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 the 

Agency has developed seventeen volumes of comment summaries 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/Inspections/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 Outline
CommentWorks 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/comment 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 utilities, including support or oppose
2.4 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 General 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 sitespecific 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 should 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 standards 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; whether 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 analyses (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 procedural 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); should existing case-bycase 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 be 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 standards: 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 proposed 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 requests 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 in 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 constituents (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 requirements
3.8.2.5 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/hydrologist 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 has no authority to 

implement/enforce proposed Subtitle D

4.2.5 Potential use under Subtitle D approach of eminent 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 certain 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 (35197-35202)

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 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)

4.4.4.7

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/hydrologist 

that alternative design would ensure appropriate concentration values for set of constituents 

typical of CCRs will not be exceeded at uppermost aquifer at relevant 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 proposed 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 and 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 (35206-35207)

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/hydrologist; 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 if 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 considerations 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 HHE (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 closure
4.4.8.2.3 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 clean-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 developing 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 sitespecific conditions that provide a lower 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 EPA 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

EPA 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 

cannot 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-year 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 risks 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 of state 

requirements (35153)

5.5.1 Liners, including prevalence of at existing LFs and alternative liner designs
5.5.2

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 practices 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 on 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 (35133)

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 risk
6.5.4 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 constituents

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 than 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 growing
8.6

Additional data/info provided about specific CCR damage cases: EPA seeks comment on extent 

of existing damage cases (35133); EPA seeks additional data regarding proven 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 General 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 historical 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 CCRs 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 except 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 will 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 benefits and benefit-cost ratios

9.6.4 Other

9.7 Supplemental Analyses
9.7.1 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 

benefits, 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, 

roofing 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 embankments
10.2.3.4 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 comment 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 those 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 potential 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 benefits (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) to 

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 (35161, 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 comments

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 RCRA 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 industry
12.1.1.5 RCRA Subtitle C special waste listing will place stigma/have negative impact on minefilling

12.1.1.6 Regulate minefills at least as stringently 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 impoundments

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