a Federal mandate that may result in expenditure s of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector, in any one year.

Accordingly, EPA has prepared under section 20 2 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).

DRAFT DO NOT CITE OR QUOTE 246 of 324 10/16/09Although the estimated annual direct cost on stat e or local government s is less than the $100 million UMRA threshold, (a) because the highest-co st regulatory option is only 3% less than the $100 million annual direct cost threshold, and (b) because there are a number of uncertainty factors (as identified in the RIA) which could result in regulatory costs being lower or higher than estimated, EPA’s Office of Resource Cons ervation & Recovery (ORCR) consulted with small governments according to EPA’s UMRA in terim small government consultation plan developed pursuant to section 203 of UMRA. EPA’s interim plan provides for two types of possible small government input: te chnical input and administrative input. According to this plan, and consistent with sect ion 204 of the UMRA, early in ORCR’s process for developing today’s proposal, ORCR implemented a small govern ment consultation process consisting of two consultation components.

o A series of meetings in calendar year 2009 we re held with the purpose of acquiring small government technical input, includi ng: (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) A ugust 12 meeting at ASTS WMO’s Hazardous Waste Subcommittee Meeting (Washingt on DC). ASTSWMO is an organization with a mission to work closely with EPA to ensure that its st ate government members are aware of the most

DRAFT DO NOT CITE OR QUOTE 247 of 324 10/16/09current developments related to their state wa ste management programs. ECOS is a national non-profit, non-partisan associati on of state and territorial environmental agen cy leaders. As a result of these meetings ORCR received letter s in mid-2009 from 22 state governments, as well as a letter from ASTSWMO expressing their stan ce on CCR disposal regulatory options. o Letters were mailed on August 24, 2009 to th e 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 Asso ciation; (2) National Conferen ce of State Legislatures, (3) Council of State Governments, (4) National League of Cities, (5) U.S. C onference of Mayors, (6) County Executives of America, (7) National As sociation of Counties, (8) International City/County Management Association, (9) Nationa l Association of Towns and Townships, and (10) ECOS. These 10 organizations of elected state and local offi cials are identified in EPA’s November 2008 Federalism guidance as the “Big 10” organizations approp riate 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 industr y 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 alternativ e unless the agency publishe s 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 dispos al treatment sub-option) is estimated at $1,999 million in annual direct cost to the private s ector, which is almost five times more costly

DRAFT DO NOT CITE OR QUOTE 248 of 324 10/16/09than the least-cost option (i.e., RIA Option 2 without dewatering treatm ent 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 fo r the higher-cost lead option is that it provides the added benefit of Federal en forceability 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 op erating under state regula tions 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 “m eaningful and timely i nput by State and local officials in the development of re gulatory policies that have federa lism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct eff ects on the States, on the rela tionship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

DRAFT DO NOT CITE OR QUOTE 249 of 324 10/16/09Under Executive Order 13132, EPA may not issue a regulation that has fe deralism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EP A consults with State and local officials early in the process of developing the proposed regulation.

EPA has concluded that this proposed rule may have federalism implications, because it may impose substantial direct compliance costs on St ate or local governments, and the Federal government may not provide the funds necessary to pay those costs. Accordingly, EPA provides the following federalism summary impact statem ent as required by section 6(b) of Executive Order 13132.

Based on the estimates in EPA’s RIA for toda y’s action, the proposed regulatory options, if promulgated, may have federalism implications because the options may impose between $56 million to $97 million in annual direct compliance costs on 60 state or local governments. These 60 state and local governments consist of 33 small municipal government jurisdictions, 19 nonsmall municipal government jurisdictions, 7 st ate government jurisdictions, and one county government jurisdiction. In a ddition, the 48 state governments w ith RCRA-authorized programs for the proposed regulatory options may in cur between $0.05 million to over $5.4 million in added annual administrative costs involving the 495 electric utility pl ants for reviewing and enforcing: (a) CCR disposal uni t structural integrity insp ections, (b) RCRA facility-wide investigations and possible corr ective actions, (c) RCRA waste disposal permit applications, (d) RCRA compliance inspections, (e) RCRA general st andards, and (f) RCRA biennial hazardous

DRAFT DO NOT CITE OR QUOTE 250 of 324 10/16/09waste reports. Based on these estimates, the expe cted annual cost to stat e and local governments for all regulatory options described in t oday’s notice exceeds the $25 million per year “substantial compliance cost” th reshold 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 c onsulted with 10 national organizations representing state a nd local elected officials to ensu re meaningful and timely input by state/local governments, consisting of two c onsultation components, which is described under the UMRA Executive Order discussion.

In the spirit of Executive Or der 13132, and consistent with EPA policy to promote communications between EPA and State and lo cal governments, EPA specifically solicits comment on this proposed rule from electe d State and local government officials.

F. Executive Order 13175: Cons ultation and Coordination with In dian Tribal Governments.

Executive Order 13175 (65 FR 67249-67252, November 9, 2000) requires Federal agencies to provide funds to tribes, consult with tribes, and to conduct a trib al summary impact statement, for regulations and other actions which are expe cted to impose substantial direct compliance costs on one or more Indian tribal governments. If promulgated, today’s proposed rule is likely to impose direct compliance costs on an estimate d 495 coal-fired electric utility plants. This estimated plant count is based on operating pl ants according to the most recent (2007) data available as of mid-2009 from the DOE’s En ergy Information Administration “Existing

DRAFT DO NOT CITE OR QUOTE 251 of 324 10/16/09Generating Units in the United St ates by State, Company and Plant 2007.” Based on information published by the Center for Media and Democracy, 126 three of the 495 pl ants 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 Projec t; (2) Bonanza Power Plant in Uintah County, Utah owned by the Deseret Generation and Tran smission Cooperative; and (3) Four Corners Power Plant in San Juan County, New Mexico ow ned by the Arizona Public Service Company. The Navajo Generating Station a nd the Four Corners Power Plant are on lands belonging to the Navajo Nation, and the Bonanza Power Plant is lo cated on the Uintah and Ouray Reservation of the Ute Indian Tribe. According to this same in formation source, there is one coal-fired electric utility plant planned for construction on Nava jo Nation tribal land near Farmington, New Mexico, but to be owned by a non-tr ibal 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 acti on does not have tribal imp lications as specified in Executive Order 13175. Thus, Executive Orde r 13175 does not apply to this action. EPA solicits comment on the accuracy of the in formation used for this determination.

G. Executive Order 13045: Protection of Ch ildren 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 electri c utility plants located on tribal lands is from CMD’s SourceWatch Encyclopedia at: http://www.sourcewatch.org/index.php?title=C oal_and_Native_American_tribal_lands

DRAFT DO NOT CITE OR QUOTE 252 of 324 10/16/09Executive Order (EO) 13045 (62 FR 19885, April 23, 1997) establishes federal executive policy on children’s health and safety risk s. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make it a high priority to identify and assess environmental health risks and safety risks that may disproportionately affect children in the United States. EPA has conducted a risk assessm ent which includes evaluation of child exposure scenarios, as well as has evaluated Census child population data su rrounding 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 signi ficant” regulatory action as de fined by EO 12866, and (b) based on the risk analysis discussed elsewhere in today’ s notice, the environmental and safety hazards addressed by this action may have a disproportionate effect on children.

For each covered regulatory action, such as today’s action, Section 5 of EO 13045 requires federal agencies (a) to evaluate the environmen tal health or safety effects of the planned regulation on children, and (b) to explain why the pla nned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency. The remainder of this section below addresses both of these requirements, as well as presents a summary of the human health risk assessment findi ngs with respect to child exposure scenarios, and the results of the child demographic data evaluation.

G1. Evaluation of environmental hea lth and safety effects on children

DRAFT DO NOT CITE OR QUOTE 253 of 324 10/16/09EPA conducted a risk evaluation consisting of tw o steps, focusing on environmental and health effects to adults and to children that may o ccur due to groundwater contamination. The first step, conducted in 2002, was a screening effort targeting selected hazardous chemical constituents that appeared to be the most likely to pose risks at or above levels of concern. The second step, conducted between 2003 and 2009, cons isted 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 scenario s where they migrate from a CCR landfill or CCR surface impoundment toward a drinking wate r 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 E nvironmental and Health Effects Associated with Disposing of CCRs in La ndfills 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, child ren rather than adults had the higher exposures. This result stems from the fact that while at a gi ven 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 concen tration is the same regardless of whether the receptor is an adult or a chil d. Thus, the other variables in th e exposure equations (that relate drinking water intakes or fish consumption ra tes and body weight to a daily “dose” of the constituent) mean that, on a per-kilogram-body-we ight basis, children are exposed to higher levels of constituents than adults.

DRAFT DO NOT CITE OR QUOTE 254 of 324 10/16/09G2. Evaluation of children’s population Census data surrounding affected electric utility plants

The RIA for today’s proposal cont ains an evaluation of whether children may disproportionately live near the 495 electric utility plants potentially affected by th is rulemaking. This demographic data analysis is supplemental to and separate from the risk assessment summarized above. To make this determination, the RIA compares Ce nsus 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., ons ite 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 demogr aphic data is evaluated in the RIA for all 495 plants because some re gulatory options could a ffect the future CCR management method (i.e., disposal vers us beneficial use) for some plants.

The RIA provides three complementary approaches to comparison of child populations surrounding the 495 plants to statewide child pop ulation data: (a) plant-by-plant comparison basis, (b) state-by-state aggregat ion comparison basis, and (c) nati onwide 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. Statew ide children population

DRAFT DO NOT CITE OR QUOTE 255 of 324 10/16/09benchmark 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 statewid e average, a ratio greater than 1.00 indicates the child population percentage near the pl ant is higher than the statewide population, and a ratio less than 1.00 indicates the child populati on is less than the respec tive statewide average.

Using the plant-by-plant basis, 310 plants ( 63%) have surrounding child populations which exceed their statewide children benchmark percen tages, 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 percenta ges which exceed their statewide benchmark. Using the state-by-state aggreg ation basis, 27 of the 47 states (57%) where the 495 plants are located have disproportionate per centages 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 plan ts 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 acros s all states of 24.7% children yields a ratio of 1.03 (i .e., 25.4%/24.7%). This also ra tio indicates a slightly higher disproportionate child populat ion surrounding the 495 plants.

DRAFT DO NOT CITE OR QUOTE 256 of 324 10/16/09These three alternative comparis ons indicate that the current (baseline) environmental and human health hazards and risks from electric ut ility CCR disposal units, and the expected future benefits of the regulatory opti ons described in today’s notice, may have a disproportionately higher effect on child populations. This findi ng, therefore, supports selection of the more stringent and more costly RCRA subtitle C re gulatory option over the lower-cost Subtitle D approach.

The public is invited to submit comments or iden tify peer-reviewed studies and data that assess effects of early life exposure to CCRs managed in landfills and surface impoundments.

H. Executive Order 13211: Actions that Sign ificantly Affect Energy Supply, Distribution, or
Use.

This proposed rule, if promulgate d, may be a “significant energy ac tion” 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 dete rmination 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 require d by Section 1 of the Executive Order. The following is a summary of that Statement.

DRAFT DO NOT CITE OR QUOTE 257 of 324 10/16/09The 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 th e cost of energy production in excess of 1%; (b) increases in the cost of ener gy distribution in excess of 1%; or (c) other similarly adverse

outcomes.

Because EPA does not have data on energy produc tion costs or energy distribution costs for the 495 electric utility plants likely affected by th is rulemaking, EPA in its RIA for today’s action evaluated the potential impact on electricity prices (for the re gulatory options) as measured relative to the 1% numerical threshold of th ese two Executive Order indicators to represent “other similarly adverse outcome.”

The RIA calculated the potential incr ease in electricity pri ces of affected plan ts that the industry might induce under each regulatory option. Because the price analysis in the RIA is based only on the 495 coal-fired electric utili ty plants that would likely be affected by this proposed rule (with 333,500 megawatts nameplate cap acity), rather than on all elec tric utility and independent electricity producer plants in each state using other fuels, such as natural gas, nuclear, hydroelectric, etc. (with 678,200 megawatts nameplat e capacity), the price effects estimated in the RIA are higher than would be if the regulatory costs were aver aged over the entire electric utility and independent electri city producer supply (totali ng 1,011,700 megawatts, not counting an additional 76,100 megawatts of combined heat and electricity producers).

DRAFT DO NOT CITE OR QUOTE 258 of 324 10/16/09The price effect calculation in the RIA involved estimating pl ant-by-plant annual revenues, plant-by-plant average annualized regulatory co mpliance costs for each regulatory option, and comparison with statewide average electricity prices for the 495 electric utility plants. In its analysis, the Agency used the May 2009 statewide average retail prices for electricity published by DOE’s, Energy Information Administration; these costs ranged from $0.0620 (ID & WY) to $0.1892 (HI) per kilowatt-hour, and the nationw ide average for the 495 plants was $0.0884 (however, the nationwide averag e for the 495 electricity plants was $0.0987). Based on a 100% regulatory cost pass-thru scenario representing an upper-bound potential elec tricity price increase for each plant, the RIA estimated the potential ta rget electricity sales re venue needed to cover these costs for each plant. The RIA then compar ed the higher target revenue to recent annual revenue estimates per plant, to calculate the potentia l price effect of this cost pass-thru scenario on electricity prices for each of the 495 plants, as well as on a stat e-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 plan ts by 0.172% to 0.795% acro ss the three regulatory options; the high-end is the estimate associated w ith 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 incr eases which is applied in the RIA as an indicator of potential “significant energy e ffect,” EPA prepared the “State ment of Energy Effect” because a number of uncertainty factors id entified in the RIA may result in regulatory costs being lower or higher than estimated.

DRAFT DO NOT CITE OR QUOTE 259 of 324 10/16/09For actions likely to have a significant adve rse 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 we ll as in the RIA underlying this energy analysis. The alternative regulatory options described in today’s notice an d 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 not e) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus sta ndards are technical st andards (e.g., materials specifications, test methods, sampling procedures , and business practices) that are developed or adopted by voluntary consensus st andards bodies. NTTAA direct s EPA to provide Congress, through OMB, explanations when the Agency de cides not to use avai lable and applicable voluntary consensus standards.

DRAFT DO NOT CITE OR QUOTE 260 of 324 10/16/09This proposed rulemaking does not involve technical standard s. Therefore, EPA is not considering the use of any vol untary consensus standards.

J. Executive Order 12898: Fe deral 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 provi sion directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disp roportionately high and adverse human health or environmental effects of their programs, policie s, and activities on minority populations and lowincome (i.e., below poverty line) popul ations in the United States.

Furthermore, Section 3-302(b) of EO 12898 states that Federal agencies, whenever practicable and appropriate, shall collect, maintain and an alyze information on minority and low-income populations for areas surrounding fac ilities or sites expected to ha ve substantial environmental, human health, or economic effects on the surro unding populations, when such facilities or sites become the subject of a substa ntial Federal environm ental administrative or judicial action. While EO 12898 does not establish qua ntitative thresholds for this “substantial effect” criterion, EPA has collected and analyzed population 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.

DRAFT DO NOT CITE OR QUOTE 261 of 324 10/16/09The RIA for today’s action presents comparisons of minority and low-income population Census data for each of the 495 electric utility plant locations, to respec tive statewide population data, in order to identify whether thes e two demographic groups may di sproportionately reside near electric utility plants. The re sult of these comparisons indica te (a) whether existing hazards associated with CCR disposal at electric plants to community safety, human health, and the environment may disproportionately affect mi nority 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 disp roportionately affect minority and low-income populations.

Of the 495, 383 plants (77%) operate CCR disposal units onsite (i.e., onsit e 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 mino rity and low-income Census data evaluation is conducted for all 495 plants because so me regulatory options c ould affect the future CCR management method (i.e., di sposal 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 la ndfills and (c) populations within the customer service areas of the 495 electric utility plants who may incur elec tricity price increases resulting from regulatory cost pass-thru. These three Census data evaluations are also summarized below.

DRAFT DO NOT CITE OR QUOTE 262 of 324 10/16/09J.1. Findings of Environmental Justice Analysis for Electric Utility Plants

For the first comparison, the RIA provides thr ee complementary approaches to evaluating the Census data on minority and lo w-income populations: (a) itemized plant-by-plant comparison to statewide percentages, (b) state-by-state aggr egation 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 fr om 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 rati o of 1.00 indicates that the gr oup population per centage living near a plant is equal to the statewide averag e, a ratio greater than 1.00 indicates the group population percentage near the pl ant is higher than the statewid e population, and a ratio less than 1.00 indicates the group population is less th an 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 3 57 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 percen tages which disproportionately exceed their

DRAFT DO NOT CITE OR QUOTE 263 of 324 10/16/09statewide benchmarks. Also on a plant zip code basis, 256 plan ts (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). Becau se this ratio is above 1.00, it indicates that a disproportionate number of plants have surr ounding low-income popula tion percentages which exceed their statewide benchmarks.

Using the state-by-state aggregation comparis on, the percentages of minority and low-income populations surrounding the plants were compar ed to their respective statewide population benchmarks. From this, state ratios revealed th at 24 of the 47 states (51%) have higher minority percentages, and 29 of the 47 states (62%) have higher low-income per centages surrounding the 495 plants, suggesting a slightly disproportionate higher minor ity surrounding population and a higher disproportionate, higher low-income surr ounding 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 numeri cally-weighting of state plant counts or state surrounding populations, which explains why th is comparison method yields a different numerical result.

Using the nationwide aggregati on 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

DRAFT DO NOT CITE OR QUOTE 264 of 324 10/16/09aggregate ratios indicate a disproportiona te lower minority population surrounding the 495 plants, and a disproportionate higher lo w-income population surrounding the plants.

These demographic data comparisons indicate th at the current (baseline) environmental and human health hazards and risks from electric ut ility CCR disposal units, and the expected future effects (i.e., benefits and costs) of the regulatory options describe d in today’s notice, may have a disproportionately lower effect on minority popu lations 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 eff ects of the regulatory options on three other population groups: (a) populations surrounding offs ite landfills, (b) popula tions surrounding the potential siting of new landfills and (c) populations within the customer service areas of the 495 electric utility plants. The RIA for today’s not ice does not quantify thes e potential effects so only a qualitative discussi on appears below.

The potential effect on offsite landfills involve s the RCRA Subtitle C based regulatory options described in today’s proposed ru le, 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

DRAFT DO NOT CITE OR QUOTE 265 of 324 10/16/09commercial hazardous waste landfills. Another fraction of annual CCR generation which could also switch to offsite commercial RCRA-perm itted landfills are CCRs which are currently supplied for industrial beneficial use app lications 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-regul ated 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 shif t could have a disproportionate effect on populations surrounding these locations, and in particular, minority and low-income populati ons surrounding commercial hazardous waste facilities, for th e reason that a recent (2007) study determined that minority and low-income populations disproportionately live n ear commercial hazardous waste facilities. However, the study included other types of comm ercial hazardous waste treatment and disposal facilities in addition to comm ercial hazardous waste landfills.

The siting of new landfills is another potential e ffect due to possible chan ges in the management of CCRs, especially if the switch to offsite commercial hazardous waste landfills causes a capacity shortage (as described above). Howe ver, since it is unknown where these new landfills might possibly be sited, two possibilities we re examined: (a) an expansion of existing commercial Subtitle C landfills offsite from elect ric utility plants, and (b) an expansion of existing electric utility plant onsite landfills. If an expansion of existing commercial subtitle C

DRAFT DO NOT CITE OR QUOTE 266 of 324 10/16/09landfills were to occur, this potential shift could have a disp roportionate 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 a nd expand existing onsite landfills or build new ones onsite. If this were to occur, the envi ronmental justice impacts could be similar to the demographic comparison findings previously di scussed, which indicates that the current environmental and human health hazards and risk s from electric utility CCR disposal units, and the expected future effects (i.e., benefits and costs) of the regulatory options, may have a disproportionately lower effect on minority popu lations, but may have a disproportionately higher effect on low-income populations.

A third potential effect of the regulatory options described in today’s notice is the increase in price of electricity supplied by some or all of the affect ed 495 electric utility plants to cover the cost of regulatory compliance (a s evaluated in a previous sec tion of today’s notice). Thus, customers in electric utility se rvice areas could experi ence price increases, as described above in the Federalism sub-section of today’s notice. The RIA for today’s action did not evaluate the demographics of the customer serv ice area populations for the 495 plants.

List of Subjects in 40 CFR Part xxx Environmental Protection, coal combustion pr oducts, coal combus tion residuals, coal combustion waste, beneficial use, disposal, hazardous waste, landfill, surface impoundment.

DRAFT DO NOT CITE OR QUOTE 267 of 324 10/16/0940 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, S ecurity measures, Surety bonds
40 CFR 268 Hazardous waste, Reporting and recordkeeping requirements.
40 CFR 271 Administrative practice and pro cedure, Confidential business in formation, Hazardous materials transportation, Hazardous waste, Indians-lands, In tergovernmental relations, Penalties, Reporting and recordkeeping requirements, Wate r pollution contro l, Water supply.
40 CFR 302 Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

Dated:

_______________________________________ ____________________ Lisa P. Jackson, Administrator

DRAFT DO NOT CITE OR QUOTE 268 of 324 10/16/09APPENDIX to the Preamble: Documented Da mages from CCR Management Practices.

EPA has gathered or received through comme nts on the 1999 Report to Congress and the May 2000 Regulatory Determination, and through allegations, 135 possible damage cases. Six cases involved minefills and, therefore, are outside the scope of toda y’s proposed rule. Sixty-two cases have not been further assessed because there was little or no supporting information to assess the allegations.

Of the remaining 67 cases, EPA determined that 24 were proven damage cases. Sixteen were determined to be proven damage cases to ground water and eight were determined to be proven damages cases to surface water, as a result of elevated levels of contaminants from CCRs. 127 Four of the proven ground water damage cases we re from unlined landfills, five were from unlined surface impoundments, one involved a su rface impoundment for which it is not clear whether the unit was lined, and the remaining 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 potenti al damage cases were attributable to oil combustion wastes, which are outside the scope of this notice. Therefore, we have determined that there were a total of 39 pot ential damage cases attributable to CCRs. (The concern with

127 Of the 16 proven cases of damages to ground water, th e Agency has been able to confirm that corrective action has been completed in seven cases and are ongoing in the remaining nine cases. Corrective action measures at these CCR management units vary depending on site specific ci rcumstances and include formal closure of the unit, capping, re-grading of ash and the installation of liners over the ash, ground water treatment, groundwater monitoring, and combinations of these measures.

DRAFT DO NOT CITE OR QUOTE 269 of 324 10/16/09wastes from the combustion of oil involved unl ined surface impoundments. Prior to the May 2000 Regulatory Determination, th e unlined oil ash impoundments were closed, and thus EPA decided regulatory action to addr ess oil ash was unnecessary.) These cases are discussed in more detail in the document “Coal Combustion Wastes Damage Case Assessments” available in the docket to the 2007 NODA at www.regulations.gov/fdmspublic/component/mai n?main=DocumentDetail&d=EPA-HQ-RCRA2006-0796-0015. Four sites have been listed on EPA’ s National Priorities Li st. The sites, and links to additional information ar e: (1) Chisman Creek, Virginia (http://www.epa.gov/reg3hwmd/npl/VAD980712913.ht m), (2) Salem Acres, Massachusetts (http://yosemite.epa.gov/r1/npl_pad.nsf/f52fa5c31fa8f5c885256adc0050b631/C8A4A5BEC0121 F048525691F0063F6F3?OpenDocument), (3) Lemberger Landfill, Wisconsin (http://www.epa.gov/region5/superfund/npl/w isconsin/WID980901243.htm), and (4) U.S. Department of Energy Oak Ridge Reservation, Tennessee (http://www.epa.gov/region4/waste/npl/npltn/oak ridtn.htm). Another site has undergone remediation under EPA enforcement action: Town of Pines (http://cfpub.epa.gov/supercpad/cu rsites/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 vi olations of state solid waste permits, and 3 to alleged violations of NPDES permits. Upon review of this information, we conclude that 13 of the alleged RCRA violations are ne w, and one of the alleged NPDES violations is new; the other damage cases have previously been submitted to EPA and evaluated. In addition, five new alleged damage cases have been brought to EP A’s attention since Febr uary 2005 (the closure

DRAFT DO NOT CITE OR QUOTE 270 of 324 10/16/09date of damage cases assessed by the NODA’s comp anion documents). For the most part, these cases involve activities that are different from the prior damage cases and the focus of the regulatory determination on groundwater c ontamination from landfills and surface impoundments. Specifically:

o Two of the new alleged cases i nvolve the structural failure of surface impoundments; i.e., dam safety and structural integrity issues, wh ich were not a consider ation at the time of the May 2000 Regulatory Determination. In both cases, there we re Clean Water Act violations.

o One other alleged case involve s the failure of an old disc harge pipe, and is clearly a regulated NPDES permit issue.

o Two other alleged cases involve the use of coal ash in large scale structural fill operations, one of which involves an unlined sand and gravel pit. The Agency is considering whether to regulate this method of disposal as a landfill or whether to address the issue separately as part of its rulema king to address minefilling. EPA is soliciting comments on those alternatives.

The Agency has classified three of the five ne w cases as proven damage cases (BBBS Sand and Gravel Quarries, Martins Creek Power Plant, TVA Kingston Power Plant), one as a potential damage case (Battlefield Golf Course), and the other as not being a damage case under RCRA (TVA Widows Creek). Several of the recently submitted damage cases are discussed briefly below. The following descriptions further illustra te that there are additional risk concerns (dam safety, and fill operations) which EPA did not evaluate when it completed its the May 2000

DRAFT DO NOT CITE OR QUOTE 271 of 324 10/16/09Regulatory Determination, in which EPA pr imarily was concerned with groundwater contamination associated with landfills and surface impoundments and the beneficial use of CCRs. Additional information on these damage cases is included in the docket.

Recent Cases

BBBS Sand and Gravel Quarries - Gambrills, Maryland

On October 1, 2007, the Maryland Department of the Environment (MDE) filed a consent order in Anne Arundel County, Maryland Circuit Court to settle an environmental enforcement action that was taken against the owner of a sand and gravel quarry and the owner of coal fired power plants (defendants) for contamin ation of public drinking water wells in the vicinity of the sand and gravel quarry.

Specifically, beginning in 1995, the defendants used fly ash and bottom ash from two Maryland power plants to fill excavated portions of two sand and gravel quarries. Ground water samples collected in 2006 and 2007 from resi dential drinking water wells near the site indicated that, in certain locations, contaminants, in cluding heavy metals and sulfat es were present at or above ground water quality standards. The Anne Ar undel County, Maryland Department of Health tested private wells in 83 home s and businesses in areas around the disposal site. MCLs 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 a nd 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.

DRAFT DO NOT CITE OR QUOTE 272 of 324 10/16/09sample results may reflect natural minerals in the area. SMCLs were exceeded in 63 wells [aluminum (44), manganese (14), and sulfate (5 )]. MDE concluded that leachate from the placement of CCRs at the site resulted in the discha rge of pollutants to waters of the state. Based on these findings, as well as an MDE consent order, EPA has concluded that the Gambrills site is a proven case of damage to ground water resultin g from the placement of CCRs in unlined sand and gravel quarries.

Under the terms of the consent order, the defend ants are required to pay a fine, remediate the ground water in the area and pr ovide replacement water supplie s for 40 properties. A retail development is now planned for the site with a cap over the fill designed to reduce infiltration and subsequent leaching from the site. An MD E fact sheet on this site is available at www.mde.state.md.us/assets/document/AA_Fly_Ash_QA.pdf.

Battlefield Golf Course - Chesapeake, Virginia

On July 16, 2008, the City of Chesapeake, Virginia sent a letter to the EPA Region III Regional Administrator requesting assistan ce to perform an assessment of the Battlefield Golf Course. The 216 acre site was contoured with 1.5 million t ons 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 Administrativ e 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

DRAFT DO NOT CITE OR QUOTE 273 of 324 10/16/09City of Chesapeake initiated a drinking wa ter 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 wi th 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 elevat ed levels of metals contamin ation were found in these wells, the City of Chesapeake determined that additional assessment work was necessary.

Therefore, in August of 2008, EPA performe d 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 th e 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 wh ere the course levels off to natural soils. No monitoring poi nts were installed through the fly ash area to avoid creating an additional path of contaminant migration.

Samples were collected along the edges and at th e corners of the golf course. Soils from the borings were analyzed, as well as ground water fr om these points. For the ground water samples around the site, the highest ar senic level (downgradient fr om the golf course) was 19.8 micrograms/liter ( μ g/L); this levels exceeds EPA’s dr inking water MCL of 10 ug/L, although this monitoring point is not a dr inking water well. The highest lead level in the ground water samples collected from around the site ( downgradient from the golf course) was 28.3 μ g/L in one

DRAFT DO NOT CITE OR QUOTE 274 of 324 10/16/09of the monitoring points which is ab ove the action level for lead of 15 μ g/L 129 . A total of 70 residential wells were also samp led. Four samples had concentra tions of lead greater than the federal action level; however, it is unknown whethe r 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 we ll samples was higher than in the downgradient wells (with the excep tion 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, wh ich is not a regulated drinking water contaminant, in we lls on or around the site was 52.5 μ g/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 c onducted 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; ho wever, the natural levels of both manganese and iron in the area’s shallow aqui fer 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 co ntrol 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 μ g/L, and for lead is 15 μ g/L.

130 “Final Trip Report for the Battlefield Golf Fly Ash A ssessment, City of Chesapeake, Virginia,” December 11,
2008.

DRAFT DO NOT CITE OR QUOTE 275 of 324 10/16/09mg/L respectively), and thus, it could not be ruled out that the elevated levels of manganese and iron are a result of the natural backgr ound 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 wate r and surface water sampling are available at http://cityofchesapeake.net/services/citize n_info/battlefieldgolf club/index.shtml.

In summary, sampling conducted to date does no t indicate levels of contamination above drinking water standards in th e 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 cont aminants found in fly ash at this site. In addition, there ar e exceedances of secondary drinki ng water standards in both on-site and off-site ground water, and elevat ed 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 indicat e that the CCR constituents had migrated to the extent that they could cause human health con cerns, EPA has categorized the Battlefield Golf Club site as a potential damage case.

Martins Creek Power Plant – Martins Creek, Pennsylvania

DRAFT DO NOT CITE OR QUOTE 276 of 324 10/16/09In August 2005, a dam confining a 40 acre CCR surface impoundment in eastern Pennsylvania failed. The dam failure, a violati on of the State’s solid waste disposal permit, resulted in the discharge of 100 million gallons of coal-ash and contaminated water into the Oughoughton Creek and the Delaware River.

Ground-water monitoring results from appr oximately 20 on-site monitoring wells found selenium concentrations exceeding Pennsylvani a’s Statewide Health Standards and Federal primary drinking water standards. There was also one exceedance of the primary MCL for chromium and two exceedances of the secondary MCL for iron.

Surface water samples were also taken from a number of locations along the Delaware River upstream and downstream of the spill. Sampli ng began soon after the spill in August 2005 and continued through November 2005. Several samp les exceeded the Federal Water Quality Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see www.epa.gov/waterscience/criteria/wqctable/index.ht ml). Four samples also exceeded the WQC for arsenic – three of which were taken near the ou tfall to the river. Lead , nickel and zinc were also detected above the WQC in samples taken near the outfall to the river. Sampling results are available from the Pennsylvania Department of Environmental Pr otection (PADEP) at www.depweb.state.pa.us/northeastro/cwp/ view.asp?a=1226&q=478264&northeastroNav=|

DRAFT DO NOT CITE OR QUOTE 277 of 324 10/16/09As a result of the exceedances of primary and secondary MCLs in on-site ground water, and exceedances of federal water quality criteria in off-site surface water, in addition to a PADEP consent order for clean up, the Agency consid ers this site to be a proven damage case.

TVA Kingston – Harriman, Tennessee

On December 22, 2008, a failure of the northeastern dike used to contain fly ash occurred at the dewatering area of the Tennessee Valley Auth ority’s (TVA’s) Kingston Fossil Plant in Harriman, Tennessee. Subsequently, approximately 5.4 million cubic yards of fly ash sludge was released over an approximately 300 acre area a nd into a branch of the Emory River. The ash slide disrupted power, ruptured a gas line, knocked one home off its foundation and damaged others. The state-issued NPDES permit require s that TVA properly operate and maintain all facilities and systems for collecti on and treatment, and expressly pr ohibits overflows of wastes to land or water from any portion of the collecti on, transmission, or treatment system other than through permitted outfalls. Therefore, the release was a violation of the NPDES permit. A rootcause analysis report developed for TVA, accessible at http://www.tva.gov/kingston/rca/index.htm, estab lished that the dike failed because it was expanded by successive vertical additions, to a po int where a thin, weak layer of fly ash (‘slime’) on which it had been founded, failed by sliding. Additional information on the TVA Kingston incident is available at www. epa.gov/region4/kingston/index.html and www.tva.gov/kingston/.

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 10/16/09advice to TVA, and conducted independent water sampling and air monitoring to evaluate public health and environmental threats.

Following the incident, EPA sampled the coal ash a nd residential soil to determine if the release posed an immediate threat to human health. Sa mpling results for the contaminated residential soil showed arsenic, cobalt, iron, and thalliu m levels above the re sidential Superfund soil screening levels. 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 reside ntial soil results were be low the Residential RAL.

Shortly after the release, sample s 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 observe d again after a heavy rainfall. In early January 2009, the Tennessee Wildlife Resour ces Agency (TWRA) issued a fish advisory stating that until further notice, fishing should be avoided in the lower section of the Emory

131 Soil screening levels (SSLs) for contaminants in soil ar e used to identify sites needing further investigation. SSLs alone do not trigger the need for a response action or define “unacceptable” levels of contaminants in soil. Generally, at sites where contaminant concentrations fall below the SSLs, no further action or study is warranted under CERCLA. However, where contaminant concentr ations equal or exceed the SSLs, further study or investigation, but not necessa rily cleanup, is warranted.

132 RALs are used to trigge r time-critical removal actions.

DRAFT DO NOT CITE OR QUOTE 279 of 324 10/16/09River. TWRA plans to resample fish tissu e on a semiannual basis and expects that the assessment of the impact of this release on wild life resources and habitat will require repeated sampling and evaluation over the next three to five years.

Constituent concentrations measured in drinki ng water on December 23, 2008, near the intake of the Kingston Water Treatment Plant, located down stream of the release, were below federal MCLs for drinking water, with the exception of elevated thallium levels. Subsequent EPA testing on December 30, 2008, of samples at the same intake found that concentration levels for thallium had fallen below the MCL. Subsequent testing of treated drinking water from the Kingston Water Treatment Plant showed that the drinking water from the treatment plant met all federal drinking water standards.

Additionally, EPA and TDEC identif ied and sampled potentially impacted private wells that are used as a source for drinking water. More than 100 wells have been tested to date and all have met drinking water standards.

To address potential risks from windblow n ash, TVA, under EPA oversight, began air monitoring for coarse and fine particles. EPA also conducted independent monitoring to validate TVA’s findings. To date, all of the more than 25,000 air samples from this area have measured levels below the NAAQS for particulates.

DRAFT DO NOT CITE OR QUOTE 280 of 324 10/16/09On January 12, 2009, TDEC issued an order to TVA to, among other things, continue to implement measures to prevent the movement of c ontaminated materials into waters of the state and, where feasible, minimize further down-stre am migration of contaminated sediments. Than on May 11, 2009, TVA agreed to clean up more than 5 million tons of coal ash spilled from its Kingston Fossil Fuel Plant under an ad ministrative order and ag reement on consent. TVA and EPA entered into the agreement under CERCLA. The order requires TVA to perform a thorough cleanup of coal ash from the Em ory River and surrounding areas and EPA will oversee the removal. Based on the consent order, EPA has identified this site as a proven damage case.

TVA Widows Creek – Stevenson, Alabama

On Friday, January 9, 2009, a cap in an unused discharge pipe became dislodged, resulting in a discharge from an FGD pond at a Tennessee Valley Authority (T VA) coal-burning power plant in Stevenson, Alabama. FGD is a residual of a process that reduces su lfur dioxide emissions from coal-fired boilers An unknown quantity of FGD material containing water and a mixture of predominantly gypsum and some fly ash, wa s released from the pond into Widows Creek which flows into the Tennessee River. Info rmation on the TVA Widows Creek incident is available at www.epa.gov/re gion4/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. EP A has also collected surface water samples

DRAFT DO NOT CITE OR QUOTE 281 of 324 10/16/09from both Widows Creek and the Tennessee River to determine if there have been any environmental impacts. Samples have also be en taken from the FGD pond to characterize the material that was released into the creek fully. The drinking water intake for Scottsboro, Alabama, about 20 miles downstream, has also been sampled.

EPA Region 4 has received final results of its independent environmental sampling activities for the TVA Widows Creek Fossil Plant FGD pond releas e. Specifically, the concentrations of metals, solids and nutrients detected in samp les drawn from the drinking water intake for Scottsboro, Alabama, along with samples collec ted from two locations in Widows Creek and three other locations in the Tennessee River, are all below national primary drinking water standards and/or other health-bas ed levels. The pH of all these samples also fell within the standard range and no oil or grease was detected in any of the samples.

Four waste samples and one water sample colle cted from the bank along the ditch connecting TVA’s permitted discharge outfall and the Tennessee River, and from TVA’s permitted discharge outfall showed elevated pH and elevated concen trations of metals, nutrients, and suspended and dissolved solids. However, b ecause samples drawn downstream at the drinking water intake and from locations where individuals would likely come into contact with the water were below the primary drinking water standards, EPA does not expect the release to pose a threat to the public. Therefore, EPA has not cl assified the TVA Widows Creek fly ash release as a damage case.

Summary

DRAFT DO NOT CITE OR QUOTE 282 of 324 10/16/09In summary, as discussed above, the Agency has documented evidence of proven damages to ground water or surface water in 27 cases 133 - 17 cases of damage to ground water, and ten cases of damage to surface water, including ecological damages in seven of the ten. Sixteen of the 17 proven damages to ground water involved disposal in unlined units (f or the remaining unit, it is unclear whether a liner was presen t). We have also identified 40 cases of potential damage to ground water or surface water. 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 struct ural failure of CCR surface impoundments. These cases all support a conclusion that additional fe deral oversight associated with regulation under Subtitle C is warranted.

133 The 24 cases identified in the Damage Cases Assessm ent 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.

DRAFT DO NOT CITE OR QUOTE 283 of 324 10/16/09For 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 LI STING 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 pa ragraph (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 provid es a functional benefit; replaces the use of an alternative material, conserving natural resources that would otherwise need to be obtained through practices such as extraction; and meets re levant product specifi cations and regulatory standards (where these are available). CCPs that are used in excess quanti ties, placed as fill in sand and gravel pits, or used in large scale fill pr ojects, such as for restructuring the landscape, are not considered beneficial uses.

DRAFT DO NOT CITE OR QUOTE 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 fo ssil fuels other than coal, for the purpose of generating electricity, ex cept as provided by § 266.112 of this ch apter 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 alpha numeric order (by firs t 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 ge nerated by the electric power sector (Electric Utilitie s and Independent Power Producers).

* * * * * *

* (T)

*

DRAFT DO NOT CITE OR QUOTE 285 of 324 10/16/09(e) For the purposes of this list ing, the electric power sector is defined as electricity-only and combined-heat-and-power (CHP) plants whose pr imary business is to sell electricity, or electricity and heat, to the pub lic; i.e., NAICS code 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 opeara tions, (4) generated by facilities outside the electric power sector, or (5) ge nerated from clean-up activities th at are conducted as part of a state or federally required clean-up that commen ced 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 combus tion 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 10/16/09K179 ..........

* 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 requi rements of this part, except as specifically provided othe rwise in this part. In addi tion, subpart FF of this part includes additional requirements for the treatment, storage or disposal of EPA Hazardous Waste Number K179.
* * * * *

7. Section 264.140 is amended by revising paragraph (a) to read as follows:

DRAFT DO NOT CITE OR QUOTE 287 of 324 10/16/09§ 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 Requi rements 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 th at appear throughout th is subpart; additional definitions appear in 40 CFR 260.10 or the specific sections to which they apply. Area-capacity curves means graphic curves which readily 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 th e water contained in th e reservoir at various elevations. Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, destined for disposal . CCRs are also known as coal combustion wastes

DRAFT DO NOT CITE OR QUOTE 288 of 324 10/16/09(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 pu rposes of this proposed rule, landfills also include piles, sand and gravel mi nes, 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 pl acement of CCRs with the presen ce of free liquids, and which is not an injection well. Examples of surface impoundments are holding, st orage, settling, and aeration pits, ponds, and lagoons. CCR surface im poundments receive CCRs that have been sluiced (flushed or mixed with water to facil itate movement), or wast es 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 wh ich are applicable to such landfill. A CCR landfill has commenced construction if: (1) The owner or operator has obtained the Federa l, 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 in to contractual obligations—which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time. Existing CCR Surface Impoundment means a surface impoundment which was in operation or for which construction commenced prior to pr omulgation of federal management standards

DRAFT DO NOT CITE OR QUOTE 289 of 324 10/16/09which are applicable to such surface impoundment. A CCR surface impoundment has commenced construction if: (1) The owner or operator has obtained the Federa l, 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 in to contractual obligations—which can not be cancelled or modified without substant ial loss—for physical construction of the CCR surface impoundment to be comple ted within a reasonable time. Factor of safety (Safety factor) means the ratio of the forces te nding to resist the failure of a structure to the forces tending to cause such failure as determined by accepted engineering practice. Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or CCR surface impoundment made afte r the effective date of the final rule. New CCR landfill means a landfill, including lateral expansions, or installation from which there is or may be placement of CCRs without the pr esence of free liquids, which began operation, or for which the construction commenced after the da te on which the federal management standards which are applicable to such landfill become effe ctive in the state where the landfill is located. New CCR surface impoundment means a surface impoundment, incl uding lateral expansion, or installation from which there is or may be placem ent of CCRs with the presence of free liquids, which began operation, or for which the constr uction commenced after the date on which the federal management standards which are applic able to such surface impoundment become effective in the state where the landfill is located.

DRAFT DO NOT CITE OR QUOTE 290 of 324 10/16/09Probable maximum precipitation means the value for a particular area which represents an envelopment of depth-duration-ar ea rainfall relations for all st orm types affecting that area adjusted meteorologically to maximum conditions.

§ 264.1303 Reporting (a) Except as provided in paragra ph (b) of this section, every twelfth month fo llowing the date of the initial plan approval required in § 264.1304 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 repo rt containing the following information: (1) Changes in the geometry of the CCR surface impoundment for the reporting period. (2) Location and type of insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period. (3) The minimum, maximum, and present depth and elevation of the CCR slurry and CCR waste water in the CCR surface impound ment for the reporting period. (4) The storage capacity of the CCR surface impoundment. (5) The volume of the CCR slurry and CCR wast e water in the CCR surface impoundment at the end of the reporting period. (6) Any other change which may have affected the stability or operation of the CCR surface impoundment that has occurred during the reporting period. (7) A certification by a register ed professional engineer that all construction, operation, and maintenance are in accordance with the approved plan. (b) A report is not required under this secti on when the person owning or operating the CCR surface impoundment provides the Regional Administ rator with a certifi cation by a registered

DRAFT DO NOT CITE OR QUOTE 291 of 324 10/16/09professional 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 se ction shall be submitted to the Regional Administrator at least every 5 years.

§ 264.1304 Surface Impoundments. (a) In addition to the requiremen ts in subpart K of this part, EPA Hazardous Waste No. K179 is subject to the requireme nts in this section. (b) Plans for the design, construction, and maintenance of existing CCR surface impoundments shall be required if such a unit can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or (2) Impound CCRs to an elevation of 20 feet or mo re above the upstream toe of the structure. (c) Plans required under paragraph (b) of this section shall be submitte d in triplicate to the Regional Administrator on or before [ insert date one year after th e effective date of the final
rule ]. (d) A permanent identification marker, at leas t six feet high and show ing the identification number of the CCR surface impoundment as assigned by the Regional Administrator, the name associated with the CCR surface impoundment and the name of the person owning or operating the structure, shall be located on or immediat ely adjacent to each CCR surface impoundment by [ insert date 60 days after the effective date of the final rule ]. (e) The plan specified in paragr aph (b) of this section, shall c ontain at a minimum the following information:

DRAFT DO NOT CITE OR QUOTE 292 of 324 10/16/09(1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment as assigned by the Regional Administrator. (2) The location of the CCR surface impoundme nt indicated on the most recent USGS 71/2minute or 15 minute topographi c quadrangle map, or a topographi c map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment. (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site preparation and construction of each zone of the CCR surface impoundment; the approximate dates of construction, and each successive st age of construction of the CCR surface impoundment; and for existing CCR surface impoundments, such history of construction as may be available, and any record or knowledge of structural instability. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensional drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level or CCR waste water level, and other information pertinent to the CCR surface

DRAFT DO NOT CITE OR QUOTE 293 of 324 10/16/09impoundment itself, including any id entifiable natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) A statement of the runoff attributable to the probable ma ximum 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 minimu m factor of the safety range for the slope stability of the CCR surface (14) Provisions for surveillance, maintena nce, and repair of the CCR surface impoundment. (15) General provisions for closure (16) Such other information pertaining to th e stability of the CCR surface impoundment which may be requested by the Regional Administrator. (17) A certification by a register ed professional engineer that the design of the CCR surface impoundment is in accordance with current, prud ent 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 re port indicating what additional investigations, analyses, or improvement work are necessary be fore 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.

DRAFT DO NOT CITE OR QUOTE 294 of 324 10/16/09(f) Any changes or modifications to the plan s for CCR surface impoundments shall be approved by the Regional Administrator prior to the in itiation of such changes or modifications. (g) Effective [ insert date two years after the effective date of the final rule ], all existing CCR surface impoundments that receive CCRs sha ll be operated and maintained with: (1) A run-on control system to prevent fl ow onto the active portion of the CCR surface impoundment during the peak discharg e from a 24-hour, 25-year storm; (2) A run-off control system from the active portion of the CCR surface impoundment to collect and control at least the water volume resulting from a 24-hour, 25-ye ar storm. Run-off from the active portion of the CCR surface impoundment mu st be handled in accordance with § 264.1308 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 § 2 64.1304(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 w eakness and other hazardous conditions. (2) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, all instruments shall be monitored. (3) Longer inspection or monitori ng intervals approved under this pa ragraph shall be justified by the owner or operator of the CCR surface im poundment based on the hazard potential and performance of the CCR surface impoundment, and shall include a requir ement for inspection immediately after a specified rain event approved by the Regional Administrator.

DRAFT DO NOT CITE OR QUOTE 295 of 324 10/16/09(4) All inspections required by this paragraph shall be performed by a qualified person, as defined in paragraph (g) of this section, de signated by the person owning or operating the CCR surface impoundment. (b) When a potentially hazardous condition de velops, the person owning or operating the CCR surface impoundment shall immediately: (1) Take action to eliminate th e potentially hazardous condition; (2) Notify the Regional Administrator; (3) Notify and prepare to evacuate, if necessa ry, all personnel from th e owner or operator’s property which may be affected by th e potentially hazardous conditions; and (4) Direct a qualified person to monitor all instruments and examine the structure at least once every eight hours, or more ofte n as required by an authorized representative of the Regional Administrator. (c) After each inspection and instrumentation mon itoring referred to in para graphs (a) and (b) of this section, each qualified person who conducte d all or any part of the inspection or instrumentation monitoring shall promptly r ecord the results of such inspection or instrumentation monitoring in a book which shal l be available in th e operating record for inspection by an authorized representative of the Regional Administrator and such qualified person shall also promptly report th e results of the inspec tion or monitoring to one of the persons specified in paragraph (d) of this section. (d) All inspection and instrumentation monitoring reports recorded in accordance with paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be promptly signed or countersigned by th e person designated by the owner or operator as responsible for health and safety at the owner or operator’s facility.

DRAFT DO NOT CITE OR QUOTE 296 of 324 10/16/09(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 pa ragraphs (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 inspect ing 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 th e 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 sect ion, 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 ot her hazardous conditions by visual observation and, if applicable, to monitor instrumentation.

§ 264.1306 Requirements for Surface Impoundment Closure.

DRAFT DO NOT CITE OR QUOTE 297 of 324 10/16/09(a) Prior to the closure of any CCR surface im poundment which meets the requirements of § 264.1304(b) of this subpart, th e person owning or operating such CCR surface impoundment shall submit to and obtain approval from the Regi onal 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, cont ain provisions to preclude the probability of future impoundment of CCR slurry.

§ 264.1307 Landfills. (a) Owners or operators of CCR landfills ar e 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 require ments 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 pa ragraph (b)(2) of this section, and a leachate collection and removal system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. (2) For purposes of this subpart, composite line r means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component.

DRAFT DO NOT CITE OR QUOTE 298 of 324 10/16/09(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 Ac t, 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.

DRAFT DO NOT CITE OR QUOTE 299 of 324 10/16/09(a) CCR surface impoundments and CCR landfills must be managed in a manner that does not violate any applicable requirements develope d under a State Implementation Plan (SIP) approved or promulgated by the Administrator purs uant 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 me ans wetting CCRs with water to a moisture content that will prevent wind dispersa l, but will not result in free liquids. (e) Tanks, containers, buildings an d 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 vehicl es must be covered or otherwise managed to control the wind dispersal of dust.

PART 265 - INTERIM STATUS STANDARD S FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STO RAGE, AND DISPOSAL FACILITIES

9. The authority citation for part 26 5 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 pa ragraph (g) to read as follows:

§ 265.1 Purpose, scope, and applicability.

DRAFT DO NOT CITE OR QUOTE 300 of 324 10/16/09* * * * * (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 requi rements of this part, except as specifically provided ot herwise in this part. In a ddition, subpart FF of this part includes additional requirements for the treatmen t storage or disposal of EPA Hazardous Waste
No. K 179. * * * * *

11. Section 265.140 is amended by revising pa ragraph (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 Requi rements 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.

DRAFT DO NOT CITE OR QUOTE 301 of 324 10/16/09§ 265.1302 Definitions. This section contains definitions for terms th at appear throughout th is subpart; additional definitions appear in 40 CFR 260.10 or the specific sections to which they apply. Area-capacity curves means graphic curves which readily sh ow the reservoir water surface area, in acres, at different elevations from the bottom of the reservoir to the maximum water surface, and the capacity or volume, in acre-feet, of th e water contained in th e reservoir at various elevations. Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, destined for disposal . CCRs are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes , when destined for disposal, and as coal combustion products (CCPs) when beneficially used. CCR Landfill means an engineered area where waste; e.g., coal combustion residuals, are placed into or on the land without the presence of free liquids. For pu rposes of this proposed rule, landfills also include piles, sand and gravel mi nes, 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 pl acement of CCRs with the presen ce of free liquids, and which is not an injection well. Examples of surface impoundments are holding, st orage, settling, and aeration pits, ponds, and lagoons. CCR surface im poundments receive CCRs that have been sluiced (flushed or mixed with water to facil itate movement), or wast es from wet air pollution control devices.

DRAFT DO NOT CITE OR QUOTE 302 of 324 10/16/09Existing CCR Landfill means a landfill which was in operation or for which construction commenced prior to promulgation of the federal management standards wh ich are applicable to such landfill. A CCR landfill has commenced construction if: (1) The owner or operator has obtained the Federa l, 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 in to contractual obligations—which cannot be cancelled or modified without substantial loss—for physic al construction of the CCR landfill to be completed within a reasonable time. Existing CCR Surface Impoundment means a surface impoundment which was in operation or for which construction commenced prior to pr omulgation 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 Federa l, 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 in to contractual obligations—which can not be cancelled or modified without substant ial loss—for physical construction of the CCR surface impoundment to be comple ted within a reasonable time. Factor of safety (Safety factor) means the ratio of the forces te nding to resist the failure of a structure to the forces tending to cause such failure as determined by accepted engineering practice.

DRAFT DO NOT CITE OR QUOTE 303 of 324 10/16/09Lateral expansion means a horizontal expansion of th e waste boundaries of an existing CCR landfill, or CCR surface impoundment made afte r the effective date of the final rule. New CCR landfill means a landfill, including lateral expansions, or installation from which there is or may be placement of CCRs without the pr esence of free liquids, which began operation, or for which the construction commenced after the da te on which the federal management standards which are applicable to such landfill become effe ctive in the state where the landfill is located. New CCR surface impoundment means a surface impoundment, incl uding lateral expansion, or installation from which there is or may be placem ent of CCRs with the presence of free liquids, which began operation, or for which the constr uction 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-ar ea rainfall relations for all st orm types affecting that area adjusted meteorologically to maximum conditions

§ 265.1303 Reporting

. (a) Except as provided in paragra ph (b) of this section, every twelfth month fo llowing the date of the initial plan approval required in § 265.1304 of this subpart, the person owning or operating a CCR surface impoundment that has not been aba ndoned 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 insta lled instruments and the maximum and minimum recorded readings of each instrument for the reporting period.

DRAFT DO NOT CITE OR QUOTE 304 of 324 10/16/09(3) The minimum, maximum, and present depth and elevation of the CCR slurry and CCR waste water in the CCR surface impound ment for the reporting period. (4) The storage capacity of the CCR surface impoundment. (5) The volume of the CCR slurry and CCR wast e water in the CCR surface impoundment at the end of the reporting period. (6) Any other change which may have affected the stability or operation of the CCR surface impoundment that has occurred during the reporting period. (7) A certification by a register ed professional engineer that all construction, operation, and maintenance are in accordance with the approved plan. (b) A report is not required under this secti on when the person owning or operating the CCR surface impoundment provides the Regional Administ rator with a certifi cation 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 se ction shall be submitted to the Regional Administrator at least every 5 years.

§ 265.1304 Surface Impoundments. (a) In addition to the requiremen ts in subpart K of this part, EPA Hazardous Waste No. K179 is subject to the requireme nts in this section. (b) Plans for the design, construction, and maintenance of existing CCR surface impoundments shall be required if such a unit can: (1) Impound CCRs to an elevation of five feet or more above the upstream toe of the structure and can have a storage volume of 20 acre-feet or more; or

DRAFT DO NOT CITE OR QUOTE 305 of 324 10/16/09(2) Impound CCRs to an elevation of 20 feet or mo re above the upstream toe of the structure. (c) Plans required under paragraph (b) of this section shall be submitte d in triplicate to the Regional Administrator on or before [ insert date one year after th e effective date of the final
rule ]. (d) A marker, at least six feet high and show ing the identification number of the CCR surface impoundment as assigned by the Regional Administ rator, the name associated with the CCR surface impoundment and the name of the person owning or operating the structure, shall be located on or immediately adjacent to each CCR surface impoundment permanent identification by [ insert date 60 days after the e ffective date of the final rule ]. (e) The plan specified in paragr aph (b) of this section, shall c ontain at a minimum the following information: (1) The name and address of the persons ow ning or operating the CCR surface impoundment; the name associated with the CCR surface impoundme nt; and the identification number of the CCR surface impoundment as assigned by the Regional Administrator. (2) The location of the CCR surface impoundment indicated on the most recent USGS 71/2minute or 15 minute topographi c quadrangle map, or a topographi c map of equivalent scale if a USGS map is not available. (3) A statement of the purpose for which the CCR surface impoundment is being used. (4) The name and size in acres of the wa tershed affecting the CCR surface impoundment. (5) A description of the physical and engineerin g properties of the foundation materials on which the CCR surface impoundment is constructed. (6) A statement of the type, size, range, and physical and engineer ing properties of the materials used in constructing each zone or stage of the CCR surface impoundment; the method of site

DRAFT DO NOT CITE OR QUOTE 306 of 324 10/16/09preparation and construction of each zone of the CCR surface impoundment; the approximate dates of construction, and each successive st age of construction of the CCR surface impoundment; and for existing CCR surface impoundments, such history of construction as may be available, and any record or knowledge of structural instability. (7) At a scale not to exceed 1 inch = 100 feet, detailed dimensional drawings of the CCR surface impoundment, including a plan view and cross sections of the lengt h and width of the CCR surface impoundment, showing all zones, founda tion improvements, drainage provisions, spillways, diversion ditches, outlets, instrument locations, and slope protection, in addition to the measurement of the minimum vertical dist ance between the crest of the CCR surface impoundment and the reservoir surface at pres ent and under design stor m conditions, CCR slurry level or CCR waste water level, and other information pertinent to the CCR surface impoundment itself, including any id entifiable natural or manmade features which could affect operation of the CCR surface impoundment. (8) A description of the type and purpose of existing or proposed instrumentation. (9) Graphs showing area-capacity curves. (10) A statement of the runoff attributable to the probable ma ximum 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 an d calculations used to determine each factor of safety.

DRAFT DO NOT CITE OR QUOTE 307 of 324 10/16/09(14) Provisions for surveillance, maintenan ce, and repair of the CCR surface impoundment. (15) General provisions for closure. (16) Such other information pertaining to th e stability of the CCR surface impoundment which may be requested by the Regional Administrator. (17) A certification by a register ed professional engineer that the design of the CCR surface impoundment is in accordance with current, prud ent 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 re port indicating what additional investigations, analyses, or improvement work are necessary be fore 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 plan s for CCR surface impoundments shall be approved by the Regional Administrator prior to the in itiation of such changes or modifications. (g) Effective [ insert date two years after the effective date of the final rule ], all existing surface impoundments that receive CCRs sha ll be operated and maintained with: (1) A run-on control system to prevent fl ow onto the active portion of the CCR surface impoundment during the peak discharg e from a 24-hour, 25-year storm; (2) A run-off control system from the active portion of the CCR surface impoundment to collect and control at least the water volume resulting from a 24-hour, 25-ye ar storm. Run-off from the active portion of the CCR surface impoundment mu st be handled in accordance with § 265.1308 of this subpart.

DRAFT DO NOT CITE OR QUOTE 308 of 324 10/16/09§ 265.1305 Inspection Requirements for Surface Impoundments. (a) In addition to the inspec tion requirements in § 265.226, all CCR surface impoundments that meet the requirements of § 265.1305(b) of this subpart shall be insp ected by the owner or operator as follows: (1) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, for appearances of structural w eakness and other hazardous conditions. (2) At intervals not exceeding 7 days, or as otherwise approved by the Regional Administrator, all instruments shall be monitored. (3) Longer inspection or monitori ng intervals approved under this pa ragraph shall be justified by the owner or operator of the CCR surface im poundment based on the hazard potential and performance of the CCR surface impoundment, and shall include a requir ement for inspection immediately after a specified 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, de signated by the person owning or operating the CCR surface impoundment. (b) When a potentially hazardous condition de velops, the person owning or operating the CCR surface impoundment shall immediately: (1) Take action to eliminate th e potentially hazardous condition; (2) Notify the Regional Administrator; (3) Notify and prepare to evacuate, if necessa ry, all personnel from th e owner or operator’s property which may be affected by th e potentially hazardous conditions; and

DRAFT DO NOT CITE OR QUOTE 309 of 324 10/16/09(4) Direct a qualified person to monitor all instruments and examine the structure at least once every eight hours, or more ofte n as required by an authorized representative of the Regional Administrator. (c) After each inspection and instrumentation mon itoring referred to in para graphs (a) and (b) of this section, each qualified person who conducte d all or any part of the inspection or instrumentation monitoring shall promptly r ecord the results of such inspection or instrumentation monitoring in a book which shal l be available in th e operating record for inspection by an authorized representative of the Regional Administrator and such qualified person shall also promptly report th e results of the inspec tion or monitoring to one of the persons specified in paragraph (d) of this section. (d) All inspection and instrumentation monitoring reports recorded in accordance with paragraph (c) of this section shall include a report of the action taken to abate hazardous conditions and shall be promptly signed or countersigned by th e person designated by the owner or operator as responsible for health and safety at the owner or operator’s facility. (e) 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 pa ragraphs (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 inspect ing 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;

DRAFT DO NOT CITE OR QUOTE 310 of 324 10/16/09(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 th e 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 sect ion, 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 ot her 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 im poundment which meets the requirements of § 265.1304(b) of this subpart, th e person owning or operating such CCR surface impoundment shall submit to and obtain approval from the Regi onal 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, cont ain provisions to preclude the probability of future impoundment of CCR slurry.

§ 265.1308 Landfills. (a) Owners or operators of CCR landfills ar e exempt from the double liner and leachate collection and removal system re quirements of § 265.301(c) of this part, and the requirements of

DRAFT DO NOT CITE OR QUOTE 311 of 324 10/16/09§ 265.302 of this part, provided the owner or operato r 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 pa ragraph (b)(2) of this section, and a leachate collection and removal system that is designed and constructed to maintain less than a 30-cm depth of leachate over the liner. (2) For purposes of this subpart, composite line r means a system consisting of two components; the upper component must consist of a minimum 30- mil flexible membrane liner (FML), and the lower component must consist of at least a two- foot layer of compacted soil with a hydraulic conductivity of no more than 1×10 − 7 cm/sec. FML components consisting of high density polyethylene (HDPE) shall be at least 60-mil th ick. The FML component must be installed in direct and uniform contact with the compacted soil component. (3) For purpose of this subpart, hydraulic conductivity means the rate at which water can move through a permeable medium. (i.e., 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.

DRAFT DO NOT CITE OR QUOTE 312 of 324 10/16/09§ 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 Ac t, 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 develope d under a State Implementation Plan (SIP) approved or promulgated by the Administrator purs uant 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 me ans wetting CCRs with water to a moisture content that will prevent wind dispersa l, but will not result in free liquids. (e) Tanks, containers, buildings an d pads used for the storage must be managed to control the dispersal of dust. Pads must have wind protection.

DRAFT DO NOT CITE OR QUOTE 313 of 324 10/16/09(f) CCRs transported in trucks or other vehicl es must be covered or otherwise managed to control the wind dispersal of dust.

PART 268 - LAND DISPOSAL RESTRICTIONS 13. The authority citation for part 26 8 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 th an 1% by weight total organic carbon (TOC) and less than 1% by weight total su spended solids (TSS), except for co al combustion residues, [waste code K179], which are wastewaters if the moisture content exceeds 50%.

§ 268.14 Surface impoundment exemptions. * * * * *

DRAFT DO NOT CITE OR QUOTE 314 of 324 10/16/09(d) The waste specified in 40 CFR Part 261 as EPA Hazardous Waste Number K179 may continue to be placed in an existing CCR surf ace impoundment in accordance with paragraphs (b) and (c) of this subpart for 60 months afte r 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 ch apter 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 exis ting 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 st andards specified in subpart D of this Part; (2) Persons have been granted an exemption from a prohibition pursuant to a petition under § 268.6, with respect to those wastes and units covered by the petition; (3) The wastes meet the applicable treatment st andards established pursuant to a petition granted under § 268.44; (4) Persons have been granted an extension to the effective date of a prohibition pursuant to § 268.5, with respect to these wa stes covered by the extension.

DRAFT DO NOT CITE OR QUOTE 315 of 324 10/16/0915. 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 subcategory 1 Common

name CAS 2 number Concentration in mg/L 3 , or technology code 4 Concentration in mg/kg 5 unless noted as ‘‘mg/L TCLP’’, or technology code

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 10/16/09is defined as electricity-only andcombined-heat-andpower (CHP) plants whose primary business is to sell electricity, or electricity and heat, to the public; i.e., NAICS code 221112 plants. For the purposes of this listing, coal combustion wastes are defined as fly ash, bottom ash, boiler slag, 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 10/16/09does 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.

* * * * *

DRAFT DO NOT CITE OR QUOTE 318 of 324 10/16/0916. In § 268.42, the Table of Technology Codes and Description of Technology-Based Standards is amended by adding in alphanumeric order th e new technology codes and description of the technology-based standards for K179 to read as follows:

§ 268.42 Treatment standards expresse d as specified technologies. * * * * *

Table 1—Technology Codes and Descrip tion of Technology-Based Standards Technology code Description of technology-based standards
RSLDS: Removal of solids and meet § 268.48 treatment levels.

PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS

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 foll owing entries to Table 1 and Table 2 in chronological order by date of publication to read as follows.

§ 271.1 Purpose and scope. * * * * *

DRAFT DO NOT CITE OR QUOTE 319 of 324 10/16/09(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTI NG THE HAZARDOUS AND SOLID WASTE
AMENDMENTS OF 1984 Promulgation date Title of regulation Federal Register reference Effective date
* * [insert date of signature of final rule]
* * * * Listing of Hazardous
Waste K179

* * * * [insert federal register page numbers for final rule]

* * * [insert effective date of final rule]

*

TABLE 2.—SELF-IMPLEMENTING PROVI SIONS OF THE SOLID WASTE
AMENDMENTS OF 1984 Effective date Self-implementing provision RCRA citation Federal Register reference
* *

[insert effective date of final rule] * * * * *

Prohibition on land disposal of 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 30 2 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 SUBS TANCES AND REPORTABLE QUANTITIES [Note: All comments/notes are located at the end of this table]

DRAFT DO NOT CITE OR QUOTE 321 of 324 10/16/09Hazardous substance CASRN Statutory code† RCRA
waste No. Final RQ pounds (Kg)
*
K179 f

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

DRAFT DO NOT CITE OR QUOTE 322 of 324 10/16/09K169................................ 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

DRAFT DO NOT CITE OR QUOTE 323 of 324 10/16/091,2,3,4,7,8-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

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