### Memorandum

From: Steve Souders

U.S. EPA

To: RCRA Docket ID No. EPA

- HQ

- RCRA

- 2008

- 0640

Date: December 17, 2014

Re: Proposed Rule Comments Outline

The U.S. Environmental Protection Agency utilized a contractor to assist in summarizing

comments on the June 21, 2010 proposed rule for the disposal of coal combustion residuals from

electric utilities . The contractor downloaded all the comments into a database and summarized

the comments using proprietary software called CommentWorks. The comments were

summarized by the issues listed in the attached outline. Using these comment summaries t he

Agency has developed seventeen volumes of comment s ummaries on major topics covered in the

proposed rule (see table below) and the Agency’s responses to those comments, as well as a

separate volume summarizing comments provided during public hearings.

Volume Topic

1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional

Engineer/Recordkeeping, State Submissions, Posting to the

Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site

Disposal/Definitions

4 Location Restrictions

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Ins pections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

### Volume Topic

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG.

12 Beneficial Use

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program

Attachment: CommentWorks OutlineCommentWorks Outline

Issue
Number Issue Text

1 General Comments

1.1 General support for regulating CCRs (without specifying any proposed or alternative regulatory option)

1.2 General opposition to regulating CCRs (without specifying any proposed or alternative regulatory option)

1.3 Purpose of EPA developing co

- proposals (i.e., proposing two regulatory options)

1.4 Personal descriptions or anecdotes (without data or substantive comment) of adverse impacts from CCRs on self/family/neighborhood/community/state/nation

1.5 Requests for extension of comment period

1.6 Requests for additional public hearings

1.7 Support for CCR comments submitted by other commenters specific to ELG coordination issues

1.8 General support for coordination of the ELG and CCR rules

2 Legal Issues

2.1 Statutory Authority for Proposed Rule (35134

- 35135)

2.1.1 RCRA Subtitle C authority (35135

- 35136)

2.1.2 RCRA Subtitle D authority (35136, 35192)

2.1.3 2000 Regulatory Determination (35136

- 35137)

2.1.4 1993 Regulatory Determination (35136

- 35137)

2.1.5 RCRA legislative history

2.1.6 Other comments on legal issues

2.1.6.1 Legal challenges to the NODA notice

2.2 Role of Eight Bevill (RCRA Â§8002(n)) Study Factors in Bevill Regulatory Determination for CCRs Generated by Electric Utilities (35149

- 35160): EPA solicits further info/commen t on how each
will factor into EPA ’ s determination as to whether regulation under RCRA Subtitle C or D is warranted (35150)

2.2.1 Source and volumes of CCRs generated per year

2.2.2 Present disposal and utilization practices

2.2.3 Potential danger to human health and environment from CCR disposal

2.2.4 Proven damage cases from surface runoff or leachate

2.2.5 Alternatives to current disposal methods

2.2.6 Cost of alternative disposal methods

2.2.7 Impact of alternative disposal methods on use of coal and other natural resources

2.2.8 Current and potential use of CCRs

2.3 Bevill Determination for CCRs Generated by Non

- Electric Utilities (35165

- 35166)

2.3.1 EPA solicits info/data on CCRs generated by other industries (e.g., non

- utility boilers, combined heat and power plants), such as volumes generated, characteristics of CCRs, co

- management with other wastes generated (35166, 35222)

2.3.2 Comments on whether EPA should revise Bevill regulatory determination for CCRs generated by

non

- electric ut ilities, including support or oppose2.4 Legal Issues with the ELG Proposed Rule related to CCR

2.4.1 CWA authority to propose BMPs for CCR surface impoundments

2.4.2 Exclusions from ELG/CCR rules (e.g., CCR used for mine reclamation; size cutoff)

2.4.3 Other legal issues related to ELG/CCR coordination, including impacts of other rules (e.g., CAA) and cumulative impacts

3 Subtitle C Special Waste Option: EPA solicits comment on two options (35148, 35149, 35221)

- code under relevant issues

3.1 Gene ral Support/Opposition

3.1.1 Support Subtitle C proposal

3.1.2 Against Subtitle C proposal

3.2 Enforcement of Proposed Subtitle C Requirements

3.2.1 Citizen suits

3.2.2 State enforcement

3.2.3 Federal enforcement

3.2.4 Other enforcement issues/concerns

3.3 Special Waste Listing for Disposal of CCRs generated by Electric Utilities

3.3.1 Basis for listing CCRs as special waste

3.3.2 Individual listing criteria (only include comments specifically referencing these factors, otherwise
code to relevant issues) (35166

- 35167, 35168

- 35173)

3.3.2.1 Toxicity

- Factor(i)

3.3.2.2 Concentration of constituents in waste

- Factor(ii)

3.3.2.3 Migration

- Factor(iii)

3.3.2.4 Persistence

- Factor(iv)

3.3.2.5 Degradation

- Factor(v)

3.3.2.6 Bioaccumulation

- Factor(vi)

3.3.2.7 Plausible types of mismanagement

- Factor(vii)

3.3.2.8 Quantities of the waste generated

- Factor(viii)

3.3.2.9 Nature and severity of effects from mismanagement

- Factor(ix)

3.3.2.10 Action taken by other government agencies/regulatory programs based on health or

environmental hazard posed by waste or waste constituent

- Factor(x)

3.3.2.11 Other factors

- Factor(xi)

3.3.3 Comments on the memo EPA Has Authority to Regulate CCW under Subtitle C Without a Formal Listing Determinationâ€ • (35221)

3.4 Proposed Regulatory Requirements for Disposal of CCRs

3.4.1 Modification of technical standards under RCRA Â§3004(x)

3.4.1.1 Modification for CCR LFs and SIs from liner and leachate collection/removal requirements (35174

- 35175)

3.4.1.1.1 Proposed requirement for composite liner and leachate collection/removal system (35174)

3.4.1.1.2 EPA solicits comment on whether EPA ’ s regulations should also provide for alternative liner

designs based on, e.g., specific performance standard, such as 40 CFR 258.40(a)(1), or site

specific risk assessment, or standard that alternative liner (e.g., clay liner) was at least as effective as composite liner (35175, 35222)3.4.1.1.3 EPA solicits comment on whether clay liners sh ould also be allowed under EPA ’ s regulations (35175)

3.4.1.1.4 EPA requests specific data on hydraulic conductivity of clay liners associated with CCR disposal

units and info on protectiveness of clay liner designs based on site

- specific analyses (35145, 35175, 35222)

3.4.1.1.5 EPA solicits info on whether clay liners designed to meet hydraulic conductivity of 1 x 10

- 7

cm/sec might perform differently in practice than modeled in risk assessment (35145, 35222)

3.4.1.1.6 EPA solicits info on effectiveness of additives such as organosilanes, including any analysis on

their long

- term performance, as well as appropriateness of a performance standard that would allow use of these additives in lieu of composite liners (35146, 35222)

3.4.1.1.7 How technical stan dards apply to overfills

3.4.1.2 Fugitive dust controls (35175)

3.4.1.3 Special requirements for stability of CCR SIs and dam integrity (e.g., inspections, design plans, closure plans, annual certification) (35175

- 35176)

3.4.1.3.1 EPA solicits comment on adequacy of proposals to address SI integrity under RCRA Subtitle C

(35223); on proposal to adopt MSHA standards to address SI integrity under RCRA (35176); on whether to address all CCR SIs for stability, regardless of height and storage volume; whethe r to
use MSHA cut

- offs; or whether to use other regulations, approaches, or size cut

- offs instead (35176, 35223)

3.4.1.3.2 EPA requests comment regarding alternative use of NPDES permits rather than development of

RCRA regulations to address dam safety and structural integrity (35176, 35223)

3.4.1.3.3 EPA solicits comment on whether it should require O/O of existing and new CRR SIs to submit

emergency response plans to regulatory authority for wet

- handled CCRs (35221)

3.4.1.4 Wet handling of CCRs, closure, and interim status for SIs, including SI retrofit requirements (35176

- 35179)

3.4.1.4.1 EPA seeks comment on standards proposed to protect HHE from wet handling of CCRs, given

documented higher risks of SIs through proven damage cases and risk ana lyses (35221)

3.4.1.4.2 EPA solicits comment on whether 7 years (5 years to cease receiving waste and 2 years to close)

from effective date to implement these provisions is an achievable time for facilities to comply (35178); EPA seeks comment on procedur al or technical issues, e.g., time for allowing permit modifications for new capacity or EPA or state approval of closure plans (35179)

3.4.1.4.3 If commenters believe more than 7 years is needed, EPA solicits comment on how a longer time

period would meet Â§3004(x) risk standard (35179)

3.4.1.4.4 EPA solicits comment on whether it should include a provision that would allow regulatory

agency to provide additional time on case

- by

- case basis because of site

- specific issues (35179)3.4.1.4.5 EPA solicits comment on whether variance process would be appropriate allowing some SIs or similar units to remain operating because present minimal risk to GW and minimal risk of catastrophic release, e.g., indicated by hazard rating (35179, 35223); shoul d existing case

- by

case mechanism under RCRA 3005(j)(4)&(5), based on a no

- migration determination, be used in variance process (35179)

3.4.1.4.6 All existing SIs that have not closed in accordance with rule ’ s requirements by rule ’ s effective

date would b e subject to all permit requirements, irrespective of whether unit continues to receive CCRs or facility otherwise engages in active management of those units (35174, 35183)

3.4.1.5 Proposed land disposal restrictions/LDR (35179)

3.4.1.5.1 Support prohibiting land disposal of CCRs unless meet applicable treatment standards

3.4.1.5.2 Oppose prohibiting land disposal of CCRs or suggest alternative approach

3.4.2 Proposed treatment standards for non

- wastewaters: dry CCRs (35180)

3.4.2.1 EPA seeks comment on proposed standards: UTS and BDAT for constituents present (35180)

3.4.2.2 EPA solicits comment on EPA ’ s expectation that all or virtually all dry CCRs will meet proposed treatment standards as generated (35180)

3.4.3 Proposed treatment standards for wastewaters: wet

- handled CCRs (35180)

3.4.3.1 EPA requests comment on proposed alternative definition of wastewaters for purposes of determining treatment standards CCRs would be subject to (35180)

3.4.3.2 EPA seeks comment on proposed stan dards: solids separation and removal as part of proposed treatment standard (35180)

3.4.3.3 EPA seeks comment on proposed standards: UTS for wastewaters for liquid fraction (35180)

3.4.4 Effective dates of LDR prohibitions and treatment standards (35180

- 35181)

3.4.4.1 EPA solicits comment on proposed 6

- month effective date for dry CCRs and EPA solicits comment on not allocating additional time for treatment because of above expectation (see 3.4.2.2) that all or virtually all dry CCRs will meet pro posed treatment standards as generated (35180

- 35181)

3.4.4.2 EPA solicits comment on proposed 5

- year effective date for wet

- handled CCRs and initial 2

- year national capacity variance; thus 7 years altogether for CCR wastewaters (35180

- 35181)

3.4.4.3 Other comments on national capacity variances, including EPA ’s authority to extend national capacity period for additional time to convert to dry handling of CCRs (35181)

3.4.4.4 EPA seeks comment on whether further time extensions are actually needed in light of already extended time which will be afforded by state authorization process (35181)

3.5 Implementation of Proposed Subtitle C Requirements

3.5.1 Effective dates, including comments on effective dates might vary as states adopt rule individually (35190

- 35191)

3.5.1.1 Five years for liner requirement for existing CCR SIs (35210)

3.5.1.2 One year for GW monitoring requirements for existing LFs and SIs (35210)

3.5.2 Compliance requirements for types of facilities (35188)

3.5.2.1 Generators, includes notification, RCRA ID (35188

- 35189)

3.5.2.2 Transporters, includes RCRA ID (35188

- 35189)

3.5.2.3 Treatment, storage, and disposal facilities/TSDs, includes notification, RCRA ID (35189)

3.5.3 RCRA Â§3010 notification (35189)3.5.3.1 EPA reques ts comment on whether to require persons who already manage CCRs and have already notified EPA that they manage HW and have a RCRA ID to re

- notify EPA that they generate, transport, treat, store or dispose of CCRs (35188, 35189, 35223)

3.6 RCRA Permit Requirements by Facility Status (35189

- 35190)

3.6.1 Facilities newly subject to RCRA permit requirements (35189)

3.6.2 Existing interim status facilities (35189

- 35190; note: zero facilities currently in this group)

3.6.3 Permitted facilities (35190; note: zero facilities currently in this group)

3.7 Additional CCR Requirements in 40 CFR Parts 264 and 265 (35190, 35181

- 35183; note: unchanged by proposed rule)

3.7.1 General facility requirements including location restrictions, e.g., prohibit siting i n floodplain or seismic impact area (35181)

3.7.2 GW monitoring and corrective action (35181

- 35182)

3.7.3 Storage (35182)

3.7.3.1 EPA solicits comment on whether larger volume, higher toxicity special storage standards developed under RCRA Subtitle C for mining and mineral processing materials being reclaimed or similar type standards would be appropriate for CCRs (35182, 35223)

3.7.3.2 EPA solicits comment on practicality of proposed Subtitle C storage requirements for CCRs and workability of existing variance process allowing alternatives to secondary containment (35182, 35223)

3.7.4 Closure and post

- closure care (35182)

3.7.5 Corrective action/facility

- wide corrective action (35182

- 35183)

3.7.5.1 EPA solicits comment on whether it should modify §3004(x) corrective action requirements; commenters should specifically address how other alternatives could be protective of HHE without mandating facility

- wide corrective action for all SW management units with releases of
HW or hazardous constitu ents (35183, 35223)

3.7.6 Financial assurance (35183)

3.7.6.1 EPA seeks comment on how FA requirements might apply to SIs that cease receiving CCRs before effective date of rule (35224)

3.7.6.2 EPA seeks comment on whether a financial test similar to that in 40 CFR 258.74(f) in Criteria for MSWLFs should be established for local governments that own and operate coal

- fired power plants (35183, 35224)

3.7.7 EPA takes comment on proposed provision to not apply Subtitle C requirements to CCRs from

certain on

- going state or federally required cleanups (35183)

3.7.8 Other

3.8 Alternative Subtitle C Approaches

3.8.1 EPA solicits comment on a modification which would not require closure or installation of composite liners in existing SIs; rather, these SIs could continue to operate for remainder of their useful life (35148)

3.8.2 Approaches for overfills

3.8.2.1 Location restrictions

3.8.2.2 Liner and leachate collection requirements

3.8.2.3 Groundwater monitoring

3.8.2.4 Inspection requirements3.8.2.5 Other requirements for overfills

3.9 Subtitle C Regulatory Language Changes/Suggestions

3.1 CERCLA Designation and RQs

3.10.1 Reporting requirements (35183

- 35185)

3.10.2 EPA requests comment on first method of proposed adjustments to one

- pound statutory RQ for special wastes: adjust RQ based on lowest RQ of most toxic substance present in waste (35183

- 35184)

3.10.3 EPA requests comment on second method: based on EPA ’ s constituent characterization and physical properties of complex mixtures comprising special wastes; also application of CERCLA Mixture Rule to listed CCRs (35183

- 35185)

3.10.4 Correction of Table of Maximum Observed Constituent Concentrations Identified by EPA (35185)

3.11 Other

4 Subtitle D Option: EPA solicits comment on two options (35148, 35149, 35221)

- code under
relevant issues

4.1 General Support/Opposition

4.1.1 Support Subtitle D proposal

4.1.2 Against Subtitle D proposal

4.1.3 Support Subtitle D Prime option

4.1.4 Against Subtitle D Prime option

4.2 Implementation and Enforcement of Proposed Subtitle D Regulations (35211)

4.2.1 Citizen suits, including states acting as citizens and whether enforcement through citizen suits is adequate (35211)

4.2.2 State enforcement provisions are needed beyond citizen suits

4.2.3 Proposed mechanisms to facilitate citizen enforcement and oversight (35194

- 35195)

4.2.3.1 Third

- party certification: EPA seeks comment on requiring O/O to obtain certification by independent PE/hyd rolo gist that provisions are properly applied; does this provide right balance between establishing sufficient guarantee regulations will be protective of HHE and offering facilities sufficient flexibility to feasibly implement requirements appropriate to site conditions (35194, 35197, 35223)

4.2.3.2 EPA is interested in suggestions for mechanisms other than third

- party certification (see 4.2.3.1) that might provide facility flexibility and/or verification (35194)

4.2.4 Federal enforcement provisions are needed, including concerns that EPA h as no authority to implement/enforce proposed Subtitle D

4.2.5 Potential use under Subtitle D approach of e minent and substantial endangerment authorities under RCRA, CERCLA, CWA or other federal authorities (35211)

4.2.6 General concerns about self

- implementing RCRA Subtitle D standards (35211)

4.3 Notifications: state and public notifications of third

- party certifications (35194

- 35195)

4.3.1 EPA solicits comment regarding methods for providing notifications to public and states: O/O

must maintain internet site to post notifications and info that standards are met (35194, 35195)4.3.2 EPA also solicits comment on whether there could be homeland security implications with requirement to post info on an internet site and whether posting cert ain info on internet may duplicate info that is already available to the public through the state (35194, 35223)

4.4 RCRA Subtitle D Criteria

4.4.1 Proposed modifications to Part 257, Subpart A (35195)

4.4.2 General provisions (35195

- 35196)

4.4.2.1 Applicability of definition of SW disposal facilities subject to Subtitle D (35195)

4.4.2.2 Applicability of open dumping criteria (35195

- 35196)

4.4.3 Definitions

4.4.3.1 EPA solicits comment on proposed definition of seismic impact zones and whether there are variants like those used to develop national seismic hazard maps that could lessen burden on industry and geographic areas covered by proposed definition (35201, 35223)

4.4.4 Location restrictions and individual location requirements (35197

- 3520 2)

4.4.4.1 Differences in location restrictions for existing and new CCR LFs and SIs, and for lateral expansions (which fall within definition of new units)

4.4.4.2 EPA seeks comment and additional info regarding extent to which CCR LF capacity would be affected by applying proposed location restrictions for floodplains and unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terraces) to existing CCR LFs; EPA is particularly interested in prevalence of existing CCR LFs in floodplains and unstable areas (35198, 35223)

4.4.4.3 EPA seeks comment and additional info regarding number of existing CCR LFs that are located in wetlands (35198); including any comments about EPA is not proposing closure of existing CCR

LFs in wetlands

4.4.4.4 EPA solicits comment and additional data/info regarding extent to which existing CCR LFs are currently located in fault areas, including active Holocene fault areas, or in seismic impact areas (35198, 35223); including any comments about EPA is not proposing closure of existing CCR LFs in fault areas or seismic impact areas

4.4.4.5 EPA seeks comment and data on whether 200

- foot buffer zone from faults should be greater for CCR SIs, especially from faults that have experienced displacement during Holocene Epoch (35200, 35223)

4.4.4.6 EPA solicits comment on extent to which facilities could comply with proposed performance standards that facilities must meet in order to site a new LF or SI or a lateral expansion with placement above water t able or in wetlands, unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terraces), fault areas, or seismic impact zones (35198, 35223)

4.4.4.7 EPA solicits comment on necessary costs to retrofit CCR disposal units to meet proposed performance standards on siting facilities with placement above water table or in wetlands, unstable areas (i.e., poor foundation conditions, areas susceptible to mass movement, karst terraces), fault areas, or seismic impact zones (35198, 35223)

4.4.5 Design requirements (35202

- 35203)

4.4.5.1 Requirement for composite liner and leachate collection and removal systems (35202

- 35203)4.4.5.1.1 EPA solicits comment on whether any Subtitle D option should allow facilities to use alternative design for new units, so long as O/O could obtain certification from independent PE/hyd rolo gist that alternative design would ensure appropriate concentration values for set of constituents typical of CCRs will not be exceeded at uppermost aquifer at relev ant point of compliance (35202

- 35203, 35223)

4.4.5.1.2 EPA is interested in data/info that demonstrates under what site conditions an alternative liner

would be equally protective, including info documenting extent to which such conditions currently exist at CCR units (35203)

4.4.5.2 Stability requirements for CCR SI and dam integrity, including design certification by independent PE, weekly inspections, annual re

- certification (35203)

4.4.5.2.1 EPA solicits comment on adequacy of EPA ’ s proposals to address SI integrity under RCRA Subtitle

D (35223)

4.4.5.2.2 EPA solicits comment on effectiveness of annual SI assessments in ensuring structural integrity

of CCR SIs over long

- term (35223)

4.4.6 Operating requirements (35203

- 35204)

4.4.6.1 Existing criteria for endangered species and surface water

4.4.6.2 Run

- on and run

- off controls

4.4.6.3 Fugitive dust control requirements

4.4.6.4 Recordkeeping/reporting requirements

4.4.7 GW monitoring and corrective action (35204

- 35207)

4.4.7.1 EPA generally solicits comment on whether relying on existing GW monitoring and corrective action requirements for MSWLFs and CESQG facilities, as modified, are appropriate for CCR LFs and SIs (35205)

4.4.7.2 EPA solicits comment on appropriateness of tailoring propos ed GW monitoring and corrective action requirements for CCR disposal with third

- party PE or hydrologist certifications in lieu of a state approval mechanisms (35205)

4.4.7.3 EPA solicits comment on its omission of alternative schedules for GW monitoring a nd corrective action under 257.21(g) and 258.50(h), and state deletion and/or establishment of alternative lists of parameters under 258.54(a)(1)&(2) and 257.24(a)(1)&(2), because such modifications may be particularly susceptible to abuse (35205)

4.4.7.4 EPA also solicits comment on whether a more prescriptive approach could/should be developed under Subtitle D and whether requirement for certification by independent PE would be effective/appropriate in such a case (35205)

4.4.7.5 Applicability (35205

- 35206)

4.4.7.5.1 EPA solicits comment on whether there is a shortage of drilling contractors (35206)

4.4.7.5.2 EPA solicits comment on whether other types of provisions, such as suspension of GW

monitoring under 257.21(b) and 258.50(b), and state establishment of compliance schedules under 257.21(d) and 258.50(d), are appropriate for CCR LFs and SIs (35206)

4.4.7.6 GW monitoring systems: establishing minimum requirement of one upgradient and three downgradient wells at all CCR units (35206)

4.4.7 .7 GW sampling and analysis requirements: same provisions as those already in use for CESQG and MSWLF facilities (35206)4.4.7.7.1 EPA requests comment on whether lack of state regulatory oversight mechanism will impair selection of appropriate test methodologies (35206)

4.4.7.7.2 EPA is interested in suggestions about whether it should instead adopt alternative approaches

for test methodologies to ensure protection of HHE at CCR disposal facilities (35206)

4.4.7.8 Detection monitoring program (3520 6

- 35207)

4.4.7.8.1 EPA solicits comment on appropriateness of proposed list of parameters to detect GW

contamination and/or as indicators of GW contamination (35206)

4.4.7.8.2 EPA solicits comment on whether it should allow deletion of detection monitoring parameters

and alternative sampling frequencies based on compliance with performance standard documented by independent PE/hyd rolo gist; including data to demonstrate conditions under which such alternatives would be protective as well as info to indicate prevalence of such conditions at CCR LFs/SIs (35206

- 35207)

4.4.7.9 Assessment monitoring program: required only if detection monitoring (see 4.4.7.8) finds significant increase over background levels (35207)

4.4.7.9.1 EPA solicits comment on appropriateness of list of parameters for GW assessment monitoring

program (35207)

4.4.7.9.2 EPA solicits comment on whether to allow options such as sampling a subset of wells, deletion

of assessment parameters, or alternative sampling frequencies, and i f such options are appropriate for CCR LFs and SIs (35207)

4.4.7.10 Assessment of corrective action measures/remedies (35207)

4.4.7.10.1 EPA solicits comment on appropriateness of 90

- day timeframe to complete assessment of

corrective measures (35207)

4.4.7.11 Selection of remedy: proposed framework based on existing requirements for MSWLFs and

CESQGs with modifications (35207)

4.4.7.11.1 EPA solicits comment on proposed modifications to eliminate consideration of practicable

capabilities where such co nsiderations are already included in MSWLF and CESQG criteria; how this modification may affect ability of regulated community to comply with proposed remedy selection requirements, and how modification may affect protectiveness of proposed standards
for H HE (35207)

4.4.7.12 Implementation of corrective action remedy (35207)

4.4.7.12.1 EPA solicits comment on whether to allow for a different time period than 3 years that was

proposed as length of time during which O/O must demonstrate that concentrations have not exceeded GW protection standards in support of a determination that remedy is complete (35207)

4.4.8 Closure and post

- closure care (35207

- 35210)

4.4.8.1 EPA solicits comment on appropriateness of proposed c/pc requirements for CCR LFs (i.e., similar to existing MSWLF c/pc with modifications) (35207)

4.4.8.2 EPA solicits comment on appropriateness of proposed c/pc requirements for CCR SIs (i.e., modeled on part 265 interim status closure requirements for SIs as well as MSHA requirements) (35207)

4.4.8.2.1 Time to initiate closure

4.4.8.2.2 Time to complete closure4.4.8.2.3 Other comments on the time frames

4.4.8.3 EPA solicits comment on appropriateness of clean

- closure provisions under a RCRA Subtitle D rule, and info on number of facilities that may take advantage of a c lean

- closure option (35208)

4.4.8.4 EPA solicits comment on appropriateness of degree of flexibility to account for site

- specific conditions provided by proposed alternative final cover design certified by independent PE, given lack of guaranteed state oversight (35209)

4.4.8.5 EPA requests examples documenting need for flexibility in develop ing cover requirements as well as data/info that demonstrate alternative cover designs would be protective (35209)

4.4.8.6 EPA requests suggestions for other methods to allow O/O of CCR LFs and SIs to account for site

specific conditions that provide a lo wer degree of individual facility discretion, such as a list of approved cover designs (35209)

4.4.8.7 EPA solicits comment on propriety of including provision for removing deed notation once all CCRs removed from facility and EPA requests info on suggested alternatives to state oversight to provide for facility accountability (35209)

4.4.8.8 Proposed p/c requirements modeled after requirements in 258.60 for 30

- year period with proposed adjusted time periods with certain conditions (35209)

4.4.8.9 EPA solicits comment on alternative methods/periods for post

- closure care for CCR disposal units to account for different site conditions, yet still provide methods of oversight to assure facility accountability, given lack of guaranteed state oversight ( 35209)

4.4.8.10 EPA solicits comment on need for and propriety of self

- certified stoppage of leachate

management, such as in 258.61(a)(2), given lack of guaranteed state oversight (35209)

4.4.8.11 EPA solicits comment on appropriateness of adopting a provision to allow any other disturbance

provided O/O demonstrates no increase to potential threat to HHE, and EPA is also interested in suggested mechanisms providing facility flexibility/oversight for post

- closure uses (35209

- 35210)

4.4.9 Financial assurance (35210)

4.4.9.1 EPA solicits comment on whether FA should be a key program element under a Subtitle D approach (35134, 35148, 35224) and how FA requirements apply to SIs that continue to receive
CCRs after rule ’ s effective date (35148

- 35149)

4.4.9.2 EPA solicits comment on whether FA requirements under CERCLA 108(b) should be a key Agency focus for ensuring that funds are available for addressing mismanagement of CCRs, should EPA regulate CCR disposal under Subtitle D (35210, 35224)

4.4.9.3 E PA solicits comment on FA under existing state waste programs for CCR disposal facilities and whether and how Subtitle D regulatory approach might integrate with those programs (35210)

4.4.10 Off

- site disposal (35210)

4.5 Alternative RCRA Subtitle D Approaches (35210)

4.5.1 Subtitle D Prime option: EPA solicits comment on approach/potential modification proposed under Subtitle D prime option (35149, 35210); EPA solicits comment on whether Subtitle D prime option is protective of HHE (35223)4.5.2 EP A solicits comment on alternative approach using CCR SI assessment program instead of phase

- out of CCR SIs, and effectiveness of annual SI assessments in ensuring structural integrity of CCR SIs over long term (35210, 35223)

4.6 Implementation of Proposed Subtitle D Regulations

4.6.1 Effective dates

4.6.1.1 180

- day effective date after promulgation of final rule (35210, 35195

- 35196)

4.6.1.2 Within 5 years after rule ’ s effective date for existing CCR LFs and SIs for liner requirements (35210)

4.6.1.3 Within 1 year after rule ’ s effective date for existing CCR LFs and SIs for GW monitoring requirements/installation of GW monitoring system (35210, 35205)

4.6.1.4 EPA solicits comment on appropriate amount of time for existing CCR LFs and SIs to close if

c annot make a showing that unit can be operated safely in floodplain or unstable area as well as comments on measures that could help address potential for inadequate disposal capacity; EPA is proposing 5 years after rule ’ s effective date with potential 2

- y ear extension for maximum of 7 years (35199, 35223)

4.6.1.5 EPA solicits comment on whether timeframes for closure of existing SIs should be different under Subtitle D and/or not consistent with timeframes proposed under Subtitle C (35202)

4.7 Subtitle D Regulatory Language Changes/Suggestions

4.8 Other

5 CCR Materials and Management (including technical/engineering data)

5.1 CCR characterization data/info used in proposed rule (35137

- 35139)

5.2 Recent EPA research on constituent leaching from CCRs (35139

- 35142)

5.3 New CCR characterization data/info

5.3.1 Fly ash

5.3.2 Bottom ash

5.3.3 Boiler slag

5.3.4 FGD sludges

5.3.5 Other (includes data/info not specifying type of CCRs)

5.4 New CCR constituent leaching data/info: EPA solicits additional data that are representative of CCR constituents in SI or LF leachate (from literature, state files, industry or other sources) that EPA has not identified and should be used in evaluating ris ks presented by land disposal of CCRs (35146, 35222)

- code under 5.4 subissues

5.4.1 LF leachate (new data/info)

5.4.2 SI leachate (new data/info)

5.5 Landfills: EPA solicits comment on whether info currently available to EPA reflects current industry practices at older/new LF units (35157, 35221); on degree to which practices have changed over time and impact of those changes (35221

- 35222); EPA requests info on whether

EPA ’ s info adequately reflects changes in industry practices adopted independently o f state requirements (35153)

5.5.1 Liners, including prevalence of at existing LFs and alternative liner designs5.5.2 GW monitoring, including prevalence of at existing LFs: EPA is particularly interested in info on how many facilities currently have GW monitoring systems in place, how those systems are designed and monitored, and what, if anything, they have detected (35157); EPA requests more info on prevalence of GW monitoring at existing facilities (35133)

5.5.3 CCR fugitive dust control techniques

5.5.4 Other management practices for dry

- handling of CCRs

5.5.5 Lack of Subtitle C landfill capacity

5.5.5.1 EPA solicits detailed info on issue of existing Subtitle C landfill capacity for CCR disposal, e.g., volume of CCRs now going off

- site for disposal; nature of off

- site disposal sites such as commercial vs. utility

- owned, and amount of land available on utility sites for additional disposal capacity (35158)

5.6 Surface Impoundments: EPA solicits comment on whether info currently available to EPA reflects current industry practices at older/new SI units (35157, 35221); on degree to which practices have changed over time and impact of those changes (35221

- 35222); EPA requests
info on whether EPA ’ s info adequately reflects changes in industry pra ctices adopted independently of state requirements (35153)

5.6.1 Liners, including prevalence of at existing SIs and alternative liner designs

5.6.2 GW monitoring, including prevalence of at existing SIs: EPA is particularly interested in info on
how many facilities currently have GW monitoring systems in place, how those systems are designed and monitored, and what, if anything, they have detected (35157); EPA requests more info on prevalence of GW monitoring at existing facilities (35133)

5.6.3 CCR fugitive dust control techniques

5.6.4 Structural integrity of SIs

5.6.4.1 Comments on SI structural integrity data in the NODA

5.6.5 Other management practices for wet

- handling of CCRs

6 Risk Assessment (35144

- 35146, 35166

- 35173) and General Risk Issues: EPA seeks comment on extent of risks posed by mismanagement of CCRs (35133); EPA requests comment on how risk assessment should inform final decision (35133)

- code under relevant issues below

6.1 General risk

- related comments

6.1.1 General concerns/info about human health risks/adverse impacts from CCRs

6.1.2 General concerns/info about ecological risks/adverse impacts from CCRs

6.1.3 General comments/opinions on EPA ’ s human health risk assessment results

6.1.4 General comments/opinions o n EPA ’ s ecological risk assessment results

6.2 Groundwater Modeling

6.2.1 Modeling duration

6.2.2 Modeling approach

6.2.3 Site

- specific analysis and comparisons with other data: EPA seeks data on distance of SIs to water bodies, site

- specific GW risk analysis that accounts for presence of nearby surface water body, and GW monitoring associated with such sites (35146)6.2.4 Well

- related issues: EPA solicits info/data regarding drinking water wells down

- gradient of CCR disposal units, any monitoring data and potential of these wells to be intercepted by surface water bodies (35222); EPA requests comment on exact locations of CCR waste management units to more fully account for water bodies that may exist between such units and drinking water well (351 33)

6.2.5 Other GW modeling comments

6.3 Source Modeling

6.3.1 Use of TCLP and SPLP data and availability of other data

6.3.2 DOE facility data and liner scenarios

6.3.3 Alternative waste disposal/co

- disposal scenarios

6.3.4 Liner leakage

6.3.5 Treatment of non

- detect values

6.3.6 Waste compaction

6.3.7 Infiltration rates and LF cover assumptions

6.3.8 Water table is above bottom of disposal unit

6.3.9 Mercury capture and new air emission control regulations

6.3.10 Pore

- water data/SI analyses: EPA solicits info on whether site

- averaged pore

- water data used in risk analyses are representative of SI leachate, and whether highest SI pore

- water
concentrations in EPA ’ s database appropriately represent leaching to GW (35146, 35222); examples for CCR SIs of pore

- water concentrations for arsenic increasing orders of magnitude over pond water concentrations (35146)

6.3.11 Modeling SIs

6.3.12 Modeling LFs

6.3.13 Other source modeling comments: EPA seeks info on whether concentrations of arsenic have been reduced in leach samples at facilities operating according to 1999 EPRI industry guidance or impacts of other changes since this guidance (35146)

6.3.14 LEAF data (from NODA

- 1)

6.4 Exposure Scenarios

6.4.1 Direct SI exposure

6.4.2 Indirect exposures

6.4.3 Exposure to SI effluents

6.4.4 Exposure during LF operations

6.4.5 EPA solicits comment on screening analysis to estimate risks from CCR fugitive dust; data/results of ambient air monitoring for particulate matter; info on where air monitoring stations located near CCR LFs or SIs; any data/info available regarding potential for residents to be exposed to toxic constituents by this exposure pathway; info on any techniques to reduce such exposures (35171, 35222)

6.4.6 Elimination of pathways through screening analysis

6.4.7 Other exposure scenario related comments

6.5 Human Exposure and Toxicity

6.5.1 Combined chemical effects, additive risk, and multiple pathway exposures

6.5.2 Toxicity values/benchmarks

6.5.3 Target cancer risk6.5.4 Exposed population

6.5.5 Exposure factors

6.5.6 Child/infant exposure

6.5.7 Correlation of input variables

6.5.8 Other human exposure comments

6.6 Ecological Exposure and Toxicity

6.6.1 Cumulative ecological risk

6.6.2 Sensitive habitats/sensitive species

6.6.3 Indirect effects

6.6.4 Ecological benchmarks/ecological toxicity

6.6.5 Other ecological exposure comments

6.7 Monte Carlo Analysis

6.7.1 Use of parameter estimates

6.7.2 Variability versus uncertainty

6.7.3 Percentile probabilities versus overall probability

6.7.4 Numerical stability of Monte Carlo results

6.7.5 Groundwater as a resource

6.7.6 Other Monte Carlo analysis related comments

6.8 Risk assessment documentation and miscellaneous comments

6.8.1 Documentation to reproduce the analysis independently

6.8.2 Input/output distributions

6.8.3 Sensitivity analysis

6.8.4 Discussion of general risk

- susceptibility patterns

6.8.5 Discussion of worst

- case scenarios

6.8.6 Discussion of chemical constituen ts

6.8.7 Background concentrations

6.8.8 Miscellaneous comments

6.8.9 Other comments on any documents and/or issues not identified in NODA

- 1

6.8.10 Comments on risk assessment data in the NODA

6.9 Risk Assessment

- use of ELG facility

- specific ICR collected data

6.9.1 Comments on the ELG data set

6.9.2 Interception analysis

6.9.3 Exclusion of smaller impoundments

6.9.4 Risk of fugitive dust at landfills

6.9.5 Revised risk assessment supporting CCR disposal under RCRA Subtitle D (Subtitle D Prime Option)

7 State Authorities, Programs and Regulations: EPA seeks comment on adequacy of state programs to ensure proper management of CCRs (35133)

- code under relevant issues below

7.1 State Regulations or Performance Standards: EPA solicits detailed info on state regulatory authorities and/or regulatory structure for CCRs; particularly requirements applicable to older existing units (35153, 35157, 35224); detailed info on current CCR management practices of state programs, including other tha n state waste authorities (35152, 35224); details on state CCR regulations (35157)7.1.1 CCR landfills

7.1.1.1 Liner requirements/standards

7.1.1.2 GW monitoring requirements/standards: EPA seeks comment whether GW monitoring is required by states for CCR LFs (35133)

7.1.1.3 Enforcement and state oversight

7.1.1.4 Public participation in permitting process

7.1.2 CCR surface impoundments

7.1.2.1 Liner requirements/standards

7.1.2.2 GW monitoring requirements/standards: EPA seeks comment on whether GW monitoring is required by states for CCR SIs (35133)

7.1.2.3 EPA requests info on whether state approaches may address GW monitoring and risks differently for CCR facilities located proximate to surface water bodies, e.g., rivers (35133)

7.1.2.4 Dam safety requirements/standards: EPA seeks info on state dam safety programs and how they regulate structural stability of CCR SIs (35152)

7.1.2.5 Enforcement and state oversight

7.1.2.6 Public participation in permitting process

7.2 Impacts of Subtitle C Rule on State Authorization for RCRA

7.2.1 Applicability of rule in authorized states

7.2.2 Effect on state authorization

7.3 Impacts of Subtitle C on State Legislation/Regulations/Programs

7.3.1 EPA solicits comment on states ’ concerns that any federal regulation under RCRA Subtitle C has potential to cause disruption to states ’ implementation of CCR regulatory programs under their own authorities, including more specifics on potential procedural difficulties for state programs

, and any measures that EPA might adopt to try to mitigate these effects (35158, 35224)

7.3.2 EPA solicits comment from states on extent to which generator or disposal fees would be able to offset costs of administering permit, inspection, and enforcement programs (35158)

7.3.3 Other

7.4 Impacts of Subtitle D on State Legislation/Regulations/Programs

7.4.1 EPA solicits comment on states ’ concerns that any federal regulation under RCRA Subtitle D has potential to cause disruption to states ’ implementation of CCR regulatory programs under their own authorities, including more specifics on potential procedural difficulties for state programs, and any measures that EPA might adopt to try to mitigate these effects (35158, 35224)

7.4.2 Other

8 Damage Cases (35133, 35146

- 35148, 35155

- 35166, 35172

- 35173, 35230

- 35239)

8.1 General concerns/issues related to CCR damage cases

8.2 Support view that damage cases are substantial

8.3 Damage case data are unreliable

8.4 Damage cases reflect old practices

8.5 Damage cases reflect current practices, and their numbers are growing8.6 Additional data/info provided about specific CCR damage cases: EPA seeks comment on extent of existing damage cases (35133); EPA seeks additional data regarding prove n damage cases identified by EPA, focusing on off

- site contamination (35148, 35224)

8.6.1 Info supporting a proven damage case (i.e., meets EPA criteria to be proven)

8.6.2 Info indicating a damage case does not meet EPA criteria to be proven

8.7 New reports of potential CCR damage cases (not already reported to EPA)

8.8 EPA seeks comment on EPRI ’ s November 2009 report (35148, 35224)

8.9 EPA seeks comment on February 2010 report of additional damage cases by Environmental Integrity Project and EarthJustice (35224)

9 Regulatory Impact Analysis/RIA (35134, 35211

- 35220, 35224) and Other Rulemaking Requirements: EPA seeks comment on data and findings in RIA (35218, 35224)

- code under
relevant issues below

9.1 General comments on RIA

9.1.1 RIA problem statement

9.1.2 Visual appearance issues

9.1.3 Affected entities (NAICS codes, names/locations of plants, LF/SI data (e.g., GIS, size, age)

9.2 Other general comments (related to, but not specifically about rulemaking requirements)

9.2.1 Genera l comments about economic issues/concerns (not small entity/business or energy)

9.2.2 General comments about small entity/business issues/concerns

9.2.2.1 Small electric utilities/electric cooperatives

9.2.2.2 Small businesses producing beneficial use products

9.2.2.3 Other small entities/businesses (e.g., other businesses, governments, nonprofits)

9.2.3 General comments about environmental justice issues/concerns

9.2.4 General comments about children ’ s health issues/concerns

9.2.5 General comments about adverse energy effects or issues/concerns

9.3 Regulatory Costs: EPA requests comment on all data sources and analytical approaches for estimated costs (35213); EPA seeks comment on cost estimation uncertainty factors in RIA (35218, 35224)

- code costs under 9.3 subissues

9.3.1 Historical/baseline costs

9.3.2 Incorrect cost assumptions

9.3.3 Liner costs

9.3.4 GW monitoring costs

9.3.5 Fugitive dust control costs

9.3.6 Wet

- to

- Dry conversion costs: EPA seeks data on costs of converting coal

- fired power plants from wet handling to dry handling with respect to various air pollution controls, transportation systems, disposal units, and other heterogeneous factors (35224)

9.3.7 Costs to specific groups (industries, states, tribes, small businesses, etc.)

9.3.8 Corrective action costs: EPA seeks data on relevant RCRA corrective actions and related costs useful in characterizing potential costs for future actions (35224)9.3.9 Response/Cleanup costs: EPA seeks info on other significant and catastrophic SI releases of CCRs and cleanup costs associated with these releases (35224); EPA solicits more detailed comment on issue of potentially more expensive future cleanup under RCRA Subtitle C of poorly sited or leaking disposal sites (including h istorical or legacy sites) especially where off

- site disposal was chosen (35159)

9.3.10 Storage costs: EPA solicits specific comment on potential costs of proposed Subtitle C storage requirements for CCRs (35182); EPA seeks data on costs of storage of CCR s in tanks or tank systems, on pads, or in buildings (35224); EPA specifically solicits substantiating detail from commenters who suggest EPA has under

- estimated CCR storage costs under Subtitle C (35159)

9.3.11 Other (e.g., over

- /under

- estimated costs ex cept for storage)

9.3.12 Comments on RIA data in the NODA

9.3.13 Cost benefit analysis in the ELG proposed rule related to CCR

9.4 Environmental and Economic Benefits: EPA seeks additional data that would assist in expanding and refining EPA ’ s existing benefit estimates (35224); EPA seeks comment on benefit estimation uncertainty factors in RIA (35218, 35224)

- code benefits under 9.4 subissues

9.4.1 Appropriateness of benefits categories (e.g., ecological damage)

9.4.2 Incorrect benefit assumptions

9.4.3 Monetization issues (i.e., benefits not monetized or improperly monetized)

9.4.4 Avoided cancer benefits

9.4.5 Avoided catastrophic failure benefits

9.4.6 Avoided remediation cost benefits

9.4.7 Other (e/.g., benefits over

- /under

- estimated)

9.4.8 Environmental Assessment

- combustion/coal ash wastewater not detrimental/toxic

9.5 Impacts on Beneficial Uses

9.5.1 Accuracy of life cycle benefits

9.5.2 Industry

- specific economic data: EPA solicits info/data on best means for estimating current and future quantities and changes in beneficial use of CCRs, as well as on price elasticity of CCR applications in beneficial use market (35222)

9.5.3 Impact scenarios (increase, decrease from stigma, no change): EPA requests comment on impact of stigma on beneficial use of CCRs re EPA ’ s potential impact scenarios (35215); EPA welcomes ideas on how to best estimate stigma effects for RIA and requests any data or methods that would assist (35223); EPA solicits info/data that wil l help quantify any potential stigma effects under Subtitle C (35158)

9.5.4 Other

9.6 Net Benefits

9.6.1 Cost/Benefit scaling under Subtitle D options

9.6.2 Comparison of benefits to costs

9.6.3 Calculation of net benefit s and benefit

- cost ratios

9.6.4 Other

9.7 Supplemental Analyses9.7.1 Energy Impact Analysis: EO 13211 (35228

- 35229): EPA solicits comment on analysis/findings of no significant adverse effect on supply, distribution, or use of energy (35229)

9.7.2 Small Business Impact Analysis: RFA/SBREFA (35225): EPA requests comment on analysis/finding of no SISNOSE (35225); EPA welcomes comment on issues related to potential small entity impacts (35225)

9.7.3 Environmental Justice Analysis: EO 12898 (35229

- 35230)

9.7.4 Children ’ s Health Analysis: EO 13045 (35227

- 35228) : EPA invites comment or peer

- reviewed studies/data that assess effects of early life exposure to CCRs managed in LFs and SIs (35228)

9.7.5 Paperwork Reduction Act, including comments on ICR (35224

- 35225)

9.7.6 Unfunded Mandates Analysis/UMRA (35225

- 35226)

9.7.7 Federalism Analysis: EO 13132 (35226

- 35227): EPA specifically solicits comment from elected state and local government officials in spirit of EO 13132, i.e., with respect to federalism implications of co

- proposal (35226

- 35227)

9.7.8 Consultation/coordination with Indian Tribal Governments: EO 13175 (35227): EPA solicits comment on accuracy of info used for determining no tribal implications (35227)

9.7.9 Other

10 Beneficial Use Including Perceived Stigma Issue (35160

- 35165)

10.1 General Support/Opposition

10.1.1 Support CCR beneficial use (including general reasons related to improvement of state beneficial use programs, component of GHG emissions reduction strategies and other environmental
benef its, existence of established commercial sectors that use/depend on beneficial use of CCRs: 35160, 35222)

10.1.2 Against CCR beneficial use (including general reasons related to potentially changing composition of CCRs from improved air pollution controls, new science on metals leaching from CCRs, new studies/info on potential risks of different uses of CCRs: 35160, 35222)

10.2 Bevill

10.2.1 EPA takes comment on not proposing to change Bevill status for unconsolidated uses of CCRs beneficially used and whether they need to be subject to federal regulation (35186)

10.2.2 If EPA determines that regulations are needed for beneficial use of CCRs, should EPA consider removing Bevill exemption for such uses and regulate these uses under RCRA Subtitle C, develop regulations under RCRA Subtitle D, or some other statutory authority such as under Toxic Substances Control Act (35222, 35164

- 35165)

10.2.2.1 Unencapsulated uses: EPA seeks comment on whether to regulate and most appropriate

regulatory approach for, e.g., unencapsulated uses of CCRs on land (35164

- 35165)

10.2.2.2 Encapsulated uses, including cement, concrete, bricks, other concrete products, wallboard,

roofi ng materials

10.2.3 EPA solicits comment on whether certain unencapsulated beneficial uses of CCRs should continue to be exempted as a beneficial use under Bevill exemption (35160)

10.2.3.1 Small

- scale fill operations (not large

- scale fill operations or sand/gravel pits/quarries and not

mines/minefills)

10.2.3.2 Agricultural applications, including FGD gypsum

10.2.3.3 Road embankments10.2.3.4 Abrasives

10.2.3.5 Other unencapsulated uses

10.2.4 Other Bevill and beneficial use comments

10.3 Definition of Beneficial Use vs. Disposal

10.3.1 EPA requests comment on proposed regulatory criteria to define legitimate beneficial uses, and to distinguish them from inappropriate operations for enforcement (35162

- 35163)

10.3.1.1 Material used must provide a functional benefit

10.3.1.2 Material substitutes for use of a virgin material

10.3.1.3 Material meets relevant product specifications or regulatory standards, where available; and if

not available, is not being used in excess quantities

10.3.1.4 For agricultural uses, material must meet appropriate standards

10.3.1.5 Other criteria suggested by commenters: EPA requests suggestions for other criteria that may

need to be included (35163)

10.3.2 EPA ’ s clarification/proposed definitions as land disposal subject to proposed RCRA Subtitle C or D regulations as LF, and not beneficial use (35163)

10.3.2.1 Sand and gravel pit and/or quarry fill operations (35163)

10.3.2.2 Large

- scale fill operations, e.g., large

- scale land contouring (35163): EPA recognizes need for and

solicits comment on better definition/guidance on meaning of large

- scale fill operation to distinguish inappropriate operations (35163); EPA solicits commen t on alternatives for CCRs used in large

- scale structural fill operations either regulating as disposal as LF or as minefilling (35231)

10.3.2.2.1 Development of criteria or a definition

10.3.2.2.2 Data sets that can be used

10.3.2.2.3 Other comments on NODA discussion of large

- scale fill

10.3.3 EPA solicits comment and info/data on whether it is necessary to define beneficial use better or develop detailed guidance on CCR beneficial use to ensure protection of HHE (35161, 35222)

10.3.4 EPA solicits info/data on other approaches (not in 10.3.3) for identifying when uses of CCRs constitute a beneficial use and will remain exempt, particularly for unencapsulated uses of CCRs on the land (35161)

10.3.5 EPA solicits comment and info/data on whether certain unencapsulated beneficial uses of CCRs constitute disposal rather than beneficial use (e.g., unencapsulated uses of CCRs on the land) and whether they should be prohibited to ensure protection of HHE and address concerns over land placement of CCRs (35161, 35163)

10.3.5.1 Small

- scale fill operations (not large

- scale fill operations or sand/gravel pits/quarries and not

mines/minefills)

10.3.5.2 Agricultural applications, including FGD gypsum

10.3.5.3 Road embankments

10.3.5.4 Abrasives

10.3.5.5 Other unencapsulated uses

10.3.6 Formal listing/new and innovative beneficial uses

10.3.6.1 EPA solicits comment on need to provide a formal listing of all beneficial uses (35163)10.3.6.2 To develop potential formal listing of beneficial uses, EPA solicits comment on whether additional beneficial uses of CCRs have been established since May 2000 Regulatory Determination that were not discussed in preamble; EPA further solicits comment for any new uses of CCRs with info/data supporting that thos e CCRs are beneficially used in environmentally sound manner (35163, 35222)

10.3.6.3 Because of particular concern, EPA solicits comment on whether reported new uses of CCRs in

consumer products (e.g., counter tops, bowling balls, makeup) can be safely undertaken (35163)

10.4 Stigma

10.4.1 Beneficial use will expand with RCRA Subtitle C/special waste listing

10.4.2 Beneficial use will diminish with RCRA Subtitle C/special waste listing

10.4.3 EPA seeks info on actual instances where stigma has adversely affected beneficial use of CCRs and causes of these adverse effects (35222); EPA requests detailed analyses and data/info supporting claims that stigma will have adverse effects on beneficial use if EPA regulates CCRs destined for disposal (e.g., as special waste) under RCRA Subtitle C (35156, 35158)

10.4.4 EPA solicits suggestions on methods by which it could reduce any perceived stigmatic impact that might indirectly arise from RCRA Subtitle C regulation of CCRs destined for disposal or identification of CCRs as special wastes under Subtitle C (35156, 35187, 35222)

10.4.5 EPA solicits info on whether issue of stigma will lead states to prohibit beneficial uses of CCRs under their state programs (35156); EPA solicits more specifics on pot ential for procedural difficulties for state programs and measures that EPA might adopt to try to mitigate these effects (35222

- 35223)

10.4.6 For those commenters who suggest that regulating CCRs under RCRA Subtitle C would raise liability issues, EPA requests they describe types of liability and basis/data/info for such claims (35156, 35223)

10.4.7 Other stigma and beneficial use comments

10.5 Safety

10.5.1 EPA solicits comment on whether certain uses of CCRs (e.g., unencapsulated uses of CCRs) warrant tighter control and why such tighter control is necessary (35148, 35222); EPA solicits info/data on new studies/research of risks associated with different uses of CCRs, and studies of performance of CCR

- derived material (35160)

10. 5.1.1 Small

- scale fill operations (not large

- scale fill operations or sand/gravel pits/quarries and not

mines/minefills)

10.5.1.2 Agricultural applications, including FGD gypsum

10.5.1.3 Road embankments

10.5.1.4 Abrasives

10.5.1.5 Other unencapsulated uses

10.5.1.6 Encapsulated uses, including cement, concrete, bricks, other concrete products, wallboard,

roofing materials

10.5.2 EPA requests info/data on appropriate means of characterizing beneficial uses that are both protective of HHE and provide b enefits (35162, 35222)10.5.2.1 EPA requests info/data demonstrating where federal programs are inadequate and/or could improve in being environmentally protective (35162, 35222)

10.5.2.2 EPA requests info/data demonstrating where state programs are inadequate and/or could

improve in being environmentally protective (35162, 35222)

10.5.2.3 EPA requests info/data on where states have, or are developing, increasingly effective beneficial

use programs (35162, 35222); EPA solicits info/data on continuing development of state beneficial use regulatory programs under state SW authorities (35160)

10.5.2.4 EPA solicits info/data on extent to which states request and evaluate CCR characterization data

prior to beneficial use of unencapsulated CCRs (35165, 35222)

10.5.2.5 EPA seeks comment/data on what type of characterization is most appropriate to protect HHE, if

materials characterization is required; If CCRs exceed the toxicity characteristic at pH levels different from TCLP, should they be excluded from beneficial use? When are total levels relevant? (35165, 35222)

10.5.2.6 EPA solicits info/data on how new research indicating TCLP may not accurately represent

performance of various types of CCRs under variable field conditions, and how CCR beneficial uses may be affected by this development (35160)

10.5.2.7 EPA seeks comment on whether EPA should fully develop and require leaching assessment tool

in combination with Draft SW

- 846 leaching test methods and other tools (e.g., EPA ’ s IWEM) t o aid prospective beneficial users in calculating potential release rates over specified period of time for range of management scenarios, including using probabilistic assessment modeling (35165, 35222)

10.5.2.8 Other characterization and beneficial use comments

10.5.3 Potential standards/regulations

10.5.3.1 EPA solicits comment on whether EPA should establish standards for CCRs destined for land

placement, such as maximum/minimum thresholds, or rely on implementing states to impose

CCR

- /site

- specific limits based on front

- end characterization that ensures individual beneficial uses remain protective (35165, 35222)

10.5.3.2 EPA solicits comment on whether EPA should promulgate standards allowing uses on the land,

on a site

- specific basis, based on site

- specific risk assessments, taking into consideration composition of CCRs, their leaching potential under range of management conditions, and context in which CCRs would be applied, such as location, volume, rate of application, proximity to water (351 61, 35222)

10.5.3.3 EPA seeks comment on whether to exclude from beneficial use unencapsulated uses in direct

contact with water bodies, including the seasonal high GW table (35165)

10.5.3.4 EPA seeks comment/data on whether regulations, if developed, should cover specific practices,

e.g., restricting fill operations to those that moisten and compact fly ash in layers to attain 95% of standard Proctor maximum dry density value and provide a drainage layer; also comment/data on whether such construction practices largely followed now (35165)

10.5.3.5 Other standards/regulations and beneficial use comments

10.5.4 EPA solicits info/data on agricultural use of FGD gypsum, including use of historical data, impact of pH on leaching potential of metals, scope of management scenarios, variable and changing nature of CCRs, and variable site conditions (35165, 35222); EPA solicits comment relating to EPA/USDA ’ s agricultural use of FGD gypsum assessments/studies (35165)10.5.5 Other safety and beneficial use comm ents

10.6 Other

10.6.1 EPA solicits comment on whether incentives could be provided that would increase amount of CCRs beneficially used and comment on specific incentives EPA could adopt that would further encourage beneficial use of CCRs (35222)

10.6.2 EPA seeks comment on other suggestions on how EPA might promote beneficial use of CCRs (35187)

10.6.3 EPA solicits data/info on GHG benefits from existing and potential new beneficial uses of CCRs (35160, 35222)

10.7 Impact of ELG proposed rule on beneficial use of CCR

11 Other Regulatory Options

11.1 EPA solicits comment on whether regulatory approaches should be established individually for the four Bevill CCR wastes (fly ash, bottom ash, boiler slag, and FGD sludges) when destined for disposal (35221) and/or whether regulatory oversight should be equally applied to each of main four CCR types when destined for disposal given differences in mobility of hazardous metals between types (35139)

11.2 Other Alternatives EPA Considered (35220

- 35221): EPA solicits comment on alternative approaches EPA is considering as discussed in Section XIII of preamble (35221)

- code under 11.2
subissues below

11.2.1 Combination approach regulating CCRs managed in SIs under Subtitle C and CCRs managed in
LFs under Subtitle D: EPA solicits comment on alternative approaches (35220

- 35221)

11.2.2 Issue Subtitle C regulations with delayed effective date and additional conditions related to state programs; also would exclude CCRs from Subtitle C regulation in states that developed final enforceable Subtitle D regulations protective of HHE, submitted to EPA within 2 years, and EPA approved: EPA generally solicits comment on this option and with respect to specific timeframes (35220

- 35221)

11.2.3 Regulating CCRs similarly to cement kiln dust: EPA is soliciting comment because commenters have suggested this approach (35221)

11.2.4 Approach suggested by commenters that would not involve listing CCR as HW: EPA solicits comment but has not adopted this suggested reading of RCR A statute (35221)

11.2.5 Continue to rely on state CCR regulation under existing/new state authorities with no federal regulations, but EPA could rely on RCRA §7003 imminent and substantial endangerment authority if problem occurs: EPA solicits comment on this approach, including how it would be protective of HHE (35221, 35223)

11.3 New Approaches to Federal CCR Regulation Suggested by Commenters

12 Out

- of

- Scope Comments

12.1 Out

- of

- scope comments related to beneficial use

12.1.1 Minefill operations, including surface and underground mines (35165)

12.1.1.1 Need to clarify status of CCR minefills

12.1.1.2 Defer CCR regulation at mine sites to DOI/OSM

12.1.1.3 States have regulations in place to properly address CCR minefill issues

12.1.1.4 RCRA Subtitle D regulation for minefilling is justified by federal agencies, states and industry12.1.1.5 RCRA Subtitle C special waste listing will place stigma/have negative impact on minefilling

12.1.1.6 Regulate minefills at least as stringe ntly as other CCR disposal sites

12.1.1.7 Minefills are beneficial use

12.1.2 EPAâ€TMs Coal Combustion Products Partnership (C2P2) program

12.2 Out

- of

- scope comments related to RCRA

12.2.1 Modifications to existing RCRA Subtitle C requirements for which EPA did not propose to modify or solicit comment (35173)

12.2.2 Comments on RCRA Subtitle C program or regulations not related to CCRs

12.2.3 Comments on RCRA Subtitle D program or regulations not related to CCRs

12.2.4 Other

12.3 General comments on renewables (wind, solar, etc.) as alternative to coal

12.4 General comments on coal as energy supply and related environmental issues

12.5 Other out

- of

- scope comments

12.6 Outside the scope of the NODA

12.7 Outside Scope of the ELG proposed rule

- ELG/ CCR coordination issues

12.7.1 Outside the scope of CCR issues raised in the ELG proposal, but applicable to ELG

12.7.2 Outside scope of the ELG proposed rule (including comments on other CCR rules/NODAs)

13 Overall coordination between the ELG and CCR Rules

13 Overall coordination between the ELG and CCR Rules

13.1 Minimize overlap/avoid duplication

13.1 Minimize overlap/avoid duplication/confusion

13.2 Commingling of wastewaters/anti

- circumvention (ash transport water; impact on water reuse)

13.2 Commingling of wastewaters/anti

- circumvention (ash transport water)

13.3 Alternative approaches to coordinating rules

13.3 Alternative or suggested approaches to coordinating rules

13.4 Subtitle D Prime Option role in coordination

13.4 Subtitle D Prime Option role in coordination

14 Coordination of CCR Substantive Requirements with ELG Requirements (requirements applicable to surface impoundments rather than CCR landfills)

14.1 Modification of operations to comply with ELG

14.1.1 Zero discharge for ash to eliminate need for surface impoundments

14.1.1.1 Feasibility of zero discharge, general

14.1.1.2 Bottom ash

- specific issues

14.1.1.3 Fly ash

- specific issues

14.1.1.4 Other

14.1.2 Voluntary incentive program for closing CCR impoundments/eliminating all process wastewater (except cooling water)

14.1.2.1 Feasibility of a voluntary incentive program

14.1.2.2 Specific requirements for the voluntary incentive program

14.2 Best Management Practices for CCR Surface Impoundments

14.2.1 BMP/Structural integrity requirements

14.2.2 Regulatory authority/overlap (RCRA vs CWA; Fed vs state; CWA authority to regulate)14.3 Combustion Residuals Leachate from Landfills and Surface Impoundments

14.3.1 Legacy wastewater in CCR surface im poundments

14.3.2 Exclusion for leachate from CCR landfills handling CCR displaced as result of ELG rule

15 Coordination of ELG and CCR Implementation Timelines

15.1 Determining time needed for operational changes to comply with ELG before requiring decision to close or retrofit surface impoundment under CCR

15.2 Timeframe for compliance under voluntary incentive program

15.3 Timeframe for compliance with CCR leachate ELG limits

15.4 Overall coordination of timeframe for compliance with CCR and ELG requirements

15.5 Timing of implementation unclear/requires clarification

16 Consideration for any other practical constraints facilities may face in implementing any requirements under both the ELG and CCR rules

16.1 Multiple regulatory authorities as constraint to implementation

16.2 Other implementation constraints